The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1861-07-29

the words vague and nctormnate they are as we find
them "lhe privilege Of tho writ habeas corpus shall not
be suspended &c Does that mean that the writ Itself
s" not be issued that being issued the party shall
derive no benefit from it2 Suspendcd-does that
delayed, hung up for time altogether denedf The
writ OF haheas corpus-which WRIT Ia England there
many writs called by that name, and used by The courts
for the more convenient exercise Of their various pow
ers ana our own courts now, by acts OF Congressthc
Judiciary act of 1880 section H. and the act Of March 2
1883, section 1-haye, believe, equivalent powers.
II has been decided by the Supreme Court and doubt
not correctiy-see Boiiman Swartwout case "a Or
that for the meaning Of the habeas corpus resort
must be had to the common law but the power to award
the writ 10y any OF the courts Of the United States must
be given by written law And the high court
judging no doubt BY the history Of peoole and the
circumstances Of the timeshas also decided that The
writ OF habeas corpus mentioned in the constitution Is
the great writ al stttJicteada1s
That writ IN It's nature action and Objects Is tersely
and accurately described by Sir William Blackstone.
adopt his language as found in his Commentaries book g.
lSl Bat the great ana oicacous writ in all manner
OF Illegal confinement Is that Of habeas corpus ad subj
ciedaM directed to the person OBTAINING another and
commanding him 10 produce the body Of the prisoner
with the day cause his caption and detention ad
ycieada, yiciendh Fl yecipiendu 10 do, submit TO,
and receive whatsoever the judge court awarding such
writ shall consider in that behalf This high preroga
tive writ, and therefore by the common law issuing ont
Of the court Of kings bench not only in term time but
also during the vacation by fiat from the chief justice
or any other Of the judges and running into all paris OF
NC Kings domnious for the King all times entitled
to have account why the liberty OF any Of his subjects
Is restrained wherever that restraint may be inflicted"
Such IS the writ Of habeas corpus of which the cons
tuition declares that e privilege thereof shall not be sus
pended, except when in Of rebellion or invasion,
the public safety may require IT, But tho constitution is
silent us 10 who may suspend it when the contingency
happens. am aware that II has been declared by tue
Supreme Court, that , at any time the public safety
should require the suspension OF the powers vested by
this act (meanng bhc Judiciary act of 1883, section 14
in the courts Of the United States is for the legislature
to say So That iescn depends upon political conidera
lions, which the Legislature is to decide" Upon this,
remark only, that the constitution is older than the
Ssa Sa ae ana ys. speaks Of the pye ne
raj terms and does speak with particular reference to
powers which might or might not be granted by future
act of Congress Besides, take it for certain that IN the
common course of Legislation, Congress has power, at
any time, to repeal the Judiciary act of 1880
and the act of 1888 (Which grants 10 the
the wrts) without waiting for rebellion invasion,
and consequent public necessity, TO justify under the
constitution the suspension Of the writ Of habeas corpus
le court does not speak OF suspendng the privilege Of
the writ, but OF suspendng the powers vested in the
court by the act The power to issue writ can hardly
be called prvA yet the ught Of individual to in,
woke the protection Of his government Ia that form may
well be designated by that name. And should infer,
with good deal OF confidence that the court meant TO
speak only Of its powers and not OF the privilege OF
individuals bat for the fact that the court ascribes the
power suspend to the Legislature upon political grounds
II says that question depends upon political considcfa
tons on which the Legislature Is to dccden Now had
supposed that questions did not belong exclusively to
the Legislature, because they depend upon political
considerations, inasmgch the President, in his
constitutional and official duties, is quite as po-
lica as Is the Congress, and has daily occasion IN the
common routine of affairs TO determine questions upon
political considerations alone.
writ Of babeas corpus must understand repeal Of AL
power TO issue the wfit then freely admit that but
Congress can do it, BIT are at liberty 10 under
stand the phrase TO nean tba in OF great and
dangerous rebellion, Ike the present the public safety
requires the arrest and confinement of persons Implicated
in that rebellion, MS freely declare the opinon, that
the President has lawful power suspend the privilege
of persons arrested under such circumstances For he
is especially charged by the constitution with the Grub
lie safety and he is the sole judge OF the emergency
which requires his prompt action.
