Horace Binney.

The privilege of the writ of habeas corpus under the Constitution online

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Professor of History and Political Science in Columbia College, New York.


We have talked and written much to each other on this Habeas
Corpus question. It is a political rather than a legal question,
a mixed political and constitutional question. On propositions
of this nature, you are a better authority than I am ; that is to
say. you are an authority, and I am not : though, if it were a ques-
tion of common law, you would understand it as well as if you
had been bred to the Bar. There are difficulties in the question,
arising mainly from the concise though comprehensive words of
the Constitution, referring to things understood to explain them,
without explaining them itself with precision. No one should
be dogmatical, or very confident, in such a matter ; but perhaps
one who has lived as long as I have under the Constitution, may
be permitted to put some of his thoughts into the common mass,
that the best opinion may be extracted from the whole. It is by
the elimination of errors, on both sides of a question, that we
come to the truth.

No one whom I know is more competent than yourself to de-
tect the errors in this paper; and if you shall think that they
pervade or comprehend the whole argument, I shall still remain
"With sincere regard and respect,

Your friend and servant,


PHILADELPHIA. Dec. 23, 1861.



THE right of the President of the United States, in time of
rebellion, and when the public safety in his judgment requires,
to arrest and detain a freeman, in temporary denial or delay of
bail, trial, or discharge, that is to say, of his privilege of the
Writ of Habeas Corpus, has been exhibited by writers in our
Journals, in three points of view :

1. As the lawful exercise of military power, derived to the
President as commander in chief of the military force now on
foot for the suppression of insurrection :

2. As an incident of martial law, in time of war within the
country, repelling the interference of the civil authority in all
cases in which the restoration of order requires the application
of the military principle :

3. As a civil power springing from the Habeas Corpus clause
in the Constitution, and to be authorized by Congress, in like
manner as by the Parliament of England, by delegating to the
President the power to arrest and detain persons, within the
limitations prescribed by the Constitution.

The Attorney-General's opinion is not comprehended by this
division. That opinion is founded on the alleged co-ordination
of the three departments, and upon the co-equal authority of the
Executive, to interpret the Constitution in what regards the Ex-
ecutive duties and powers, and especially his duty and power to
protect and defend the Constitution, and to suppress insurrection
and rebellion against the government of the nation ; and in the
execution of this duty and power, to arrest and detain persons
who are in either actual or suspected complicity with rebellion.

The bearing of the Habeas Corpus clause in the Constitution,
is not particularly expounded in that opinion, nor is it specially
relied upon for the President's authority ; neither is the Presi-


dent's power treated as a military power, but as a civil power,
exercised in the performance of the civil duties of his office.

It is not the purpose of the following remarks, to treat the
subject from either of the first two points of view, nor to affirm
or reject the argument of the Attorney-General. The exclusive
design of the writer is to consider the right of the President to
arrest and detain, of his own motion, in the required conditions,
as derived from the language of the Constitution, and from the
nature of the Executive office.

There are two modes of treating this matter. One of them is
the merely legal and artificial. The other is the constitutional
and natural.

In the first mode may be presented an argument against the
President's power, until Congress have authorized it, which it
may not be easy to answer, if the premises are admitted. The
argument is as follows :

The language of the Habeas Corpus clause in the Constitution.
says nothing, directly and explicitly, in regard to the depart-
ment of government, which is to exercise the power it gives ;
but it must be viewed in the light of Parliamentary law in Eng-
land, and by reference to the customary sense in which such
language was received in the country from which we have taken
the great body of our laws. This, it must be presumed, was the
sense in which the Convention used this language in the forma-
tion of the Constitution.

Suspended, applied to the privilege of the writ of Habeas Cor-
pus, means the temporary withdrawal or withholding of the legal
operation of that Writ from an imprisoned person. The Writ is
instituted by law. Law alone can withdraw or withhold its ope-
ration, in any case to which it applies. There must, therefore,
be a law or statute to countervail the law by which the Writ is
given, before the operation of the Writ can be withdrawn or
withheld from a person who is imprisoned.

