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purnance of the aforesaid special instructions; and the Vessel shall be left at liberty to pursue its voyage. The rank of the officer who makes the search must not be less than that of lieutenant in the navy, unless the command, either by reason of death or other cause, is at the time held by an officer of inferior rank.

Fourthly. The reciprocal right of search and detention shall be exercised only within the distance of two hundred miles from the coast of Africa, and to the southward of the thirty-second parallel of north latitude, and within thirty leagues from the coast of the Island of Cuba.

1862, June 26-In Senate, the bill to carry into effect this treaty, by providing for the officials, &c., passed-yeas 34, nays 4, (Messrs. Carlile, Kennedy, Powell, Saulsbury.)

July 7-The bill passed the House without a division.

1863, February 17-The treaty was modified by the addition of an article authorizing the exercise of the reciprocal right of visit and detention within thirty leagues of the island of Madagascar, within thirty leagues of the island of Puerto Rico, and within thirty leagues of the island of San Domingo.

66 THE

CONFEDERATE" RECORD.

Soon after the adoption of their Constitution in 1861, the rebel Congress passed a bill in relation to the slave trade, which JEFFERSON Davis returned, with his objections, as follows: EXECUTIVE DEPARTMENT, February 28, 1861. GENTLEMEN OF CONGRESS: With sincere deference to the judgment of Congress, I have carefully considered the bill in relation to the slave trade, and to punish persons offending therein, but have not been able to approve it, and, therefore, do return it with a statement of my objections. The Constitution-section seven, article one-provides that the importation of African negroes from any foreign Country other than slaveholding States of the United States is hereby forbidden, and Congress is required to pass such laws as shall effectually prevent the same. The rule herein given is emphatic, and distinctly directs the legislation which shall effectually prevent the importation of African negroes. The bill before me denounces as high misdemeanor the importation of African negroes, or other persons of color, either to be sold as slaves or to be held to service or laber, affixing heavy, degrading penalties on the act if done with such intent. To that extent it accords with the requirements of the Constitution, but in the sixth section of the bill provision is made for the transfer of persons who may have been illegally imported into the Confederate States to the custody of foreign States or societies, upon condition of deportation and future freedom, and, if the proposition thus to surrender them shall not be accepted, it is then made the duty of the President to cause said negroes to be sold at public outery to the highest bidder in any one of the States where such sale shall not be inconsistent with the laws thereof. This provision seems to me to be in opposition to the policy declared in the Constitution-the prohibition of the importation of African negroes -and in derogation of its mandate to legislate for the effectuation of that object. Wherefore the bill is returned to you for your further consideration, and, together with the objections, most respectfully submitted.

JEFFERSON DAVIS.

slave trade, it is instructive to read the letter of J. P. Benjamin, Secretary of State of the "Confederate" Government, to L. Q. C. Lamar, "Confederate" Commissioner at St. Petersburg, which was intercepted and transmitted from St. Petersburg, March 3, 1863, by Bayard Taylor, Chargé d'Affaires :

CONFEDERATE STATES OF AMERICA, DEPARTMENT OF STATE, RICHMOND, January 15, 1863. SIR: It has been suggested to this Government, from a

source of unquestioned authenticity, that after the recognition of our independence by the European Powers, an expectation is generally entertained by them, that in our treaties of amity and commerce a clause will be introduced making stipulations against the African slave trade. It is even thought that neutral Powers may be inclined to insist upon the insertion of such a clause as a sine qua non.

is the policy of this Confederacy against the opening of that trade; but we are informed that false and insidious sugges tions have been made by the agents of the United States at European courts of an intention to change our constitution as soon as peace is restored, and of authorizing the importation of slaves from Africa. If, therefore, you should find in your intercourse with the Cabinet to which you are accredited that any such impressions are entertained, you will use every proper effort to remove them; and if an attempt is made to introduce into any treaty which you may be charged with negotiating stipulations on the subject just mentioned, you will assume in behalf of your Government the position which, under the direction of the President, I now proceed to develop.

You are well aware how firmly fixed in our constitution

The constitution of the Confederate States is an agreement made between independent States. By its terms all the powers of government are separated into classes as follows, viz:

1. Such powers as the States delegate to the General Gov

ernment.

cising, although they do not delegate them to the General 2. Such powers as the States agree to refrain from exerGovernment.

the General Government, thought proper to exercise, by di3. Such powers as the States, without delegating them to rect agreement between themselves contained in the con

stitution.

delegated to the Confederate States by the constitution, nor 4. All remaining powers of sovereignty which, not being prohibited by it to the States, are reserved to the States, respectively, or to the people thereof.

