The Portland daily press., 1863-09-21
The President and the Habeas Corpus.

Tothe Editor Qfthe Press;
The Advertiser of Friday bad leaderupon
the Presidents proclamation, "by virtue OF
which he" 1.-THE President1 the Advertiser says
claims to have taken from every citizen OF
the United States the great privilege of the
writ of hdbeas corpus" This we conceive to
be most gross Misrepresentation; uninten-
tional 1t may be on the part of the Advertiser,
but none the less baneful, ii it should find any
credence in the public mind. 1t is but another
illustration OF the evil growing out of the Ii
cense oil free speech and free press, under
which any jackanape can set himself up as an
Instructor OF the public although he himself
has far more need of being instructed. This
whole article in the Advertiser abounds in the
most gross ignorance of matters which it at
tempts TO discuss. In the first place the Pres
ident's proclamation suspending the hdbeas
corpus 50 far from suspending it as TO every
| citizen of the United States as the Advertiser
says, only suspends tin case achere bu The
| authority of the President of the United
States military, ndudl and ciril officers of the
United States, or any Of them hold persons
under Their command, or in their custody,
either as prisoners Of ,car, spies, or aiders
ana doettofs Of The enemy, or officers, soldiers
or sednen, enrolled, drafted, or mustered, or
| enlisted 'a, or belonging TO the land or ndodl
forces Of the United States, or as deSerters
| Mereffon, or other,eise dmenable to military
tar or the rules and articles Of ,7ar, or to
| the icar regulations prescribed for the mill
tdrg service by authority Of The President Of
the United States, or for resisting draft,
or to any other offence against the military
| or ndrdt serUice." Such is the language of
the proclamation. But to eliminate it from all
technicalities; it only applies to prisoners of
war; spies, aiders and abettors OF the enemy,
| officers, soldiers and seamen in the service of
the United States arrested for violation of
/ Il
navy, and TO persons resisting the draft, or ar
rested for any other offence against the mill
tary naval service.
DO these classes include all citizens of the
United States as the Advertiser says? Not
at ALL but only such as are liable to be tried
by military law, instead of the civil law. 1t
simply says that the civil magistrate shall not
interpose by the writ of habeds corpus, and
take any of these persons from the custody of
the military authorities and thereby prevent
trial under military law and before a military
tribunal which has the rightful jurisdiction
over these offences. And persons not priso-
ners OF war, or not i'll the military or naval
service, or not acting rs spies for the enemy,
or aiding or abetting him, or not resisting the
draft, are no more affected by it than If it had
never been issued. SO much as to the extent
of its application.
But the sage Advertiser alludes to the opin-
ion of Mr.. JUSTIN LowRIE Of Weston, Penn
sylvania, which is copied in full III its columns
and which it says, sis upon case involving
the very question raised by the Presidents
proclamation" that this opinion y
controverts the whole theory of the
Presidential manifesto" Justin Lowrie urges
that the Federal government cannot deprive
the judges of State Courts of their privilege
and duty of issuing and acting upon the evil
dence that may come before them of writs of
hdbeds corpus.
Mr.. Justin Lowrie nowhere controverts the
authority Of the Federal government under
the Constitution to suspend the hdpeds corpus
but expressly admits such right in case, ''inva-
sion or rebellion made it necessary" That
opinion nowhere discusses the power of Con-
gress, or the President, to suspend it in such
case, but was wholly upon the question: wheth-
er when 1t had not been suspended the State
Courts had concurrent jurisdiction with the
Federal Courts to issue it when the person
arrested was held under the Federal laws.
That was the only question discussed or de-
cided in that opinion, and is the only one
which has frequently come before the State
Courts, and has been differently decided by
different Courts, as that opinion of Mr.. Justin
Louvre shows. Our own State Judge here in
Portland has entertained this jurisdiction, al
though we understand he now declines to en-
terrain it when Judge Ware or Judge Clifford,
United States Judges, are at home, since the
question has not been authoritatively settled
by our Supreme Court in Bank and may be
considered debateable.
But when this writ has been suspended.
either by the authority of Congress, or with
out it: in regard to the persons named, and in
the custody of the military authorities to be
tried by military law for their offences, no
Court, either State or Federal, has intimated
an opinion that such suspension was not con-
elusive and binding, and paramount to the au-
ihority OF all civil Courts.
The case before Mr.. Justin Lowrie was one
where the person arrested by the Provost
Marshal was claimed to be held as a drafted
soldier, and the judge says in his conclusion
" If the relator 1.-THE person arrestedl appear
on the hearing to have regularly become a
soldier. he must answer for military offences
committed after that, before the military au-
thorities and not before the civil Courts" SO
Mr., Justin Lowrie admits he has no jurisdic-
ton to try a soldier for military offence. All
he could do if he issued the writ and the per-
son was brought before him by the Marshal,
was to decide whether he had regularly be-
come soldier, and il he had, to remand him
back TO be tried for his offence by the militia
ry Court. But this Court is as competent TO
TO try that question also as any other and
would undoubtedly try it as correctly; and if
he had not regularly become soldier, he
would be as readily released as by the civil
Court.
The only object of the Advertiser article
would seem to be, through misrepresentation
and falsehood, to stir up strife in our midst
and fan the flame of civil war and rebellion at
home, now that they have failed in their dia-
bolcal attempt at the polls. CIvIs.