Gallipolis journal. [volume] (Gallipolis, Ohio) 1837-1919, 1861-08-08
THE WRIT OF HABEAs CORPUS AND
THE POWERS OF THE PRESIDENT.

THE WRIT OF HABEAs CORPUS AND
THE POWERS OF THE PRESIDENT.
OPINION OF ATTcRNEY-eEEERAL BATES.
Attorney-General Bates has written
a long letter on the question Of sus-
pending the writ of habess corpus, in
answer to the following question pro-
pounded by the President of the United
States:
1. In the present time of a great
and dangerous insurrection, has the
President the discretionary power to
cause to be arrested and held in Gus
tody persons known to have criminal
intercourse with the insurgents, or per-
sons against whom there is probable
cause for suspicion of such criminal
completely?
2. In such cases Of arrest is the
President justified in refusing TO obey a
writ of habeas corpus issued by a Court
or Judge, requiring him or his agent to
produce the body Of the prisoner, and
show the cause of his capture and de-
tention, to be adjudged and disposed of
by such Court or Judge?
After a review of the differences
that exist between European principles
of government those which obtain in
this country, Mr.. Bates proceeds to
demonstrate the separate and indepen-
dent character of the several depart
ments OF our Government, and then
expresses the opinion that ''in time
like the present, when the very exis-
tence of the nation is assailed by great
and dangerous insurrection. the Presi-
dent has the lawful discretionary power
to arrest and hold in custody persons
known to have criminal intercourse with
the insurgents, or persons against whom
there is probable cause for suspicion of
such criminal completely"
In replying to the second question,
Mr.. Bates begins by an analysis of the
nature of the writ of habeas corpus,
and alludes to the constitutional view
of the question as follows:
There is but one sentence in the Con-
stitution which mentions the writ of
habess corpus-article /, section 9,
clause (Which is in these Words
1.-THE privilege of the writ of habeas
corpus shall not be suspended unless
when, in case of rebellion or invasion,
the public safety may require it."
Very learned persons have differed
widely about the meaning of this short
sentence, and l am by no means conf
dent that l fully understand it myself.
The sententious language of the Con-
stitution in this particular must, sup
pose, be interpreted with reference TO
the origin of our people, their bistori-
cal relations to the mother country, and
their inchoate political condition at the
moment when our Constitution was
formed. At that time the United
States, as nation, had no common
law of its own, and no statutory pro-
vision for the writ of habeas corpus
Still the people, English by descent,
even while in open rebellion against the
English crown, claimed q sort of his
torical right to the forms of English
law and the guarantees of English free
dom. They knew that the English
Government had more than once as
sumed the power to imprison whom it
would, and hold them for an indefinite
time beyond the reach of judicial ex-
animation; and they desired, no doubt,
to interpose guard against the like
abuses in this country. And hence
the clause of the Constitution now un-
der consideration. But we must try
to construe the words, vague and in
determinate as they are, as we find
them. 1.-THE privilege of the writ Of
habeas corpus shall not be suspended"
&e. Does that mean that the writ it.
self shall not be issued, or, that being
issued, the party shall derive no bene-
fit from it? Suspended-does that
mean delayed. hung up for a time, or
altogether denied? The writ of ha5eas
eOrpus-which writ? In England there
were many writs called by that name,
and used by the courts for the more
convenient exercise OF their various
power; and our own courts now, by
acts OF Congress-the Judiciary act Of
1888, section 1, and the act of March
9, 1888, section 7--have, ! believe,
equivalent powers.
He adds:
II BY the phrase the suspension of
the privilege of the writ of habeas cor
pus, we must understand a repeal Of
all power to issue the writ, then / free.
" admit that none but Congress can do
it. But if we are at liberty to under
stand the phrase to mean, that. in case
OF q great and dangerous rebellion like
the present, the public safety requires
the arrest and confinement of persons
implicated in that rebellion, as freely
declare the opinion that the President
has lawful power to suspend the privi-
lege Of persons arrested under such cir