To create a suspension of the privilege of the Writ in the case
of an imprisoned person, there must then be, 1, a statute or law
which withdraws the privilege from the contemplated case of
imprisonment; and 2, an arrest and imprisonment within the'
purview of that statute. Effectual suspension is, therefore, a
conjoint operation of law and act; the operation of a law to sus-
pend the Habeas Corpus privilege in reference to the contem-

plated arrest, past, present, or to come, and the operation of the
act of arrest or imprisonment referred to by the law.

This is the meaning of Suspension of the privilege as it was
understood and practised in the Parliament of England, when
our Constitution was formed.

Although our Constitution does not expressly say which de-
partment of the government may suspend the privilege, it ne-
cessarily implies, by the use of such language, that the Legisla-
ture shall first pass the law, and that the executive officer shall
then perform or order the act of imprisonment and detainer.

This is the merely legal and artificial argument.

But the language of the Constitution, in this particular, was
not the customary language of the day, either in England or in
the United States ; and the Parliamentary practice was the very
thing that was to be strenuously rejected and excluded. The
language of the Habeas Corpus clause in the Constitution was
new, and is peculiar ; and it must be viewed in its own light, and
in the light afforded by other parts of the same Constitution.

The Constitution does not use the word suspended in an arti-
ficial or technical sense, for it had none in this relation ; nor as
consisting of two acts, an act of legislation, and an act of impri-
sonment; but as one thing under the sanction of the Constitu-
tion. The warrant of arrest, with the order that the party's
privilege be denied for a season, is suspension under the Consti-
tution. A temporary denial of the privilege by a single act,
founded on the authority of the Constitution, is all that is neces-
sary to suspend the privilege.

The power to imprison, and to deny or delay a discharge from
imprisonment, is an executive power. All the conditions of the
exercise of the power described in the Habeas Corpus clause,
are of executive cognizance, that is to say, rebellion or invasion,
and the requirement of the public safety in the time of either.
No legislative act is necessary or proper to give the cognizance
of these facts to the executive department. No act of Parliament
has ever been passed in England, or has been proposed in Con-
gress, to take away or abridge the executive power in regard to
these facts. All the acts of Parliament which deprive persons of
the right to bail or trial, in derogation of the Habeas Corpus Act
of Charles II, leave this power and discretion to the Crown.
They cannot be taken away by Congress without invading the
constitutional limits of the Executive office. They cannot be

given by Congress to the Executive without supererogating what
the Constitution gives. The only thing required to bring this
power and discretion into operation in the conditioned cases,
against the privilege of the Writ, is an authority superior to the
law which authorizes, or may authorize, the Writ ; and that is
the authority of the Constitution in the Habeas Corpus clause.

The power to suspend the privilege of the Writ, is moreover
inseparably connected with rebellion or invasion, with internal
war. The direction of such a war is necessarily with the Exe-
cutive. The office cannot be deprived of it. It is the duty of
the office, in both its military and civil aspects, to suppress in-
surrection, and to repel invasion. The power to suspend the
privilege, is supplementary to the military power to suppress
or repel. It is a civil power to arrest for privity or supposed
privity with rebellion, as the military power is to suppress by
capture for overt acts of rebellion. They should reside in the
same magistrate, as inseparable incidents of the Executive power,
in time of internal war. The aversion to this doctrine, where it
exists, is a reminiscence of the English practice, when the Crown
claimed the right to suspend the privilege in time of profound
peace and order ; or it is a misconception of the grounds of Par-
liamentary action, since the Habeas Corpus Act of Charles II.

The true character of every act of Parliament in this relation,
and of the only bill that has been proposed in Congress, has been
executive, and so it must be. They have said, in effect, and must
say, that the act of the King's Council, or of the President, shall
be final. The only aspect in which an act of Congress to this
effect can be regarded as legislative, is as the grant or crea-
tion of an authority to detain against the writ ; but this is super-
erogation, because the Constitution gives it. The only question
is, to which department of the government, the exercise of it be-
longs, by the general scheme of the Constitution ; and according
to the delineation of the departments in that instrument, the ex-
ercise of the power appertains to the President.