On the formation of the constitution, the States thought ject of slavery, by the direct exercise of their own power, proper to prevent all possible future discussions on the suband delegated no authority to the Confederate Government, save immaterial exceptions, presently to be noticed.

Especially in relation to the importation of African negroes was it deemed important by the States that no power The States, by the Constitution, (which is a treaty between to permit it should exist in the Confederate Government. themselves of the most solemn character that States can make,) unanimously stipulated "that the importation of negroes of the African race, from any foreign country other States of America, is hereby forbidden; and Congress is rethan the slaveholding States or Territories of the United quired to pass such laws as shall effectually prevent the same." (Art. 1, sec. 9, par. 1.)

Confederate Government over this subject, but that it is inIt will thus be seen that no power is delegated to the cluded in the third class above referred to, of power exercised directly by the States.

It is true that the duty is imposed on Congress to pass laws to render effectual the prohibition above quoted. But this very imposition of a duty on Congress is the strongest

This veto was sustained by the following vote -the question being, "Shall the bill pass not-proof of the absence of power in the President and Senate withstanding the President's objections?" YES-Messrs. Curry and Chilton, of Alabama; Morton and Owens, of Florida; Toombs, H. Cobb, T. R. R. Cobb, Bartow, Nisbet, and Kenan, of Georgia; Rhett, Barnwell, Keitt, and Miles, of South Carolina; Ochiltree, of Texas-15. NAYS-Messrs. Smith, Hale, Shorter, and Fearn of Alabama; Wright and Stephens, of Georgia; DeClonet, Conrad, Kenner, Sparrow, and Marshall, of Louisiana; Harris, Brooke, Wilson, Clayton, Barry, and IIarrison, of Mississippi; Chesnut, Withers, and Boyce, of South Carolina; Reagan, Waul, Gregg, and Oldham, of Texas-24.

alone, who are vested with authority to make treaties. In a word, as the only provision on the subject directs the two branches of the legislative department, in connection with the President, to pass laws on this subject, it is out of the power of the President, aided by one branch of the legisla tive department, to control the same subject by treaties; for there is not only an absence of express delegation of authority to the treaty-making power, which alone would suffice to prevent the exercise of such authority, but there is the implied prohibition resulting from the fact that all duty on the subject is imposed on a different branch of the

Government.

I need scarcely enlarge upon the familiar principle, that

INTERCEPTED "CONFEDERATE "9 DESPATCH UPON authority expressly delegated to Congress cannot be as

THE AFRICAN SLAVE TRADE.

As showing the temper of the "Confederate" Government upon the revival of the African

sumed in our Government by the treaty-making power. The authority to levy and collect taxes, to coin money, to declare war, &c., &c., are ready examples, and you can be at no loss for argument or illustration in support of so well recognized a principle.

The view above expressed is further enforced by the Case in the Constitution which follows immediately that which has already been quoted. The second paragraph of the same section provides that "Congress shall also have power to prohibit the introduction of slaves from any State not a member of, or territory not belonging to, this Confederacy." Here there is no direct exercise of power by the States which formed our Constitution, but an express delegation to Congress. It is thus seen that while the States were willing to trust Congress with the power to prohibit the introduction of African slaves from the United States, they were not willing to trust it with the power of prohibiting their introduction from any other quarter, but determined to insure the execution of their will by a direct interposition of their own power.

proposition in relation to it.

July 1, General Banks, in pursuance of orders from the Headquarters of the Army at Washington, arrested the four first-named members, for these reasons:

The incidents of the past week afforded full justification for this order. The headquarters, under the charge of the board, when abandoned by the officers, resembled in some respects, a concealed arsenal. After public recognition and protest against the "suspension of their functions," they continued their sessions daily. Upon a forced and unwar rantableconstruction of my proclamation of the 2 th ultimo, they declared that the police law was suspended, and the police officers and men put off duty for the present, intendMoreover, any attempt on the part of the treaty-making ing to leave the city without any police protection whatpower of this Government to prohibit the African slave ever. They refused to recognize the officers or men necestrade, in addition to the insuperable objectious above sug- and hold subject to their orders, now and hereafter, the old sarily selected by the provost marshal for its protection, gested, would leave open the implication that the same power has authority to permit such introduction. No such police force, a large body of armed men, for some purpose implication can be sanctioned by us. This Government unnot known to the Government, and inconsistent with its equivocally and absolutely denies its possession of any pow. peace or security. To anticipate any intentions or orders er whatever over the subject, and cannot entertain any force under my command within the city. I disclaim on on their part, I have placed temporarily a portion of the While it is totally beneath the dignity of this Govern- the part of the Government I represent, all desire, intenment to give assurances for the purpose of vindicating it- tion, and purpose to interfere, in any manner whatever, self from any unworthy suspicions of its good faith on this with the ordinary municipal affairs of the city of Baltimore. subject, that may be disseminated by the agents of the Whenever a loyal citizen cau be named who will execute United States, it may not be improper that you should point its police laws with impartiality and in good faith to the out the superior efficacy of our constitutional provision to United States, the military forco will be withdrawn from any treaty stipulations we could make. The constitution the central parts of the municipality at once. No soldier is itself a treaty between the States, of such binding force, will be permitted in the city, except under regulations satthat it cannot be changed or abrogated without the deliber-isfactory to the marshal; and if any so admitted violate ate and concurrent action of nine out of the thirteen States the municipal law, they shall be punished according to the that compose the Confederacy. A treaty might be abrogated civil law, by the civil tribunals. by a party temporarily in power in our country, at the sole risk of disturbing amicable relations with a foreign Power. The Constitution, unless by approach to unanimity, could not be changed without the destruction of this Government itself; and even should it be possible hereafter to procure the consent of the number of States necessary to change it, the forms and delays, designedly interposed by the framers to check rash innovations, would give ample time for the most mature deliberation, and for strenuons resistance on the part of those opposed to such a change.

After all, it is scarcely the part of wisdom to attempt to impose restraint on the actions and conduct of men for all future time. The policy of the Confederacy is as fixed and immutable on this subject as the imperfection of human nature permits human resolve to be. No additional agreements, treaties, or stipulations can commit these States to the prohibition of the African slave trade with more binding efficacy than those they have themselves devised. A just and generous confidence in their good faith on this subject, exhibited by friendly Powers, will be far more effica cious than persistent efforts to induce this Government to assume the exercise of powers which it does not possess, and to bind the Confederacy by ties which would have no constitutional validity. We trust, therefore, that no unnecessary discussion on this matter will be introduced into your negotiations. If, unfortunately, this reliance should prove il-founded, you will decline continuing negotiations on your side, and transfer them to us at home, where, in such event, they could be conducted with greater facility and advantage, under the direct supervision of the President. With great respect, your obedient servant,

J. P. BENJAMIN, Secretary of State.

Hon. L. Q. C. LAMAR,
Commissioner, &c., &c., St. Petersburg, Russia.

They were transferred to Fort Lafayette, and on the 6th of August, Judge Garrison of Brooklyn, issued a writ directing Col. Burke to produce the persons in court. Col. Burke declined on the authority of an order from Lieut. Gen. Scott. Col. Burke was then cited to answer for contempt of court, but he did not appear, and August 22, Judge Garrison, "submiting to inevitable necessity," dismissed the proceedings. They were subsequently released. See President's Orders, p. 154.

ARREST OF MEMBERS OF THE LEGISLATURE OF
MARYLAND.

NEWSPAPER ACCOUNT.

By Telegraph to the Associated Press.
BALTIMORE, Sept. 13.-The Provost Marshal, George P.
Dodge, this morning, before day, arrested the Mayor of
Baltimore, Mr. Brown, and Messrs. Chas. S. Pitts, Lawrence
Sangston, S. Teackle Wallis, T. Parkin Scott, and Ross
Winans, members of the Maryland Legislature of Baltimore
city, and F. K. Howard, the editor of the Exchange news-
paper. They were taken to Fort McHenry,

BALTIMORE, Sept. 13.-The following additional arrests have been made: Messrs. Dennison, Quinlan, and Dr. Lynch, members of the Legislature from Baltimore county: and Messrs. Henry M. Warfield, Dr. J. Hanson Thomas, Jolm C. Brune, city members; also, Thomas W. ¡all, editor of the South newspaper.

The day of the meeting of the Legislature is Tuesday next, when, it is suspected, further legislation hostile to

Arrests of Citizens, and the writ of the Government was to be attempted. All the arrests male

Habeas Corpus.

were under orders direct from the War Department.

These, with the names previously sent, complete the ten

BALTIMORE, Sept. 13.-I just hear of the arrest of Henry June 27, 1861, Major General N. P. BANKS, May, member of Congress; also, Henry M. Morfit and W. commanding the Department of Annapolis, had G. Harrison, members of the Legislature from this city. George P. Kane, Chief of Police of Baltimore, city delegates. Upon the arrest of Gordon, (member of the arrested for being, in contravention of his duty Maryland Legislature,) some days ago, papers were found and in violation of law, by direction or indirec-in his baggage reading like amendments to be offered to a tion, both witness and protector to transactions hostile to the authority of the Government, and to conspirators avowedly its enemies.

