Indiana State sentinel. (Indianapolis, Ind.) 1861-1865, 1862-09-29
Habeas Corpus.


stituton of the United States, thus comments up
on the following clause IN that instrument: (Vol.
opp. 1861
1.-The privilege of the writ of habeas corpus
shall not be suspended, unless when. ia cases of
rebellion or invasion, the public saiety may re-
quire it."
In order to understand the meaning of the
terms here used, it will be necessary to have re-
course TO the common law; for in no other way
we arrive at a true definition of the writ of
habeas corpus. At the common law there are
various writs, called writs of habe corpus. But
the particular one here spoken of is that great
and celebrated writ, used in all cases OF illegal
confinement, known by the name of the writ of
h0beas corpus ad sutjiciendum (that you have the
body to submt,) directed to the person OBTAINING
another. and demanding him to produce the body
OF the prisoner with the dav and cause OF his cap
ton and detention, adj faciendum, subjieieHdum,
ct reeipiendan to do, submit to and receive what
sOever tie Judge or court awarding such writ
shall consider in that behalf 1t is, therefore,
justly esteemed the great bulwark OF personal
liberty; since it is the appropriate remedy to as
certain whether any person is rightfuly in con
hnement or not and the cause of his confinement
and if no sufficient ground of detention appears,
the party is entitled to his immediate discharge
This writ is most bene6cally construed; and is
it may be; for every restraint upon mans liber-
ty is, in the eye 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 force, that "to berelve man Of life, or by
violence TO confscate his estate without accuse
tion or trial, would be so gross and notorious an
act of despOtsm as must at once convey the
alarm of tyranny throughout the whole kingdom.
Rftc Of no nv
ing him to Jail, where his sufferings are unknown
forgotten, is a less public, less striking, and
therefore a more dangerous engine of arbitrary
force" While the justice of the remark must
be felt by all, let it be remembered that the right
to pass bills of attainder in the British parliament
still enables that body to exercise the summary
and awful power of taking mans life. and con
fscating his estate, without accusation or trial.
The learned commentator, however, has slid over
this subject with surprising delicacy.
In England this is high prerogatve 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
is restrained. it's grantable, however, matter
of tight, er nleritO juStiti@, upon the application
of the subject. In England, however, the benefit
of il often eluded prior to the reign Charles
Charles the First. These pitiful evaslons gave
rise TO the famous Habeas Corpus Act of 81 Car.
2, C. 2, which has been frequently considered as
another magma charta in that kingdom; and has
reduced the general method of proceedings on
these writs to the true standard of law and lib-
erty That statute has been, IN substance, incor-
pOrated into the jurisprudence OF every State in
the Union; and the right to it has been secured
in most, it not in all, of the State Constitutions,
by provision similar to that existing in the Con-
stitution of the United States. 1t 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, as it was suited to their circumstances:
since it affords the amplest protection for their
rights and 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.
1t is obvious, that cases of peculiar emer-
gency may arise, which may justify, nay, even re-
quire, the temporary suspension of any right TO
the writ. But as it has frequently happened in
foreign countries, and even in England that the
writ has upon various pretextS and occasions been
suspended, whereby persons apprehended upon
suspicion have suffered a long Imprisonment
sometimes from design. and sometimes because
they were forgotten, the right to suspend it is ex
pressly confined to cases OF rebellion or invasion
where the public safety NAV require it. A very
just and wholesome restraint which cuts down at
blow fruitful means of oppression, capable OF
being abused in bad times TO the worst of purposes
Hitherto no suspension of the writ has been au-
thorized by Congress since the establishment OF
the Constitution. IL would seem, as the power is
given to Congress to suspend the writ of habeas
corpus in cases of rebellion or invasion, that the
right to Judge. whether exigency has arisen, must
exclusively belong to that body.
In the celebrated case of JOHN MERRYMAN oil
Baltimore, who made application to Chief Justice
TANEY, that the writ of hqbe0s corpus may issue
to Brigadier General GEORGE CADwALApER, who
was holding and OBTAINING him, commanding him
TO produce the petitioner before Judge TANEY
for him to adjudse the justice of his imprison-
ment, the writ was disobeyed. An attachment
was issued May 26, 1861, against General CAD
wALADER for contempt in refusing to produce the
body of JOHN MERRYMAN, according to the com
mand of the writ of habeas corpus. Judge TANEY
said he ordered the attachment, because upon the
face OF the return the detention of the prisoner
was unlawful upon two grounds:
/. The President, under the Constitution anC
laws of the United States, can not suspend the
writ OF habeas corpus. nor authorize any military
officer to do so.
,. A military officer has no right to arrest and
detain person, not subject to the rules and ar
ticleS of war. for an Ofiense against the laws oil
the United States, except in the aid of the ju.
dicial authority and subject to its CONTROL and i
the party is arrested by the military, it is the
duty OF the officer to deliver him over imme
dately to the civil authority, to be dealt with &C
cordng TO law. (See American Annual Cyclic
noadia nm 955-6