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HABEAS CORPUS.

A

RESPONSE TO MR. BINNEY.

By S. 8. ISTIOECOL^S.

LOUISVILLE :
PKINTED BT BRADLEY Sc GILBERT.
1862.

HABEAS CORPUS.

-A. 3RESI>03XrSE TO IvIR,. B I KT I^" E ^ST.

In reply to the writer's last pamphlet on this subject, Mr. Bin
ney, a Philadelphia writer, quotes the following passages there
from: •.•
" There is a short process by which to eviscerate the very gid
of the question, which seems not yet to have been applied, simple
and obvious as is that process. Let us suppose the Constitution
wholly silent on the subject, saying not one word about the Writ
or its suspension, where then would have been the power to sus
pend ? No intelligent, candid man will pretend that it would not
be clearly, indisputably, with Congress, or that by any possible,
fair construction the power could be assigned to the President.
" This conceded, then let it be remembered that the clause is a
restrictive and not an enabling one. Without the restriction Con
gress would have plenary power, untrameled discretion over the
Writ. It could have created the Writ, or not, at its pleasure, sus
pended or wholly repealed it out of existence whenever and as
often as it thought proper.
" Here, then, this full power, this full discretion over the Writ,
was what had to be restrained to accomplish the plain purpose of
the clause; that is, placing the citizen's privilege of using the pro
tection of the Writ upon a surer, more permanent basis than it
stood in England, where it rests on the untrammeled discretion of
Parliament. Who, then, was intended to be restrained by this
clause? Surely not the President, who, under such silence of the
Constitution, would have had no possible control over the Writ in
any circumstances whatever. There could be no necessity to

[4]
restrain his power when he would have none to be restrained,
FuU surely it must have been intended to restrain Congress, which
alone, and exclusively, would have the power,'
Upon this, Mr, Binney comments thus: "This objection is
both pertinent and important. It was not overlooked in the pre
ceding Tract (his first pamphlet), but left for assertion and proof.
If it is sound it materially disables the argument which regards
the Habeas Corpus clause as a grant of authority. The objection
is an affirmative one, and puts upon the writer who makes it the
duty of proving it. The objection is not proved at aU," That is,
tbe assertion that in the supposed silence of the Constitution Con
gress would have had full power is assumed, not proven. This
criticism is just. It was not proved because it was presumed to
need no proof, and would not be denied by any lawyer — least of all
'by Mr. Binney, who had magnified the necessity for a power in
the government to make the suspension.
Having sufficiently rebuked the present writer for assuming in
stead of proving the proposition, he ex-gratia condescends to its
disproof. In his attempt at this he makes the following most sur
prising affirmations : " The Constitution gives no such power to
Congress as a power to regulate the courts." — " The judicial power
of tbe United States does not depend at all upon the discretion or
regulating power of Congress." — " The appellate jurisdiction ofthe
Supreme Court is the only subject to which the power of regula
tion by Congress applies."
These strange affirmations are apparently based mainly upon the
fact, that the Constitution does not use the word regulate in con
ferring the Congressional power over the courts, and that their
jurisdiction being prescribed by the Constitution, it can neither be
enlarged or curtailed by Congress. Such rash deduction, from
such premises, was perhaps never before made by a man of such
intelligence. ^'¦Congress shall have power to constitute tribunals inferior to the
Supreme Court." " The judicial power of the United States shaU
be vested in one Supreme Court, and in such inferior courts as
Congress may from time to time order and establish."
These brief words cover the whole subject. Their elucidation

