Year: 1861




garded as the duty of a Judge-the highest moral
duty-in any and all cases where the application
is made, charging on oath that person Is ille-
galy imprisoned, to issue the writ at once.


The Importance of the writ was never more
manifest than at this moment, when the Execu-
tive Department of the Government OF the
United States, in the attempt to suppress rebel
lion, is tempted to take upon itself the exercise OF
judicial functions. The grand object of the writ
is to prevent the exercise of judicial authority by
inudicious men; to guarantee the citizen that no
military force shall hold him in duress unless by
due process of law.


The remark of one of the New York papers
that the writ was originally intended to secure
the liberty of loyal men," and that sit would be
gross perversion of its powers to employ 1t as
the protecting shield of rebels" is specimen oi
the very tyranny which the writ OF hdbeds corpus
is designed to overcome. The writ origin
ally and always intended a defense of the sub
ject against the tyranny of the government; and
nowhere is such defense more needed than under
a government like our own. The article in the
Tribune to which we refer, is the grossest per
version of right and of free principles that ever
disgraced the pages of New York paper. Says
the TTibune-"of all the tyrannies that affiict
mankind, that of the Judiciary is the most insidi
Gus, the most intolerable, the most dangerous"


Inother words, the Tribune is for establishing
Lynch law everywhere; and when any large
community have arisen in their might and pro-
nounced against any particular men as traitors
and rebels, and have seized and are about to hang
them, then, no matter whether the community be
Northern or Southern-whether the offense be
against public sentiment North or South-Lynch
law overrides the writ of habeas corpus, and the
Judge is tyrant who dares to issue it. This, we
say, is the doctrine now taught in the Tribune.


1t is marvellous that within the past two weeks
L.. hrDr,
ed with endeayors to Justify the most illegal and
unconstitutional proceedings, forgetting that they
thus more than justify the entire course of the
Southern rebellion.


But the writ of habeas corpus may be suspend
ed in cases of rebellion invasion. Now the
question arises, Who can suspend it?


The writ being right which every citizen has
it is manifest that the only suspension of tht
right must be by power sufficient to suspend
the operation of other law rights. The writ Of
mandamus may be suspended; but how? Only
by statute. Other common law remedies may
be suspended only by statute. No powe
can suspend the writ of the habeas corpus excep
the power which can suspend other writs of re
lief; and this is, in the United States, only tht
Congress of the United States by statute.


1t has been said that the declaration of MARTA
law would suspend it. If this be so, it is on thu
general principle that where martial law has beer
declared, all Judges and civil officers are for tn,
time superseded, and cease to act. But MARTA
law is not yet declared on an inch OF soil in Amer
lea, so far rs we know; and whether declara
ton of martial law in America would supersed
the writ, in the face of the constitutional provi
sion, is very doubtful We are inclined to thinl
that any one resisting the writ in this State, o
any Judge refusing to issue it on petition, woul'
be indicted and convicted. notwithstanding pie
of the existence Of martial law at the time Th
Constitution of the United States overrides mar
| tial law, If no other written law does.


An attempt was made to suspend the writ o
haJeas corpus in 1907 The Senate of the Unite
States passed bill to suspend the writ; the occa
sion being the Burr conspiracy; but it was lost j
| the Hous. In Massachusetts we believe tn
writ was suspended by statute during the Shay
rebellion in 1856 But no instance is on recor
of its suspension by the President, and we ca
not imagine that the legal advisers of that hig
! functionary will counsel him, or that he will him
self imagine that he has the power.


1t need scarcely be added that there can b
no such thing as a suspension of the writ in sin
gle cases, or with reference to special individual:
| This would be tyrannical power beyond all pre-
cedent in modern civilized nations and the de
| is absurd on its face. The writ may be suspend
ed i'm districts, or in the whole country by act c
Congress, but even Congress could not authorz
an arbitrary taking of the right of the writ froI
one person, while others were free to use it.


From these remarks, it follows that Judg
Taney was bound as an honest Judge, doing hi
duty, to issue writ of hateds corpus on the pc
ttion of Mr.. Meriman; that the duty of Ger
Cadwalladar as a soldier for the laws, and cit
zen under the laws, was to obey the writ by bring
ing his prisoner before the Judge, and stating b
what authority he held him that having refuse
to do this, and having thus brought about co
lision between the Judicial and Executive d.
partments of the Government, he must take th
consequences which are by the act of Congress
liability to indictment for misdemeanor, and pun
ishment by fine or Imprisonment, or both. W
sincerely trust that in the grave and solemn eli
cumstances now surrounding us, the Administri
ton will not hesitate to incucate strict obedienC
to all laws everywhere, so that we may be save
from that anarchy and mob government ini
which the Red Republicans of the Tribune scho
are seeking to plunge us.