Indiana State sentinel. (Indianapolis, Ind.) 1861-1865, 1863-09-28

ton, not even the direct order of the King.
Here, then, you have the testimony of history
that, nearly four hundred years ago. a King of
England dared not do what Ambrose Z. Burn
side has done. in the exercise of a power dele
gated to him by the sworn defender OF the Con-
%stitution of the United Statesl
In these limitations upon the royal authority,
YOU can not fail TO observe the very essence of
the provisions of our own Constitution; guarding
personal liberty with the protection Of a legal
warrant, specifying the offense of the accused,
with a fair trial. in a public court. in the county
where the offense ives committed and by a jury of
twelve men.
Look now to the language Of President Lin
coins proclamation, to the language of General
Order No. 80, and the authority under which a
subordinate officer executed it upon @. l. Val
landigham. then turn to the articles of the Con-
~stitution | have read and behold the irrefutable
and disgraceful evidences of an arbitrary and
despotic power that was forbidden even to a King
of England four hundred years agol
But come with me down to a later period of
time in English history.
The reign of Queen Elizabeth in the latter part
of the sixteenth century was distinguished for
the encroachments of royalty upon the liberty of
the subject. State trials were conducted with
most notorious injustice. Mr.. Hallam says chat
the glazing transgressions of natural as well as
positive law rendered the courts of justice in
cases of treason little better thar the civerns of
murderers." He further saws that lit can not
be too frequently repeated that no power of arbi
trary detention has ever been known to the
English Constitution since the Charter obtained
at Runnymede. The writ of habeas corpus has
always been a matter of right-but as may natu-
rally be imagined. no right of the subject, in his
relation to the crown, was preserved with greater
difficulty. Not only the Privy Council in gen.
eral a~rrogated to itself a power OF discretionary
imprisonment, into which no inferior court was
- ..~s1 L-3 --.-.A-A-&. L. .l 49,
sellor appear to have been frequent"
So grievous did this evil become, that even
the Judges, who held their Offices at the pleasure
of the Grown, addressed a remonstrance and
complaint to Sir. Charles Hat5en, the Chancellor,
and Lord Burleigh. both Ministers of the Queen.
Here is part of the language of that remarkable
document:
I'VE, Her Majesty's Justices of both Benches
and Barons of the Exchequer, desire your Lord
ships that by your good means such order may
be taken that Her Hi2hness' subjects may not be
committed or detained in prison by command
ment of any nobleman or counsellor, against the
laws of the realm"
Is il not humiliating that we must 90 back tc
the despotic reign of Elizabeth to find examples
OF the lawless outrages of which we complain TO
day? But even the judiciil subserviency of that
notoriousIy corrupt age did not descend to the
level reached by a Judge of the Circuit Court
of the United States, who. so far from remon
strating against the commitment and detention
of a free citizen, mot by commandment of any
nobleman or counsellor, but by the arbitrary Or
der of a commanding General } actually refused
to release him upon the great writ of right, and
remanded him TO the custody OF his lailOrs!
But further: 1t is to the reign of Elizabeth that
Mr.. Lincoln is indebted for the idea of the proc
lamation he issued on the Oath day of September,
1862, which | have read, whereby he "arrogated
to himself and delegated to his subordinates "a
power of discretionary Imprisonment into which
no inferior court was to inquire"
In 81 eaking of this Infamous proclamation, the
historian SAYS:
mo other measures of Elizabeth's reign can
be compared in point of violence and ~illegality
to a commission issued in July, 1895, directed to
Sir Thomas MILFORD, whereby upon no other
allegation than that there had been oflate suDdry
great unlawful assemblaSes' (public meetings
perhaps, like that held at Mount Vernon1 of a
number of base people of a riotous sort. &c, it
was found necessary to have some such notable
rebelliOus persons to be speedily suppressed by
execution and death, according to the Justice of
martial law; and he is therefore appointed Provost
Marshall" a name quite familiar to us in these
latter times, to carry out the ~atrOcious purposes
Of this arbitrary and illegal order.
The encroachments of the royal perogative
during the reign of Elizabeth, and her successor,
James the FIRST. and the arbitrary conduct of
Charles the FIRST, upon his accession to the
throne, led to the celebrated
PETITION OF RIGHT,
Which was granted in the third year of his reign,
A. ID. 1927. Charbts having broken up Parlia-
ment, and dissolved il, was compelled to resort
to forced loans for means to carry on the govern
ment. The arbitrary exaction of money by the
King, without the authority of Parliament, was
a violation of The established Constitution of
England, no less gross than the infringement of
the right of personal liberty. Having committed
the first without hesitation, he did not scruple TO
incur the responsibility of the latter. Five OF his
subjects, being all men of some distinction, OAR
mel, Corbet, Earl, Heveningham and Hampden,
having refused to accede to the forced loan. the
King a~rrogated to himself this power of discre-
%tionary Imprisonment, which Mr.. Lincoln AFRO
gates to himself to day, and casts them into
prison.
These men, like Mr.. Vallandigham, determin
ed to resist what they believed TO be the encroach-
mer t. of arbitrary power, appealed to he Court
OF Kings Bench for the writ of habeas corpus.
The writ was granted. The officer having Gus.
tody of the prisoners returned that they were de
tanned by a warrant from the Privy Co mel
informing him of no particular cause Of imprison
ment, hut that they were committed by command
of His Majesty.
Mr.. Vallandigham was arrested by command
of Major General Burnside. aud when he was
called upon to state the cause Of his arrest and
ACilhI lC O1f GhOE hO ~ w RAA4R "
or any other legal process whatever against the
accused.
Now, let us see what is written in authentic
history about this great habeas cordus case, that
occurred in England more than two centuries and
a quarter ago.
The historian says:
"This gave rise to a most important question,
whether such Il return was sufficient to justify
the Court in remitting the ~uaItieS 10 custody.
The fundamental immunity of English subjects
from arbitrary detention had never befnre been
so fully canvsssed; and il is to the discussion
which arose out of the case of these five gentle
men that we owe its continual assertion by Par
lament and its ultimate establishment in full
practical efficacy by the statute of Charles H."
The counsel for the prisoners grounded their
demand for liberty OF the originalbasis OF Magma
Chart, the 45th section of which provides that
no freeman shall be taken or Imprisoned unless
by the lawful judgment Of his peers, or by the
law of the land. Ample proof was brought
from the old law books that the Kings command
could not excuse an Illegal act. 'ff the King
commands me-" said one Of the Judges under
Henry VI. ito arrest a man, and / arrest him. he
shall have an action Of false imtrisonpent
against me. though it was done in the Kings
presence ~ -.g
The power of Charles was sufficient, however,
to overawe the Court, and after a full and able
discussion Of the principles governing the case,
which bore the legitimate fruit of liberty in future
time, as | will presently show, the Court re-
manded the prisoners to custody, as Mr.. Vallan-
digham was remanded TO the custody Of General
Burnside. Perhaps il was urged by the Crown
lawyers of that day, that the ''life of the English
nation was at stake, inasmuch as il Charles was
not permitted to exact forced loans from his sub