[5]
depend upon the meaning of " to constitute a tribunal," and of to
" establish a court." That meaning cannot be better explained
than as done by Mr. Binney. He says :
" It clearly can mean nothing else, than to erect judicial tribu
nals or courts, and to give them such constitution and organiza
tion as will enable them to exercise the judicial powers vested in
them. The mere erection of a tribunal by name is nothing. The
erection of a court, and vesting jurisdiction and judicial power in
it, would be nothing without more. A judicial tribunal is not con
stituted unless it is endowed with the active powers which are
necessary to the exercise of its judicial powers. It must have the
means of bringing parties before it, and to enforce its judgments
and decrees. It must have the power of issuing writs, of commit
ting its mandates to officers to be executed, in just such kind,
number, and variety as its judicial powers demand,"
All this he admits Congress has the power, and contends, fur
thermore, that it is its imperative duty to do. Yet he carps at
the expression used by Governor Randolph, " the power given to
Congress to regulate the courts," as " indefinite language," not
warranted by the Constitution, it not having used that very word
regulate, though by this, his own showing, it has used its perfect
equivalent. By that showing, the power to " constitute tribunals "
carries with it as ample power to regulate them as if the word had
been used, and the clause had read to " constitute and regulate tri
bunals," In addition, Mr, Binney well knows it to have been al
ways held by the Supreme Court, that the inferior courts can ex
ercise no power except such as is given them by Congress.
Judge Story says, 3 Comm. 254: "But the same reason didnot
apply to the inferior tribunals. These were therefore left entirely
to the discretion of Congress as to their number, their jurisdiction,
and their powers. Experience might and probably would show
good grounds for varying and modifying them from time to time.
It would not only have been unwise, but exceedingly inconvenient,
to have fixed the management of these courts in the Constitution
itself, since Congress would have been disabled thereby from adop
ting them from time to time to the exigencies of the country,"
In Turner vs. Bank, 4 Dai's 8, the Supreme Court said, that the

L6]
disposal of the judicial power, except in a few specified cases, be
longs to Congress. Again, in U. S. vs. Hudson, 7 Cranch 32, the
Court said as to the inferior courts that they " possessed no juris
diction but what was given them by the power that created them,
that is by Congress.
All this being well-known to him, it is marvelous how Mr, Bin
ney could make the unqualified assertion that " the Constitution
gives no such power to Congress as a power to regulate the
courts." An ill-natured critic would hold him to these words and
punish him with their iteration. But that being no part of the
present purpose, he having said words in this new pamphlet enti
tling him to lenient treatment, notwithstanding his defection from
conservatism, it will be confessed that most probably the words do
not convey his real meaning. What he meant was that an un
stinted power to regulate does not, as he afterwards more distinct
ly contends, carry with it the power to destroy the courts and
their powers. What he ought to have meant, but which he proba
bly did not, was that the power did not carry with it the right to
destroy — about which he will be talked with further along. The
stalwart blows he gives in defense of the spirit against the strict
letter of the Constitution and in vindication of civil liberty, whilst
making his chivalrous attempt to prove that without the Habeas
Corpus clause Congress would have had no power to suspend the
Writ, are worthy of those palmy days when no suspicion of defec
tion from the great cause of conservatism had ever soiled him. If
he can do so well in favor of the spirit against the letter, we can
not but sigh after those ponderous blows he would deal in defense
of both letter and the spirit plainly combined. We cannot help a
regretful feeling at the absence of that aid to which we are so clear
ly entitled.
If the writer had any disposition that way he would be estopped
by his own words from gainsaying Mr. Binney as to the dutiful
obedience which should be yielded to the spirit of the Constitu
tion, even when not expressed in direct language. In his review
of the argument of the President and Attorney General Bates, he
said: " The argument says that Congress has the power, not the right,
at any time to repeal the act giving the courts power to issue the

IU
Writ, but attempts no use of that fact in illustration of the Presi
dent's assumed power ; and therefore the matter needs no com
ment. But it may be well to say, that whUst this is true, it is
equaUy true that such repeal would be a gross abuse of power, be
ing contrary to the spirit and meaning of the Constitution, which
are as much to be observed as its letter ; for incontestably the
Constitution contemplates that Congress shall always furnish the
Writ for protection to citizens, except when in cases of rebellion
or invasion it may think public safety requires a suspension of that
protection. Every sound statesman and lawyer will agree that a
wilful violation of the manifest spirit of the Constitution is mor
ally as bad as an infraction of its plain letter."
The case of Martin vs. Hunter amounts to nothing more than
affirmance of the otherwise sufficiently explicit mandate of the
Constitution to vest the judicial power in the courts, which the
Court says " Congress could not, without a violation of its duty,
have refused to carry into operation." This does not in the least
impugn the other decisions that the courts must wait the perform
ance of this duty before they can exercise their constitutionally
defined jurisdiction, nor does it militate against the naked power,
apart from the right, in Congress to violate the whole or any part
of this duty. As said by Judge Story, it is an absolute power
over the subject, unavoidably left to the discretion of Congress.
Not whether the mandate should be obeyed, but as to the how and
the when this discretion unavoidably accompanied the power, not
the right, to disobey. The distinction between power and right is
obyious to everyone, yet Mr, Binney intentionally, or uninten
tionally, so confounded them as to make it difficult to get at his
precise meaning. For instance, he says Congress " cannot eflFec-
tually omit to do what it is commanded to do by the Constitution ;"
and yet immediately afterwards he says, " it may omit to do the
right thing, but it violates the command of its creator by so omit
ting, and brings on the destruction of its own being," What he
means by the destruction of its own being is not understood. He
surely does not mean that a temporary repeal of the writ of Hab
eas Corpus would necessarily involve that destruction,
Thia thing of the legislative department refusing or omitting to

