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CHAPTER IV.

THE HABEAS CORPUS ACT.

ITS LEGAL OFFICE-NECESSARY TO FREE GOVERNMENT-HOW SUSPENDED-THE

RIGHT OF THE PRESIDENT AND CONGRESS DENIED-ORIGINATED WITH US-
SUBORDINATION OF THE MILITARY POWER-CONSTITUTION SUSPENDED BY

OVERTHROW OF JUDICIARY-MILITARY GOVERNMENT A USURPATION-HABITS

AND TRADITIONS À PART OF OUR SYSTENDEMORALIZING EFFECTS OF MIL

ITARY RULE UPON THE CIVIL POWER,

The Act of Habeas Corpus simply provides that all persons deprived of their liberty, shall have the right to demand a review of the proceedings of magistrates or others leading thereto. This right is utterly valueless to guilty parties, and was given solely in the interest of accused or suspected persons, in order that the innocent may be protected against the tyranny or usurpation of those in authority. The Constitution of the United States makes it a part of our political system, not by express provision, but by the restriction it imposes upon the authorities, in reference to its suspension. It existed in all the States of the original confederation, and, as was evidently supposed, transmitted to the government of the United States, as a settled element in a free system of laws.

It is one of those provisions which can be removed only by showing that freedom is an evil, and absolutisin a benefit. It is incapable of doing the least damage to a free state, of preventing the execution of the least rightful authority, of shielding offenders, or in any way defeating the ends of justice.

It constitutes a sort of reserve force against those intrusted with the right of arrest, with power to keep them within the scope of the laws, and with no other authority whatever. It is purely protective in all its features; to the state, because it is the compass of its administration; to the citizen, because, while it never

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shields an offender, it never permits innocent parties to be confounded with the guilty.

Among the many perplexing anomalies which have arisen in the course of our political career, the disclosure of hostility to the free exercise of the rights of the Habeas Corpus Act, is the most difficult of solution. With no party or citizen who dares to oppose it, we find it suspended, not, according to the Constitution, by the supervening power of the army, in cases and places of rebellion, but by the proclamation of the President of the United States, over the entire Union.

The right to suspend the writ is given in these words (1st Art., 9th sec., Con. U. S.):

“The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

It will be observed that the authority of suspension is here declared, while nothing is said of the manner or by whom it may be done. In the absence of all reflections upon the nature of the government, and of the State systeins, existing at the time of the adoption of the Constitution, the inference would be fair, that the President of the United States might legally take jurisdiction of the case and suspend the writ. But it is clearly seen that no such power was ever intended to be lodged in his hands, simply because, by another provision of the Constitution, he is made commander-in-chief of the army. It is not possible that the head of the army was clothed with affirmative power to subordinate the least civil authority to his command.

In this case, too, we have the origin of the writ, as it were, in our own family. It grew out of a controversy involving the alleged right of the Crown of England to imprison, at will, its subjects, This right the people not only denied, but affirmed that they would be held alone in answer to the laws. In order to effect this great end of free government, they enacted that all freemen should have the right to be heard before the courts, whenever their liberties had been taken away without due warrant of law. This was more than a simple declaration that they would be governed by laws, and not by the arbitrary will of an executive magistrate.

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All this, we repeat, is a part of the record of our own political household. It was the work, in a legal sense, of our own people. It is our own history. Its honor, and its example, are ours. We cannot go behind it, without an open abandonment of free government.

It is clear, then, that the President was clothed with no authority to suspend the writ; and such, we apprehend, is the almost unanimous opinion of the country.

The right of the legislative department to do in this case what principle, policy, and history concur in denying to the executive, is another and far more important question. It is more important, simply because that department has assumed to exercise the power of suspension. It has ordained a precedent, and although it may not be received as good law that congressional legislation is proof of constitutional right, yet it is undeniably true that there are many persons—far too many-who are satisfied with this kind of reasoning.

We well understand, that a denial of the right of Congress or the President, to suspend the privilege of the writ imposes upon the person who urges it, the duty of showing by what authority and action it may be suspended.

