Daily State sentinel. [volume] (Indianapolis, Ind.) 1861-1865, 1862-09-26


Judge SrohY in his commentaries on the Con-
stitution of the United States. thus comments up
on the following clause IN that instrument: Vol.
2. pp 1851
"The privilege OF the writ Of habeas corpus
shall not be suspended. unless when, in cases of
rebellion or invasion, The public safety may re-
qulre IT,"
In order to understand the meaning of the
terms here used. t will be necessary 20 have re-
course To the common law; for in no other way
can sc arrive at true definition Of the writ OF
hlbeas corpus. At the common law there are
various writs cailef writs OF habeas corpus. But
the particular one here spoken of is that great
anu celebrated writ used in all cases OF illegal
confinement known by the name OF the writ of
Asbeas corpus nd snbjieieadam (that YOU have the
boiy to submit direeted to the person OBTAINING
another. and demanding him to produce the body
of the prisoner with the dsy ami cause OF has cap
ton and detention, al facieadum, sabjieiendum,
al recipiendnm To do. submit to and receive what
the Judge court, awarding such writ.
shall consider IN that behalf. IL is, therefore,
justly esteemed the great buwark OF personal
liberty. since it Is the appropriate remedy 10 as
certain whether any person is rightiully III con
hDement or not. and the cause OF his confinement.
and 70 no sufficient ground OF detention appears.
the party i entitled TO his immediate discharge
applied to every OF illegal restraint. whatever
10 may be; for ever restraint upon a mans liber
" Is. in tie eve OF the law, AN Imprisonment,
wherever may be the place or whatever may be
the manner. in which the restraint Is effected.
Mr.. Justice Blackstone has remarked with !
great lorre that Ito bereaye man of life. or by
violence 10 conhscaie his estate without ACCUSE
tios or trial. would be gross and notorious an
act of despotism as must at once convey the
al ~ ter throu rho xh,fa
But confinement of the person BY secretly hurry
ing him 10 Jail, where his sufferngs unknown
or torgo:teu, is less public, n less striking. and
therefore more dangerous engine OF arbitrary
force" While the justice of the remark must
be felt by all. let IL be remembered that the right
20 pass bills of attainder in the British parliament
still enables that body to exercise the summary
and awful power of taking mans life. and coz.
fscating his estate, without accusation or trial.
The learned commentator. how ever. has slid over
this subject with surprising deicacy.
In England this is high prerogative writ
issuing out OF the Court OF Kings Bench, not
only in term time. but in vacation, and running
into all parts OF the kings dominions; for it Is
said. that the king is entitled, at all times. to have
an account. why the liberty of any of his subjects
il restrained IL Is grantabe, however, as "A matter
of right, rrsrito Jastifie. upon the application
OF the subject In England, however. the benefit
OF il often eiuded prior to the reign OF Charles
the Second; and especially during the reign OF
Charles the First These pitiful evasions gave
rise to the famous Habeis Corpus Act OF 81 Car
2. c ?, which has been frequently considered ms
another magma charta in that kingdom; and has
reduced the general method OF proceedings on
these writs To the true standard OF law and LID
erty. That statute has been, IN substance, incor
porated into the Jurisprudence of every State in
the Union: and the right to il has been secured
in most. il not in all, OF the State Constitutions,
by provision similar To that existing in the Con
sttution OF the United States. Ii Is not without
reason, therefore. that the common law was
deemed by our ancestors part OF the law of the
land. brought with them upon their emigration,
so far. it WAS suited TO their circumstances;
since IL affords the amplest protection Tor their
rights ana personal liberty. Congress have vested
in the Courts of the United States full authority
to issue this great writ, in cases falling properly
within the jurisdiction of the National Govern
ment
Ii Is obvious, that cases Of peculiar emer.
gency nav arise, which NAV justify nav. even re-
quire. the temporary suspension OF any right to
the writ Bat IL has frequently Unopened in
foreign countries. and even in England, that the
writ has upon various pretexts aud occasions been
suspended, whereby persons apprehended upon
suspicion have suffered long Imprisonment.
sometimes from design. and sometimes because
they we're forgotten, the right to suspend il is ex
pressly confined 20 cases OF rebellion invasion.
where the public safety may require IL. very
just and wholesome restraint which cuts down at
blow fruitful means of oppression. capable of
being abused in bad times to the OF purposes.
Hitherto no suspension OF tne writ has been au-
thorized by Congress since the establishment of
the Constitution. II would seem. as the pow er is
given to Congress TO suspend the writ OF habeas
corpus in cases OF rebellion invasion. that the
right 10 judge. whether exigency has arisen, must
exclusively belong to that body.
In the celebrated case of JoHS MERRYNAN of
Baltimore, who made application to Chief Justice
TASEY, that The writ of ha6eas corpus NAV issue
TO Brigadier General GEORGE CADwALApKR who
Was holding md OBTAINING him. commanding him
IN produce the petitioner before Judge TANEY
for HIM 70 adjudge the justice of his imprison-
ment, the writ dsobeyed An attachment
was issued May %. 1861. against General Can
wsLADEa for contempt in refusing TO produce the
body of joan MkRRYNAN. according to the com
mani OF the writ OF habeas corpus. Judge TANEY
said he ordered the attachments. because upon the
face OF the return the detention of the prisoner
VAS unlawful upon two grounds:
1. The President. under the Constitution and
laws of the United States, not suspend the
writ OF habeas corpus. nor authorize any military
officer 10 do SO.
2. A military officer has no right 10 arrest and
detsin a person, not subject TO the rules and
tcles of war. for offense against the laws of
the United States, except IN the aid OF the ju-
dicial authority and subject TO IL control; aud i:
the party y arrested by the military IL u the
duty OF the officer to deliver him over imme-
diaIsly TO tue civil authority. 10 be dealt with &C
cortiing 10 law. See American Annual Cyclo-
posdia. PIP ss5-6)
The Proclamation.