JUDGE TANEY'S OPINION.

189

Suspension of the Pri.
of habeas corpus was resort-| dicial authority and subject to

Judge Taney's vileges of the Habeas ed to by the friends of the its control; and if the party is

Opinion. Corpus Act.

prisoners; and, that the is- arrested by the military, it is sue thus created might bring the military au

the duty of the officer to deliver him over imme. thority before the highest civil tribunal,* diately to the civil authority, to be dealt with ac

cording to law. Chief-Justice Taney, of the United States

“I forebore yesterday to state orally the provi. Supreme Court, was called upon to issue the sions of the Constitution of the United States, which writ. The writ was issued May 25th, re

make these principles the fundamental law of the turnable at noon, May 27th, in the United Union, because an oral statement might be misunStates District Court of Baltimore, Judge derstood in some portions of it. I shall, therefore, Taney on the bench. At the hour named put my opinion in writing and file it in the office of Colonel Lee appeared in behalf of General | the Clerk of the Circuit Court, in the course of this Cadwalader, and stated that Merryman week.” was charged with treason, and that, in his The Judge further added that the military case, by authority of the President, the privi- authority was always subordinate to the civil. lege of the writ was suspended. The Gen- That, under ordinary circumstances, it would eral asked that the Court would, however, be the duty of the Marshal to proceed with a postpone action until further instructions posse comitatus, and bring the party named were received. The Judge immediately or- in the writ into Court; but, from the notodered the arrest of the General for disobedi- riously superior force that he would encounence to the high writ of the Court. The at- ter, this would be impossible. He said the tachment was made returnable the next day, Marshal had done all in his power to disat noon, When that hour arrived an in-charge his duty--that, during the week, he mense concourse was present to hear the should prepare his opinion in the premises, Marshal make return that, on proceeding to and forward it to the President, calling upon the Fort, he was refused admittance by arm- him to perform his constitutional duty, and ed sentinels, and therefore could not serve see that the laws be faithfully executed and the writ of arrest upon General Cadwalader. enforce the decrees of this Court. The Chief Justice thereupon read a statement This opinion we give at length in the Apas follows:

pendix, together with the counter-opinion of “ I ordered the attachment the U. S. Attorney-General upon which, it is Judge Taney's

yesterday because upon the presumable, the President places his chief Opinion.

face of the return the deten- reliance for legal defense, for the arrest and tion of the prisoner was unlawful, upon two imprisonment of those“ suspected” persons grounds :

whom the Government, by orders from the "Fürst: The President, under the Constitution and

War or State Departments, placed in close laws of the United States, cannot suspend the pri- confinement in the forts of Baltimore, Boston vilege of the writ of habeas corpus, nor authorize any and New York. We should add, however, military officer to do so.

that the loyal sentiment of the country con" Second: A military officer has no right to arrest and detain a person, nor subject him to the rules demned the direct issue created by the Chiefand articles of war for an offense against the laws Justice, while the disloyal and “conservative" of the United States, except in aid of the ju. approved. Whether or not Mr. Lincoln acted

within the province of the Constitution,* in * Judge Giles, of Baltimore, May 14th, had issued a writ of habeas corpus for the delivery of a soldier con- * It is somewhat singular that Judge Taney, in fined in Fort McHenry. Major Morris, then in com- uttering his elaborate opinion against the right of mand of the Fort, refused to obey the mandate of military arrests, should have forgotten his previous the Court, citing the dangerous nature of the writ record, and thus have laid himself liable to charges in releasing prisoners of State as his excuse for non- of inconsistency. In delivering the opinion of the compliance. To create a direct and open issue be- Supreme Court of the United States, January Term, tween the General Government and the Supreme 1849, in the case of Luther agt. Borden et al. (7 Court, was the purpose of the Secessionists in call. Howard's Sup. Ct. Rep., 43), on writ of error from ing Judge Taney's powers into requisition.

the Circuit Court for the Rhode Island District, in a

of Coercion.

the arrests, the people de- rately justify or condemn, Courts and Con. Judge Taney's

cided that he had acted for gress must do likewise as the constituted Opinion.

the good of the country, in organs of the people. Before the people, circumstances of danger which only extreme acting in unity and expressing a general senmeasures could avert. And this, we think, timent, even Courts and Congress must give will be bis surest defense. Throwing aside the way; and if, in the Constitution, there clearly its and wherefores of legal tomes, the people-existed the right of a State to secede, it is who are at once their own lawgivers and questionable if the exercise of that right would judges, by virtue of their Constitution-strike not have been forbidden by the popular will direct at the heart of wrongs; as they delibe- of the majority, whose pride of country and

patriotism would not consent to a division case of trespass q. c. by Martin Luther, a citizen of of the Union. Had the right of secession Massachusetts, against the defendants, citizens of

been conceded by Congress, it must have Rhode Island, for breaking and entering the house been overruled by the people. In both cases of Luther on the 29th June, 1842, Mr. Chief-Justice

the ballot-box would have been the umpire, Taney said :