[8]
obey a mandate of the Constitution is by no means a novelty m
our system. According to the writer's recoUection, the Supreme
Court has detected more than one instance to prove that Congress
has never yet enabled the courts to exercise the whole judicial
power. A notable instance of a faUure of the Legislature to obey ari ex
press command of the Constitution occurred under the former Con
stitution of Kentucky, which expressly commanded the Legisla
ture to provide for bringing suits against the Commonwealth,
yet during the sixty years of its existence this command was
never obeyed.
Suppose Congress omits this duty, where is the remedy ? Who
is to enforce the mandate — who to supply the omission? Disobe
dience to a command of the Constitution is wholly unlike, in this
aspect, a violation of its prohibitions. For the latter there is
remedy, through the other departments ; for the former there is
none. It is idle, therefore, to deny the mere abstract power,
without reference to the right.
Mr. Binney says it is not an untrammeled power, because it is
trammeled by the duty referred to. If he means morally tram
meled, he is right ; but, when we speak of an untrammeled con
gressional power, we mean one that has no available, effective
legal trammel, and such is the power to regulate the courts.
The power has been so repeatedly exercised, with the express
sanction of the Judiciary, and the undoubting approval of every
body else, that it is no longer open to denial. Whoever wants to
limit the power for any available purpose must point out the ex
press hmitation in the Constitution. This Mr. Binney does not
attempt to do, but contents himself with referring to certain abuses
of the power which would be a violation of the spirit of the Consti
tution, the result of which being merely a moral censure on Con
gress, leaving such abuses to have full effect, without any legal
check. Sixty years ago Congress thought proper to repeal out of exist
ence the whole then batch of inferior courts, and estabUsh others
in their place. Suppose this had been done by two difi'erent biUs
and that, after passing the repealing bill, some casualty had, for
months, prevented the passage of the other, the establishing bill ;

[9]
that fact would not have impaired the legal validity of the re
pealing act. No judge would have been mad enough to attempt
to exercise his repealed powers.
At the time of the abolition of imprisonment for debt, it was a
prevalent opinion in the profession that there was no other suffi
ciently efficient remedy to enforce the payment of debts. Suppose
that opinion to have been indisputably correct, would such gross
abuse of power in leaving the courts without the proper remedial
process upon so important a subject have invalidated the act repeal
ing to ca sa? No court would have dared to use that or any
equivalent process.
Notwithstanding his own scathing castigation of all such lati-
tudinarians, IMr. Binney at least, it would seem, though others do
not, deems an anonymous writer in the National Intelligencer,
last summer, justifying the presidential usurpation, as some au
thority on a constitutional question. That writer, according to
recollection, claimed the power of Congress to repeal the Writ
out of existence, not merely in the absence of, but in despite the
clause, and made that fact a main basis of his argument.
Mr. Binney attempts to bring to his aid what he deems a de
veloped opinion of the members of the convention that the clause
was an enabling, not a restrictive one. He says :
"When the vote in convention was taken, whUe upon the di
vision of the clause, the delegates were unanimous in affirming the
first member of it — ' the privilege of the Writ of Habeas Corpus
shall not be suspended.' The three States of North Carolina,
South Carolina, and Georgia voted against the second member —
' unless when in case of rebellion and invasion the public safety may
require it,' Could they have voted against the latter clause under
the impression that the general and unlimited power was already
given to Congress? There is no rational interpretation of the
vote but that the first member was declarative of a general prohi
bition of the power, and a confirmation of the general principles
of Magna Charta, of the petition of right, and of all that had been
previously declared, and that the second member granted power
to the general government in the excepted cases,"
Tes there is another rational interpretation, and one much