This is the broad constitutional and natural argument ; and it
is in support of this hypothesis that the following remarks are


THE clause in the Constitution of the United States in regard
to the privilege of the Writ of Habeas Corpus, is this :

" The privilege of the Writ of Habeas Corpus shall not be
suspended, unless, when in cases of rebellion or invasion, the
public safety may require it."

The sentence is elliptical. When the ellipsis is supplied, it reads
thus :

" The privilege of the Writ of Habeas Corpus shall not be
suspended, unless, when in cases of rebellion or invasion, the
public safety may require it ; and then it may be suspended."

This is the necessary effect of the conjunction "unless," which
reverses the action of the preceding verb ; and it will be of per-
fectly equivalent import and effect if the clause be transposed as
follows : " The privilege of the Writ of Habeas Corpus may be
suspended in cases of rebellion or invasion, when the public
safety may require it ; and it shall not be suspended in any other

The clause contains an expression that belongs to the law,
" The "Writ of Habeas Corpus." " The Writ of Habeas Corpus,"
simply and without more, means the Writ of Habeas Corpus ad
Bubjiciendum. This was and is the 'meaning universally when
we speak of a Writ of Habeas Corpus in the United States, with-
out any affix.

This Writ commands that the body of a detained or imprisoned
person be brought before a court or judge, with the cause of his
commitment or detainer, to be subjected to the order of the court
or judge in regard to the disposal of his person. By Habeas
Corpus acts generally, the privilege of every freeman is to be
delivered on bail, put upon his trial, or discharged, without ar-


bitrary delay ; and this is the privilege which the Writ of Ha-
beas Corpus is used to enforce, to be bailed, tried, or discharged
without arbitrary delay.

The United States, while the Constitution was in the course
of formation, had no Writ of Habeas Corpus, or Habeas Corpus
Act ; and the clause therefore does not refer to any particular
law, statute, or writ that was in operation or use in a particular
place. It used the expression generally as language of the law
in the States, in which it had a certain meaning.

The privilege mentioned in the clause is, therefore, the privi-
lege of an imprisoned or detained person, of being bailed, tried,
or discharged without arbitrary delay.

The words " shall not be suspended," as applied to the privi-
lege, are not words of the common law, or of any other system
of law in particular. They are not technical. They are words
in general or popular use ; and whenever used in reference to a
privilege, signify the same thing as hung up, deferred, delayed,
denied for a season. It is not uncommon in England and in this
country to speak of the suspension of the Habeas Corpus Act,
a loose and inaccurate expression, because the Habeas Corpus
Act is never suspended. The Parliament of England, by its im-
prisonment acts, depriving certain persons, committed by war-
rant of the King's Privy Council or Secretary of State, of the
privilege of bail and trial, do not speak of suspending the
Habeas Corpus Act of 31 Charles II, or of suspending the Writ
of Habeas Corpus, or of suspending anything. Blackstone, in
one instance, speaks of "suspending the Habeas Corpus Act for
a short or limited time;" when, in fact, the Habeas Corpus Act
of England has never been suspended for a moment. He spoke
loosely and inaccurately. The English imprisonment Acts, made
during the rebellion for the Pretender, did suspend a Statute of
Scotland to prevent wrong ous imprisonment, so far as regards
treason, in order to oust the jurisdiction of a local authority over
a particular crime ; and the expression was right. But they used
no such words as to the English statute or writ.

Suspending the privilege of the Writ, is not an English law
expression. It was first introduced into the Constitution of the
United States. The privilege is personal and individual, not
local, but subsists in remedy. The right of being exempt from


arbitrary imprisonment is a natural right, and is predicable by
the Common Law of every freeman ; and to hang up, defer,
delay, deny for a season, the privilege which a statute gives, or
is expected to give, in relief of imprisonment, is to suspend it in
the sense of this clause of the Constitution. Freedom is the
right, either absolute or qualified. The remedy is privilege.

