Year: 1861

| M IN lima
liberty on bail And the most exciting contests between
the Grown aud the people of England from the tima OF


magma Cnara were IN relation to the privilege this
"It anu tey continued until the passage of the statut
OF 3l>t Charles I'd commonly known as the great bgbs
corpus act ms satGtt put end to struggle and
nhay ana hrmy secured the liberty Of the subject from
the usurpation and oppression Of the executive branch Of
the government 1t nevertheless conferred no new ryt
upon the ject but only secured right oIraad,, it
ing although the right could silly denied thu
was often no eHrctua remedy against violation I'm
III the statute of the 18th Of Will am 81 the Judges held
er olces at the pleasure Of the King and influence
wch he exercised timid, tmeserving and payti.
san judges often induced them upon some pretext or
ohr to refuse to discharge the party although he was
entitled to it by law delayed their decisions from time
10 'ime as to polong the imprisonment Of persons who
We're obnoxious to the King for their political opinions
had incurred his resent nent in any other way


The great and incsmable value of the hqbeas corpus
act OF the 3ls Charles that it contains provisions
"ch compel courts and Judges and all parties
ed t. perform their duties promptly the manner spec
flied in the statue


A passage in Backstone's Commentaries showing the
ancient state of the law upon this subject and the
abuses which practised through the power and in
huence of the Crown and a short extract from Haan
Constitutional History, stating the circumstances which
gave rise to the passage of this statute explain briefly
but fully, all that is material to this subject


Blackstone in his Commentaries on the Laws of Enp-
land, I'D vol. l33 1874 says:


"To assert absolute exemption from i'm arisonment
IN all cases, is inconsistent with every idea of law and
political society and in the end would destroy all civil
liberty, by rendering its protection impossible.


But the glory Of the English law consists in clearly
defining the times the causes, and the extent, when
wherefore and to what degree the imprisonment the
II induces he
absolute necessity OF expressing upon every commit
ment the for which it is made, that the court
% upon hd6sa$ corpus may examine into its validit
ana according to the circumstances of case NAV dis
charge, admit to bail or rem and the prisoner


And yet early in the reign of Charles the Court of


hSS Bench relying on some arbitrary precedents land
thoe perhaps mSuuderstood determined that they
not upon hdbeos corpus, either BAIL deliver priso
ner though committed without any cause assigned in
case he committed by the special command
of the King or by the Lords of the Privy Coun
ell This drew on a Parliamentary innuirv and pro
L. pI,
this Illegal Judgment, and no freem an here
after shall be so imprisoned detained. But when in
the following year Mr. Seden and others committed
by the Lords of the Counci in pursuance of his maesys
special command, under general charge of notable
contempts and stirring sedon against the King and
the government the judges delayed for two terms lin
Guiding also the long vacaopl deliver opinion how
FIR such charge bailable And at length they
agreed that was they however annexed condition
finding ureties for their good behaviour which still pro-
tracted their Imprisonment the Chief Justice Nicholas
hyde at the same time declaring that if they again
remanded for that cause perhaps the court would not
ateTward grant hohenS corpus" being already made ac
quined wlth the cause of the imprisonment But this
was heard with indignation and astonshmcnt by every
lawyer present according Mr. Seldens own account Of
the matter whose was not cooled at the dis
tance of four and-twenty years"


1t is worthy of remark that the offences charged against
the prisoner in case and relied on AS insti6cation
Tor MS arrest and imprisonment in their nature and
hiracer, and in the loose vague manner in winch
they are stat d. bear striking resemblance to those as
signed in the for the of Mr. Selden And
yet at that dav the regarded as such


ant violation of the rights subject that the de-





he hHbea corpus issued in his behalf excited universal
Indignation of the bar. The from Haam's Con
stitutiuna History is equally impressive and eouav in
point 1t is in vol. 4: p IA .


1T is a very common mistake and only among for
elgners, bat many from whom some knowledge of our
constitutional laws might be expected, suppose that
this statute of Charles IL enlarged great degree our
liberties. and forms sort of epoch in their history
But though very beneficial enactment an emineItlv
remedial in many of illegal imprisonment it in
trodnced no new principle, conferred any right upon
the subject From the earliest records Of the Ensis
freeman could in prisO
criminal charge or convict for civ debt In
OF the Court Of Kings Bench writ of hGJenS corpui dd
SWytclehdm directed to the person detainng him in
custody by which he enjpned to bring up the body
OF the prisoner with the commitment that
the court m2ht judge of its suciency and remand the
party admit him to hail, discharge him. according to
the pre- of the charge. This writ issued of right and
g6mmunity from arbitrary imprison ment which is
ybundanuy provided for in Magma Charta f indeed it
were not more anc'ent that the statute of Charles H.
enacted, hut of the abuses by which the gov
ernmcntS lust of and the serviIe subtiey Of
Crown lawyers had impaired fundamental "a privi-
lege "


While the value set upon this writ in England has been
great that the removal of the abuses which embarras
ed its enj yment have been looked upon as almost new
grant of liberty to the inject it is wondered at
that the continuance of the writ Tins made rlr.rvs
should hav been tie object of the Jealous care Ac-
cordngly, in England short of that of Parli
ent can suspend or authorize the suspension
hdbedS corpus lquote again from Blackstone Il Comm ,
l5o but the happiness of our Consti uton is that it is
not left to the executive power determine when the dan





dent 1t Is the Parliament only legislative power ta
whenever 1t sees proper horiZe the Crown bv s
pend!ng The hH1edS corpus for short and limited time
prson supec Ell persons without giving any reason for
so doing And if the President of the United States NAV
suspend the writ the the tuon the United States
mas conferred upon him regal and abSOu
the liberty OF the citizen than the people of En- gland have
thought it safe to entrust to the Crown-a power which
the Queen of England cannot exercise at this dav and
which could have been lawfully exercised hy the
Sovereign even in the reign of Charles the First


But am not LETT to form my judgment upon this great
ana our tie n sqFh 81 GsyefR III
rists the decisions English Courts althougb nnnn
this subject they entitled highest respect and
are justly regarded and received authoritative hv
Courts If Justice. guide me to right conclusion
have the commentaries the Constitution of the United
States of the late Mr. Justice Story not only one of th
eminent iursts Of the age but for long time one
C the brightest ornaments of the Supreme Court of the
United States and also the clear and authoritative eci
sion of that Court itself given than half century
since and concusvely establishing the principles have
above stated.