Same day, Charles Howard, Wm. II. Gatchell, Charles D. Hinks, John W. Davis, and George Wm. Brown, Mayor and ex-officio member of Board of Police of Baltimore, protested against the arrest of Marshal Kane, and the suspension of the Board of Police, by a military provost marshal.

proposed secession ordinance to be brought up at the coming meeting of the Legislature.

BALTIMORE, Sept. 18.-The police are arresting secession members of the Legislature as fast as they reach this city, on their way to Frederick. To-morrow is the day set apart for the meeting of the Legislature, but there can be no quorum present, as nearly three fourths of both Houses are secessionists, all of whom it is presumed, will be arrested. This evening Messrs. Dennis and Heckart, of the Senate, and Messrs. Landing and Raisin, of the House of Delegates, were arrested. There are now fifteen members of the House bers cannot be found, and have, it is said, fled from the and three of the Senate under arrest. Many of the mem

State.

[From the Baltimore American.]

We are not advised of the specific charges against those members of the Legislature and others prominent as public functionaries who have been arrested in the State by order of the General Government; but, from what has already occurred, the inference seems safe enough that the reasons were such as were fully justified in the needful preservation of the peace of the State. One thing is certain-that the majority of the distinguished body thus interfered with was thoroughly disloyal; and judging from what they already have done, and their persistant waiting for something to hap pen to give them a chance to do something more in the direction of State sovereignty," we believe they thought the time night come when they might follow other illustrious examples, and treat the State to that outrage upon the people, the Constitution, and the Union, a "secession ordinance." They are effectually estopped from such a purpose now, and will have a chance to reflect at their leisure on their utter disregard of the wishes of the people in their doings.

The astounding disregard of popular sentiment, definitely shown, has been the chief feature in the secession movement, and Maryland has only escaped the worst consequences of it by the firm action of the Governor in the first instance, and now by the interposition of the strong hand of the General Government.

COPELAND'S REPORT.

FREDERICK, Md., September 18, 1861. To Major General BANKS, Darnestown:

SIR: I have just telegraphed to General Dix that we have seized seven members of the house of a very bitter character, and four officers, clerks, &c., who are intensely bitter, and are said to have been very forward and to have kept sonic of the weaker men up to the work. Several arrests were made of violent or resisting persons, whom I shall let go after the others are gone. I shall send four men at least to General Dix, at Baltimore, who are very bad men. I have advised Colonel Ruger to send to Sharpsburg Landing to seize 500 sacks of salt, which are waiting for the Southerners to come and take them. They have tried twice to do it. We have also heard of some arms which the colonel will look up. There is a very bitter man here, a Mr. Sinn, who is currently reported by General Shriver and others to be the medium of communication with the Southern Confederacy. The names of the members are: B. S. Salmon, R. C. McCubbin, J. II. Gerdon, C. J. Durant, Thomas Cleggett, Andrew Kessler, and Bernard Mills. We shall get T. Lawrence Jones. The officers of the Legislature: J. N. Brewer, Chief Clerk Senate: Thomas Moore, reading do; Samuel Penrose, jr., Asistant; N. Kilgore, reading do.; Milton Kidd, Chief of the House. Mr. Jones is taken: Edward Houser, citizen; Riley, very bad) Printer to the House; John Hogan, (very bad,) citizen; Joseph Elkins, do.; Mr. Mason, Folder to the House. We shall leave here for headquarters this afteron. The arrested were nearly all seized by the police

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Mr. McCubbin is a person whom I should recommend you to set at large if he takes the oath, which I have no doubt be will. He is brother-in-law to General Hammond, and a man much respected; also a man of rather timid nature, and greatly troubled by his arrest. General Shriver has been very active for us, and is very earnest that we should let him go on these terms. If you can do it, it will be well to telegraph to Annapolis to have the oath tendered, and release him. I should do it under my instructions, only that Colonel Ruger thinks he has no authority to allow any man on the list any liberty. R. M. C.

OTHER ARRESTS.

PHILADELPHIA, August 19. Pierce Butler was arrested this afternoon by the United States Marshal by order of Secretary Cameron. He was taken to New York this evening, en route to Fort Hamil

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LOUISVILLE, September 19.

Ex-Mayor James G. Berret, of Washington, was arrested in August, but released September 12, 1861, on taking the oath of allegiance, and resigning the office of mayor.

