Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
Pub. Date
1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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HABEAS CORPUS

II.131.1

HABEAS CORPUS (IN U. S. HISTORY). The nature and classification of this writ are elsewhere treated (see preceding article). I. It is grantable as a matter of right, on a proper foundation being made out by proof, and was familiar in England under common law from very early times; but the judges, who were dependent on the king's pleasure for their tenure of office, evaded giving it whenever the king's pleasure was involved. The personal liberty of the subject was therefore at the king's mercy whenever the words "per speciale mandatum regis" (by special command of the king) were inserted in the warrant. After a long struggle the famous habeas corpus act of 31 Car. II, c. 2, was carried through parliament in 1679, and gave a sanction to that which before had none, by imposing heavy penalties on the refusal of a judge to grant, or of any person to obey promptly, the writ of habeas corpus. The bill had several times passed the house of commons, but failed in the upper house; and its final passage by the lords was by a trick, if we are to believe Burnet's story. "It was carried by an odd artifice in the house of lords. Lord Grey and Lord Norris were named to be the tellers. Lord Norris being a man subject to vapors, was not at all times attentive to what he was doing; so, a very fat lord coming in, Lord Grey counted him for ten, as a jest at first; but, seeing Lord Norris had not observed it, he went on with his misreckoning of ten. So it was reported to the house, and declared that they who were for the bill were the majority, though it indeed went on the other side."

II.131.2

—This act, in substance, has been made a part of the law of every state in the Union, and the constitution of the United States has provided that the privilege of the writ shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it. It has been judicially decided (see CONGRESS, POWERS OF, X.) that the right to suspend the privilege of the writ rests in congress, but that congress may by act give the power to the president. Such an act bears some resemblance to the decree of the Roman senate, in civil dissensions or dangerous tumults, that the consuls "should take care that the republic should receive no harm" (at consules darent operam ne quid detrimenti respublica caperet). The resemblance, however, must not be carried very far: the Roman decree gave the consuls absolute power over the life of any citizen, and power to levy and support armies; but a suspension of the privilege of the writ of habeas corpus by congress only allows the executive to detain in custody without interference by civil courts, or to try by military law, prisoners who are taken in battle, or are residents of hostile territory, or are in the military or naval service, or are within the actual circle of armed conflict where courts are impotent; and no power in the United States can lawfully take away the privilege of the writ from private citizens in territory not rebellious or invaded, and where the federal courts are in regular operation. (See "Milligan case" below.) Nevertheless, the suspension of the writ is in so far a suspension of the personal liberty of the citizen. In such an extraordinary emergency as that of April, 1861, when congress is not in session to pass a suspending act, the president may suspend the privilege of the writ within the theatre of actual warfare, by virtue of his powers as commander-in-chief; if he chooses to risk any more general suspension he must trust for validation of his action to a subsequent act of congress. (See REBELLION.)

II.131.3

—II. The writ is granted by state courts as a general rule, and by federal courts only when the imprisonment is under color of federal authority, or when some federal right is involved in the case. The act of 1789 gave federal courts the power to issue the writ when necessary for the exercise of their respective jurisdictions, except that prisoners in jail under sentence or execution of a state court could only be brought to the federal court under habeas corpus as witnesses. The troubles in 1831-2 (see NULLIFICATION) caused the passage of another act giving the power to federal courts to issue the writ where a prisoner was committed by a state court for an act done in obedience to a federal law (such as a tariff act). In 1842 McLeod's case caused the passage of an act which gave federal courts the power to issue the writ where a prisoner was committed by a state court for an act done in obedience to a foreign state or sovereignty and acknowledged by international law. (See MCLEOD CASE.) In 1867, in order to carry out the amendment abolishing slavery, an act was passed which gave federal courts the power to issue the writ where a person was restrained of his liberty in violation of the constitution or of any law or treaty. But the supreme court has determined that in no case can a state court on habeas corpus release a prisoner committed by a federal court, and that in case of such a writ being issued the officer is not to obey it further than to make return of the authority by which he holds the prisoner. Nevertheless such writs are issued and obeyed, but only by acquiescence of federal officers.

II.131.4

—III. In the United States the privilege of the writ was never suspended before 1861 by the federal government, though state governments, as in the case of the Dorr rebellion, had done so, and federal officers, as in the Burr conspiracy, and in Jackson's case at New Orleans, had refused to obey the writ. Jan. 23, 1807, the senate, moved by a message detailing Burr's progress, passed a bill suspending the writ for three months in case of arrests for treason, and requested the speedy concurrence of the house. Jan. 26, the house, by a vote of 123 to 3, decided not to keep the bill secret as the senate had done, and, by 113 to 19, voted that the bill "be rejected," a contemptuous and unusual mode of procedure. (See BURB, AARON.)