This, then, is the whole meaning of the clause in our Consti-
tution, the privilege of being bailed, tried, or discharged from
imprisonment without delay, shall not be discretionally denied,
or hung up or deferred, unless, when in cases of rebellion or in-
vasion, the public safety may require it ; and then, or in those
circumstances, it may be denied or deferred for a season, or tem-

The people of the United States have said this by their Con-
stitution of government. The power to say this belongs to the
United States by the grant of the people. They have said that
the privilege of being bailed, tried, or discharged when in cases
of rebellion or invasion the public safety may require it, may
be denied, deferred, or hung up for a season.

The Constitution of the United States authorizes this to be
done, under the conditions that there be rebellion or invasion at
the time, and that the public safety requires it. The Constitu-
tion does not authorize any department of the government to
authorize it. The Constitution itself authorizes it. By whom
it is to be done, that is to say, by what department of the go-
vernment this privilege is to be denied or deferred for a season
under the conditions stated, the Constitution does not expressly
say ; and that is the question of the day.

The Constitution uses the one word suspended, to signify one
act, by one agent or body, with one effect, consummate by one
operation, imprisonment without bail, trial, or discharge, for
a season ; which act it authorizes in certain conditions of the
nation. It is impossible to suppose, that in speaking of sus-
pending the privilege of the Writ, it meant by one act of law,
as if it had spoken of the Writ alone, or of the Habeas Corpus
Act. And it is equally impossible that it meant the general or
universal privilege in the United States at large. This would
have been an infinite absurdity, comprehending and involving all
freemen, friends as well as foes of the government, and even the


very persons who should suspend the privilege. Neither did it
mean to speak of two acts, one of authority and one of execu-
tion, for its own words are the authority. The privilege is neces-
sarily personal or individual ; and by ordaining that this may be
suspended on certain conditions, it leaves nothing contingent ex-
cept those conditions, and nothing unexpressed except the de-
partment by which the conditions were to be declared to exist,
and the act of imprisonment to be executed. The question is,
which is that department?

It must be remarked that this whole provision is unlike any
provision of the Constitution of England, or of the Common Law.
The bearing of the Constitution of England upon the Writ of
Habeas Corpus, and upon the executive power of the King to
suspend the personal privilege of a subject, supplies a very de-
fective and a very deceptive analogy for the interpretation of
the Constitution of the United States ; a very different Consti-
tution as we know, and which has adopted new and quite ori-
ginal language in relation to the privilege.

The doctrine of the English Common Law is the universal
exemption of the freemen of England, at all times and without
any exception, from discretionary imprisonment by any body.
The language of the 39th clause of Magna Carta is to the same
effect : "NULLUS LIBER HOMO capiatur, vel imprisonetur, aut ut-
lagetur, aut exuletur, aut aliquo modo destruatur ; nee super
eum ibimus, nee super eum mittemus, nisi per legale judicium
parium suorum vel per legem terra?." "From the era, there-
fore, of King John's charter," Mr. Hallam says, "it must have
been a clear principle of our Constitution that no man can be
detained in prison without trial." Midd. Ages II, 324. And
this conforms precisely to the two resolutions carried by Sir
Edward Coke in the House of Commons in 1628, which were
afterwards the foundation of the English Habeas Corpus Act of
31 Charles II.

I. That no freeman ought to be committed or detained in
prison, or otherwise restrained, by the command of the King or
the Privy Council, or any other, unless some cause of the com-
mitment, detainer, or restraint be expressed, for ivhich, by law,
he ought to be committed, detained, or restrained.

II. That the Writ of Habeas Corpus cannot be denied, but

ought to be granted to every man that is committed or detained
in prison, or otherwise restrained, by the command of the King,
the Privy Council, or any other. 2 Parl. Hist. 259.

Exemption from discretionary imprisonment without bail or
trial, is therefore an undoubted principle of the Common Law.

