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knowing little of Parliamentary usage, and nothing of law lore, would probably feel some hesitation in expressing any decided opinion on such a subject, seeing that our constitution is unwritten. But the intention has been that every citizen of the United States should know and understand the rules under which he is to live,-and he that runs may read.
As this matter has been argued by Mr. Horace Binney, a lawyer of Philadelphia, much trusted, of very great and of deserved eminence throughout the States, in a pamphlet in which he defends the suspension of the privilege of the writ by the President, I will take the position of the question as summed up by him in his last page, and compare it with that clause in the constitution by which the suspension of the privilege under certain circumstances is decreed; and to enable me to do this I will, in the first place, quote the words of the clause in question :
"The privilege of the writ of habeas corpus shall not be suspended unless when, in case of rebellion or invasion, the public safety may require it." It is the second clause of that section which states what Congress shall not do.
Mr. Binney argues as follows:- "The conclusion of the whole matter is this: that the constitution itself is the law of the privilege, and of the exception to it; that the exception is expressed in the constitution, and that the constitution gives effect to the act of suspension when the conditions occur; that the conditions consist of two matters of fact,-one a naked matter of fact, and the other a matter-of-fact conclusion from facts, that is to say, rebellion and the public danger, or the requirement of public safety." By these words Mr. Binney intends to imply that the constitution itself gave the privilege of the writ of habeas corpus, and itself prescribes the taking away of that privilege under certain circumstances. But this is not so. The constitution does not prescribe the suspension of the privilege of the writ under any circumstances. It says that it shall not be suspended except under certain circumstances. Mr. Binney's argument, if I understand it, then goes on as follows. As the constitution prescribes the circumstances under which the privilege of the writ shall be suspended, the one circumstance being the naked matter-of-fact rebellion, and the other circumstance the public safety supposed to have been endangered by such rebellion,-which Mr. Binney calls a matter-of-fact conclusion from facts, the constitution must be presumed itself to suspend the privilege of the writ. Whether the President or Congress be the agent of the constitution in
this suspension is not matter of moment. Either can only be an agent, and as Congress cannot act executively, whereas the President must ultimately be charged with the executive administration of the order for that suspension, which has in fact been issued by the constitution itself, therefore the power of exercising the suspension of the writ may properly be presumed to be in the hands of the President, and not to be in the hands of Congress.
If I follow Mr. Binney's argument, it amounts to so much. But it seems to me that Mr. Binney is wrong in his premises, and wrong in his conclusion. The article of the constitution in question does not define the conditions under which the privilege of the writ shall be suspended. It simply states that this privilege shall never be suspended, except under certain conditions. It shall not be suspended unless when the public safety may require such suspension on account of rebellion or invasion. Rebellion or invasion are not necessarily to produce such suspension. There is indeed no naked matter of fact to guide either President or Congress in the matter, and therefore I say that Mr. Binney is wrong in his premises. Rebellion or invasion might occur twenty times over, and might even endanger the public safety, without justifying the suspension of the privilege of the writ under the constitution. I say also that Mr. Binney is wrong in his conclusion. The public safety must require the suspension before the suspension can be justified, and such requirement must be a matter for judgment, and for the exercise of discretion. Whether or no there shall be any suspension is a matter for deliberation,-not one simply for executive action, as though it were already ordered. There is no matter-of-fact conclusion from facts. Should invasion or rebellion occur, and should the public safety, in consequence of such rebellion or invasion, require the suspension of the privilege of the writ, then, and only then, may the privilege be suspended. But to whom is the power, or rather the duty, of exercising this discretion delegated? Mr. Binney says that "there is no express delegation of the power in the constitution." I maintain that Mr. Binney is again wrong, and that the constitution does expressly delegate the power, not to the President, but to Congress. This is done so clearly, to my mind, that I cannot understand the misunderstanding which has existed in the States upon the subject. The first article of the constitution treats "of the legislature." The second article treats "of the executive." The third treats "of the judiciary." After that there are certain "miscellaneous articles,"
so called. The eighth section of the first article gives, as I have said before, a list of things which the legislature or Congress shall do. The ninth section gives a list of things which the legislature or Congress shall not do. The second item in this list is the prohibition of any suspension of the privilege of the writ of habeas corpus, except under certain circumstances. This prohibition is therefore expressly placed upon Congress, and this prohibition contains the only authority under which the privilege can be constitutionally suspended. Then comes the article on the executive, which defines the powers that the President shall exercise. In that article there is no word referring to the suspension of the privilege of the writ. He that runs may read.
