Indiana State sentinel. (Indianapolis, Ind.) 1861-1865, 1862-03-24
Habeas Corpus.


Recently public attention has been again d.
rected to the subject of the suspension of the
privilege of the great writ of liberty, by the or
der OF the President of the United States. We
regret exceedingly to observe that some well
known professors in law schools have been so
novel by the discussion as to take the opportu-
nifty of the present excited state of the public
mind to teach their students principles Of law on
this subject, which in calmer DAYS they would
doubtedly repudiate. 1t is dangerous matter
for law professors to attempt instruction in new
principles of law which are born in times of war.
The best Of men are liable TO strong political
prejudices, and when an old and established doc
trine is overthrown in popular uprising" and
a lawyer or judge, or especially law teacher,
finds himself tempted to adopt the new ideas in
preference to the old and settled theories, he
owes il to his own character as prudent instruc-
tor, u withhold from his pupils any portion of his
new creed until times of calm reflection and judg-
ment. He NAV safely state the arguments in
favor of the new theory but he should counsel
the suspension of opinion until judicial investiga-
ton shall give authority to interpretations of the
law. Law professors have mistaken their voca-
ton when they teach new principles of law, not
established by authority. They become, in such
cases, aspirants to the position of lawmakers,
when they seek to instil into the minds of young
students, who are to become lawyers, any theo-
retical notions of their own, unsupported by the
great weight OF authorities which all sound law
yers and statesmen regard as the safest instruc
tors.
The writ of habeas corpus has been in some
respects misunderstood by the public during this
discussion. 1t is not a writ TO free man from
Imprisonment, but It is only an order to bring the
body of a man before a Judge, and the Judge
will then decide whether he shall or shall not be
held prisoner. The writ never discharges a
man from custody. 1t only brings up an investi-
CATION Of his case. discharge can only be
made by subsequent order based on the inves-
tigstion. IL is, therefore, no special right of an
innocent man. 1t belongs 20 innocent and guilty
alike. The writ is demanded by both, is sued
out by both, and, perhaps, often results in
manding as in discharging prisoner.
In New York every Judge is compelled by law,
under heavy penalties, to issue the writ on petit
ton. No Judge in this city Except in the Uni
ted States Courts) can refuse to issue il. The
JUICE is not responsible for its execution. The
Sheriff is the officer to whom is entrusted the duty
of bringing ethe body" before the Judge, and the
suspension orders of the President of the United
States have thus far been understood to operate
only TO prevent the execution of the order by the
Sheriff. We are not aware that any Judge in this
Site regards himself as absoIved from the statu-
tory necessity of issuing the writ by any order of
the President. Doubtless Judge would issue a
writ, as required proper petition, in any case.
The power 20 suspend TIE privilege of the writ,
as exercised by the President, has not been recog-
nized by any State Court in America, as far as
we are at present informed. Intbe United States
Courts the writ is purely statutory right, given
by United States statute, which regulates the
powers and duties of the Judge in reference to it,
We do not know how far the United States Judges
have assented 20 the power OF the President TO in
terfere with that statute but understanding of
tie matter, on the whole information before the
p1blic IS that the President has not formally suS-
pended the privilege of the writ but has in GER
tIin special instances instructed disobedence to
to the writ. If the contrary is true We shall be
very glad to be informed. and it would at once
place the whole matter in a shape to be discussed
with a clearer knowledge of what powers are
claimed for the President In the Merriman
case il appeared that some one. on behalf of the
Government, did claim that by some verbal or
written order the President had suspended the
Issue or privilege, or effect of the writ in that
particular case, but we are wholly in the dark as
TO the actual order made by the President, and
what il was that he claimed to suspend.
The expression of the Constitution is, 1.-The
privilege Of the writ of habeas corpus shall be
suspended except" &c. What may be suspended
therefore. is the privilege Of the writ Apparently
this excludes all idea OF the power 70 stop the eff
feet Of the writ after il Is once issued in favor oil
prisoner, but il may be commended that the priv
ilege goes with the writ and can be arrested and
tucDtIucl ~ dul uIOuirut W COmp ctctt dutuOti
ty But this authority must be clear and ample
ii il exists anywhere
review Of the history of the writ will not heiF
US at all to ascertain where the power OF sus
pending s'the privilege" exists, A great deal o.
paper has been wasted in discussing the Englist
law on the subject. The whole argument is in Z
nut saeIl for sensible minds and sensible law
yers especially.
The privilege Of this writ is in no prospect differ
ent from the privilege of any other writ Tx
privilege Of the writ Of habsas corDus is just th'
same right Of a citizen as the privilege OF wri
Of maadamas. or a writ of prohibition, or wri
Of cerfi0rgri. The privilege OF the latter, for TN
protection OF property, IS the citizens right, n
the privilege of the former is his right. to pro
tect his person. Now, what power can suspend
any Of these writsl Only legislative act. InI
IS ndisputable 10 all the writs, except that u
now Disputed as 70 the single writ Of hateas cor
pas Can the President suspend the privileges o
mandamusf No. Why mott Nothing but
Legislature can do H. Does the Constitution
prohibit State Legislature from suspending tn
writ Of mandsmzs! No. Yet the right to sus
pend e exists with the other powers OF tie Legis
Iatrre Now strike out Of the Constitution thi
prohibition against suspending the writ Of habed
corpus. and what is the effectf Obviously fh
Legislature or Congress could annul the writ o
kabsas corpus az any moment. The constitutions
provision Is purely prohibitory.
It would seem 20 be waste Of words TO show
By further argument. that the power 10 euspen.
the citizens right 70 certain srits known ss com
mon law vrits) resides only in the Legislature