CONGRESS, U. S. 



239 



and pass judgment upon him. He can only be 

 tried by a jury. The judge, however, on the 

 return of the habeas corpus^ inquires into the 

 cause of the arrest, and if on all the facts that 

 are developed in the record the presumptions 

 are that he is guilty, the judge sends him back 

 to confinement, and if it appears that he is in- 

 nocent, he is allowed to go free. The judge 

 may incidentally inquire into the facts in the 

 class of cases to which I have alluded, though 

 he does not do so for the purpose of inflicting 

 punishment. But, Mr. President, I wish to ask 

 the senator from Vermont a question, if he 

 will allow me to do so. My question is, 

 whether the legitimate suspension of the writ 

 of habeas corpus authorizes the President of 

 the United States to arrest and imprison a 

 man ? I wish the senator to answer that ques- 

 tion, for that is the gist of the whole point I 

 make." 



Mr. Oollamer in reply said : "I merely say, 

 that the exercise of the power of the courts in 

 the use and sustaining of a habeas corpus be- 

 fore them, is confined simply to the question 

 of the process by which a man is holden ; the 

 legality of that process ; and if the habeas cor- 

 pus is suspended in relation to that subject 

 matter, then the court has no control or juris- 

 diction over it." 



Mr. Powell continued : " I differ from the 

 senator, if he will allow me, about the defini- 

 tion he has given about the object of the writ 

 of habeas corpus. He says the only object is 

 to inquire whether the process under which 

 the prisoner is held is legal or not. I am very 

 well aware that, under the common law, the 

 writ of habeas corpus was more circumscribed 

 than it is in many of our States. It has been 

 very much enlarged by statute. But I know 

 that you have a right to a habeas corpus to 

 bring persons before a court, to be released 

 from unlawful confinement, when they are con- 

 fined by no process whatever ; and conse- 

 quently, the senator is too limited in his ex- 

 planation. There is a large class of persons, 

 infants, for instance, who are held by others ; 

 there are persons held by certain societies of 

 people the Shakers, for example and writs 

 of habeas corpus are allowed for such persons, 

 though they are not held by virtue of any pro- 

 cess. The writ can be issued to bring a party 

 before the court whenever he is restrained of 

 his liberty, and the court is not limited to 

 an inquiry as to the legality of the process, but 

 inquires as to the right of the party to hold 

 him." 



Mr. Collamer replied : " The idea that a man 

 may be holden without process is not contem- 

 plated by the law. The command of the writ 

 is to bring the body of A B and the cause of 

 his confinement. That is the cum causd, the 

 great writ. It is not the habeas corpus ad sat- 

 itfaciendum that we are talking about, but the 

 habeas corpus cum causa, and the command of 

 the writ is to bring the body, with the cause 

 of confinement." 



Mr. Powell : " He may be brought with 

 the cause without bringing the process. If I 

 had the senator's infant son in my custody, 

 would he not have a right to the writ of habeas 

 corpus, to inquire into the cause of the deten- 

 tion, and should I not then be at liberty to say 

 that the son was apprenticed to me, or to give 

 any other good reason for holding him ? " 



Mr. Collamer : " Certainly." 



Mr. Powell : " That shows clearly that the 

 question is not always whether the process is 

 legal or not, because persons may be held with- 

 out process." 



Mr. Collamer : " By the word ' process,' I 

 mean not merely technical, process, but the in- 

 strument, the authority by which a person is 

 holden, let it be what it may ; and that author- 

 ity is the thing to be looked into, and that 

 only." 



Mr. Powell : " Still, my excellent friend doea 

 not answer my question. I should like any 

 senator to get up here and show me the au- 

 thority of the President, or any of his cabinet 

 ministers, to make arrests. That is the point 

 to which I wish to direct attention, and I ask 

 the country to look right to that point." 



Mr. Morrill, of Maine, opposed the resolu- 

 tion, saying : " We are informed in this resolu- 

 tion I think substantially, although it does 

 not take that form in terms that certain per- 

 sons in Delaware have been arrested by the 

 commander-in-chief of your army and navy, 

 and have been restrained of their liberty. That 

 is the charge substantially. 



" Well, sir, what of it ? It is said that it is 

 extraordinary and tyrannical. Well, that de- 

 pends upon what ? Why, they say it is so be- 

 cause it is without shadow of law. That is a 

 question to be examined ; that is a question to 

 be considered. But I repeat, what of it ? Is 

 it extraordinary that such things should occur 

 in a time of civil war, in a time of gigantic re- 

 bellion, when a million of armed men are ar- 

 rayed on the side of the supremacy of the 

 Constitution and the laws ; when as many more 

 stand for the overthrow of this Constitution, 

 and against the supremacy of the laws ; when 

 one half of your Confederacy is in rebellion 

 against your authority, and armed rebels con- 

 front you, and denounce your authority and 

 defy it, and when we know that those rebels 

 have allies throughout the whole country, that 

 traitors infest every portion of your country ^n 

 sympathy and alliance with rebels under arms ? 

 I say, sir, that when such a state of affairs is 

 evident, showing that the whole country is in- 

 volved in civil war, not partial, affecting a few 

 interests ; not local, confined to a few places ; 

 but general, extending to the utmost confines 

 of the republic, involving every interest, and 

 reaching to every fireside in the land, making 

 our condition one of war, a state of general in- 

 testine strife and commotion, affecting the lib- 

 erty and the rights of every man, woman, and 

 child in the nation, and making our condition 

 to-day, instead of one of peace, one of war, gen- 