“ This case had arisen ogt of the ó unfortunate political dif- and the “ American idea” would have found ferences' which agitated the people of Rhode Island in 1841 votes as powerful as bayonets in deciding and 1842. It is an action of trespass by the plaintiff in error

upon unity and the rights of the majority. It against defendants for breaking and entering plaintiff's house. The defendants justify upon the ground that large

was this “tyranny” against which the South numbers of men were ass-mbled in different parts of the State, protested; and the President, as the embodifor the purpose of overthrowing the Government by military ment of the popular will of the North, force, and were actually lemying war upon the State ; that in received the anathemas of all who acted order to defend itself from this insurrection, the State was dechured by competent authority under martial law; that with or had sympathy for the secession plaintill was (ngaged in the in urrection; and that the de- movement. fendants, being in the military service of the State, by com

The questions involved mand of their superior officer, broke and entered the house,

The Assumed Right an't searched the rooms for the plaintiff, who was supposed in and covered by the matto be there concealed, in order to arrest him, doing as little ters already submitted, danage as possible.

meet several of the propositions mentioned Unquestionably a State may use its military power to put down an armed insurrection too strong to be

on the previous page. The right of coercion controlled by the civil authority. The power is pesential to was measurably involved in the right to call the existence of every Government, essential to the preserva- out troops to suppress an insurrection, which tion of order and free institutions, and is as necessary to the States of this Union as to any other Government. The State

was covered by the Acts of 1795 and 1807. itself met determine what degree of force the crisis de. In the opinion of Attorney-General Black,

And if the Government of Rhode Island dermed the [cited on pages 66-69 of Vol. I,] the position armed opposition so formidable, and so ramified throughout taken was, that the military was subordinate the Statı, as to require the use of its military force and the declaration of martial law, wo sco no ground upon which to the civil process, and could only be called this Court can question its authority. It was a state of war; | into requisition to aid the courts in enforcing and the established Government resorted to the rights and the laws. It confessed, however, that, in case usages of war to maiutain itself, and 10 overcome the unlawful opposition. And in that state of things the otlicers en

the civil power itself should refuse to coga gol in its military service might lawfully arrest any one operate to execute the laws, Congress must who, from the information before then, they had reasonable then take such steps as were necessary and grounds to believe was engaged in the insurrection; and might order is house to be torcibly entered and searched, when there proper. It may be assumed that, what alwere rea onable grounds for supposing he might b: there con ready has been said of the popular right to cealed. Without the power to do this, martial law and the meet great perils by original processes, also military array of the Government would be mere parade, and Father crcourage attack than repel it. No more force, how. I applies here. If the President did not find ever, can be used, that is necessary to accomplish the ob- direct or implied authority in the Constituj'ct. And if the power is exercised for tho purposes of option, or in the Acts of 1795 and 1807, for pression, or any injury willfully dono to persons or property, calling out troops to suppress the rebellion, the party by whom, or by whose order it is committed, would undoubtedly be answerable," &c.

the people came to bis justification. The enThe President might simply appeal to this deci- dorsement and confirmation Congress gave sion for his justification. Those desiring to can- (by the Act of July, 1861) to each and all the vass the whole question should refer to this case. steps taken by the President, to meet the

66

mands.

BUTLER'S "CONTRABAND” DECISION.

191

Slaves.

Butler's " Contraband" Decision.

dangers surrounding the country, were sim- It was the enigma of the Sphynx which no ply in response to the popular will.

Edipus could be found to solve, and there. Regarding the condition fore the Sphynx lived on. The Question of the

