History of the Federal Judiciary

History of the Federal Judiciary

  Ex parte Merryman and Debates on Civil Liberties During the Civil War
Historical Documents

Horace Binney, The Privilege of the Writ of Habeas Corpus Under the Constitution (excerpt)

Horace Binney’s commentary on habeas corpus was published in several editions and became the subject of numerous other pamphlets published during the Civil War. Binney originally drafted the commentary in response to a request from Francis Lieber, a prominent university professor and strong supporter of Lincoln’s efforts to defend the Union. Lieber was disappointed with Edward Bates’s arguments presented to the President and Congress in defense of the President’s authority to suspend the privilege of the writ of habeas corpus. Lieber approached Binney in July 1861 and asked for a rebuttal of Taney’s opinion in Ex parte Merryman. At 81, Horace Binney was one of the country’s most respected lawyers. He had established a successful practice in Philadelphia in the early nineteenth century and prepared widely used reports on decisions of the Pennsylvania Supreme Court. He spent much of his career as a legal adviser to banks and corporations.

Binney suggested that the constitutional provision regarding habeas broke with earlier practice in Great Britain and America by prescribing the limited conditions under which the privilege of the writ could be suspended. The British practice led many to conclude that the power to suspend still rested alone with the legislature, but in Binney’s view, no one, including Taney, had carefully examined this assumption. Since the Constitution only permitted suspension during a rebellion or invasion that threatened the public safety, the power to suspend necessarily fell to the branch of government that was best able to determine what was required to restore public safety. For Binney, that branch was the executive, which was also as he explains here the “safest depository of the power.”

[Document Source:
Union Pamphlets of the Civil War, 1861–1865. Ed., Frank Friedel. 2 vols. (Cambridge, MA.: Harvard University Press, 1967): 1: 231–32.]

Chief Justice Taney’s opinion in Merryman’s case is not an authority. This of course is said in the judicial sense. But it is not even an argument, in the full sense. He does not argue the question from the language of the clause, nor from the history of the clause, nor from the principles of the Constitution, except by an elaborate depreciation of the President’s office, even to the extent of making him, as Commander-in-Chief of the Army called from the States into the service of the United States, no more than
an assistant to the Marshal’s posse: the deepest plunge of judicial rhetoric. The opinion, moreover, has a tone, not to say a ring, of disaffection to the President, and to the Northern and Western side of his house, which it is not comfortable to suppose in the person who fills the central seat of impersonal justice. But this may be the apprehensiveness of the reader.

The remarkable features of this opinion, is that for proof of the President’s exclusion from the power, the Chief Justice dwells upon the President’s brief term of office – his responsibility, by impeachment for malfeasance in office – the power of Congress to withhold appropriations for the Army, of which he is Commander-in-Chief, and to disband it if the President uses it for improper purposes – his limited power of appointment – his limited treaty-making power – his inability to appoint even inferior officers, unless he is authorized by Congress to do so. Chief Justice Taney has elaborately stated all this, without appearing to perceive, that these very considerations may have, and certainly ought to have, induced the Convention to devolve upon the President, exclusively, the trust and power of suspending or not suspending the privilege in time of rebellion, as he should think the public safety required. The constitutional limitations of the office make the President the safe and the safest depository of such a discretion. There can be little danger of abuse from an office of such powers. It was the great power of a King of England, that was the operative motive with Parliament for taking the power of suspension from him; and they have left it in a body that is of equal power under the Constitution, and apparently on its way to greater.


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