II.131.5

—ARBITRARY ARRESTS. On the breaking out of the rebellion President Lincoln, after calling out 75,000 men and proclaiming the blockade, authorized the commanding general, April 27, 1861, to suspend the writ of habeas corpus between Philadelphia and Washington, and, May 10, extended the order to Florida. May 25, on the application of John Merryman, Ch. J. Taney issued a writ of habeas corpus to Gen. Geo. Cadwallader, and, on his refusal to obey, attempted to have him arrested. When the attempt failed, the chief justice transferred the whole case to the president. July 5, Atty. Gen. Bates gave an opinion in favor of the president's power to declare martial law and then to suspend the writ, and the special session of congress, to avoid all question, subsequently approved and validated the president's acts in all respects as if they had been done by express authority of congress. Thereafter "arbitrary arrests" proceeded with great vigor throughout the north, by orders from the state department alone at first, and then concurrently with the war department until Feb. 14, 1862, when the latter department, under Secretary E. M. Stanton, assumed the entire power of arrest. From July to October, 1861, 175 persons were summarily imprisoned in Fort Lafayette alone, and the arrests were kept up through 1861 and 1862, including state judges, mayors of cities, members of the Maryland legislature, persons engaged in "peace meetings," editors of newspapers, and persons accused of being spies or deserters, or of resistance to the draft. Sept. 24, 1862, the suspension was made general by the president so far as it might affect persons arrested by military authority for disloyal practices. These summary arrests provoked much opposition throughout the north, and influenced the state elections of 1862 very materially; and an order of the war department, Nov. 22, 1862, released all prisoners not taken in arms or arrested for resisting the draft.

II.131.6

—As yet the suspension had been only by executive authority, and the writs which were still persistently issued by state courts were founded on a long line of express decisions that the power to suspend the privilege of the writ lay in congress, not in the president. By act approved March 3, 1863, congress authorized the president whenever, in his judgment, the public safety might require it, to suspend the writ anywhere throughout the United States; but the power to issue the writ was reserved to federal judges wherever—the federal grand jury being in undisturbed exercise of its functions—a prisoner was detained without indictment at the grand jury's next session. The arrest, May 4, 1863, of C. L. Vallandigham, ex-member of congress from Ohio, his conviction and banishment to the rebel lines, and the arrest of other persons, renewed the excitement in the north. Sept. 15. 1863, the president by proclamation suspended the writ throughout the United States in the cases of prisoners of war, deserters, those resisting the draft, and any persons accused of offenses against the military or naval service. The arrests were thereafter continued with little interference by any authority until August, 1864, when the arrest of a congressman was made in Missouri. The house of representatives then ordered an investigation, which exposed and helped to remedy many of the abuses which were inevitable, perhaps, under a suspension of the writ. Its military committee found in the Old Capitol prison officers of rank, some of them wounded in service, who had been in close confinement for months without charges and without the trial which the act of congress of March 3, 1863, had ordered to be secured to the accused. The exposure was sufficient to prevent a recurrence of the evil for the future, but could do nothing for the past.

II.131.7

—Oct. 21, 1864, a general court martial was held in Indiana and passed sentence of death upon several citizens of the state for treasonable designs; and the case became known as the "Milligan case," from the name of the principal prisoner, Lamdin P. Milligan. The federal circuit court in Indianapolis granted a writ of habeas corpus for them May 10, 1865; was divided in opinion as to releasing them; and certified the whole case to the supreme court. Its decision, given in the December term of 1866, overthrew the whole doctrine of military arrest and trial of private citizens in peaceful states. It held that congress could not give power to military commissions to try, convict or sentence in a state not invaded or engaged in rebellion and where federal courts were unobstructed, a citizen who was not a resident of a rebellious state, nor a prisoner of war, nor in the military or naval service; that such a citizen was exempt from the laws of war, and could only be subject to indictment and trial by jury, that the suspension of the privilege of the writ of habeas corpus did not suspend the writ itself; that the writ was to issue as usual, and on its return the court was to decide whether the applicant was in the military service, or a prisoner of war, and thus debarred from the privilege of the writ; and that, in short, neither the president, nor congress, nor the judiciary could lawfully disturb any one of the safeguards of civil liberty in the constitution, except so far as the right is given in certain cases to suspend the privilege of the writ of habeas corpus. All the justices agreed that Milligan was not lawfully detained, and should be discharged. Four of them, Ch. J. Chase being spokesman, dissented so far as to hold that congress might have provided for trial by military commission in cases like that of Milligan, without violating the constitution, but had not done so.