This power in the President is part Of
his ordinary duty in time Of peace 1t Ks temporary and
ceptona and was intended only TO meet pressing
gency when the Judiciary is found to be too weak to in
SURE uc pnonc smety-whn On the language OF inc act
Of Congtss) there combinations powerful TO be-
suppressed by the ordinary Of judicial proceedings,
or by the powers vested in the marshal" Then not
iii then, has he tho lawful authority to call TO his aid the
military power Of the nation ana with that power perform
his great eg and constitutional duty suppress the in
scrrcction. And shall be said that when he has fought
and captured the nsurgent army and has seized their
cret spies and emissares he bound to bring their DO
dies before any Judge who may send him writ Of hbcas
corpus, ''to do, submit TO and receive whatsoever the
said judge shall consider in that bcha!fy'
deny that lie is under any obligation to obey such
writ, issued under such circumstances. And i'll Masking
this denial DO hut follow the highest Judicial authority
OF the nation Ia the ease Of Luther VS. Borden, Gem,
monty called the Rhode Island case), reported How
ard page the Supreme discussed several o! the
most important topics treated Of in this opinion, and
whether the exigncy exists authorizing him 10 call
out the militia, nnder tho act of 1895. The court
affirmed the power Of the President in that respect.
and denied the power Of The court TO examine and
aindge his proceedings. The opinion Of the court,
delivered by the learned Chief Justice fancy declares
that if the court had that power, Z" then II would
become duty the court (prQvded that came
the conclusion that the President had decided Incorrectly
to dschay those who were arrested or detained by the
troops in the service of ths United States the govern
nct which the President endcavoring TO MAINTAIN.
II (snys that learned co the udica! power extends
far the guarantee contained In the constitution of the
United States (meanng OF course protection aghs, n
sdrrecton Is guarantee OF anarchy aud not Of ordcrn
Whatever haye said about the SUSPENSION Of the pri-
vegc OF the writ o.! habeas corpus has been said in defer
cnce to the opinions of others and not because ysef
thought II necessary to treat Of that subject at all III
ference to the present posture of naticua affairs
For not doubling the power Of the President to capture
and hold by force Insurgents in open arms against the
governments arrest and iprsoa the!r suspected
accompccs never thought Of first susrendng the writ
of habeas corpus, any more than thought Of Arst
pending the writ OF repevn before Selling arms and
nitons destined for the cnSrny.
The power to do these things is in the hand Of tho
President placed there by the constitution AID the
statute law sacred trust, to be used by him in his
best discretion IN the peronance OF bis great first duty
preserve protect dofrrd the Institution And
for any bresch OF that trust hc IS responsible before the
high court Of mpeacfnent and before no other human
tribunal.
Tic powers of the Presiden, falling within this general
ciass been times cC,s1oycd by Tie judiciary
and have. believe, been uniformly sustained without
materially var, FROM the doctrines laid down in s
opniCn. Iconteat Iayse with simple reference 30 The
'hout oGcunbcring this document, already
long, WITH copious eXtTacis Che Rhode Island case,
Cross VS. Harrison 1s Howard, pse 1s9 The S,tsirs
9rnidad, Wheaton, page 50S Martin Mott, ~
Wheaton, page %
ny n'i'" 10 mo- scy import "' "if,hei We cat
particular power exercised by the PRESIDENT peace
power OF war powcr for undoubtedly he il armed With
both lie is tho chief civ magistrate OF the nation,
and bong such, and because he is such, he Is
the constitutional conHnande, n-chief Of the army
AID navy aad th's, within the limits OF
tho constitution, he rules in peace and commands
III a al this niorent he IL in the full exercise of all
the faOGois belonging to both those characters. The
civil administration Is stl gog II It's peaceful course
and yet in tho midst OF in which the
enemy is for the present, dominant many States aud
has his secret allies and accompces scattered through
T,D ha- 81 wal andtv A
I'll the dangerous nnd needing Jealous vic
lance and prompt action because it is interpecine and
hot international war.
items upon the questions propounced by you Such
is, II is submitted, with ali possible respect, by your
client servant, EDWARD BATES, Attorney General
FINANCIAL AND CONNER CiAl.
SUNDAY, July %, 1861.
Ilp I'm at this mort .i,Alc lncI.ra