which the Slave population It fell to the lot of General Butler first to

was to sustain in the con- deal with “ the inevitable negro” dilemma. test much and very diverse counsels prevailed. He was, of all men, the proper person to adThat the “peculiar institution” was vitally minister upon the case, being, not only a involved was admitted, even by the most con- sound lawyer, but also a Democrat of the disservative of loyal men, from the first stages tinctively pro-Slavery school. He was inu of the conflict; that it was fatally involved Breckenridge candidate in 1860, for the Exewas conceded by that class not until it be- cutive chair of Massachusetts. He had, for came apparent that all efforts to sustain it years, been noted as the enemy of runaway impaired the Federal cause by strengthening negroes and the friend of their masters. the hands of those hostile to it. The desire Hence, it was well to thrust upon him the reto propitiate the Border States, by taking no sponsibility of setting a precedent which action which would injúre their interests miglit serve as such to other commanders and investments in Slave property, induced whose camps must become infested with nethe Executive and the several military chiefs, groes escaping from anxious masters. to pursue a course lacking in consistency and Colonel Mallory, living uniformity. Future writers may be able to on the York Peninsula, sit in judgment on the early policy-or, ra- under a flag of truce, claimher, the want of it-in regard the Slaves; ed three fugitive slaves (May 25th) who had but, at this moment, when the conflict of sought refuge within the Federal lines to esopinion and feeling is still being waged upon cape being sold "to go South." The Colonel the rights and wrongs of the several schemes had met the General in several Conventions, acted upon, it will be impossible to draw the had supped and drank with him; and, doubtlines of judgment with certainty.

less, presumed that lie had but to ask and The question presented itself in this shape: receive the “ black rascals.” Butler heard as the Federal Government did not admit the rebel demand with the formality of a comthe right of secession, it therefore consider-mander. · You hold," said the General, ed the Union unbroken. The Federal laws" that negroes are property.” “I do," said were to be enforced, by force if necessary, in Mallory. “ You also hold that Virginia is no all sections of the Union. One of these laws longer a part of the United States ?” “I do." was the Fugitive Slave Act, hy which every “Now," said Butler, “ you are a lawyer, Colorunaway Slave must be returned, upon de- nel Mallory, and I want to know if you claim mand, to his owner. Thus rebels, still being that the Fugitive Slave act of the United considered citizens of the Union, could de- States is binding in a foreign nation; and if mand back their Slaves should they escape a foreign nation uses this kind of property to the Federal camps, or to the loyal States. to destroy the lives and property of citizens And again: the non-recognition of the right of the United States, if that species of propof secession implied the recognition of the erty ought not to be regarded as contraband ?" status of the States. Their laws (local) were, The Colonel retired without the negroes; and hynce, to be respected, so long as they were the country rejoiced over the construction not in contravention of the Constitution. that a negro was “contraband of war" when By these laws Slaves were restricted in rights the slave of a rebel master. anel privileges were liable to arrest for run- What baseness as well as impudence ning away-were subject to flogging and must be charged upon those who, tramsale; and, being a local institution, Congress, pling the laws of the country under foot, under the Constitution, had no right to inter- still claimed the immunities and benefits of fere or to nullify.

those laws!

CHAPTER XVII.

TRE ATTITUDE OF FOREIGN POWERS TOWARD THE UNITED

STATES. BRITISH “NEUTRALITY” AND ENGLAND'S BAS EN ESS. THE CANDID A VOWALS OF FRANCE.

Solicitude of the

North.

Solicitude of the

North.

66

No slight solicitude was conspired to render them felt, in the North, for the intensely interested obsery

cause of the Union abroad. ers, and so powerfully apThe whole tenor of Mr. Seward's instructions pealed to their selfishness as to render them, at to the newly appointed foreign Ministers to first, secretly, but at a later day, openly, solicitthe leading courts of Europe, shows how ous for the cause of the South. This solicitude keenly the Department of State appreciated was enhanced by the presence in Europe—and the importance of our foreign relations; and particularly in Great Britain and France—of the correspondence already quoted, (on pages agents” of the Southern Confederacy, whose 186–87,] betrays with what decision the Sec- mission was to secure the desired recognition. retary met the apprehended danger of a re- Comprised of some of the ablest, as well as cognition of the Southern Confederacy by least scrupulous, men of the South, these European powers. He clearly enunciated agents were empowered to use extraordinary the proposition, that, to be thus friendly to means to secure their ends--even to granting the insurgents, was to incur the responsibili- exclusive trade with, and free entry to their ty of resentment on our part; still, his ad- ports—thus using a powerful motor to move vice to our agents abroad all tended to avert the moneyed classes of the two Governments the calamity of any unfriendly issue with —to influence the cupidity of the English and other powers. It will be seen by reference the pride of the French. to the files of foreign affairs documents, for To counteract the machinations of these 1861, that the Secretary fully tasked his men was, as Mr. Seward wrote, the first and great ability as a lawyer, in order to lay be chief object of the ministers—so much imfore each Government arguments against portance did he attach to the non-recognition its recognition of the Seceded States. For of the Southern Confederacy. This agents did England, for Spain, for France, for thé not labor in vain, strengthened as they were Netherlands, for Russia, he had special pleas, by the co-operation of eminent American which reflect honorably on the Secretary's citizens abroad, and, eventually, by persons sagacity, and his patriotism.

