"THE MOST PENETRATING ANALYSIS OF THE CONSTITUTIONAL POWER TO SUSPEND THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS": FIRST EDITION OF THE CONTROVERSIAL 1862 DEFENSE OF LINCOLN'S SUSPENSION OF HABEAS CORPUS IN BINNEY'S PRIVILEGE OF THE WRIT OF HABEAS CORPUS UNDER THE CONSTITUTION, VERY RARE IN ORIGINAL WRAPPERS

(LINCOLN, Abraham) BINNEY, Esq., Horace. The Privilege of the Writ of Habeas Corpus under the Constitution. Philadelphia: T. B. Pugh, 1862. Small octavo, original printed tan wrappers, original stitching; pp. (1-3), 4-52. $3800.

First edition of Binney's "remarkable" 1862 work, published in the midst of the Civil War, soon after Lincoln's suspension of the writ of habeas corpus and Chief Justice Taney's opinion denying Lincoln's authority, with Binney, who represented Pennsylvania in Congress, igniting criticism on all sides with this timely work that did "what no one else had attempted" in his nuanced argument supporting Lincoln's suspension of the writ, rare in original wrappers.

The writ of habeas corpus, known as the "Great Writ,… is a judicial mandate directing a government official to present an individual held in custody to the court," to determine if detention is lawful (Stone, Perilous Times, 120). The month after Lincoln suspended the writ in April 1861, Chief Justice Taney ruled that Lincoln "did not have the power to suspend the writ" and within days issued his opinion supporting his ruling. "'Only Congress', Taney said, could suspend the writ. He observed that the limitation on suspension of the writ appeared in Article I of the Constitution dealing with legislative powers, not in Article II, which established executive power. He explored the history of the writ under English law… [and noted] that Chief Justice John Marshall, Jefferson and Joseph Story… all acknowledged that the power to suspend was a congressional power." Lincoln, who made several suspensions of the writ, ignored Taney. That July 4 he "delivered a message to the special session of Congress. Lincoln referred to his suspensions of the writ, quoted the suspension clause, and justified the suspensions on the ground that 'we have a case of rebellion'" (Dueholm, Lincoln's Suspension of Habeas Corpus, 49).

"Whether it is the President or Congress that has power under the Constitution to suspend the privilege of the writ of habeas corpus was a burning question during the Civil War." In early 1862, on publication of this "remarkable" work, Binney, a leader of the Philadelphia Bar and U. S. Representative for Pennsylvania, sparked a firestorm (Fisher, Suspension of Habeas Corpus, 455-59). His Privilege of the Writ "remains the most penetrating analysis of the constitutional power to suspend the privilege of the writ of habeas corpus… He argues that the Constitution itself authorizes suspension and that… the president is the only one who can determine when the conditions of suspension are met." Binney, who sees no meaning in the Constitution's placement of the suspension clause, also dismisses Taney's reliance on Marshall, Story and Jefferson to support the Chief Justice's ruling, and contends Story looks at "the suspension clause only briefly in the capacity of a commentator, not as a judge" (Dueholm, 56-57).

Binney's Privilege generated a surge of criticism from all sides. "Of those who supported the President, some maintained that as commander-in-chief of the army and navy he had the implied right to suspend habeas corpus; others held that in a rebellion he could declare martial law, which, as it destroyed all civil authority, would easily dispose of the writ. Binney took an entirely new view of the subject. He believed that the President could of his own motion suspend the writ; but he refused to regard such suspension either as the lawful exercise of the military power of the commander-in-chief or as an incident of martial law. He did what no one else had attempted… the foundation of his argument was that the habeas corpus clause, even if expressed in the form of a restriction, implied a grant" (Fisher, 459-65). Binney's close, decisive analysis continues to stand as one of the earliest, most pivotal arguments in a national debate over habeas corpus that continues to this day. Sabin 5481.

Text very fresh with scant edge-wear to fragile original wrappers. An exceptional about-fine copy.