II.131.8

—Dec. 1, 1865. President Johnson, by proclamation, restored the privilege of the writ, except in the late insurrectionary states, and in the District of Columbia, New Mexico and Arizona. April 2, 1866, a proclamation restored the writ everywhere, except in Texas; and another proclamation, Aug 20, 1866, restored it in Texas also.

II.131.9

—The records of the provost marshal's office in Washington show 38,000 military prisoners reported there during the rebellion. Among these there were undoubtedly many cases of extreme hardship, the relief of which was always grateful to President Lincoln, when his attention could be directed to them. But, under cover of the necessity of guarding against extensive conspiracies in the north, political and private hatreds were frequently gratified by irresponsible subordinates in a shocking manner, and the trial provision of the act of March 3, 1863, was too often disobeyed; and it is to be feared that the number of cases of this kind which could never be brought to the president's notice was very considerable. Nevertheless, the suspension of the privilege of the writ, in the border states at least, seems to have been unavoidable; and the consequent abuses were but the effects of the wild and blind blows struck at internal treason by a republic unused to war. (See, in general, EXECUTIVE, WAR POWERS, INSURRECTION, REBELLION.)

II.131.10

—In the confederate states the suspension of the writ by the federal government was made the theme of severe criticism; but when it was found that in a single year 1,800 cases had been tried in Richmond alone, based on writs of habeas corpus for relief from conscription, the confederate congress, late in 1863, suspended the writ until ninety days after the meeting of the next session. At the next session the suspension was made permanent, May 20, 1864.

II.131.11

—IV. After the close of the rebellion the ku-klux difficulties in the south caused the passage of the act of April 20, 1871, whose fourth section authorized the president, when unlawful combinations in any state should assume the character of rebellion, to suspend the writ of habeas corpus in the disturbed district; but the trial provision of the act of March 3, 1863, was retained, and the whole section was to remain in force no longer than the end of the following session. May 17, 1872, a bill to continue this section for another session was passed by the senate by a vote of 28 to 15. In the house, May 28, a motion to suspend the rules and pass the bill was lost, 94 to 108. The bill was then dropped and has not since been revived. (See also RECONSTRUCTION, JUDICIARY.)

II.131.12

—See 3 Blackstone's Commentaries, 128 (original paging); Bacon's Abridgment ("Habeas Corpus"); 1 Howell's State Trials, pref. xxvi; 20 ib., addenda, 1374; 6 ib., 1189; 2 Kent's Commentaries (4th edit.), 25; Story's Commentaries (edit. 1833), § 1332; Burnet's History of His Own Time (edit. 1838), 321; Hurd On Habeas Corpus; a copious bibliography of the writ, its history and practice, up to 1842, is in 3 Hill's Reports, 647; the most interesting precedents are collected in Garfield's argument in the Milligan case, 4 Wallace's Reports, 44; 2 B. R. Curtis' Works, 317; Whiting's War Powers (10th edit.), 161; E. Ingersoll's History and Law of the Writ of Habeas Corpus, and Personal Liberty and Martial Law; Breck's Habeas Corpus and Martial Law; North American Review, October, 1861: Habeas Corpus Pamphlets of 1862 (particularly H. Binney's Privilege of the Writ of Habeas Corpus, and G. M. Wharton's Remarks thereon); Cooley's Constitutional Limitations, 344. II. 4 Cranch, 75; 12 Wheat., 19; 1 Stat. at Large, 78 (the act of Sept. 24, 1789); 4 ib., 634 (the act of March 2, 1833); 5 ib., 539 (the act of Aug. 29, 1842): 12 ib., 755 (the act of March 3, 1863); 17 ib., 13 (the act of April 20, 1871). III. 2 Parton's Life of Jackson, 306; 5 Hildreth's United States, 626; 3 Benton's Debates of Congress, 490, 504; 21 How., 506; Tyler's Life of Taney, 420, 461, 640; Tan'y, 246; Burnham's Memoirs of the Secret Service; Baker's History of the Secret Service; Marshall's American Bastile; Sangster's Bastiles of the North; Howard's Fourteen Months in an American Bastile; Mahoney's Prisoner of State; Thavin's Arbitrary Arrests in the South; Lester and Brownell's Confederate States Military Laws (1864); Reports of the Provost Marshal General; Pollard's Life of Davis, 327; Pittman's Indianapolis Treason Trials (1865); ex parte Milligan, 4 Wallace, 107 (majority opinion); 132 (dissenting opinion); Circulars of the Provost Marshal General, May 15, 1863 - March 27, 1865.

ALEXANDER JOHNSTON.

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