Before the era of King John's Charter, there may be histori-
cal uncertainty in this matter. The previous age was one of
the exercise of large arbitrary power by the King. The Nor-
man conquest sat down on the free code of the Saxons, in the
cunabula of the common law, and pressed it heavily. Temporary
imprisonment at the King's pleasure had doubtless occurred in
many cases ; and in time of rebellion, of which the Norman
Kings had more than one sample, it is quite probable that such
imprisonment may have been acquiesced in for the public safety ;
and that the King's right may thus have acquired some sanction
from usage, giving color to the exercise of the same power, when
there was no rebellion. But the English Barons, in their con-
test with King John, had the magnanimity to put the matter
beyond doubt, not only as to themselves, but as to the freemen
of England generally; and it is for this reason that Mr. Hallam
has signalized that epoch.

The principle allows of no exception or qualification on ac-
count of rebellion or invasion, when war is within the kingdom,
nor on account of any other cause or matter whatever, not even
the public safety in time of rebellion or invasion.

It is a glorious principle, and worthy of all aspiration, like
perfeetness. But it is too perfect for human society, at least for
the condition which human society has usually assumed for se-
veral centuries. It was the occasion of fierce struggles between
kings and people in England before Magna Carta and after ;
and the struggle was not finally ended until the latter half of the
17th century, by the defeat of the King's arbitrary power, and
by the deposit of arbitrary power over the same principle, not
in the people who originally held it beyond all arbitrament, but
in the Parliament of England, as if they were incapable of
abusing it. Less likely Parliament may be ; less able, Parliament
is not. The Constitution of England appears to be now what it
always was in regard to this principle ; and English lawyers and
statesmen still say, that it is a principle of their Constitution, as


it always was, that no man can be detained in prison without
trial. But there is another principle which they assert with equal
strength and constancy, that what Parliament declares to be
the Constitution of England, is the Constitution of England ; or,
rather, that what Parliament enacts, the courts of England
cannot adjudge to be unconstitutional and void ; and, therefore,
that although by the Common Law and Magna Carta and the
Constitution of England, no man can be detained in prison with-
out trial, yet that Parliament may constitutionally, or imperially,
authorize the King's Privy Council, or one of his Secretaries of
State, or perhaps anybody at their pleasure, to imprison a free-
man in time of peace, when there is neither rebellion nor inva-
sion, nor anything like war in the kingdom, but only seditious
agitations for reform, or clamors against a ministry, with scar-
city and derangement of trade, accompanied by treasonable or
suspected treasonable practices ; and may detain him without
trial or bail for six months, or a year, or for any time they see
fit, renewable forever at the pleasure of Parliament.

The principle, therefore, of the old common law, that every
freeman is entitled at all times and in all cases, to be exempt
from discretionary or arbitrary imprisonment, has, in England,
come practically to this, that he is entitled to it, unless Parlia-
ment shall, in their discretion, see fit to take it away for a time,
by giving the power of such imprisonment to the King in Coun-
cil, or to one of the King's principal Secretaries of State, or
perhaps to anybody they see fit.

There is no intention in saying this, to find fault with the
English Constitution, which must be taken as a whole, and is
truly a magnificent work, the result of vast experience, wisdom,
and genius for the government of freemen ; but the intention is
to state an indisputable fact, to which the people of these United
States were wide awake when they made their Constitution, and
regarded it as a very exceptionable fact, and wholly inadmissible
by them. They meant to exclude Parliamentary law, to qualify
the principle as the public safety of the country required, and to
declare the conditions or qualifications of the principle for them-
selves. To state this, is to clear away something from the decep-
tive analogy of the English Constitution and the course of Par-


The formal contest for the possession of this discretion to im-
prison and detain without trial, was long in England ; but does
not require long to state. It was first between the King and
the Lords or Barons, and then between the King and some of
the people, and finally between the King and the Parliament ; and

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Online LibraryHorace BinneyThe privilege of the writ of habeas corpus under the Constitution → online text (page 1 of 6)