Ellis B. Schnable, of Pennsylvania, was also arrested late in August.

James W. Wall, of Burlington, N. J., was arrested, and others.

ORDERS ON WHICH CERTAIN ARRESTS WERE
MADE

Secretary of War to General Banks.

WAR DEPARTMENT, Sept. 11, 1861. GENERAL: The passage of any act of secession by the Legislature of Maryland must be prevented. If necessary all, or any part, of the members must be arrested. Exercise your own judgment as to the time and manner, but do the work effectually.

Very respectfully, your obedient servant,
SIMON CAMERON,
Secretary of War.

Gen. McClellan to Gen. Bunks.
[CONFIDENTIAL.]

HEADQUARTERS ARMY OF THE POTOMAC, WASHINGTON, Sept. 12, 1861. Secretaries of State, War, &c., it has been decided to effect GENERAL: After full consultation with the President, the operation proposed for the 17th. Arrangements have been made to have a Government steamer at Annapolis to receive the prisoners and carry them to their destination.

Some four or five of the chief men in the affair are to be

arrested to-day. When they meet on the 17th, you will please have everything prepared to arrest the whole party, and be sure that none escape.

It is understood that you arranged with Gen. Dlx and Gov. Seward the modus operandi. It has been intimated to me that the meeting might take place on the 14th; please be prepared. I would be glad to have you advise me frequently of your arrangements in regard to this very im

portant matter.

If it is successfully carried out it will go far toward breaking the backbone of the rebellion. It would probably be well to have a special train quietly prepared to take prisoners to Annapolis.

discretion-and have but one thing to impress upon youI leave this exceedingly important affair to your tact and the absolute necessity of secrecy and success. With the highest regard, I am, my dear General, your sincere friend, GEO. B. MCCLELLAN,

Maj. Gen. U. S. A.

Copy of Gen. Banks's instructions concerning the Legislature.
[IMPORTANT AND CONFIDENTIAL.]

HEADQUARTERS, CAMP NEAR DARNESTown,
September 16, 1863.

Lieut. Col. RUGER, Commanding Third Wisconsin regiment,
on special service at Frederick:
SIR: The Legislature of Maryland is appointed to meet in
special session to-morrow, Tuesday, Sept. 16. It is not im-
possible that the members, or a portion of them may be
deterred from meeting there on account of certain arrests
recently made in Baltimore. It is also quite possible
that on the first day of meeting the attendance may be
small. Of the facts, as to this matter, I shall see that you
are well informed, as they transpire. It becomes necessary
that any meeting of this Legislature, at any place or time,
shall be prevented.

You will hold yourself and your command in readiness to arrest the members of both Houses; a list of such as you are to detain will be enclosed to you, herewith, among whom are to be specially included the presiding officers of the two Early this morning the United States Marslial seized the the arrests be certain, and allow no chance of failure. The houses, secretaries, clerks, and all subordinate officials. Let office of the Louisville Courier, arrested ex-Governor More-arrests should be made while they are in session, I think. tel Reuben T. Murrett, one of the proprietors of the Carier, and Martin W. Barr, telegraphic news reporter for Le New Orleans press, on charges of treason or complicity with treason. The prisoners were all carried to Jeffersonle, and will be transferred to the custody of the Marshal Indiana district.

CINCINNATI, September 26. Yesterday afternoon Lieutenant Colonel Letcher, with a detachment of Colonel Woodward's regiment, captured James B. Clay, with sixteen of his men, while on the way to join Zollicoffer. They were taken to Camp Dick Robinon. John C. Breckinridge was with their party in this city, but escaped.

You will, upon the receipt of this, quietly examine the premises. I am informed that escape will be impossible, if the entrance to the building be held by you, of that you will judge upon examination. If no session is to be held, you will arrest such members as can be found in Frederick. The process of arrest should be to enter both ilouses at the same time, announcing that they were arrested by orders of the Government, command them to remain as they are, subject to your orders.

Any resistance will be forcibly suppressed, whatever the consequences. Upon these arrests being effected, the members that are to be detained will be placed on board a special train for Annapolis where a steamer will await them.

Everything in the execution of these orders is confided to your secrecy, discretion, and promptness.

The Case of Algernon S. Sullivan.

DEPARTMENT OF STATE,
WASHINGTON, September 10, 1861.

It is ordered:

1862.

Executive Order No. 2-In Relation to State Prisoners. WAR DEPARTMENT, WASHINGTON CITY, Feb. 27, First. That a special commission of two persons, one of military rank and the other in civil life, be appointed to examine the cases of the State prisoners remaining in the mil itary custody of the United States, and to determine whether in view of the public safety and the existing rebellion, they should be discharged, or remain in military custody, or be

remitted to the civil tribunals for trial.

