lawful power to suspend the privilege of persons arrested under such circumstances. - The other is by the Hon. Horace Binney of the Philadelphia Bar, who rests the argument, substantially, upon the position that the clause in the Constitution, providing that the writ shall not be suspended, &c., is a grant of power of suspension, and that this power is by the grant vested in the President, — arguing that the power to imprison, and to deny or delay a discharge from imprisonment, is an Executive power, that the clause in the Constitution is elliptical, and that 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;"that "it will be of perfect 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 case;"" — that the clause gives the power to suspend the privilege, in the cases conditioned, that the suspension of the privilege under this constitutional power becomes an Executive act, and not a legislative act, and that the fact of rebellion and what the public safety requires to the defeat or suppression of the rebellion, are of Executive cognizance and decision, and of execution, also, to the whole extent of the lawful means of that department. These are some of the principal positions from which, through a very ingenious argument, the deduction is drawn "that the power of suspending or denying for a season, the privilege of the writ of habeas corpus in time of rebellion, is a most reasonable attribution to the Executive power, such as the Constitution of the United States has made it; and so indispensable to that branch of the Government, that, without it, the very arms of the Government might be baffled and its worst enemies escape." It well becomes any one to pause before he presumes to differ from gentlemen to whose opinions great deference is unquestionably due; but the difference between them, respecting the foundation upon which the power is to be placed, indicates that both opinions are not entirely sound, and we must choose between the two, or seek some other solution of the vexed questions which are presented to us. Owing to the material difference of view, each of these opinions must to some extent neutralize the other. This consequence is not the less effective from the great weight deservedly attached to each, separately. There is, then, something in the nature of what lawyers call an estoppel against an estoppel, which, according to the legal maxim, sets the matter at large; that is to say, in this case, leaves us at liberty, with the most perfect respect, to object to the soundness of both opinions, and opens the matter to further discussion. It might be sufficient to say, in relation to the first of these opinions, that the considerations already suggested in relation to the power of the President, regarding emancipation and martial law, furnish an answer to the propositions upon which it is based. We may add that, the Constitution has imposed no duty upon the President which requires him to do anything contrary to its provisions; and that the amendments to that instrument, made for the purpose of securing personal liberty, are limitations upon his power, as well as upon the power of Congress. It must be shown that the Constitution confers a power upon him, before it can be determined that he is to exercise that power in supporting the Constitution. Any other doctrine gives him, immediately upon the breaking out of a war, the powers of a Dictator, which is in violation of the whole character of the Government. The President is not to preserve the Constitution, in a constitutional manner, by violating it himself. He is not to see that the laws are executed, by committing the first breach, and this under the authority of the Constitution. It is not sufficient to say that, in the opinion of the President, the safety of the country requires the exercise of such powers, and therefore they are constitutional. The remarks which follow are more particularly applicable to the second opinion, but they may serve to some extent as answers to both. Neither of these opinions finds anything in the common law, or in the history of the writ in England, to sustain such an Executive power; and the latter not only discards English analogies, but protests against their application. It seems to be impossible, however, to discuss a subject which had its origin in the principles of English freedom, and is derived from English law, which was regulated by that law at the time of the settlement of this country, the free principles of which the emigrants claimed as their birthright, and which during the existence of the colonies was almost, if not entirely, regulated by the laws of England, as they were applicable to the Colonies, - without a constant reference to the principles of that law, and the practice there in relation to the subject-matter, and a free use of the analogies, which are surely strong, if not controlling, for the purpose of determining not only the nature and character of the writ, but the limitations, also, to which experience has shown it may properly be subjected, and furthermore the source from which any interference with its operation may safely be derived. It is quite clear, as is very distinctly and emphatically admitted in the latter of the opinions just referred to, that there is nothing in the laws and practice of England which in any way countenances the exercise of an Executive power of suspension. On the contrary, all the analogies derived from that quarter are entirely adverse to it; and I shall endeavor to show that they have