especially dispatched as diplomatic visitors To France and England, the attention of to the several Courts.* the loyal States was chiefly directed, for of The attitude of the British Government bethem alone was danger apprehended. Their came anomalous and perplexing. The Projealousy of the greatness and rapidly en- clamation of the Queen “to enforce a strict hancing power of this country-their hopes neutrality,” (see Appendix pages 474-76, for of seeing that power broken by a divided | this document at length,] at once gave the Union—their dependence on the slave pro- Southern States in rebellion the position of duct-the inimical spirit betrayed against the

* Archbishop Hughes was understood to have tariff upon their goods and stuffs to sustain been endowed with a semi-official mission; as also the Federal Government, which tended to

were Mr. August Belmont and Mr. Thurlow Weed. strengthen the bands of their greatest com- General Scott's brief risit to France was not, as has petitors, the Northern manufacturers—all been stated, of a diplomatic nature.

ATTITUDE

OF GREAT BRITAIN.

193

Attitude of Great

Britain.

Attitude of Great

Britain.

belligerents, and recognized | blessing for whose consum-
them as co-equals, in this mation England should de-

respect, with the Federal voutly pray. In all this the Government-thus at once lifting them from old dislike of Slavery found little utterance. the position of insurgents to that of a recog- The principle of anti-Slavery was not so nized power. The document, it will be per- active as the cupidity of capital, nor so sub-" ceived upon consultation, did this in a man- tly potent as the spirit which animated those ner calculated to inspire distrust of British who hoped for the humiliation of the Great good faith, since it made it a misdemeanor Republic. The Exeter Hall philanthropists for British subjects to enlist in, or in any became a shadow, while the Leeds, Manchesway to aid and abet, the cause of either party. ter and Tory coalition became a real presence.* As the Government of Great Britain, by treaty The few brave and honest souls who, like stipulation with the United States, forbade its John Bright, stood forth to vindicate the subjects to engage in any conspiracy against cause of the North from principle, were powthis Government, the Southern Confederates erless before the men of policy and the secret were, of course, debarred, by that treaty, enemies of republican institutions. the prospect of open sympathy. The haste The history of English Governmental polity also to debar the United States that aid, and of the English press, after March, 1861, though it was not wanted nor solicited, ar- and during 1862, if written by one familiar gued the abrogation of the spirit of that with the undercurrents of money and ambitreaty stipulation by giving to conspira- tion, would, if honestly written, form a curitors against the Union the same status grant- ous and most interesting chapter. A peoed to those struggling for the nation's life. plet allied to the Northern States of America Nor was this the worst feature of the document whose “neutrality" admitted Davis' let

* Professor Cairnes, in his volume on "The Attempt

to Explain the Real Issue involved in the American ters of marque to a belligerent's rights : in declaring the privateers to be pirates, Presi- Contest,” said : “ The Northern people, conscious dent Lincoln by its construction, violated the that it had risen above the level of ordinary motives,

looked abroad for sympathy, and especially looked laws of nations and would be held responsible

to England. It was answered with cold criticism at the bar of Nations,

and derision. The response was perhaps natural Still further: it gave the insurrection under the circumstances, but undoubtedly not more ists a party and made them a power in so than the bitter mortification and resentment Great Britain ; and, from the date of its pro- which that response evoked." The learned and mulgation, there arose a powerful influence clear-minded professor of jurisprudence forgot to for the direct recognition of the Southern give due weight to the motives we have above agConfederacy. The interests of Cotton factors scribed, as having been most powerful in influencing and manufacturers represented many millions English

opinion” and directing English conduct. of property and several hundred thousand The response to our claim for at least the sympathy operatives--all of which were paralyzed and

of a professedly anti-Slavery people in our war with

the Slave power was not“ natural ;' it was unnatubrought to the door of ruin by the blockade. ral, under the circumstances. The future will not These interests ere long became almost a unit fail to characterize England's conduct towards the for recognition.

Then the Iron interest, North as anomalous to a surprising degree. finding their usual trans-Atlantic market cut off by the operation of the Morrill tariff, and

† We say people-looking at the results instead of by the existing state of war, became willing tions; but, as heretofore stated, (see Vol. I, page

the details——viewing the sum of opinions and acconverts to the Southern party. Lastly came

495,) we are convinced that the Queen of England the influence of the aristocracy as represented and that class who really form the base of the best by Lord Brougham, who, viewing in the class of her subjects, were truly desirous of the sucUnited States England's most powerful com- cess of the Union cause. In Prince Albert America petitor in the race for supremacy, looked lost a good friend-one whose sagacity and firmness apon a dissolution of the Union, and the as Queen's counsellor quite compensated for the ormation of two rival confederacies, as a trickery of her Ministers of State.