[10]
more rational than his. That is, the three States wanted an un
quaUfied, whUst the others wanted a quahfied prohibition of the
exercise of a power which they all knew that Congress would have
over the Writ, If they did not so know, why the unanimous vote
in favor of the first member of the clause, which is purely restric
tive, and has nothing enabhng about it ? It could have had no
purpose to restrain any supposable power in the President; for
even Mr. Binney admits that without the whole clause, the en
abUng latter member, he would have had no power over the sub
ject. They must have meant to restrain congressional power, for
there was no other power to restrain. If the last part had been
voted down the prohibition would have been unqualified. Now,
then, this exposition of the views of the members by their votes,
so far from subserving his purpose, operates in the directly oppo
site way. It is the strongest possible, most satisfactory proof so
derivable, that they unanimously thought Congress would have the
power unless prohibited.
The very language of the clause is, if possible, still stronger
proof. If meant as a qualified prohibition, it is apposite and ap
propriate, whilst it is wholly inartificial and inappropriate as a
grant of power. If a grant to the President had been intended,
some such language as the following would have been required,
and certainly used: "The President may suspend," &c., or he
"may treat the privilege as suspended," When we find such dif
ferent language used, it is irrational and illogical to contend that
the clause is an enabling one, intended to give the power to the
President, Mr. Binney permits himself to say, "there is not a word
like restriction or limitation in the first member of the clause "
though it says " the privUege shall not be suspended." If this be
not restriction, in the name of common sense, what is? If he
means a quibble upon the slight difference in this respect between
the meaning of restriction and prohibition, he contends for a dis
tinction without a difference. The clause, viewed as a modified pro
hibition, is to all intents a qualified restriction. It equally pre
supposes a power somewhere, to be prohibited. There being no
power anywhere to suspend any law, especially the law creating
the "Writ, except in Congress, the intention must have been to pro-

[llj
hibit Congress, which would be equaUy as fuU a recognition of the
otherwise untrammeled power of Congress over the Writ. Either
way, the argument of Mr. Binney is "materially damaged."
As to the idea that without the clause Congress would have no
power, because of the absence of specific grant, to suspend the
Writ, an old school Federalist must lose the cunning of his school
before he can find any difficulty in proving the power to suspend
to be an appropriate necessary and proper incident to the power
to suppress insurrection or repel invasion. If the suspension of
the right to freedom from arbitrary arrest, and all remedy for the
violation of the right, be an inseparable or necessary accompani
ment to such incidental power, he would gulp that also with a clear
conscience. Mr. Binney seems at last to be awakened to the recollection of
the great importance of the Writ, and speaks of it as the " princi
pal bulwark of liberty," "the great fundamental law of human
liberty," " the inestimable right of personal liberty." Now, when,
as everybody knows, and as the President and Attorney General
distinctly admit, the Constitution was made in " special dread "
of the executive power, it is contrary to every rational presump
tion to suppose an intention to make the President the custodian
or special guard of that bulwark. To repel that presumption the
language must be strong, unequivocal, which no one can pretend
the clause to be, as a yielding of such power to the President. He
reaffirms and reargues to prove the President to be the most
suitable and trustworthy guardian of the sacred trust. The writer
reaffirms his own position, that the President is the least suitable,
the least trustworthy functionary of the whole government ; but, in
stead of rearguing the matter, he will do vastly better, by adopt
ing the language of Daniel Webster, than whom the country has
produced no higher authority on constitutional questions. The
following quotation is from that most perfect specimen of pure
eloquence ever uttered in our language, his denunciation of the
one man power :
" The spirit of liberty will not permit power to overstep its pre
scribed limits, though good intent, patriotic intent, come along with
it. This is the nature of constitutional liberty; this is our lib-
EETY.

