HABEAS CORPUS. 



417 



law. The writ of habeas corpus is the people's 

 writ of right. When issued out of a United 

 States Court the practice upon the return to it 

 conforms to the practice of the Supreme Court 

 of the State in which the district court is situ- 

 ated. It is of the essence of the writ that the 

 body of the petitioner be produced with the re- 

 turn, if the respondent have his custody. The 

 statutes of Alabama require indeed the statutes 

 of all the States require that the body of the 

 petitioner be produced before the officer issuing 

 the writ when return is made to it, and that if 

 the party is detained under a writ, warrant, or 

 other written authority, a copy thereof must be 

 annexed to the return and the original produced 

 to the court. In all these respects the return 

 of Gen. Woods is defective. He claims to hold 

 the petitioner 'by authority of the President of 

 the United States and of Maj.-Gen. George H. 

 Thomas.' This authority should be produced. 



" This part of the return to the writ made by 

 Gen. Woods which informs the courts that 'the 

 writ of habeas corpus is suspended in Alabama,' 

 may be treated as surplusage. The General is 

 evidently a better soldier than lawyer. This 

 Court cannot suppose that an officer of the high 

 military grade of Gen. Woods intended to in- 

 struct the Court upon the law of the case, and 

 the very full disclaimer of any disrespect for the 

 authority of the Court which the General makes 

 in his return is in marked and satisfactory con- 

 trast to the course pursued by an officer of 

 subordinate rank." 



No other return was made by Gen. Woods, 

 and an attachment was issued against him as 

 for contempt, Judge Busteed delivering the fol- 

 lowing opinion : 



The writ of habeas^ corpus is more than a century 

 older than the political organization of our country. 

 It was wrested from Power when it was at its merid- 

 ian, by Freedom when in its infancy. Deprived of 

 it, the citizen is a slave, and Government a despot. 

 Although the vast majority of the people know little 

 of the struggle out of which this priceless boon was 

 born, the writ is familiar to them as their daily life, 

 and the sign to them of sure deliverance from unjust 

 restraint. Its behests may not ordinarily be denied 

 without wounding^ Liberty herself and pensioning her 

 upon Tyranny. In our own land the cases are very 

 few in which the privilege of the writ can lawfully be 

 suspended, and the organic law itself stands guard 

 over the sacredness of the remedy it is designed to 

 secure. The men who made the revolution of 1776, 

 understood too well the value of the writ of Habeas 

 Corpus to leave it to the mercy of mere intendment, 

 or in the gift of discretion or caprice. It is secured 

 to the people of these States as a constitutional right, 



i guilty of a high cr 

 Above all others he is guilty, whatever his rank, who, 

 himself, a servant of the law, attempts to embarrass 

 its administration or divert its benefits from those 

 who claim them. " 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." This is the mandate of the Constitution of the 

 United States of America, so directly stated that he 

 who runs may read. It is obligatory on us all. Nor 

 the Executive, nor the Legislature, nor the Judiciary 

 can increase, or lessen, or alter its manifest scope. 



VOL. v. 27 A 



The language of the mandate is aptly chosen and full 

 of significance. It leaves untouched the great writ 

 itself/ The privilege of its use, the right of demand- 

 ing its benefits and exercise, maybe held in abeyance 

 in cases of rebellion or invasion, but even then only 

 when the public safety requires it. A state of rebel- 

 lion or invasion is a condition precedent to the sus- 

 pension of the privilege. These, or either of these 

 may exist, and still no necessity arise for its suspen- 

 sion. It is oulv when either of these exists, that the 

 power to interfere with the writ vests, and even then 

 this power may only be exercised when the public 

 safety requires it. Of the necessity for its exercise, 

 the Government judges after the facts exist out of 

 which grows the right to suspend the privilege of the 

 writ. 



The question that first confronts us in this inquiry 

 is, do either of the precedent conditions exist upon 

 which the power to interfere with the office of the 

 writ of habeas corpus is founded, and how are we to 

 determine this? "The invasion of a public enemy or 

 the existence of a domestic rebellion, are patent facts 

 in current history, of which Courts may take judicial 

 cognizance, and the judicial officer who should affect 

 ignorance on these subjects would not gain much 

 credit for any thing save uncommon obtuseness. That 

 no_ "invasion" of our country has occurred or now 

 exists, is as true as that none is likely to take place. 

 Individuals, anxious to become citizens of the Great 

 Republic, will in the future, as they have in the past, 

 seelc our shores and join their fortunes with ours, but 

 the idea of an invasion by an organized enemy, is as 

 chimerical as the experiences of Munchausen, and as 

 empty as the South Sea bubble. Clearly the right to 

 suspend the privilege of the writ of habeas corpus has 

 no foundation in any "invasion" of the country. 

 "The public safety" is not endangered from this 

 cause. 



_ Does a "rebellion" exist here? is the next per- 

 tinent inquiry, and this must be met and answered 

 precisely as the question of invasion is met and an- 

 swered. That is to say, the same general rules for 

 determining if invasion exists, are those for deter- 

 mining if rebellion exists. 



It is sadly true that a rebellion has existed in our 

 country a rebellion so vast in its proportions that 

 belligerent rights were accorded to it by several of 

 the leading Powers of the earth, and to subdue which 

 required years of time, more than a million of men 

 in arms, and millions upon millions of treasure a 

 rebellion that shook the earth and threatened to en- 

 gulf an empire. Happily for this people, happily for 

 their history and their posterity, happily for human- 

 ity and liberty, that rebellion no longer exists. Our 

 fertile fields, lately barren and fruitless, are again 

 rewarding the husbandman's toil ; our ships, so long 

 flapping idle sails, are again navigating the waters ; 

 our storehouses and shops, heretofore silent as the 

 grave, are again resounding with the noise of trade 

 and commerce. In all the broad land that constitutes 

 our country there is not an organized opposition to 

 the Government. No forces hostile to it deny its 

 authority. The nation's flag dominates every acre 

 of the nation's demesne. There is now no rebellion 

 here. Let us devoutly thank God ! 



These views are fortified by the act of Congress of 

 March 3, 1863, entitled "an act relating to Habeas 

 Corpus, and regulating Judicial proceedings in cer- 

 tain cases," which act authorizes the President to 

 suspend the privilege of the writ of habeas corpus, 

 and also by the proclamation of the President of the 

 15th of September, 1863, suspending it. The Con- 

 gressional enactment and the proclamation issued bv 

 its authority, each recognizes the principle that thti > 

 is no power in the Government to suspend the priv- 

 ilege except as set forth by the Constitution, an 1 

 each, in express terms, provides that the suspensiou 

 so decreed shall not continue longer than the rebel- 

 lion. 



The first section of the act declares "that during 



