Year: 1863

Federal court cannot be taken from I
by State authority and the decision o
the Supreme Court Of State may be eel
! down BY the Supreme Court Of the Uni
ted States, yet tho tIiAioB sfS United
States judge cannot Of itaelf, ia . matter
where the United States has not excl6
sive authority, prevail over the opinion
4 Of State judge. Again wheo,a United
States OdiciAl refuses 10 make dno tnrn
or to release . prisoner, on the due order
Of q State judge, and an attachment issues
against the Odited States official, he may
apply to United States judge, and the
latter may think fit on due proceedings ID
order the release Of the official and here
may be temporary 'coGfsou OeC~estFt6t
authority Of the United States and that
of q State. ''


By the English law, the privileges Of
the writ Of habeas corpus may be sus-
pended by act Of Parliament. In the
language Of Blackstone, 1T was not left
to the executive power 10 determine when
the danger Of the State is so great as to
render this measure expedient; for it is
the parliament only, or legislative power,
that whenever it seems proper, can au-
thorize the Crown by suspending the ha-
beas corpus act for q short and limited
time, to imprison suspected persons with
out giving any reason for 30 doing. p
Thus it would seem that arbitrary acts
committed by royal authority pursuant
to this suspension, do not subject the
parties concerned in them to any liabili-
ty to the persons affected by their acts.


But the suspension Of the writ Ofha-
beas corpus is in some important res
poets very different under our American
constitution, from what It is under the
English law. The privilege Of the writ
indeed, just as is the case in English law,
cannot be suspended by legislative au-
thority, This is expressly declared by
several State constitutions and in the
Federal constitution, the collection Of the
provision relating to the suspension, as
we'll as the nature Of the case, shows that
it can only be done by the authority Of
Congress. In other respects our Ameri-
can law is different from the English
Here the rights and liberties of the citi-
zen are permanently guaranteed by writ
ten constitutions; therefore, the suspension
Of the writ cannot deprive a citizen Of
those rights and liberties. What then is
the practical use of the suspension p
1t is this: In the case Of rebellion
and invasion it is Of great importance,
not that suspected persons should be ar
rested and confined without legal process
(Which is thing that American consti.
tutions do not recognize As ever necessa.
ry or desirable), but that military opera
tions should not be embarrassed by the
service Of writs Of habeas corpus. When
prisoners are taken, or when persons in
military service commit offenses against
military law and are in custody, it is de-
sirable that they should be left to the de-
post of military authorities without the
intermeddling Of the civil courts. Other
wise an invasion could not be repelled,
or rebellion suppressed, without expe-
riencing annoyances which might entire
ly Illustrate the efficiency Of military mca-
sures. In the view Of the founders OF
our institutions, the suppression of the
rebellion and the repelling of the invasion
were matters 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 arbitra-
ry arrest and confinement of suspected
persons by the mere ipse dixit of the
Executive. Aud even this limited sus-
pension of the privilege of citizens to ap.
peal TO the courts, requires fhe authOri.
zation Of Congress before it can be put
in force.


How wide and manifest is the differ
ence between the suspension Of the writ
Of habeas corpus and the proclamation OF
martial law Even in England the diff
ference is so great that the dullest and
darkest intellect cannot fail 10 see it,
How great the difference, then, in our
own country. If Congress, on the oc.
currence Of rebellion or invasion, has au-
thorized the suspension by the Executive,
for certain time, Of the privilege Of the
writ in regard to military prisoners and
military offenders, and the Executive has
made due proclamation 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 obeying the man
date of the court. On the other hand, q
proclamation of martial law undertakes
to subject all civil law and all civil courts,
together with the privilege ofthe arbitra-
~ authority of the Commander-in- Chief
or his subordinates. 1t undertakes land
so far as it operates it accomplishes the
design to transform n free and constitu-
tional government into the despotism OF
one man Such is the suspension Of the
writ of habeas corpus on the one hand,
and such is the nature of the proclama-
ton of martial law on the other.


Our American jurists have been wont
unanimously (until lately) to express a
high sense Of the writ of habeas corpus.
Said Judge Swift of Connecticut; "When
q man is falsely imprisoned, and wishes
to attain his lawful liberty, be is entitled
to the writ of habeas corpus, the great
bulwark of civil liberty" This writ for
nishes the strongest secuaity for the lib
erty of the citizens, and constitutes the
most prominent distinction between q
free and an absolute Government. Said
Chancellor Kent of New York "The
habeas corpus act has always been con-
sidered in England as stable bulwark
of civil liberty, and nothing similar to it
can be found in any of the free common
weaIths of antiquity. Its excellence con-
sists in the easy, prompt and efficient
remedy afforded for unlawful imprison-
ment. and personal liberty is not left to rest
for its security upon general and abstract
declarations of right" OF the same i'm
port is the testimony Of all the jurists and
statesmen whose names Americans have
been wont to cherish with reveTcnt az
fection. Are the American people now