The Kenosha telegraph. [volume] (Kenosha, Wis.) 1860-1888, 1863-10-08
The writ of HabeHS Corpus ana the
Presidents Pl Oc amRtion.
1npoRTANT DECISION OF JUDGE BETS.

The Writ of Hmbeas Corpus and the
Presidents pa reclamation.
IMPORTANT DECISION OF JUDGE BETS.
Tn the United States District Court in New
York Citv. on the 18th, Judge Belts deliver
ed the following decision in the case OF John
Baldiuser, returned by Gen. Candy as a de-
serter for whom a writ of babeGS corpus was
demanded 49,,
The great question in the case is whether
the court can act in this matter at all aiteT tiie
recent proclamation of the President. mat
denends unon the question whether the Pres
ident has the power to suspend the writ OF
hnbeas cor0us,and ifhe has that power: wheth-
er he has exercised 1t.
There has been some argument OF counsel
az 70 whether the writ of hGbeas corpus should
be considered as privilege or not. however
If is TO be considered it amounts to this, that
the party in whose favor 1t is issued is 10 nave
certain relief. and that is that he is to have
bic case examined unless he is held by other
comnetent authority. In this case 1t is claim
ed hv Baldinger that he is kept wrongfully in
the United States forces. On the other side
Il IS claimed that he had entered that service
as a soldier, and is rightfully held now as a
dasarter and the question is whether he has
rioht to show on his proceeding that he new
or was legally in the service OF the United
States, and is not therefore bound to remain
there till the expiration of his term whether
the court is competent to enter into that IN
quiry. =,
TO preclude that inquiry the officers point
to the proclamation OF the President suspenl :
limo the writ Now, whether this power OF
10 Eha nth of
President as the Executive and commander
in. chief or whether it is derived from the act
If Congress- is immaterial, The act certainly
does not diminish his authority, andifthe pow
or inherent in his being the head OF the gov
eminent is not sufficient to warrant MS stay
ing the proceedings Of the courts under the
writ, then that power IS to be found III tile
act.
1t cannot be said that the government can
not make a rule that every citizen snail be
held to serve his country IN time OF DANGER
II seemed to have been argued that the gov
ernnlent can never hold an infant TO mlliCary
service But | do not agree to that. think
the government can call every man IiIo Tue
field if necessary The manner Of it may be
subject Of discussion But that our govern
ment has the authority to do it can no more
To averv other government in the world.
Moreover, popularity of the case u.s. that
IN orr form Of government we have all con-
sented to the exercise of this power over our
nersoT,s And even though the action OF the
| government may seem TO be e%Crenie' yoU ~
| IS nv the consent of each one OF us that gov
orrt,ort acts. as much as if each one Of us had
heen a member of the convention that mace
the Constitution and the Congress that made
the law. When a people say, "We Will form
a government, and will give 1t extreme pow
err over u.s." each Individual Is bounu ny us
acts as much as if he had signed an agree
ment It cannot be said that this power is
| forced upon him.
The next question is whether the govern
ment has the right to take from Inc clcIIen
the power of inquiring into the exercise Oh Inns
power over him. The government mas Che
| right to defend its own existence, anu "iie u
it is necessary it may say to all, gu sil ID
not prevent or embarrass the actlon Oh Che
government in the exercise OF this hlgh pow
er by any form of legal action" 1t may say
| 'each man must come forward 10 help ueleiio
the national life, and he cannot lnterpose the
objection that he is not lawfully calleu upoii'
| or that he is called upon to do more IMAM Ills
neighbor 1t is enough that he Is called on
| nv fhe government and is within It's reach :"
We impose the same authority IN other mat :
ters We supersede all action on the part OF
corporations at once by legal proceedlngS:-
We stop the proceedings OF individuals oy III
i,nct;onn We send an injunction from one
court to another, stopping Its actlons as III uch
as by physical force. No one THINKS CilaI Suc'i
thinos cannot be done, if it is necessary Tor
the time being. And the suspension Oh Tue
writ of habeaS corpus is only saying tnat tile
court shall not be open Tor such proceeding
| The writ is defunct for the purpose OF inter
posing such objections, and no court snail acC
| in reference to such cases
In this case the general-commandlng here
returns to the court that this man IS retained
as deserter, having been enlisted as sololer
| If the army that he is retained to be tired 1or
that offence, Who shall try him for it Shall
we saw that this court shall step in with this
,,,r;+ and take him out of the hands Of the court
before which he stands, and which has Pr1aa0
fqcie the right to try him for such an offence.
He is not to be tried there by aliens or foreign
ere He ia TO be tried before the same men
sitting as a court martial that might sit as
inrv fo trv him. He is declared by the law
| fo he anenable to court-martial and he is IN
the custody of the United States,to be subject
to trial bv court martial as he would be II he
was held by any other form Of judicial action.
If he had been seized by every court IN the f
country he would not any more be held Io a
trial than now. This court cannot step IN and
and take him out of the authority of the court
that must try him. You say that he is not
in confinement under any process but IL IS not
necessary to have any written or printed pro o
DIV Of the Iaw-apprehended by the neck-as
nsed To he the case under the old civil law.
This court is constituted for one purpose, the
military court for another; and when the par
tv is held before military court ne Is as mucf
before tribunal as if he was before this court
And be must be tried before the tribunal winch
tries such offences as he is alleged to nave
committed. 49, ,,r;,
This is all that this suspension or the Wr VI
o,oornts to. The proclamation says that tht
case cannot proceed before this tribunal ::
When this man is held for such offences; TIM
court cannot inquire into it. 1t is out Oh {