I say, therefore, that Mr. Lincoln's Government has committed a breach of the constitution in taking upon itself to suspend the privilege;-a breach against the letter of the constitution. It has assumed a power which the constitution has not given it,-which, indeed, the constitution, by placing it in the hands of another body, has manifestly declined to put into the hands of the executive; and it has also committed a breach against the spirit of the constitution. The chief purport of the constitution is to guard the liberties of the people, and to confide to a deliberative body the consideration of all circumstances by which those liberties may be affected. The President shall command the army; but Congress shall raise and support the army. Congress shall declare war. Congress shall coin money. Congress, by one of its bodies, shall sanction treaties. Congress shall establish such law courts as are not established by the constitution. Under no circumstances is the President to decree what shall be done. But he is to do those things which the constitution has decreed or which Congress shall decree. It is monstrous to suppose that power over the privilege of the writ of habeas corpus would, among such a people, and under such a constitution, be given without limit to the chief officer, the only condition being that there should be some rebellion. Such rebellion might be in Utah territory; or some trouble in the uttermost bounds of Texas would suffice. Any invasion, such as an inroad by the savages of Old Mexico upon New Mexico, would justify an arbitrary President in robbing all the people of all the States of their liberties! A squabble on the borders of Canada would put such a power into the hands of the President for four years; or the presence of an English frigate in the St. Juan channel might be held to do so. I say that such a theory is monstrous.
And the effect of this breach of the constitution at the present day has been very disastrous. It has taught those who have not been close observers of the American struggle to believe that, after all, the Americans are indifferent as to their liberties. Such pranks have been played before high heaven by men utterly unfitted for the use of great power, as have scared all the nations. Mr. Lincoln, the President by whom this unconstitutional act has been done, apparently delegated his assumed authority to his minister, Mr. Seward. Mr. Seward has revelled in the privilege of unrestrained arrests, and has locked men up with reason and without. He has instituted passports and surveillance; and placed himself at the head of an omnipresent police system with all the gusto of a Fouché, though luckily without a Fouché's craft or cunning. The time will probably come when Mr. Seward must pay for this, not with his life or liberty, but with his reputation and political name. But in the mean time his lettres de cachet have run everywhere through the States. The pranks which he played were absurd, and the arrests which he made were grievous. After a while, when it became manifest that Mr. Seward had not found a way to success, when it was seen that he had inaugurated no great mode of putting down rebellion, he apparently lost his power in the cabinet. The arrests ceased, the passports were discontinued, and the prison-doors were gradually opened. Mr. Seward was deposed, not from the cabinet, but from the premiership of the cabinet. The suspension of the privilege of the writ of habeas corpus was not countermanded, but the operation of the suspension was allowed to become less and less onerous; and now, in April, 1862, within a year of the commencement of the suspension, it has, I think, nearly died out. The object in hand now is rather that of getting rid of political prisoners, than of taking others.
This assumption by the government of an unconstitutional power has, as I have said, taught many lookers-on to think that the Americans are indifferent to their liberties. I myself do not believe that such a conclusion would be just. During the present crisis the strong feeling of the people that feeling which for the moment has been dominant-has been one in favour of the government as against rebellion. There has been a passionate resolution to support the nationality of the nation. Men have felt that they must make individual sacrifices, and that such sacrifices must include a temporary suspension of some of their constitutional rights. But I think that this temporary suspension is already regarded with jealous eyes;-with
an increasing jealousy which will have created a reaction against such policy, as that which Mr. Seward has attempted, long before the close of Mr. Lincoln's Presidency. I know that it is wrong in a writer to commit himself to prophecies, but I find it impossible to write upon this subject without doing so. As I must express a surmise on this subject, I venture to prophesy that the Americans of the States will soon show that they are not indifferent to the suspension of the privilege of the writ of habeas corpus. On that matter of the illegality of the suspension by the President I feel in my own mind that there is no doubt.
The second article of the constitution treats of the executive, and is very short. It places the whole executive power in the hands of the President, and explains with more detail the mode in which the President shall be chosen, than the manner after which the duties shall be performed. The first section states that the executive shall be vested in a President, who shall hold his office for four years. With him shall be chosen a Vice-President. I may here explain that the Vice-President, as such, has no power either political or administrative. He is, ex officio, the speaker of the Senate; and should the President die, or be by other cause rendered unable to act as President, the Vice-President becomes President either for the remainder of the Presidential term or for the period of the President's temporary absence. Twice since the constitution was written, the President has died and the Vice-President has taken his place. No President has vacated his position, even for a period, through any cause other than death.
Then come the rules under which the President and VicePresident shall be elected,-with reference to which there has been an amendment of the constitution subsequent to the fourth presidential election. This was found to be necessary by the circumstances of the contest between John Adams, Thomas Jefferson, and Aaron Burr. It was then found that the complications in the method of election created by the original clause were all but unendurable, and the constitution was amended.
I will not describe in detail the present mode of election, as the doing so would be tedious and unnecessary. Two facts I wish, however, to make specially noticeable and clear. The first is, that the President of the United States is now chosen by universal suffrage; and the second is, that the constitution expressly intended that the President should not be chosen by universal suffrage, but by a body of men who should enjoy the