Daily State sentinel. [volume] (Indianapolis, Ind.) 1861-1865, 1862-10-09


daily being sent forward in'o Illinois from Cairo
there being no objection on the part OF those in
authority. They. too. no doubt, have had reve
lations Of the coming millennium to be inaugura-
ted by the negro.
The Hab eas Corpus and Martial Law
From the opinion of Judge HALL of the United
States District Court at Buffalo, on the habeas
corpus right. we take the following extracts:
Can the President, then, without the authority
of Congress. suspend the privilege OF the writ Of
habeas corpus
The question is one of constitutional law and
constitutional construction, aud WAS, think. gen
orally considered no longer open TO controversy
until il was brought prominently before the public
by the case OF Mefryman before the learned and
venerable Chief Justice of the United States In
that case "a Boston Law Reporter, page 70 and
49, the highest judicial officer OF the United
States did not hesitate to declare, in respect to
the claim that the President had the power To sus
pend the privilege of the writ OF habeas corpus
"that he listen,d to il with some surprise for
The had supposed To be one of those points OF
constitutional law upon which there was no
difference OF opinion. and that it was admitted Oh
all hands that the privilege of the writ could not
The clause upon which the question arises is
foune in the first rticle of the Constitution of
the United States. which treats OF Congress aud
its powers, and Is ia these words: "The privilege
of the writ OF habeas corpus shall not be suspend
ed, unless when ia cases OfIebellion OF invasion,
the public safety may require It :" and the reason
OF the Chief Justice in the case referred to is
sufficient, in my judgment to show that the
power OF suspension is a legislative and not an
executive power. and must be exercised, or its
exercise authorized by Congress.
But the question does not rest upon the reason
ing or authority of the present Chief Justice lie
property cite the authority of Mr.. Justice Story
and OF the Supreme Court of the United States.
when the Chief Justices seat was filled by John
Marshall the ablest constitutional LAWYER our
country has produced | can not forbear now To
quote that portion of the opinion OF the Chief
Justice which refers TO the authority of Mr. Jus
tice Story. and of the Supreme Court of the
United States. The Chief Justice saws: 'But
am not left 10 form my judgment upon this
great question from aniogies betw cen the English
Governme. { and our own, the commentaries
OF English lurlsts, or the decisions of English
courts, although upon this subject they are EN-
titled TO the highest respect, and are Justly re-
garded as authoritative by our courts OF Justice
To guide right conclusion | have the
commentaries on the Constitution OF the United
Stnes of the late Chief Justice Story not only
one of the most eminent juris;s of the age, but
for long time one of the brightest ornaments of
the Sup eme Court ot the United States, and also
the clear and authoritative decision OF that court
itself. given more than half century since, and
conclusiyey establishing the principle | have
above stated"
Mr.. Justice Story, speaking in his commenta.
res OF the habeas corpus clause in Constitution.
says:
1T is obvious that cases of peculiar eme.
gency may arise. which may justify, nay. even
require, the temporary suspension OF any right To
the writ. But as il 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 imprson-
ment. sometimes b, design and sometimes be
they were forgotten. the right TO suspend 1t
l. expressly confined To cases OF rebellion OF i'm
vaslon, where the public safety NAV require IT,
A very Just and Wholesome restraint, which cuts
down at blow Il fruitful means OF OPPRESSION
capable OF being abused in bad times to the worst
of purposes Hitherto suspension OF the writ
has e, er been authorized by Congress since the
establishment OF the Constitution. IL would
seem. the power is given To Congress to sus-
pend the writ OF habeas corpus in the cases of re
bellon o. invasion. that the right Judge wheth-
er the exisenc, hid arisen. must exclusively be
long to that BODY" g StOry's Com on the Con.
section lc36
And ChieI Justice Marshall in delivering the
opinion of the Supreme Court in case OF sr pate
Boliman anu Swartwout, uses this decisive ian
suage in Cranch, 3d.
1T may he worthy of remark that this act
speaking of the one under which | am proceed
ng) was passed by the first Congress OF the Uni.
ten States sitting under Constitution winch had
declared that the privileges OF the writ of habeis
corpus should not be suspended unless when in
case oil rebellion or invasion the public safety
might require IT,. Acting uLder the immediate
influence OF tins injunction, they must have et,
with peculiar iorce. the obligation of providing
efficient means by which this great constitutional
privilege should receive lie and activity; tor it
the means be not IN existence the privil zee itself
would be lost, although no law tor its suspension
should be enacted. Under the impression OF this
obligation. they gave to all the courts the power
OF awarding wits OF haOeas corpus.
Aud again. in page lOl:
..lf at any time the public safety should
qure the SUSPENSION oil the powers vested by this
act in the of the United States it is tor the
Legislature To say so The question depends up
on political considerations, on which the Legs.
ture is to decide Until the legislative wi be ex-
preset, the court can only see It's duty and obey
the laws"
| can add nothing to these clear and emphatic
words oi my great predecessors.
II il be ssiG that the laws of war. being the
laws OF the United States. authorize the ptucla-
nation OF martial law, answer that in peace or
IN war no law toe enacted but hy the legisla
tive lower In England, from which the Ameri-
can lurisl derives his principles IN this respect.
martial law can not be used without the author