Year: 1863

tive bodies must conform. When Judge OF u
State or Of the United States is inquiring whelh-
an Imprisonment is legal, he is to be guided in
his inquiries as much by the fundamental law as
by any other. Judge of a State is to take into
view the ConsLi ution and laws Of the United
States (Which are the supreme law of the land),
as well as the Constitution and laws of his State.
In this way tremendous power can be lodged in
the hands of single Judge. He may set aside.
for the case in hand. an act Of State legislature
or OF Congress. 1t will readily be conceded that
such power ought not to be exercised lightly,
and that where there is much room for difference
OF opinion in regard to the harmony OF u law Of
Congress with the Constitution of the United
States, single judge should not hasten to decide
the point, il the eXigences of the case will ad-
NIT of delay. till he can have the aid OF the COM
bined counsel of his associates, if not of the
opinion OF a tribunal of ultimate resort.


1t is easy to see that there may be a clashing
for time at least. between the judicial authori-
ties OF a State and the Union, growing out of Il
difference of opinion in regard to the constitu-
tionality of law Of Congress. prisoner held
by virtue of such 4 law, might be q scharged
when brought before State judge, and remanded
into custody when rc-arrested and brought before
United States judge, or rice versa. The mere
individual opinion OF a United States Judg IS
not binding upon State judge since one is not
universally the superior Of the other. Though
person in the lawful custody of Federal court
cannot be taken from it by State authority and
the decision Of the Supreme Court OF State
may he set down by the Supreme Court OF the
United States, yet the opinion of United States
judge cannot Of itself, in n matter where the
United States has not exclusive authority. pre-
vail over the opinion of State Judge Again,
when United States official refuses to make due
return or to release prisoner, on the order OF
State Judge, and an attachment issues against the
United States official, he may apply to United
States judge, aud the latter may think lit ON due
proceedings to order the release Of the official;
and here may be a temporary collision between
the authority OF the United States and that of
State.


By the English law, the privilege of the writ
of habeas corpus may he suspended by act OF
Parliament. In the language OF Blackstone, 1T
is not left to the executive power to determine
when the danger of the State is so great as to
render this measure expedient; for it is the par
lament only. or legislative power, that, whenev-
er it sees proper, Can authorize the Crown by
suspending the hubeas corpus act for a short and
limited time, TO imprison suspected persons with
out giving any reason for SO doing" Thus it
would seem that arbitrary acts committed by roy
al authority pursuant to this suspension,, do not
subject the parties concerned in them to any lia-
bility to the persons affected by their acts


But the suspension of the writ of ha6eas corpus
is in some important respects very different under
our American constitutions from what it is under
the English law. The privilege of the writ in
deed just is the case in English law, cannot be
suspended but by legislative authority. This is
expressly declared by several Of the State Con-
stutions; and in the Federal constitutions, the
collection of the provision relating to the suspcn-
sion, rs well us the nature of the case. shows that
it can only be done by the authority Of Congress.
In other respects our American law is different
from the English. Here the rights and liberties
of the citizen are permanently guaranteed by
written constitutions Therefore, the suspension
OF the writ cannot deprive citizen of those
rights and liberties. What then is the practical
use of the suspension! 1t is this: In case of
rebellion or invasion it is Of great Importance.
not that suspected persons should be arrested and
confined without legal process (Which is Il thing
that American constitutions do not recognize rs
ever necessary or desrable.) but that military
operations should not be embarrassed by the ser
vice of wrts OF habeas corpus. When prisoners
are taken, or when persons in military service
commit ofenses against military law and are in
custody, it is desirable that they should be left to
the disposal of the military authorities without
the intermeddling OF the civil courts. Otherwise
an invasion could not be repelled. or a rebellion
suppressed. without experiencing annoyances
which might entirely Illustrate the efficiency of
military measures. In the view tf the founders
of our institutions, the suppression Of the rebel
lion and the repelling of the invasion were mat
ters of such Importance that the civil authority
must for the time give way in some degree to the
military. This is a very different thing from the
arbitrary arrest and confinement of suspected
persons by the mere ipse dirit Of the Executive.
find even this limited suspension oil the privilege
OF citizens 10 appeal to the courts requires the
authorization OF Congress before it can be put in
force.


How wide and manifest is the difference be-
tween the suspension Of the writ of habeas corpus
and the exclamation Of martial law? Even in
England the difference is great that the dull
est and darkest intellect cannot fail to ii. How
great the difference then in our own country. II
Congress, on the occurrence of rebellion or nva-
sion, has authorized the suspension by the Execu.
tive for certain tine. Of the privilege of the
writ in regard to military prisoners and military
offenders, and the Executive has made due proc
lnmatlon OF the suspension, then all military
officials cited TO appear and have before Judge
or court such persons being in their custody
may make respectful return on oath OF the fact,
and may be excused from obcying the mandate Of
the court. On the other hand, "a proclamation OF
martial law undertakes to subject all civil law
and all civil courts. together with the privilege
Of the ballot to the arbitrary authority of the
Commander Chief or his subordnates. 1t un-
dertakes and so far as it operates it accomplishes
the design) to transform free and constitutional
government of law into the despotism OF one
man! Such is the nature Of the suspension OF



such is the ature Of the proclamation of martial
law on the other


Our American jursts have been wont unani-
mously (untl lately to express high sense OF
the writ of ha6eas corpus. Said Judge Swift OF
Connecticut. Where man is falsely imprisoned
and wishes to attain his lawful liberty, he is EN-
titled to the writ OF habeds corpus, the great
bulwark of civil liberty" "This writ furnishes
the strongest security for the liberty of the citi


zens, and constitutes the most prominent distinc.
ton between free and an absolute Government"
Said Chancellor Kent of New York, "The habeas
corpus act has always been considered in Eng
land rs a stable bulwark of civil liberty. and


nothing similar to it can be found in any of the
free commonwealth Of antiquity. Its excellence
consists in the easy, prompt and efficient remedy
afforded fer al! unlawful imprisonment. and per-
sonal liberty is not left to rest for its security
upon general and abstract declarations OF right"
OF the same import is the testimony OF all the
jursts and Statesmen, whose names Americans
have been wont to cherish with reverent affection
Are the American people now ready to surrender
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