a legitimate operation in determining the true construction of the clause in the Constitution, and thus settling the question of an Executive power. Anterior to the statute 31 Charles II. commonly called the Habeas Corpus Act, there is no lack of precedents for the exercise of acts of arbitrary power. That Statute was designed to secure the people against its exercise. Since the revolution of 1688, there has been, so far as I am aware, no claim of power on the part of the crown to suspend the execution of the writ in criminal cases, and certainly there could not be, consistently with the provisions of that statute. There have been numerous suspensions since that period, uniformly by acts of Parliament, all, or nearly all, for very short periods; continued, however, in some instan ces, by repeated enactments, for a series of years. Two instances occurred in the 1 William and Mary, chap. 2 and 7, each entitled "An Act for empowering His Majesty to apprehend and detain such persons as he shall find just cause to suspect are conspiring against the government." 9 Statutes at Large, 35. An act with a similar title, 17 George II. chap. 6, recited that the nation was threatened with an invasion by a French power, in concert with persons disaffected at home, and provided that persons in prison might be detained for treason or suspicion, &c., until the 29th April, 1744. It suspended an act "against wrongous imprisonments in Scotland." 18 Statutes at Large, 163. An Act, 19 George II. chap. 1, with a similar title, recited that a wicked and unnatural rebellion is begun, and now carrying on in that part of this kingdom, called Scotland, by divers of His Majesty's subjects, encouraged by his enemies abroad, in order to set a popish pretender upon the throne; and provided that persons imprisoned for suspicion of high treason, might be detained without bail until the 19th of April, 1746, and suspended also the Scotch act for preventing wrongous imprisonments. The act was to be in force until the 19th of April, 1746, and no longer. 18 Statutes at Large, 397. The next instance occurs in the time of the American Revolution, 17 George III. chap. 9, entitled "An Act to empower His Majesty to secure persons charged with, or suspected of, the crime of high treason, committed in any of his Colonies or Plantations in America, or on the high seas, for the crime of piracy," which recited that "whereas a rebellion and war have been openly and traitorously levied and carried on in certain of His Majesty's Plantations and Colonies in America," &c. "and many persons have been seized and taken, who are expressly charged or strongly suspected of such treasons and felonies, and many more such persons may be hereafter so seized and taken; and whereas such persons have been, or may be brought into this kingdom, &c., and that it may be inconvenient to proceed forthwith to the trial of such crim *In the edition of the Statutes before me, these acts are marked "EXP.," to denote that they have expired, by their own limitation, and the titles only are given. inals, and at the same time of evil example to suffer them to go at large." It was thereupon enacted that persons "seized or taken in the act of high treason, committed in any of his Majesty's Colonies or Plantations in America, or on the high seas, or in the act of piracy, or who are or shall be charged with or suspected of the crime of high treason, committed in any of the said Colonies, or on the high seas, or of piracy, and who have been, or shall be committed, in any part of His Majesty's dominions, for such crimes, or any of them, or for suspicion of such crimes, or any of them, by any magistrate having competent authority in that behalf," &c., "shall and may be thereupon secured and detained in safe custody, without bail or main prize, until the first day of January, one thousand seven hundred and seventy-eight, and that no Judge or Justice of the Peace shall bail or try any such person or persons without order" from the Privy Council, signed by six members, until said first day of January. It was provided that nothing contained in the act is "intended or shall be construed to extend to the case of any other prisoner or prisoners than such as shall have been out of the realm at the time or times of the offence or offences wherewith he or they shall be charged, or of which he or they shall be suspected." 31 Statutes at Large, 312. The provisions of the act as above recited may serve to show how carefully Parliament has guarded acts of suspension in recent periods. This act, which has been called a partial suspension, was continued from year to year until the 1st of January, 1783.* A power to issue the writ under the colonial governments, and in the States which succeeded them, might well be derived from Magna Charta, the Petition of Right, the com -- * Several instances of suspension have occurred since the Revolution, with additional provisions in the acts of suspension. See 34 George III. ch. 54 (1794); 39 Statutes, 556 ; - continued by 35 George III. ch. 3; 40 Statutes, 1;-38 George III. ch. 36 (1798); 41 Statutes, 612; - continued, see 39 George III. ch. 15 and ch. 44; 40 George III. ch. 22; 42 Statutes, 133, 231, 495; —41 George III. ch. 26; 43 Statutes, 67. Acts in relation to Ireland, 43 George III. ch. 116, 117; 44 Statutes, 710, 713;-57 George III. ch. 3 (1817); 57 Statutes, 3; continued ch. 55, p. 193;- 3 and 4 William IV. ch. 4, § 31 (1833); 73 Statutes, 14 ; - 11 and 12 Victoria, ch. 35 (1848); 88 Statutes, 165. - |