Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1861-06-09

to speedy and public trial by an impartial jury of
tne state and district wherein the crime shall have
Oeen committed, which district shall have been pre-
yiously aacertained by law, and to be informed Of
el-e ana cause of the accusation; to be con-
ironseo Win the witnesses against HIM to have COM
pusory process for Obtaining witnesses in his fvor
and to nave The assistance Of counsel for his de-
Tense -
And the only power, therefore. which the Pres;-
dent possesses, where the "life liberty or nrone-
typ of private citizen is Concerned 10 the noTva
and duty prescribed in the third section n the seq
ond article, which requires that he shall 1ake era
that the laws be faithfully executedu Ne NJ.
authorized toIexecute them himself. or thro,,ob
agents or officers, civil or military, appointed bv
himself but he IS to take care that they are faitf
fully carried into execution, as they are expounded
and adjudged by the coordinate branch Of the Gov
eminent to which that duty is assigned BY tho Con
sttution It is thus made his duty to come in aid of
the judicial authority if 1t shall be resisted by
force too strong 10 be overcome without the assis
lance Of the Executive arm. But in exerci ing this
power he acts in subordination to Judicial author
ty assisting it to execute its process and enforce Its
judgments.
With such provisions in the Constitution express
ed in language clear be misunderstood by any
one, can see no ground whatever for supposiug
that the President in any emergency in any state
of things. authorize the suspension Of the priv
ilege of the writ Of hdbeas corpus arrest citi
tainly does not faithfully execute the laws if he
takes upon himself legislative power by suspendlng
the writ of hdbeas corpus and the judicial power,
also, by arresting and imprisoning person with
out due process of law. Nor can any argument be
drawn from the nature of sovereignty, the neces-
sites Of government. for sefdefense in times of t
multi and danger. The Government Of the United
States IS one of delegated and limited powers. It
derives its existence and authority altogether from
the Constitution and neither of its branches execu
a.
powers of government beyond those specified and
granted. For the 10th article Of the amendments
to the Constitution in express terms provides that
'the powers not delegated to the United States BY
the Constitution, prohibited by it to the States
are reserved to the States respectively, to the
people,"
Indeed, the security against imprisonment by Ex-
ecntive authority, provided for in the fifth article
of the amendments of the Constitution, which /
have before quoted, is nothing more than copy of
like provision in the English Constitution, which
had been firmly established before the Declaration
of Independence.
Blackstone, in his Commentaries Cst vol, 1S7),
states it in the following words: 'To make impris
onment lawful, it must be either by process from
the courts of judicsture, or by warrant from some
legal officer having authority to commit to prison"
And the people of the United Colonies who had
themselves lived under its protection while they
were British subjects, were well aware of the ne
eessty of this safeguard for they personal liberty.
And no one can believe that. in framing govern
ment intended to guard still more efficiently the
rights and the liberties Of the citizens against Ex
ecutive encroachment and oppression, they would
have conferred on the President a power which
the history of England had proved to be dangerous
and oppressive in the hands of Crown, and which
the people Of England had compelled it to surrender
after long and obstinate struggle on the part Of
the English Executive to usurp and retain 1t.
The right of the subject TO the benefit Of the writ
of habedS corpus it must be recolected, of
the great points in controversy during the long
struggle in England between the arbitrary govern
ment snd free institutions and must therefore, have
strongly attracted the attention of the statesmen
engaged in framing new and. as they supposed,
freer government than the one which they had
thrown off by the Revolution. For, from the ear
lest history of the common law, if a person was
imprisOned-no matter by what authOrity-he had
a right to the writ of hdbsas corpus to bring his
case before the Kings Bench; and if no specific Of
fence was charged against him IN the warrant of
commitment, he was entitled to be forthwith dis
charged; and if any offence was charged which was
bailable in its character the court bound to set
him at liberty on bail. And the most exciting con-
tests between the Crown and the people of England
from the time of the Magma Charta, were in rela-
ton to the privilege of this writ, and they con-
tnued until the passage of the statute of 3lst
Charles I'd, commonly known as the great hGbedS
corpus act
This statute put an end to the struggle and finally
and firmly secured the liberty Of the subject from
the usurpation and oppression of the Executive
branch of the Government. 1t nevertheless con-
ferred no new right upon the subject, but only Sc
cured right already existing. For, although the
right could not be Justly denied there often
effectual remedy against its violation. Until the
statute of the 18th of William Ill, the judges held
their offices at the pleasure of the King and the in
fuences which he exercised over timid, dmeserv-
ing and partisan judges, often induced them upon
some pretext another, refuse to discharge the
party, although he entitled to it by law, de-
layed their decisions from time to time, as to
prolong the Imprisonment of persons who were OBJ
noxious to the King for their political opinions, or
had incurred his resentme Mt In any other way.
The great and inestimable value of the habeas
corpus act of the 3Ist Charles II, is that il contains
provisions which compel courts and judges, and all
parties concerned, to perform their duties prompt
ly, in the manner specified in the statute.
passage in Blackstone's Commentaries, showing
the ancient state of the law upon this subject and
the abuses which were practised through the pow
er and influence Of the Crown, and 8 short extract
from Hallsm's Constitutional History, stating the
circumstances which gave rise TO the passage of
this statute explains briefly, but fnlly, all that is
material to this subject.
Blackstone. in his Commentaries on the Laws of
England, ed Vel 1885, l34) says:
tTo assert an absolute exemption from imprison-
ment in all is inconsistent with every idea of
law and political society, and, In the end, would
destroy all civil liberty by rendering its protection
impossible.
But the glory of the English law consists in clear
" defining the times, the causes, and the extent
when wherefore and to what degree the imprison-
ment of the subject may be lawful This it is which
induces the absolute necessity of expressing upon
every commitment the reason for which 1t is made,
that the court, upon hGbedS corpus, may ex-
anime into its validity, and according to the Cir
cumstances of the case, may discharge, admit to
bail. or remand the prisoner.
"And yet early in tie reign OF Charles l. the
Court of Kings Bench, relying on some arbitrary
precedents, land those, perhaps, misunderstood)
determined that they would not, upon hdbe1s cor
pus either bail or deliver prisoner, though COM
mitted without any cause assigned, in case he was
committed by the special command of the King CT
by the Lords of the Privy Council. This drew on
q Parliamentary enquiry, and produced the Petition
of Riqbt-3 Chas (which reeites this illegal judeF
ment and enacts that no freeman hereafter shall be
imprisoned or detained. But when, ia the following
year, Mr.. Selden and others were committed by the
Lords of the Council in pursuance Of bis MaJestys
special command, under general charge OF notable
and stirring up sediton sgainst the King
and the Government the judges delayed Tor two
terms (ncluding, also, the long vacaton TO denver
an opinion how far such charge was bailable.
And when at length they agreed that it was, they,
however annexed condition of finding sureties for
their good behavior which still protracted their i'm
prisonment the Chief Justice, Sir Nicholas Hyde,
at the same time declaring that if they were again
remanded for that cause perhaps the court would
not afterwards grant hdbeGS corpus, being already
made acquainted with the cause of the imprison
ment' But this was heard with Indignation and as
tonishment by every lawyer present. according to
Mr.. Selden's own account of the matter whose re-
sentiment was not cooled at the distance Of four and
twenty years"