It is impossible to overlook, in discussing the subject, not only the character of the Union, but of the States which created it. Nowhere else in the world was there a system of laws more abso- / lutely free, or a people more resolute or vigilant in their maintenance. What was prominent over every other matter of government, was their resolution to maintain, at all times and in all exigencies, the complete subordination of the military to the civil authority. This was not a mere theory or fancy of the day, but a great law of public opinion, of universal acceptation and government.

It is hardly possible that such a people, not only jealous of military rule, but expressing fears of the domineering civil power of the Union, should so construct the latter as directly or indirectly to be able to violate this fundamental idea of freedom. If Congress may suspend the writ or authorize its suspension, though it places before the President one impediment to the exercise of irresponsible power, it does not close the door against it, as was the evident

purpose of the States in creating the Union. It makes it little better, that Congress instead of the President has authority to break down the barrier between the civil and the military power. That barrier was universally regarded as necessary to the preservation of the former and the control of the latter. The governments of the States and the Union are purely civil institutions. In no event was it intended that they should be anything else. Military authority, as an element of government, was never contemplated. The army was recognized as sheriffs, marshals, and other ministerial officers were recognized, to perform ministerial duties, not legislative or judicial. There was no original authority placed in its hands. Its duty was to obey, not make laws. It possessed neither peace nor war powers, of a civil or political nature.

How are we then justified in the conclusion that either Congress or the President is authorized to suspend the writ? Such suspension, if legal, inaugurates the military head of the nation, and of necessity makes it supreme over all civil institutions; for it is the right of every people to have government.

If military rule was not contemplated by the States, if its subordination to the civil authority was universally demanded, is it not morally impossible that the framers of the Constitution should have conferred upon Congress the least authority to emasculate the judiciary?

What need was there for inserting in that compact its stringent prohibitions against the arbitrary exercise of authority over persons and property, if, by a sweeping power, they intended to permit their practical suspension by Congress on precisely the occasions when power is most likely to be abused ?

Were civil institutions of such doubtful utility and efficiency, that they could be trusted only in peace ?

From what events in our own or the history of England, was it determined that military government may be inaugurated over the whole country “in cases of rebellion or invasion” in any particular part of it?

Was rebellion, in one State, regarded as sufficient to deprive the people of all the others of their civil institutions ?

It is obvious to the least-informed person that no authority is conferred upon Congress to suspend the writ. Yet it may be suspended, and in such manner and place as to effect the end desired, the invigoration of the civil authorities, without inflicting a fatal wound upon the body politic. The Constitution, we repeat, is silent touching the manner and the authority to suspend the writ. Granting the right, we are restricted in its enforcement, at least to the limits of its previous exercise by the governments of the States. In other words, the status of the military had been fixed, by an irrepealable law of public sentiment in this country and England, and we have no right, on the authority of the vague grant in question, to interfere with that status. We have no right to infer, simply because the right of suspension is conceded, that it may be carried out so as to confer authority upon the military to assume superior control over the laws of the United States, and the States. If those laws, in a particular place or locality, are menaced or overthrown, by rebellion or invasion, the best thing the civil authorities can do, is to invoke the aid of the military; for it is then that the public safety is endangered, and it is then, and then only, that the latter is warranted to supervene, and assume control, to the end that the civil administration may go on with its peaceful work. Meanwhile, in every other part of the Union the example of absolute civil government, within the scope of the laws, is held up to the rebels or insurgents of the disaffected district or section. simple theory of the case, the great end sought to be attained, the maintenance of the Union, is achieved, without the least infringement of the system. We can better afford to lose the General Government, than the general character of the people as the peculiar guardians of liberty. It will be much easier to reconstruct the former than to recover the latter when lost.

Rebellion consists of combinations to resist or overthrow the laws of the state. When it becomes so formidable as to endanger the public safety-which means, we repeat, the inability of the civil power to enforce the laws within the circle of the disaffection it is the right of the military to suspend the writ. There would seem to be no right to further invade the ordinary functions of the judiciary, because that department is coequal with the legislative and the executive, and there is no semblance of authority to inter

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