Daily national Republican., 1863-09-21
THE WHIT o. HADEAs CORPUS AND
THE PREslDEnTs PROCLA1A.
TlON. ..-..

Important Dseisisa q Judge Betts.
In the United 'stssss District Court In New
York city, Judger Bets delivered the following
decision in the case Of John Baldinger, return
ed by General Csnby a dssertsr, for whom
writ of habeas corpus was demanded.
The great question In the case Is whether the
court can act in this matter at all AFTER the re-
cent proclamation Of the President That de-
pends upon the question whether the President
has the power to suspend the writ of habeas
corpus, and II he has that power, whether he
has exercised It.
There has been some argument Of counsel as
to whether the writ Of habeas corpus should be
considered as privilege or not. However, It
party In whose favor II 10 issued Is to have Ger.
tain relief, and that Is that he ls TO have his
case examined, unless he Ia held by other com
petent authority. In this case II is claimed by
Baldinger that he 10 wrongfully kept In the
United States forces. On the other side II is
claimed that he had entered that service as a
soldier, and 10 rightfully held now % deserter;
and the question 10 whether he has the right to
show en- this proceeding that he never was
legally IN the service Of the United States, and
10 not therefore bound 10 remain there TIL the
expiration Of his term; whether the court is
competent TO enter into that inquiry.
To preclude that inquiry the officers point to
the proclamation Of the President suspendlng
the writ. Now, whether this power Of suspen,
sion belongs to the authority Of the President
ss the Executive and Commsnder.in.C Chief. or
whether Il 10 derived from tho act Of Congress,
10 immaterial. The act certainly does not di.
minish his authority, and II the power Inherent
In his being the head Of the Government Is not
sufhcient 10 warrant his staying the proceed.
ings Of the courts under the writ, then that
power 10 to be found In the act.
II Cann0t hA anid that he noy 49,.
not make rule that every citizen shall be held
TO serve his country In time of danger. It
seems to have been argued that the Govern
nsnt can never hold an infant to military SER
Vice. Bat do mot .sErss 10 that IthIsik she
II necessary. The manner Of Il may be sub
ject Of discussion. But that our Government
has the authority TO do II can no more be de-
MED than that authority can be denied to every
other Government In the world.
Moreover, Q peculiarly of the case Is, that In
our form Of government we have all consented
And even though the action Of the Government
may seem TO be extreme, yet 1t 10 by the con-
sent Of each one oi us that Government acts.
a. much as II each one of us had been mem.
Der Of the convention that made the Consttu.
tion and the Congress that made the law.
When people say, We will form Q govern.
ment. and will give 1t extreme power over US, )"
oaCu AuulvhAoAA Az uouuu Uy ltb 1ctb, as much
as II be had signed an agreement. It cannot
be said that this power is forced upon him.
The next question 10 whether the Govern
mont has the right TO take from the citizen the
power Of lnQulring into the exercise of this
power over him. The Government has the right
to defend its own existence, and when II 10
necessary II may say 10 all, I" You shall not
prevent or embarrsss the action Of the Govern
mont In the exercise Of this high power by any
form Of legal action" Il may say " each man
must come forward to help defend the national
life, and he cannot interpose the objection that
he 10 not lawfully called upon, or that he is
called on TO do more than his neIghbor. II is
enough that he Is called on by the Government
aud 10 within its reach.''
We impose the same authority in other mat
ters. We supersede all action on the part OF
at once by legal proceedings. We
stop the proceedings Of individuals by iujunc-
lion. We send an injunction from one court
10 another, stopping Its action, as much as by
physical force. No one thinks that such things
cannot be done, If It Is necessary for the time
being. And the suspension Of the writ of ha-
bias corpus 10 only saying that the court shall
not be open for such proceeding. The writ is
defunct for the purpose Of interposlng such OBJ
jections, and no court shall act In reference to
such cases.
In this case the general. commanding here
returns TO the court that this man 10 retained
as deserter, having been enlisted ss soldier
In the army, that he Is retained TO be tried for
that offence. Who shall try him for II Shall
we say that this court shall step In with this
writ, and take him out of the hands of tbe
court before which he stands, and which bas
pri'na Jdcis the right TO try hlm for such an Of
fencei He 10 not 70 be tried there by aliens or
foreigners. He Is TO be tried before the same
men sitting as court.msrtial that might sit as
Jury 10 try him. He 10 declared BY the law
to be amensble TO court-martial and be is in
the custody Of the United States to bs subject
to trial by court-mnrtial, ss he would be II he
was held by any other form of judIclai action,
II he had been seized by every court In the
country he would not any more be held for tri Il
than now. This court cannot step In and take
MIN out OF the authority ofthe court that mast
try him. You say that he 10 not In confinement
under any process but 1t is not necessary to
have any written or printed process. Il 10 |
enough to say that he 10 In the custody of the
lsw-spprehended by the neck-as used to be
the case under the old civil law. This court 10
constituted for one purpose, the military court
for another; and when the party is held before
as II he was before this court. And he must
be tried before the tribunal which tries such
offences as he is alleged to have committed.
Ihls ls all that this suspension of the writ
amounts to. The proclamation says that the
case cannot proceed before this tribunal. When
the man is held for such offences, this court
cannot inquire into 1t. 1t Is out of Its Jurisdic.
tion. The condition of things will not allow
such trial as belongs to peaceful times, but |
The party must be tried before the military tr-
bunal which has charge of the case.
see nothing, therefore, which makes II pro-
per for this court to 70 into the inquiry whsther
his man enlisted. The return Is that he Is held
Tor trial as deserter, and that makes the case as
much before another tribunal ~ II he were held
'y the Judicial powers Of France or England.
Myjudgment Is, that the proclamation makes |