Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1863-02-05
Ohio 9tatesnram
Speech of Hon. George b. Smythe, of
Licking County,
In the Ohio House Of Representation, on Arbi-'
traYy Arrests.


In the Ohio Houss Of Representatives, on Arb
t,Gyy Arrests.
Mr.. SMYTHE said:
MR. SPEAKER: II seems to me there has bee
much confusion of ideas II this debate. TIL
gentleman from Cuyahogs (Mr. .Dickmanl
adopting the proposition that "the Constitutio
oontemplates the suspension of the writ o
habeas corpus" assumes that IL is an unsettle,
question, whether the power of suspension 4
vested In the legislative or executive brancl
of the Government. IL is, he says, question
on which the greatest jurists differ; and hs
to the President of the United States. ~
Now, cir, do not propose to discuss tht
proposition, 90 readily determined by the gen
tleman. think it is not necessarily german
to the subject under consideration. II 10 my
Judgment, however, that this power Of suspeD
sion belongs exclusively to the legislative func
tiOn. The privileges of the writ Of AabsG'
corpus were extorted from King John, at Run
neymede, by the Commons Of England. They
are embraced In the great Chart of English
liberty, possessed by the people, as their pro-
lection against the arbitrary power Of the mon.
arch. Il was, In its origin, restriction upon
executive power, and an investment Of thia
restriction in the Parliament Of England. The
power of suspension Of the great privilege, IN,
der that government, Ia exercised alone BY Par.
lament. To admit, for q moment, that the
King could suspend IL, would be to admit ths,
nothing was gained by extorting IL from him
The great charter was transplanted by our
ancestors to the genial soil Of American Insti.
tut.ons, ard was incorporated 10 their written
constitutions. The privileges of the writ OF
habeas corpus are secured by legislative enact
Il a.. r. L -
other authority than the maker, can annul these
statutes. Il requires she same power to destroy
that IL. does 10 create. To hold otherwise, is
to say that law is not law, and the will of the
Executive is supreme.
The provision In the Constitution relating to
the suspension of tho privileges of this writ, is
restriction upon the legislative power 10 this
country, which, In England, is unlimited.
The gentleman from Cuyabogs having de-
cided this great question of the depository of
the power of suspension, argues, that because
this great remedy for the security of human
liberty may, under some circumst,nces, be sus-
pended, il follows se a legitimate consequences,
that all other provisions of the Constitution for
the security of the rights and liberties of the
citizen must be violated and stricken down by
the President; and that he and those acting by
bis authority, may Of their own will and caprice,
become midnight invaders of the peaceful
domicles of our citizens, and secret kidnappere
Of their persons and effects. deny these con-
sequences: | do not believe that the framerl
of the Constitution, when they provided for the
suspension OF this privilege, intended ss q CON.
sKaUEscE, that the guardians of that instru-
ment should be sbsolvsd from their oaths and
from all their duties and obligations 10 the peo.
pie, whose servants they are. l can not com
prehsnd the logic and deductions Of the gen.
tlemsu from Cuyahoga.
Mr.. Sp esker, ! am astonished and alarmed
at the ready snd eager efforts of gentlemen 10
this House, to palliate, sustain and Justify this
exercise of arbitrary and despotic power. What,
sir, hasitoome to this, shat in the Rrepresen-
tatiye Hall of free people, we must listen to
argument and distorted and misapplied prece.
dents, In efforts to convince US that there Ia no
difference between the Government under which
we live. end the hated and despised despotisms
of the Old World2 Must we be told that the
Czar OF Russia, the Emperors of Austria and
France, the late King BoMba and President
Lincoln, all enjoy and possess the same con-
stitutional powers7 Must we unlearn ali
the teachings of our childhood - all the
lessons and examples of our gres,
statesmen, and tamely receive these new
heresies2 Are We to adopt the Logical conclu.
sions of fthese advocates, that nothing was gain cd
by the struggle Of five hundred years, by the An.
glc.Sax0n race, in behalf of human liberty p
that we cast off the free constitutional Govern.
ment of Great Britain to throw ourselves Into
the iron grasp of masters of our own creation
Let me tell gentlemen who approve and Justify
these arrests, that they have mistaken the char.
acter and temperament of our people. They who
have grown up under the radiant and benign in.
Auences of written constitutions and laws-who
have breathedt the spirit and enjoyed the bless
ings of we'll regulated liberty, will not listen 70
your logic and precedents. Their very instincts
will revolt at and spurn your lsbored reas oning,
as an insult to their understandings and their
common sense.
Sir. the constitutional provision, or rather ex-
ception, foe the suspension of the privileges Of
the writ of habeas corpus, has no relation to the
subject under consideration, except as the laws
on the subject of the writ, as we'll as all other
laws and constitutional provisions, have been vi
olated and stricken down by these arrests. No.
body denies that under proper circumstances
when the public safety is endangered, the privl-
leges o! the writ may be suspended, or that mar
tial law, which is the law OF military force and
military necessity, may be exercised, within the
limits of military operations, but not beyond
these limits nor beyond the necessity which calls
Il into exercise. The same necessity which de-
msnds the exercise of martial Law will Justify
the suspension of the writ, that 1t may not inter.
fere with prisoners Of war or others who are
proper subjects Of military control. Nobody, but
the enemies Of General Jackson, complained OF
martial Law Of New Orleans; nobody complain
cd of it's exercise in Baltimore when anarchy
and revolution was imminent on the outbreak
of the rebellion; or in Cincinnati, when that
city was endangered. The necessity which
alone justifes such authority, In all those cases
Was palpable and patent to all. Martial law
may and ought to be exercised in cases when
the civil authority is obstrueted by violence too
e.rong to be overcome by civil process, or when
the success of military operations requires 1t.
In all such cases 1t may be exercised to the ex
tent of the necessity which requires it, and no
further; 10 nay continue 40 long as that neces.
sity exisie and no longer. In all other places
and at ell other times, the military must, by
the genius of ous institutions, be In subordina-
tion to the civil authority.
But, Mr.. Speaker, these arrests were not the
Incidents Of martial law These contempts OF
judicial authority were not justified by any eue-
pension of the privileges Of the writ Of kabea
corpus Neither martial law, nor such suspen.
sion, existed In Ohio when theae aFrests were
made. This is not pretended by those who
made them or those who advised them. There
existed no necessity for the exerclss Of these
extraordinary powers In the State Of Ohio
The State was peaceful and loyal. Her courti
were In full vigor, and civil process was unob
structed. The public safety was nowhere en-.
dangered within lie limits. Did The public
/ a. fatv rnnuira thn midniUht violation NJ ths