The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1904-04-20
A GOVERNOR IN CONTEMPT OF
COURT.

Governor Peabody, of Colorado will be
fortunate if he escapes punishment for con-
tempt of court. There is absolutely no
ground whatever for his contention and
that of his adjutant general that they are
not bound to obey a writ of habeas corpus
issued by a state court, on the alleged
ground of a local Instruction and that
the person for whom the writ was issued
is in military custody. At first the adj
jutant general refused to acknowledge
service of the writ issued by a lower court
and when, appeal, a writ was issued
by the Supreme Court of the State the
Governor decided not to obey it on the
ground that in existing circumstances it
would be unsafe to remove the petitioner
from the Jail where he is now confined
under military authority.
Whatever plea or excuse the Governor
may make for not producing the body of
the prisoner in court, his conduct amounts
to an assertion of his right to suspend the
writ of habeas corpus. This claim on the
part of the Governor of State cannot be
sustained for a moment The Constitution
of the United States provides that "the
! privileges of the writ of habeas corpus
/ shall not be suspended unless when, in
| cases of rebellion or insurrection. the pub
lie safety may require it," The constitu-
tons of most of the States contain a SIM
liar provision. In the Constitution of Indi-
! ana it reads: 1.-The privileges of the writ
of habeas corpus shall not be suspended
except in case of rebellion or insurrection.
and then only if the public safety demands
it" In several of the state constitutions
suspension of the writ in any case is for
hidden. No State has ever suspended the
writ except Massachusetts,, and that was
during Shays rebellion in 1861
Suspension of the writ is legislative
function. and can only be delegated to the
executive by express authority. In 1861
Chief Justice fancy decided in the Circuit
Court of Maryland that Congress alone
possessed the right 10 suspend the writ
President Lincoln had already suspended
the writ by proclamation within a limited
area of country. Chief Justice Taney's de-
cision virtually denied the right of the
President to do this, but when the ques
ton was referred to the attorney genera
! he gave an elaborate opinion in favor o
tho Presidents power to suspend the writ
On the strength of this opinion many ar
library arrests were made of disloyal o
. susnected persons. At the special session
, in 1861 Congress passed an. act iegalizin
tho Presidents acts. and in 1863 ii passe
law authorizing the President wheneve
4 l., his Judgment the public safety NIGH
: reouire il. to suspend the writ anywher
: throughout the United States. AS this au
e tbority was conferred by Congress 1t woui
!. seem To confirm Chief Justice Taney's dc
: c;sion that Congress alone had the risf
$ 70 SUSPEND the writ. That now is the bette
" opinion.
< II there ever was or could be a case
. uv,;cb SUSPENSION of the writ by the Pre-:
i. ;a,t WAS unsuitable without AUTHORITATIVE
. b. Congress it was at the beginning
IN. c,vi, war when the country was hone!
IL combed with treason. The North sustaint
az, action of President Lincoln on the hie
~ ground that the public safety required
10 but the legaIizing acts of Congress we
20 necessary 10 complete the record.
- II il extremely doubtful IL the Lesislatu
:. q, q state has right to suspend the WI
a In any part of the State except In case