[12]
" The contest for ages has been to rescue liberty from the grasp
of executive power. Whoever has engaged in her cause has strug
gled for the accomplishment of that object. On the long Ust of
the champions of human freedom there is not one name dimmed
by the reproach of advocating the extension of executive power.
On the contrary, the uniform, steady purpose of aU such champi
ons has been to limit and to restrain it,
" Through aU this contest for liberty, executive power has been
regarded as a lion that must be caged. So far from being the ob
ject of enlightened popular trust, so far from being considered the
natural protection of popular right, it has been dreaded as the
great object of danger,
" Who is he so ignorant of the history of liberty, at home and
abroad — who is he from whose bosom all infusion of American
spirit has so entirely escaped — as to put into the mouth of the
President the doctrine that the defense of liberty naturally results
to executive power, and is its peculiar duty? Who is he that is
generous and confiding towards power where it is most dangerous,
and jealous only of those who can restrain it? Who is he that,
reversing the order of State and upheaving the base, would poise
the pyramid on its apex ? Who is he that declares to us, through
the President's lips, that the security for freedom rests in execu
tive authority ? Who is he that belies the blood and libels the
fame of his ancestry by declaring that they have invoked execu
tive power to the protection of liberty ? Who is he that thus
charges them with the insanity or recklessness of thus putting the
lamb beneath the lion's paw ? No, sir — no, sir ; our security is in
our watchfulness of executive power,
"I will not acquiesce in the reversal of all just ideas of govern
ment, I will not degrade the character of popular representation.
I will not bUndly confide where all experience admonishes to be
jealous, I will not trust executive -power, vested in a single magis
trate, to keep the vigils of liberty.
" Encroachment must be resisted at every step. Whatever the
consequence, if there be an iUegal exercise of power it must be
resisted in a proper manner. We are not to wait tiU great mis
chief comes — till the government is overthrown, or liberty itself

[13]
put in extreme danger. We should not be worthy sons of our
fathers were we so to regard questions affecting freedom." a
The result thus far is, that the writer was accurately correct in
assuming that without the Habeas Corpus clause Congress would
have had plenary power, untrammeled discretion over tbe Writ.
Mr. Binney himself by this time will be sufficiently sorry that he
ventured to call for the proof, and, to relieve him, its develop
ment will not be further prolonged, not forgetting, however, to
remind him that, according to his concession, his argument is
thereby " materially disabled."

To the emphatic denial by the writer of any ex-officio presiden
tial power of arrest, and his reference to the unanswered chal
lenge made by him months before " for the production of a single
instance before the advent of President Lincoln of even an attempt
by any President or Governor to exert the power of arrest, Mr.
a. Henry Laurens, the Ambassador of the TJ. S. who was captured ou his
way to Holland and detained a prisoner in the tower of London for two years,
kept a journal of his mission, which was published, and is to be found in a
book the title of which is, perhaps, "South Carolina State Papers." The
writer has not seen the book, but states from the information of a, gentleman
who has recently read it.
Laurens says that after his release from prison the English oiEcials treated
him with great courtesy. At the table of Lord Shelburne, the then Premier,
he was the honored guest among a large company of magnates. After din
ner, the conversation turning upon the separation of the two countries. Lord
Shelburne remarked to him, "Iam sorry for your people.'' "Why so?"
asked Laurens. " They will lose the Habeas Corpus." "Lose the Habeas
Corpus!!" "Yes; we purchased it with centuries of wrangling, many years
of fighting, and had it confirmed by at least fifty acts of Parliament. All this
taught the nation its value, and it is so ingrained into their creed, as the very
foundation of their liberty, that no man or party will ever dare trample on it.
Your people will pick it up and attempt to use it, but having cost them noth
ing they will not know how to appreciate it. At the first great internal feud
that you have, the majority will trample upon it, and the people will permit
it to be done, and so will go your liberty."
All history affords no higher evidence of sagacity, and no statesman's pro
phecy eighty years in advance was ever nigher complete fulfillment than by
the daily transpiring acts around us.