Mr. Justice Story speaking in his Commentaries of the
hdbeGs corpus clause in the Constitution SAYS:


ut obvious that cases of peculiar emergency ay
arise which justify, nav. REQUIRE the temnn-
rary suspension of right to the writ But as it has
frequently happened in foreign countries and even in
England, that the writ has, upon various preeXts and
occasions been suspended whereby persons apprehended
suspicion have suffered long impri some
times from design and sometimes because they were for
gotten the right to suspend is expressly confined to
of rebellion invasion where the public s.etv NAV re
quire it very just and wholesome restraint, which
cuts down at blow fruitful means of oppression cana.
bic of being abused times to the worst Of pnrnosr


Hitherto sion of the writ been an hor.
lied hy Congress since the Of the Constitu.
ton. 1t would the power given to Congress
to suspend the writ of hadedS corpus in of rebellion
or INVASION that the right to judge whether exigrncv
had arisen must exclusively belong to that body"
Story's Com on the Con ,titution, section 1896


And Chief Justice Marshall in delivering the opinion
of the Supreme Court in e pqy Bollman and
Swarwout, uses this decisive language in Cranch 95


I may be worthy of remark that this act speaking OF
the one under which / am proceedng) was passed by
the first Congress of the United States sitting under
Constitution which had declared that the privilege a
ed nm.
less when in Of rebellion invasion the public
safety might require it, Acting under the immpd att
influence of this injunction, they have felt with pc
cniar force, the obligation of providing efficient means
by which great constitutional priyeoe horId ra
ceve life aud activity; for if the not in exist
ence, the privilege itself would he lost although no law
for its suspension should be enacted Under the mpre
sion of this obligation they give all the Courts tho
power of awarding writs Of habeaS co,puSn


And again, in page lOl:


lf at time the public safety should require the
suspension of the powers vested by this in the court
Of the United States for the Legislature to say
Ina question uep mas on political considerations, OF
which the Legislature is to decide Until the Legislative
wh be expressed this court only its duty ant
| must obey the laws''


can add nothing these clear and emphatic words Of
| my great predecessor.


But the documents before show that the military
authority in this has far beyond the mere sus
pension OF the privilege of the writ of hGbeGS corpus
has by force of arms thrust aside the judicial authort
and officers whom Constitution has conGd.d th
power and duty of interpreting and administering th
laws and substituted military government in its place
to be administered and executed bv military onicers Fo
at the time these had against John Ner
ryman the District Judge of Maryand-the com
appointed under the act of Conpresstbe Distct A.
tornry and the Marsha-a resided in the city of Balti
more few miles only from the home of the prisoner
to that time there had never been the slightest resist
ance or obstruction to the process of any court udica
oicer OF the United States in Maryland except by th
military authority And if military officer or any 9th
er person had to believe that the prisoner ha
committed any offence against tina laws of the United
States it was his duty to give information Of the fact
and the evidence to support it, to the District Attorney
and it would then have become duty of that officer
bring the matter before the District Judge or Commis
soner and if there sufficient legal evidence TO jus


" ms arrest the Judge or Commissioner would have is
sued his warrant the Marshal arr est him. and upo
the hearing OF the party would have held him bail
committed him for trial according TO the characterof tn
offence as appeared in the testimony or wnud bay
discharged him Immediately, there was not unicipn
evidence to support the accusation There was no dar
ger OF any obstruction resistance action of tn
civil authorities, and therefore reason whatever Io
the nterposton of the military And yet, under thes
circumstances military officer stationed in PeunyIva
ma without giving any information to the District
torney, and without any application to the judicial ar
Inorlnes, assumes to himself the Judicial power in tn
District of Maryland; undertakes decide what const


utes the crime OF treason rebellion what evidence ii
indeed ne required any) is sufficient to support
cusatlon and Justify the commitment; and commits III
party without having hearing even before himself t
close custody in strongly garrisoued fnt to be her
hed IL would seem, during the pleasure Of those VIII
committed him. " "


The Constitution provides, have bef re said tina


no person shall he deprived of lie liberty or pronert,
without due process Of law " 1t declares that the rich
OF the people to be in their persons houses
and effects against unreasonable searches and
shall not be violated, and shall issue bu
upon probable cause. supported by oath or affirmation
and particularly describing the place searched an
the persons or things to be seized 1t provides
party accused shall be entitled TO speedy trial. in
court of justice


And these great and fundamental laws which Congres
itself could not suspend have been sregared and
pended, like the writ of habeaS corpuS by militar
order supported by force Such is the case no
before me, and can only say that if the authority whc
the Constitution has confded to the judiciary department
and Judicial officers may thus upon any preeXt unde
any circumstances he usurped by the military power
its discretion the people of the United States
ger living under government of laws but every cit
holds life liberty and property the will and plea