TO DANIEL LORD, Esq., New York: SIR: I have received your letter of yesterday relating to Algernon S. Sullivan, a political prisoner now in custody at Fort Lafayette. This Department is possessed of treasonable correspondence of that person which no right or privilege of a lawyer or counsel can justify or excuse. The pub-in Baltimore, and the Hon. Edwards Pierrepont, of New lic safety will not admit of his being discharged.

In view of the many representations made to me in this case, I pray your excuse for giving this letter to the public. With great respect, sir, your obedient servant,

WILLIAM H. SEWARD.

The Case of Robert Elliot.

DEPARTMENT OF STATE,
WASHINGTON, October 4, 1861.

To his Excellency ISRAEL WASHBURN, Augusta, Me.: GOVERNOR: Application has been made to the President for the release of Robert Elliot, a political prisoner held in custody at Fort Lafayette.

Secoud. That Major General John A. Dix, commanding York, be and they are hereby appointed Commissioners for the purposes above mentioned, and they are authorized to examine, hear, and determine the cases aforesaid ex parte and in a summary manner, at such times and places as in their discretion they may appoint, and make full report to the War Department.

By order of the President:

EDWIN M. STANTON,
Secretary of War.

ORDER OF THE SECRETARY OF WAR. WAR DEPARTMENT, WASHINGTON, November 22, 1862. Ordered-1. That all persons now in military custody, The evidence taken in his case shows that he had not only who have been arrested for discouraging volunteer enlistconceived the purpose of treasonable co-operation in the ments, opposing the draft, or for otherwise giving aid and State of Maine with the insurrectionary citizens arrayed in comfort to the enemy, in States where the draft has been arms, in other States, for the overthrow of the Government made, or the quota of volunteers and militia has been furand the Union, but that he had even gone to the extreme nished, shall be discharged from further military restraint. length of getting up an unlawful armed force to operate in 2. The persons who, by the authority of the military com Maine against the lawful action of the State and of the Fed-mander or governor in rebel States, have been arrested and eral Government. His associates in that treasonable enter- sent from such State for disloyalty or hostility to the Govprise, since his arrest, have taken an oath of allegiance to ernment of the United States, and are now in military cus the United States. This proceeding is very proper in itself. tody, may also be discharged upon giving their parole to do But the representations they make, that they and he were no act of hostility against the Government of the United loyal to the Union at the time when they were combining States, nor render aid to its enemies. But all such persons in arms against it, cannot be accepted, at least in his behalf. shall remain subject to military surveillance and liable to It appears that he is too intelligent to misunderstand the arrest on breach of their parole. And if any such persons legitimate tendency of his criminal acts. He cannot be re-shall prefer to leave the loyal States on condition of their leased. On the contrary, your vigilance in ferreting out the not returning again during the war, or until special leave conspiracy and in arresting it, by denouncing it to the Gov- for that purpose be obtained from the President, then such ernment and the country, is deemed worthy of especial comperson shall, at his option, be released and depart from the mendation. United States, or be conveyed beyond the military lines of the United States forces.

If any of the other offenders are still persisting in their treasonable course, you will, I am sure, not fail to give information to this Department.

I have the honor to be, very respectfully, your obedient servant,

WILLIAM H. SEWARD.

THE PRESIDENT'S ORDERS.

1862, February 14-The PRESIDENT issued an order reciting the circumstances of the country, the defection of officials in every department, the treason which pervaded and paralyzed every branch of the service, in justification of the resort to extraordinary measures, and adds: Meantime a favorable change of public opinion has occurred. The line between loyalty and disloyalty is plainly defined; the whole structure of the Government is firm and stable; apprehensions of public danger and facilities for treasonable practices have diminished with the passions which prompted heedless persons to adopt them. The insurrection is believed to have culminated and to be declin- | ing.

3. This order shall not operate to discharge any person who has been in arms against the Government, or by force and arms has resisted or attempted to resist the draft, nor relieve any person from liability to trial and punishment by civil tribunals, or by court-martial or military commission, who may be amenable to such tribunals for offences committed.

