The weekly Lancaster gazette. (Lancaster, Ohio) 1860-1863, 1861-08-08
Your obedient servant.
RoBT. ScHENoK, Brigadier- General.
The Writ of:Habeas Corpus and the Pow,
ers of the President.--Oplnion ofAttor.
neY.GenernI Bates.

AhS WIN VI .hdDtdS OOTpus anu tne fOWo
ers of the President.--Oplnion of fAttor-
ney-General Bates.
Attorney. General Bates has written a
long letter on the question Of suspending
the writ of habeas corpus, in answer to the
following questions propounded by the
Presiden! Of the United States.
al, In the present time of a great
and dangerous instruction, has The Pres.
dent the discretionary power TO cause to
be arrested and held in custody, persons
known to have criminal intercourse with
the insurgents, or persons against whom
there is probable cause for suspicion Of
sdch criminal completely?
"2. In such cases Of farrest is the Pres.
ident justified in refusing to obey a writ
Of hdbsas corpus issued by Court or a
Judge, requiring him or his agent 10 pro.
cure the body of the prisoner. and chow
the cause of his caption and deten ton, to
be adju'ged and disposed of by such
Court or Judge?"
After a review Of the differences that
exist between European principles Of
government and those which obtain in
this country, Mr.. Bates proceeds 10 dem.
onstrate and indepeuden! character OF the
several departments Of our Government,
and then expresses the opinion that Gin a
time like the present. when the very ex-
istence Of u nation is sssalled bya great
and dangerous insurrection, the President
has the lawful discretionary power to
arrest and hold 10 custody persons know
to have criminal intercourse With the in
surgents, or persons against whom there
is probable cause for suspicion of such
criminal completely"
In replying to the second question, Mr.,
Bates begins by analysis Of nature Of the
writ ofbobeas corpus. aud alludes 10 tie
constitutional view of the question as fol.
lows;'
"There 10 but one sentence 10 the con.
stitution which mentions the writ of la.
6eds corpus article I, section 9, clause
(which is in these words: "The privi.
lege OF the writ Of hdLsas corpus shall not
be suspended unless when, in cases OF re-
bellion and invasion, the public safety re.
quire it,"
VERY learned persons have differed
widely about the meaning of this short
sentence, and am by no means confident
that | fully understand 1t myself. The
sententious language of the constitution
in this particular must, suppose, be iu>
terpreled with reference to the origin of
our people. their historical relations TO
the mother country and their incoherent
political condition at the moment when
your constitution was formed. At that
time the United States, as a nation. had
no common law of its own, and no statu-
tory provision for the writ Ofhabeds cor
pus. Still, the people, English by de-
scent, even while in open rebellion against
The English crown, claimed sort Of his.
torical right to the forms of Epgllsh law
and the guarantees of English freedom,
They knew that the English government
had more than once ASSUMED the power
to imprison whom it would, and hold them
for an indefinite time beyond the reach Of
judicial examination, and they desired, no
doubt, to iLterpose guard against the
like abuses 10 this country. And hence
the clause of the constitution now under
consideration. .,t.Fr,.
"But We must try to construe the
words, vague and indetsrminate as they
are, as we find them. "The privilege Of
the writ of ha6eas corpus shall not be
suspended, &c. Does that mean that
the writ itself shall not be issued. or, that
being issued, the party shall derive no ben.
eft from itp buspeuded-does that mean
delayed, hung up for time, or altogelh-
er denied? The writ of ha5eds corpus-
which writ? In England there were
many writs called by that name, and
used By the courts for the more conve.
nient exercise of their various powers, and
our own courts now, by acts oi Congress
.-the judiciary act Of 1889, section IA.
and the act of March 2. 1898, section 7
--havs believe, equivalent powers"
He adds: mi r.
III by the phrase hesuspension Of the
privilege OF the writ ofha5sas corpus, we
must understand repeal OF an power to
issue the writ. then ] freely admit that
none but Congress can doit. But II We
are at liberty to understand the phrase to
mean, in case Of q great and dangerous
rebellion like the present. the public
safety requires the arrest and ooufne.
ment of parsons implicated in that tebsl-
lion. / as freely declare the opinion tAat
ihs Prssidsst has IuyfaI povsr 10 ssspsnd
IAs pyivilegs Of persons arrested under sveb