[14]
Binney contents himself with responding: "The LouisviUe writer
touched this point with only a short denial, without any attempt
to prove the President's general incapacity to issue a warrant of
arrest, * * * If the clause intended to give him
the power of suspension, the means necessarUy foUow, if they did
not exist before." Not so fast, Mr. Binney ; you cannot be per
mitted to slide over a difficulty quite so easy as that. The Con
stitution explicitly gives the courts the judicial power of the na
tion ; yet they themselves have uniformly held that the means to
carry out the power did not necessarily follow, but they were de
pendent upon such as Congress might choose to give. So also as
to the President; he has no auxiliary or incidental power, but is
dependent upon Congress for the grant of such means not ex
pressly given as are necessary to carry out his constitutional power.
This being, therefore, no proof, and he offering no other, the infer
ence is that he is without proof to maintain the President's power
of arrest. The consequence is, that if validity were allowed to his
novel crotchet as to the presidential power of suspension, it would
amount to nothing, would not be worth contending for, he had
just as well be compelled to wait for a congressional suspension.
The inference is that Mr, Binney thinks the President has no
ex-officio power of arrest, or he would have tried to prove it, and
not have resorted to such fallible, make-shift argument He must
know that the fact of the want of such power is very damaging to
his main argument. For how would the matter thus stand ? The
Convention, knowing that he had no power of arrest, and that all in
cidental or auxiliary powers were confined to Congress, Mr, Bin-
ney's construction would convict them of the bungling folly of
attempting without actually conferring the power of suspension,
an arrest, according to him, being the only mode of suspension.
The fact of suspension requiring an arrest before it could occur,
the Convention would have conferred the suspending power upon
some department having the power of arrest, or have expressly
conferred that power on the President, in plain words, and not left
it to be discovered for the first time seventy years after the Con
stitution was made, and require the discovery to be maintained by
one of the most subtle arguments ever penned. If Mr, Binney

[15]
had not fortunately lived till now the discovery never would have
been made,
Mr, BuUitt having produced in his instructive and very able
pamphlet such a long roll of eminent judges, lawyers, and states
men, including such names as Marshall and Story, who have ex
pressly held the suspending power to be in Congress, justifies the
belief that the roll, if completed, would amount to more than a
hundred, whilst there are none, not one to the contrary. These
opinions, repeated without contradiction from the birth of the Con
stitution steadily on down to the present day, amount to a fixed,
settled construction, fully as authoritative as an express decision
ofthe Supreme Court, The position of the President and Attor
ney General not having been indorsed by a single respectable
lawyer, notwithstanding the daily proof that "thrift follows fawn
ing," and Mr. Binney's construction, notwithstanding the great
ability of its defense, having so signally failed of acceptance, it
would seem to be the duty of all to acquiesce in the old, original
construction of seventy years duration, as the only true one.

In answer to the writer's suggestion that Congress could give
all needful power during a suspension to officers appointed by the
courts without conferring any of it upon the President, Mr. Bin
ney says : " It is preposterous to suppose that somebody, not the
President, may be selected by Congress to execute the power,"
The proof he gives is this : " The doctrine that Congress can in
any event choose another executive when the President is in office
is revolutionary," If intended ag a slap at his Representative,
Stephens, who claims the power to appoint a dictator, it is well
enough; but if he means that the conferring such power on infe
rior officers appointed by the courts, then his reason is ludicrously
"preposterous." The Constitution having said — "Congress may
vest the appointment of such inferior officers as they think proper
in the courts" — and not having restricted the powers to be con
ferred on such officers, nothing can be more ridiculously prepos
terous than that the exercise of such plain power for such pur
pose is "revolutionary," or that it is equivalent to choosing

[16]
another President. AU that is required to effect the objects of
suspension is some enlargement of the powers of arrest and de
tention, with which, ordinarily, the President has nothing to do.
They appropriately belong to the judicial department. Yet such
is his jealous affection for executive power that he cries out against
so small an enlargement of the appropriate power of the judicial
department as "revolutionary," as equivalent to choosing another
President. It might weU happen that a President wiU be, if not
in league, in strong sympathy with a rebellion, and, therefore, not
fit to be trusted with the powers necessary during a suspension.
To deprive Congress in such a state of case of all right to select
any other as the recipient of the trust would be a suicidal emascu
lation of tbe Government.
This means of depleting the overgrown, enormous patronage of
the executive should have been resorted to long ago. There is now
a pressing need for its immediate application in the mode of ap
pointing the collectors vnder the enormous tax bill. The ap
pointment of officers to money trusts should never, when avoida
ble, be left to political party influence, experience having shown
that most of those appointed under that influence become default
ers. The appointment of the collectors should be vested in the
District Courts, as also that of their supervisors, to whom the col
lectors should be required to report twice, and with whom to make
a settlement once a month, subject to the revision of the Auditor
of the Treasury. This arrangement, with power in the District
Courts promptly to enforce the requisitions of the supervisors,
would probably save many millions to the nation. It would also
relieve the overburthened President from an irksome duty, which
no one knows better than himself it is impossible for him to per
form in a manner satisfactory to himself or beneficial to the
nation.

