Year: 1861




some knowledge of our constitutional laws
might be expected, to suppose, that this
statute of Charles II enlarged in great
degree our liberties, and forms sort of
epoch in their history. But though very
beneficial enactment, and eminently reme-
dial in many cases of illegal Imprisonment,
it introduced no new principle, nor confer
red any right upon the subject. From the
earliest records of the English law, no free
man could be detained in prison, except up
on a criminal charge, or conviction, or for
a civil debt. In the former case it was al
ways in his power to demand of the Court
of Kings Bench writ of AaJeas corpus ad
seJiciendum directed to the person detain-
ing him in custody, by which he was en-
joined to bring up the body of the prisoner
with the warrant of commitment that the
court might judge of its suficicncy, and re-
mand the party, admit him to bail, or dis
charge him, according to the nature of the
charge This writ issued of right and could
not be refused by the court. It was not to
bestow an immunity from arbitrary impris
onment, which is abundantly provided for
in Magma Charta, Cf indeed it were not more
ancient, that the statute of Charles II. was
enacted, but to cut off the abuses by which
the governments lust of power, and the SER
vile subtlety of Grown lawyers had impaired
so fundamental privilege"


While the value set upon this writ in
England has been so great that the removal
of the abuses which embarrassed its enjoy
ment have been looked upon as almost a
new grant of liberty to the subject, it is not
to be wondered at that the continuance of
the writ thus made effective should have
been the object of the most jealous care
Accordingly, no power in England short Of
that of Parliament can suspend or authorize
the suspension of the writ of hobeas corpus
[ quote again from Blackstone q Comm,
1860: ''But the happiness of our constitu-
tion is, that it is not left to the Executive
power to determine when the danger of the
State is so great as to render this measure
expedient. It is the Parliament only. or
legislative power. that, whenever it sees pro-
per, can authorize the Crown, BY suspend
ing the habeas corpus for short and limit
ed time, to imprison suspected persons with
out giving any reasons for so doing" And
if the President Of the United States may
suspend the writ, then the constitution Of
more regal and absolute power over the lifSs lifbSss
erty of the citizens than the people of Eng
land have thought it safe to entrust to the
Crewn-a power which the Queen of Eng
land cannot exerciee at this day, and which
could not have been lawfully exercised by
the sovereign even in the reign Of Charles
the First.


But l am not left to form my Judgment
upon this great question from analogies be-
tween the English government and our own,
or the commentaries of English jurists, or
the decisions of English courts, although
upon this subject they are entitled to the
highest respect, and are justly regarded and
received as authoritative by our courts of
justice. To guide me to right conclusion,
I have the Commentaries on the Constitu-
tion of the United States of the late Mr..
Justice Story. not only one of the most cmi-
nent jurists of the age, but for a long time
one of the brightest ornaments of the Su-
preme Court of the United States, and also
the clear and authoritative decision of that
court itself, given more than half a century
since, and conclusively establishing the
principles have above stated.


Mr. Justice Story, speaking in his Com
mentaries of the habeas corpus clause in the
constitution. says:


cit is obvious that cases of peculiar
emergency may arise, which may Justify,
nay, even require, the temporary suspen-
sion of any right to the writ. But as it has
frequently happened in foreign countries,
and even in England, that the writ has,
upon various pretexts and occasions, been
suspended, whereby persons apprehended
upon suspicion have suffered a long imprison-
ment, sometimes from design. and some
times because they were forgotten, the right
to suspend it is expressly confined to cases
of rebellion or invasion, where the public
safety may require it. A very just and
wholesome restraint, which cuts down at a
blow fruitful means of oppression, capable
of being abused in bad times to the worst
of purposes Hitherto no suspension of the
writ has ever been authorized by Congress
since the establishment Of the constitution.
It would seem, as the power is given to Con-
gress to suspend the writ of hobeos corpus
in cases of rebellion or invasion, that the
right to Judge whether the exigency, had
arisen. must exclusively belong to that
body" Story's Com. on the Constitu-
ton, Sec 1886.


And Chief Justice Marshall, in deliver
ing the opinion Of the Supreme Court in the
case of er arte Bollman and Swartwout,
uses this decisive language in Crancn, 95
1t may be worthy Of remark that this "act
(speaking of the one under which am pro-
ceeding) was passed by the first Congress
of the United States, sitting under consti-
tuition which had declared that the privilege
of the writ of habeas corpus should not be
suspended, unless, when, in case of rebel
lion or invasion, the public safety might
require it. Acting under the Immediate
influence of this injunction, they must have
felt. with peculiar force, the obligation of
providing efficient means by which this great
constitutional privilege should receive life
and activity; for if the means be not in cx-
;eton,o the nrivileue itself wOuld he lost