By order of the Secretary of War:

E. D. TOWNSEND, Assistant Adjutant General.

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1861, May 25-John Merryman, of Baltimore county, Md., was arrested, charged with holding a commission as lieutenant in a company avowing its purpose of armed hostility against the Government; with being in communication with the rebels, and with various acts of treason. He was lodged in Fort McHenry, in command of Gen. Geo. Cadwalader. Me.ryman at The President, in view of these facts, and anxious to favor a return to the normal course of the Administration, as far once forwarded a petition to Chief Justice as regard for the public welfare will allow, directs that al! Roger B. Taney, reciting his arrest, and praying political prisoners or State prisoners now held in military for a writ of habeas corpus and a hearing. The custody, be released on their subscribing to a parole engag-writ was issued for the 27th, to which General ing them to render no aid or comfort to the enemies in hostility to the United States.

The Secretary of War will, however, at his discretion, except from the effect of this order any persors detained as spies in the service of the insurgents, or others whose release at the present moment may be deemed incompatible with the public salety.

To all persons who shall be so released, and who shall keep their parole, the President grants au amnesty for any past offences of treason or disloyalty which they may have

committed.

Extraordinary arrests will hereafter be made under the direction of the military authorities alone. ⚫ By order of the President:

EDWIN M. STANTON, Secretary of War. 1862, February 27-The PRESIDENT issued this order:

Cadwalader declined to respond, alleging, among other things, that he was duly authorized by the President of the United States to suspend the writ of habeas corpus for the public safety. May 27, the Chief Justice issued a writ of attachment, directing United States Marshal Bonifant to produce the body of General Cadhis contempt in refusing to produce the body walader on Tuesday, May 28 h," to answer for of John Merryman." May 28th, the Marshal replied that he proceeded to the fort to serve the writ, that he was not permitted to enter the gate, and that he was informed "there was no answer to his writ."

CHIEF JUSTICE TANEY'S REMARKS.

I ordered the attachment yesterday, because upon the face of the return the detention of the prisoner was unlawful upon two grounds.

having the prisoner thus in custody upon these vague and unsupported accusations, he refuses to obey the writ of habeas corpus, upon the ground that he is duly authorized by the President to suspend it.

1. The President, under the Constitution and laws of the The case, then, is simply this: A military officer residing Cnited States, cannot suspend the privilege of the writ of in Pennsylvania issues an order to arrest a citizen of Maryhabeas corpus, nor authorize any military officer to do so. land, upon vague and indefinite charges, without any proof, 2 A military officer has no right to arrest and detain a so far as appears. Under this order his house is entered in person, not subject to the rules and articles of war, for an the night; he is seized as a prisoner, and conveyed to Fort offence against the laws of the United States, except in and McHenry, and there kept in close confinement. And when of the judicial authority and subject to its control; and if a habeas corpus is served on the commanding officer, requir the party is arrested by the military, it is the duty of the ing him to produce the prisoner before a Justice of the Suofficer to deliver him over immediately to the civil author-preme Court, in order that he may examine into the legality ity, to be dealt with according to law. of the imprisonment, the answer of the officer is 'that he is authorized by the President to suspend the writ of habeas corpus at his discretion, and, in the exercise of that discretion, suspends it in this case, and on that ground refuses obedience to the writ.

I forbore yesterday to state orally the provisions of the Constitution of the United States which make these principles the fundamental law of the Union, because an oral statement might be misunderstood in some portions of it, and I shall therefore put my opinion in writing and file it in the office of the Clerk of the Circuit Court, in the course of this week.

As the case comes before me, therefore, I understand that the President not only claims the right to suspend the writ of habeas corpus himself, at his discretion, but to delegate that discretionary power to a military officer, and to leave

After reading the above, the Chief Justice it to him to determine whether he will or will not obey juorally remarked:

dicial process that may be served upon him.

No official notice has been given to the courts of justice, or to the public, by proclamation or otherwise, that the President claimed this power, and had exercised it in the manner stated in the return. And I certainly listened to it with some surprise, for I had supposed it to be one of those points of constitutional law upon which there was no difference of opinion, and that it was admitted on all hands that the privilege of the writ could not be suspended except by act of Congress.

When the conspiracy of which Aaron Burr was the head became so formidable, and was so extensively ramified as to

In relation to the present return, I propose to say that the marshal has legally the power to summon out the posse comitatus to seize and bring into court the party named in the attachment; but it is apparent he will be resisted in the discharge of that duty by a force notoriously superior to the posse comitatus, and such being the case, the Court has no power under the law to order the necessary force to compel the appearance of the party. If, however, he was before the Court, it would then impose the only punishment it is empowered to inflict-that by fine and imprisonUnder these circumstances the Court can barely say, to-justify, in Mr. Jefferson's opinion, the suspension of the writ, he claimed, on his part, no power to suspend it, but coinday, I shall reduce to writing the reasons under which I municated his opinion to Congress, with all the proofs in his have acted and which have led me to the conclusions ex-possession, in order that Congress might exercise its discrepressed in my opinion, and shall report them with these proceedings to the President of the United States, and call upon him to perform his constitutional duty to enforce the Ews; in other words, to enforce the process of this Court. This is all this Court has now the power to do.

ment.