Before taking final leave of Mr, Binney, he is entitled to thanks
from the conservatives, which the writer will take upon himself to
pay in their behalf. He says : " The scope of the Constitution is
to protect, defend, and secure the blessings of liberty, universally
and without exception, unless an exception is declared in the in-

[17]
strument," " The power ultimoe necessitatis does not exist in this
Umited government," These noble words deserve to be inscribed
in letters of gold on the Capitol, and on every conservative banner
in the next campaign against the destructives. They are words
that desponding patriots have long impatiently listened for from
him. Let him still wear his proud plume as " head of the Amer
ican bar." Let not his " flushed covey " attempt to pluck a
down from that plume. Let his crotchet about the suspending
power pass into oblivion. Let this be no part of his otherwise
beautiful biography. Let it not mar his enviably clean epitaph.
So long as he adheres to those noble words he is still worthy to
lead our profession when doing its devoir against the higher-law
men, the law-of-necessity men, the paramount-law-of-war men, and
in defending the Constitution against the traitorous war now waged
by fanatics for its destruction. He will aid us whilst teaching the
nation, in his own language, that " the Habeas Corpus is the prin
cipal bulwark of liberty," "the great fundamental law of human
liberty," and also in teaching the value of " the inestimable right
of personal liberty," He will aid us in reminding the nation, in
the choice language of the recent incomparable speech of Mr,
Thomas, of Massachusetts, that " the Constitution itself is
THE SALUS POPULI, AS IT IS ALSO THE SUPREMA LEX,"
Mr. Binney is also entitled to thanks for having " flushed and
put upon the wing the covey of reviewers from the Philadelphia
bar," which very able covey, it is hoped, have enlisted for the war,
•and will give the country many other manifestations of such de
cided ability. It has been the proud boast of the profession, both
in England and in this country, that in every contest for liberty
it has always led the van, whether in assault or defense. Before
folding their wings and settling back into that apathy from which
it seemed so difficult to arouse them, will they not do what they
can to make that vaunt good in this hour of liberty's utmost need?
Will they not aid in arousing the profession throughout the coun
try ? WUl they not take jurisdiction over that delinquent son of
Pennsylvania, her most prominent Hepresentative, and administer
justice upon him? It is he who shamed her as much as if she had
given birth to an Arnold, a Floyd, or a Twiggs^ l^ being the fiifst

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native American base enough to immortalize his own infamy, by
affirming in the councUs of the nation, that Congress has power to
appoint a dictator over this free country.
Surely the people of Pennsylvania wUl teach this man the pen
alty for thus shaming her. Surely they wiU tell him, that he is
the only Pennsylvanian who does not feel and wUl not say with
Shakspeare, " I had as lief not be as live to be in awe of such a
thing as I myself," and who would not as "soon brook the eternal
devil as a dictator" in this country,
A fanatic Senator had the unblushing effrontery the other day
to boast in the Senate, that he was not to be tied by the Constitu
tion, that he meant to usurp whatever power he chose to think
necessary for carrying on the war. The meaning of which is, that
he means to usurp whatever he deems necessary for the accom
plishment of his fanatical purpose. This worst of all treason, this
wilfully perjured treason against the Constitution, we shall have to
arraign at the great bar of the nation, and obtain from the people
a verdict of attainder against the traitors. To this traitor, the
admirable Senator has already administered the following ex
cellent rebuke :
" The great question before the world to be now settled by us
is, can we sustain the integrity of our Government, and perpetuate
our institutions, and do it according to the limitations and provis
ions of the Constitution? That is, to show that our Consti
tution is competent to the trial, and nothing short of that. If,
when this occasion arises, we are compelled to resort to means
which, in effect, are the means used by stronger Governments, our
experiment is a failure. If we are constrained to call up, invoke,
and put in exercise in any one department ofthe Government — it
is immaterial in what department of the Government — more of
power, more of force than the Constitution provides, or than is
limited by that Constitution — the moment we do that, or are con
strained from our supposed necessities to do it, we acknowledge
before the world that our institutions are insufficiently founded,
and that we are after all compelled, in the period of trial, to resort
to the force, which, they saj, is necessary to the existence of a na
tion, and our experiment is a failure. * * It is vain and idle

