The independent. [volume] (Lincoln, Neb.) 1902-1907, 1904-07-28

based It's decision upon theories long
ago determined by juries and states
men to be illogical and false.
On the part of the petitioner 1t was
urged that he was Illegally restrained
of his liberty, that court of compe-
tent jurisdiction had ordered him re-
leased on habeas corpus, and that the
military authorities had refused to re-
lease him and had refused to permit
the civil authorities to serve process
upon them.
On behalf of the military officers it
was said that they had been ordered
by the governor not to release upon
writ Of habeas corpus, and on behalf
he had declared the county of San
Miguel to be in state of insurrection
and rebellion, and that under such con-
ditions he had authority to enforce
martial law and to suspend the priv
ilege of the writ of habeas corpus.
AS these propositions strike at the
very foundation OF our government;
as the court has evaded cOnsidera-
ton of them; and as l believe they
present the only questions in the case;
/ shall discuss them and ignore for
the present consideration of the
opinion, with the observation that it
establishes a precedent that is SO re-
pugnant to my notions of civil lib
erty, SO antagonistic to my ideas of a
republican form of government, and SO
shocking to my sense of prOpriety and
Justice that | cannot property charac-
teTize it.
Judge Steel then proceeds to relate
the facts concerning the proclamation
of martial law, the arrest of President
Meyer in Ouray county, and his de-
tention without warrant or trial in
San Miguel county. The application
for a writ of habeas corpus is men
toned, and the contentious of oppoS-
ing counsel set forth at length, espe-
cial stress being laid upon the con-
tention of the applicant, Meyer, that
neither instruction nor rebellion ex-
list or existed in San Miguel, and re-
fers to the charge OF unjust and IL
legal deportation of miners Judge
Steele then continues:
The return does not justify the de-
tention of the prisoner upon the
ground that the military exigencies are
such that the respondent cannot leave
his command for the purpose of yield
ing obedience to the writ Moreover,
it is common knowledge that the COM
mander of the army of the San Mig
uel, when executive functions did not
require his attendance in other parts
of the Union, has been at the capital
much of the time. The return not
showing a state of facts which justify
a disobedience of the writ, the petit
toner is entitled to his discharge UNI
less the return shows that he is held
by due process of law. In the return
1t is stated that the respondent has
been ordered by the executive head Of
the state to refuse to surrender the
petitioner upon writ of habeas corpus
or otherwise, and his counsel contend
that the governor, under the constitu-
ton, has the power to suspend the
privilege of the writ, and that in this
case he has virtually done So although
no proclamation that he has done so
has been made, and although he does
not expressly say SO in the return. If
the power to suspend the privilege of
the writ is vested in the executive
head of the state it seems to me that
it is not important how or in what
manner it is exercised.
But it is SO clear that the power to
suspend the privilege of the writ of
habeas corpus is not lodged In the
executive branch of the government
that it seems like a waste of time to
discuss the question. If there is any
one question positively and finally set
tied it is that the power to suspend the
is solely legislative power.
Ii is based upon very simple pro-
position, which Is that as the priviI-
ege OF the writ Is granted by law IL re-
quires law to suspend that privilege,
privilege of the writ of habeas corpus
and that the executive department
cannot legislate.
Judge Steele then quotes at length
eminent authorities to prove his con-
tentlon that only the legislative
branch has power TO suspend the writ
OF habcas corpus. Continuing he said:
IL was against such tyrannical
monster that we triumphed In our
revolutionary conflict. Our fathers
sealed the conquest by their blood,
and THAR nnNfaPffv will navNF Y,arrnff