414 



HABEAS CORPUS. 



H 



HABEAS CORPUS. The question of the 

 power to suspend the writ of habeas corpus, 

 called forth opinions from some of the leading 

 lawyers of the country; and, among others, 

 Hon. Horace Binney, of Philadelphia. In con- 

 sidering the question, it is stated in reference 

 to a pamphlet from his pen, that " Mr. Binney 

 regards as of more than doubtful constitution- 

 ality, the act of Congress of March 3, 1863, 

 which gives the President power to suspend 

 the privilege "in any case," without qualifica- 

 tion of cause or offence ; and which suspends all 

 judicial proceedings on writs of habeas corpus 

 after a certificate oath by the keeper of the 

 prison, that the prisoner is detained by author- 

 ity of the President, without any return of the 

 body of the prisoner, or of the cause of impris- 

 onment. Nor do the Executive Proclamations 

 of 24th September, 1862, and 15th September, 

 1863, commend themselves any more to his 

 judgment as true constructions of our funda- 

 mental law. 



" Mr. Binney argues that the benefits of this 

 writ cannot, under any circumstances, be denied 

 except to persons engaged in rebellion or inva- 

 sion, and that the warrant of arrest should itself 

 assign the cause treason, generally, or suspi- 

 cion of treason some high misdemeanor against 

 the majesty of State. Speaking of the power to 

 suspend the privilege, and to look at any arrest, 

 Mr. Binney says that the Judicial power cannot 

 be altogether displaced or superseded by it; 

 though it may be so far abridged as only to 

 maintain the rights of persons under a limitation 

 which confines the Judiciary to the forms of 

 things rather than to their substance. He argues 

 that the Judicial Department is competent to 

 inquire, not indeed into the particular grounds 

 of the suspicion of treasonable design charged, 

 or to judge whether the imputation upon the 

 party imprisoned be weH or ill founded in fact 

 or probability, but to see that the power has, 

 at least ostensibly, been exercised within the 

 constitutional limit." 



The extent to which the arbitrary arrest of 

 citizens without benefit of the writ of habeas 

 corpus was carried, is indicated by the records 

 of the Provost Marshal's office of Washington, 

 which shows that from June, 1861, to January 

 1, 1866, the cases of some thirty-eight thousand 

 prisoners have been reported at that office. 

 Out of this vast number the Old Capitol Prison 

 shows upon its record that it has housed for 

 longer or shorter periods sixty-five hundred 

 prisoners of war, forty-five hundred real and 

 fancied offenders against the State, and twenty- 

 five hundred deserters and bounty jumpers. 



Even in cases where the writ was granted, 

 there was sometimes difficulty in securing the 

 production of the party under arrest in con- 

 sequence of his removal before the service of 



the process. Mr. Cheshire, of Brooklyn, was 

 tried by court-martial on a charge of malefea- 

 sance in oflice, found guilty, and sentenced to 

 imprisonment in the Albany Penitentiary ; he 

 was taken to the place of confinement in August, ' 

 and a writ requiring the production of his body 

 on the 7th of that month, before Judge Lott, was 

 served on the Superintendent of the Peniten- 

 tiary, General Pillsbury. Gen. P. immediately 

 telegraphed the fact to E. D. Townsend, Assist- 

 ant Adjutant-Gen. U. S. Army, but receiving 

 no answer within the succeeding few hours, 

 he took the train for New York, with a view 

 of consulting the U. S. District Attorney, and 

 also to see Judge Lott, his purpose in this 

 being to ask of the Judge a delay of one day 

 in making return to the writ. While thus en- 

 gaged, on Monday morning, the 7th inst, he 

 received a telegram from his Deputy Warden, 

 informing him that the prisoner had been re- 

 moved from the penitentiary, by virtue of an 

 order from the War Department, directing 

 Deputy U. S. Provost Marshal Frederick Town- 

 send to take him into close custody and con- 

 vey him to Fort Warren, there to be confined 

 until the expiration of his sentence, unless 

 otherwise ordered. 



A somewhat similar case occurred in New 

 York. Under an act of Congress passed March 

 3, 1863, providing for discharge, on application, 

 of State prisoners, against whom no indictment 

 has been found, Bickley, the leader of the 

 Knights of the Golden Circle, applied for dis- 

 charge from Fort Lafayette. Before the order 

 to show cause in the matter was made by Judge 

 Betts, he had been removed from Fort Lafayette 

 to Fort Warren. The order to show cause was 

 directed to General Dix, as the commandant of 

 the Eastern District, within whose limit both 

 Fort Lafayette and Fort Warren were, and on 

 their hearing the point was raised in his behalf 

 that the court had no jurisdiction to order the 

 discharge of a prisoner held in the District of 

 Massachusetts. 



Judge Betts sustained the objection, holding 

 that the court of this district had no power 

 to make an order which is operative in Massa- 

 chusetts. 



In May an order was issued from the War 

 Department which directed as follows : 



That in all cases of sentences by military tribunals 

 of imprisonment during the war, the sentence be re- 

 mitted, and that the prisoners be discharged. 



The Adjutant-General will issue immediately the 

 necessary instructions to carry this order into e'fl'ect. 

 By ord"er of the President. 

 (Signed) EDWIN M. STANTON, 



Secretary of War. 



The case of Col. L. C. Baker, who had been 

 indicted for false imprisonment, and found 

 guilty on the trial of the same in the Crimina. 

 Court of the District of Columbia, came up for 