[19]
in us to war against a part of our people because they have mado
war upon this Government, if we at the same time have to sap
the foundations of the Government by stabbing through the vitals
of the Constitution.
"It will not do to say, that because we need to do this thing,
because it is necessary in our judgment, we will do it for that rea
son. The Umitations and prohibitions of power in the Constitu
tion were put there on purpose to prevent our doing such things
when we wanted to do them. They were not put in to prevent our
doing things we never wanted to do. When it provided, for in
stance, that you should not pass any attainder bill, that you should
not take away any man's property without due process of law,
that no man should be punished unless it was on conviction by
a jury, that no man should be twice punished for the same offense —
prohibitions of tiiis kind are prohibitions to everybody, and they
were put in to prevent Congress doing such things when they
wanted to do them. They were put in there on purpose to pre
vent us doing these things when we thought they were necessary.
They were not put in to prevent our doing these things when we
did not want to do them, and when they were not necessary at all
in our judgment,"
Let us defeat these destructives before the people. Let us pre
serve the Constitution, and silence the jubilant shouts of the des
pots of Europe, the English press, the English Reviewers, and the
English speakers, over its supposed destruction, over the supposed
failure of the " model Republic,"

A last word with Mr, Binney, Tradition tells an anecdote of
Washington in his j^ounger days, which is deemed to furnish the
highest illustration of true manhood that he ever gave. He was
knocked down by a gentleman for an insult he had given. They
were parted. Meeting a few days afterwards, and whilst the gen
tleman was bristling up in expectation of a hard fight, Washington
approached bim with a smile and an open hand, saying, "Sir, I
come to beg your pardon,"
Should this suggest to Mr. Binney the propriety of an amende

[20]
towarda his conservative countrymen, whatever he offers will be
worthy of himself— it wiU not be less than his active aid in main
taining the verity of his own words : " The scope of the Constitu
tion is to protect, defend, and to secure the blessings of liberty,
universally and without exception, unless an exception is declared
in the instrument. The power ultimoe necessitatis does not exist in
this Umited government," What wiU not that aid be worth if he
suffer his heart to be revivified, rejuvenated to its pristine love for the
Constitution — the pure loyalty of an old-time patriot ? The Con
stitution is in imminent peril from the war that fanatics are waging
for its destruction. It is even in greater peril than the Union,
Let us not, in solicitude for the lesser, overlook the greater, the
more important danger. We of the profession, the appointed and
sworn defenders of the Constitution, should stint no peaceful ef
fort for its preservation. If destroyed now, there can be no ra
tional expectation of restoration. Its death will be without re
demption or resurrection ; " no Promethean heat can its light re
sume," Like violated chastity, after repeated unresisted, unpun
ished violations of the Constitution, its purity, its loveableness, its
sanctity, its claim to affectionate, wilUng obedience, will be all
gone, and gone forever, without even the possibility of restoration.
Shame, shame, a thousand shames upon us, if we permit its de
struction without manful resistance! Those of us who have
"fallen into the sear and yeUow leaf" will go on through the
remnant of our days in despondful mourning to unhonored graves,
repeating the despairing sigh of the broken-hearted Roman pa
triot whilst viewing the results of dictatorial power : "Alas! lib
erty, thou art but an empty name ! " Younger men may Uve in
repentance " beneath the legs " of some " huge Colossus " of tyr
anny, amidst the agony of national trials, to learn the value of that
liberty they ignomlniously suffered to be destroyed.

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