Subjoined is the opinion of the Chief Justice:*

Ex parte JoHN MERRYMAN.

tion upon the subject, and determine whether the public safety required it. And in the debate which took place upon the subject no one suggested that Mr. Jefferson might exercise the power himself, if, in his opinion, the public safety

demanded it.

Having, therefore, regarded the question as too plain and too well settled to be open to dispute, if the commanding officer had stated that upon his own responsibility, and in the exercise of his own discretion, he refused obedience to

Before the Chief Justice of the Supreme Court of the the writ, I should have contented myself with referring to

United States, at Chambers.

the clause in the Constitution, and to the construction it received from every jurist and statesman of that day, when the case of Burr was before them. But being thus officially notified that the privilege of the writ has been suspended under the orders and by the authority of the President, and believing as I do that the President has exercised a power which he does not possess under the Constitution, a proper respect for the high office he fills requires me to state plainly and fully the grounds of my opinion, in order to show that I have not ventured to question the legality of his act without a careful and deliberate examination of the whole subject.

The clause in the Constitution which authorizes the sus

pension of the privilege of the writ of habeas corpus is in the ninth section of the first article.

The application in this case for a writ of habeas corpus is made to me under the 14th section of the judiciary act of 1789, which renders effectual for the citizen the constitutional privilege of the writ of habeas corpus That act gives to the courts of the United States, as well as to each Justice of the Supreme Court, and to every District Judge, power to grant writs of habeas corpus, for the purpose of an inquiry into the cause of commitment. The petition was presented to me at Washington, under the impression that I would order the prisoner to be brought before me there, but as he was confined in Fort McHenry, at the city of Baltimore, which is in my circuit, I resolved to hear it in the latter city, as obedience to the writ, under such This article is devoted to the Legislativo Department of circumstances, would not withdraw Gen. Cadwalader, who the United States, and has not the slightest reference to the bad him in charge, from the limits of his military command. Executive Department. It begins by providing that all The psution presents the following case: The petitioner legislative powers therein granted shall be vested in a Conresides in Maryland, in Baltimore county. While peaceablygress of the United States, which shall consist of a Senate in his own house, with his family, it was at two o'clock, on and House of Representatives." And after prescribing the the morning of the 25th of May, 1861, entered by an armed manner in which these two branches of the legislative deforce, professing to act under military orders. He was partment shall be chosen, it proceeds to enumerate specifithen compelled to rise from his bed, taken into cus- cally the legislative powers which it thereby grants, and tody, and conveyed to Fort McHenry, where he is im- legislative powers which it expressly prohibits, and, at the prisoned by the commanding officer, without warrant from conclusion of this specification, a clause is inserted giving ay Lawful authority. Congress "the power to make all laws which may be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States or in any department or office thereof."

The coLimander of the fort, Gen. George Cadwalader, by whom he is detained in confinement, in his return to the writ, does not deny any of the facts alleged in the petition. II- states that the prisoner was arrested by order of Gen. Keim, of Pennsylvania, and conducted as a prisoner to Fort Mellenry by his order, and placed in his (Gen. Cadwaladr'sjenstody, to be there detained by him as a prisoner. A copy of the warrant, or order, under which the prisoner was arrested, was demanded by his counsel, and refused. And it is not alleged in the return that any specific act, constituting an offence against the laws of the United States, Las been charged against him upon oath; but he appears to live be in arrested upon general charges of treason and rebellion, without proof, and without giving the names of the witnesses, or specifying the acts, which, in the judg ment of the military officer, constituted these crimes. And

For a reply by Hon. Reverdy Johnson, see Moore's Rebellion Record, vol. 2, p. 185.

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The power of legislation granted by this latter clause is by its word carefully confined to the specific objects before enumerated. But as this limitation was unavoidably somewhat indefinite, it was deemed necessary to guard more effectually certain great cardinal principles essential to the liberty of the citizen and to the rights and equality of the States by denying to Congress, in express terms, any power of legislation over them. It was apprehended, it seems, that such legislation might be attempted under the pretext that it was necessary and proper to carry into execution the powers granted; and it was determined that there should be no room to doubt, where rights of such vital importance were concerned, and accordingly this clause is immediately followed by an enumeration of certain subjects to which the powers of legislation shall not

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