Year: 1863

work, and if it must be done at all we prefer tina
il should be done by the silent power Of truth
speaking through those traditions which, descend
ing from age to age, have given to the rulings o.
the courts on this point received language and
distinctness of utterance which easily enable the
humblest layman to discern the presence OF an aen
dialect.


/ According to all our teachings, and acoordins
to all the institutes with which we have been Ia
miliar in the practice of our American lnemis'
the duty of Judge of the United States, unaer
| the Constitution and the laws bearing on this
point is as plain to the apprehension as 1T Is easy
in the performance.


The act of Congress of September "a, 1883,
commonly known as the Judiciary Act, declares
In its l4th section that either of the Justices of
the Supreme Court, as well as Judges of the
District Courts, shall have power to grant writs
of habeas corpus for the purpose of an inquiry into
the cause of commitment provided that writs OF
habeas corpus shall In case extend to prisoners
in Jail, unless aohere they an custody under or
by color Of the authority Of the United States or
are committed for trial before some court of the
same, are necessary to be brought into court tc
testify"


1t certainly appeared, from the petition of Mr..
Vallandigham, that he was " in custody under OF
by color of the authority of the United States"
and he had legal right to claim, under the pri-
.vilege of the writ of habeas corpus, that Judge
Leavitt should inquire into the cause of his CON-
mitment" according to the provisions OF the judi
cary act creating the district and circuit courts OF
the United States in Ohio, and according to the
uniform practice of such courts in all the States
But Judge Leavitt refused to issue the writ or to
inquire into the cause of the commitment of Mr..
Vallandigham as soon as he was officially apprized
that it had been made by soldier acting as the
agent of the President of the United States.
A jurist SO learned as Judge Leavitt has doubt
| less read that it was no less an authority than
Lord Coke who inquired, in the debate on the Pc
ttion of Right, " "Shall the soldier and the justice
sit on the same bench? ?"


But it may be said that the duty of Judge OF
has become obsolete in view of the emergency "
that il on the nation at the present time. Well,
let us look then to the legislation of the last
Congress, passed with special reference to this
" emergency" The act of March 8, 1868, ex-
pressly entitled act relating to habeas corpus
Z and regulating judicial proceedings in certain
cases." contains the following provisions in its first
section


"Be enacted bp the Senate and Houssc Representatives.
of the United Staes of america IN Congress assembled


That during the present rebellion, the President Of the
United States whenever in his Judgment the public safe
may require it, is authorized to suspend the privilege OF
the writ Of habeas corpus in any case throughout se Qn
ted States or any part thereof And whenever and wher
ever the ead privilege shall be suspended as aforesaid nc
military other officer shall be compelled, in answer tt


writ Of habeas corpue to return the body OF any per


son or persons detained by him by authority of the Presi


dent but upon the certificate under OATH OF the officer


having charge Of any detained that such person


detained by him prisoner under authority OF the Pre-


sdent further proceedings under the writ OF habeas cor


pus shall be suspended judge court having issued


the said writ long said suspension by the Prsden


shall remain IN force and said rebellion continue
There is no mistaking the meaning of this Ian
I guage Assuming it to be the duty of the United
States Judge to issue the writ of habeas corpu.
wherever and whenever the privilege is properly
invoked, it authorizes the President to suspend
this privilege in any part of the United States.
And the act proceeds to say that wherever and
whenever the said privilege shall be suspended by
the President no military officer shall be compelled
in answer to writ of habeas corpus, to produce
the body of any person detained BY him by au.
thority of the President; but upon affidavit made
to this effect by the officer having such person in
charge, further proceedings under the writ shall
be suspended by the Judge or Court having issued
it. The necessary implication, Of course, is that
in the absence Of such suspension of the privilege
by the President the writ must issue of regular
course.


Now, it is not pretended that the privilege OF
the writ Of habeas corpus has been suspended in
Ohio, and it follows that no Judge in that State
is authorized to suspend proceedings instituted un-
der this writ, which it is as much the duty of q
United States Judge to issue it is the right of
citizen to claim it. Judge Leavitt evidently erred
in assuming that by issuing the writ he would
come into conflict with the Executive branch OF
! the Government. If the President had deemed q
suspension Of the proceedings under that writ to
necessary in the case Of persons arrested by the
military in Ohio, the last Congress provided way
in which he could have sgni6ed his sense of such
public necessity, and until this was done Judge
Leavtt, it seems to us, had but one duty to per.
form, and that was to issue the writ leaving to the
I