Page images





clear and specific terms) those powers only which taining witnesses in his favor; and to have the as. were deemed essential to secure the successful sistance of counsel for his defense." operation of the Government.

And the only power, therefore, which the Presi. He is elected, as I have already said, for the dent possesses, where the “ life, liberty, or pro. brief term of four years, and is made personally perty' of a private citizen is concerned, is the responsible, by impeachment, for malfeasance in power and duty prescribed in the third section of office. He is from necessity and the nature of his the second article, which requires " that he shall duties the Commander-in-Chief of the army and take care that the laws be faithfully executed.” navy, and of the militia, when called into actual He is not authorized to execute them himself, or service. But no appropriation for the support of through agents or officers, civil or military, apthe army can be made by Congress for a longer pointed by himself, but he is to take care that they term than two years, so that it is in the power of be faithfully carried into execution, as they are exthe succeeding House of Representatives to with pounded and adjudged by the co-ordinate branch hold the appropriation for its support, and thus dis- of the Government, to which that duty is assigned band it, if in their judgment the President used, or by the Constitution. It is thus made his duty to designed to use it for improper purposes. And al. come in aid of the judicial authority, if it shall be though the militia, when in actual service, are un- resisted by a force too strong to be overcome withder his command, yet the appointment of officers is out the assistance of the executive arm. But in exreserved to the States, as a security against the ercising this power, he acts in subordination to juuse of the military power for purposes dangerous to dicial authority, assisting it to execute its process, the liberties of the people or the rights of the and enforce its judgments. States.

With such provisions in the Constitution, exSo, too, his powers in relation to the civil duties pressed in language too clear to be misunderstood and authority necessarily conferred on him are by any one, I can see no ground whatever for supcarefully restricted, as well as those belonging to posing that the President, in any emergency or in his military character. He cannot appoint the or- any state of things, can authorize the suspension of dinary officers of government, nor make a treaty the privilege of the writ of habeas corpus, or arrest with a foreign nation or Indian tribe, without the a citizen, except in aid of the judicial power. He advice or consent of the Senate, and cannot ap- certainly does not faithfully execute the laws if he point even inferior officers unless he is authorized takes upon himself legislative power by suspending by an act of Congress to do so. He is not empow the writ of habeas corpus--and the judicial power ered to arrest any one charged with an offense also, by arresting and imprisoning a person without against the United States, and whom he may, from due process of law. Nor can any argument be the evidence before him, believe to be guilty ; nor drawn from the nature of sovereignty, or the necescan he authorize any officer, civil or military, to sities of government for self-defense in times of tuexercise this power, for the fifth article of the mult and danger. The Government of the United amendments to the Constitution expressly provides States is one of delegated and limited powers. It that no person shall be deprived of life, liberty, derives its existence and authority altogether from or property, without due prooess of law”--that is, the Constitution, and neither of its branches, execujudicial process. And even if the privilege of the tive, legislative, or judicial, can exercise any of the writ of habeas corpus was suspended by act of Con- powers of government beyond those specified and _gress, and a party not subject to the rules and arti- granted. For the tenth article of the amendments cles of war was afterwards arrested and imprisoned to the Constitution, in express terms, provides that by regular judicial process--he could not be de- the powers not delegated to the United States by tained in prison or brought to trial before a military the Constitution, nor prohibited by it to the States, tribunal, for the article in the amendments to the are reserved to the States respectively, or to the Constitution immediately following the one above people." referred to-that is, the sixth article, provides that: Indeed, the security against imprisonment by ex“ In all criminal prosecutions the accused shall en- ecutive authority, provided for in the fifth article of joy the right to a speedy and public trial by an im- the amendments to the Constitution, which I have partial jury of the State and district wherein the before quoted, is nothing more then a copy of a like crime shall have been committed, which district provision in the English Constitution, which had shall have been previously ascertained by law; and been firmly established before the Declaration of to be informed of the nature and cause of the ac- Independence. cusation; to be confronted with the witnesses Blackstone, in his Commentaries (1st vol.; 137), against him; to have compulsory process for ob- states it in the following words: “ To make imprison..


ment lawful, it must be either by process from the to the king for their political opinions, or who had courts of judicature or by warrant from some legal incurred his resentment in any other way. officer having authority to commit to prison.” And The great and inestimable value of the habeas the people of the United Colonies, who had them corpus act of the 31st Charles II, is that it contains selves lived under its protection while they were provisions which compel courts and judges, and all British subjects, were well aware of the necessity of parties concerned, to perform their duties promptly, this safeguard for their personal liberty. And no in the manner prescribed in the statute. one can believe that in framing a government in- A passage in Blackstone's Commentaries, slowing tended to guard still more efficiently the rights and the ancient state of the law upon this subject, and the liberties of the citizens against executive en- the abuses which were practiced through the power croachment and oppression, they would have con- and influence of the crown, and a short extract from ferred on the President a power which the history Hallam’s Constitutional History, stating the circumof England had proved to be dangerous and oppres.stances which gave rise to the passage of this statuto, sive in the hands of the crown, and which the peo explain briefly, but fully, all that is material to this ple of England had compelled it to surrender after subject. a long and obstinate struggle on the part of the Blackstone, in his Commentaries on the Laws of English executive to usurp and retain it.

England, (3d vol., 133, 134,) says: The right of the subject to the benefit of the writ

“ To assert an absolute exemption from imprisonment in

all cases, is inconsistent with every idea of law and political of habeas corpus, it must be recollected, was one

society; and in the end, would destroy all civil liberty, by of the great points in controversy during the long rendering its protection impossible. struggle in England between arbitrary government “ But the glory of the English law consists in clearly deand free institutions, and must therefore have strong fining the times, the causes, and the extent, when, wheroly attracted the attention of statesmen engaged in

fore, and to whai degree, the imprisonment of the ruli ct

may be lawful. This it is, which induces the absolute neframing a new and, as they supposed, a freer govern

cessity of expressing upon every commitment the reason ment than the one which they had thrown off by the for which it is made : that the court of habeas corpus may Revolution. For from the earliest history of the examine into its validity; and according to tho circumstancommon law, if a person was imprisoned—no mat- ces of the case may discharge, admit to bail, or remand t.10 ter by what anthority-he had a right to the writ of

prisoner. habeas corpus to bring his case before the King's king's bench, relying on some arbitrary precedeuts (and

“ And yet, early in the reign of Charles I, the court of Bench; and if no specific offense was charged those perhaps misunderstood) determined that they could against him in the warrant of commitment he was en- not upon an babeas corpus either bail or deliver a prisoner, titled to be forth with discharged; and if an offense though committed without any cause assigned, in case he was charged which was bailable in its character, the

was committed by the special command of the king, or by

the lords of the privy council. This drew on a parlincourt was bound to set him at liberty on bail. And

mentary inquiry, and produced the Petition of Righi-3 the most exciting contests between the crown and the Chas. 1,-which recites this illegal judgment, and enacts people of England from the time of Magna Charta that no freeman hereafter shall be so imprisoned or dewere in relation to the privilege of this writ, and tained. But when, in the following year, Mr. Selden aud they continued until the passage of the statute of

others were committed by the lords of the council, in pur.

suance of his majesty's special command, under a general 31st Charles II, commonly known as the great habeas

charge of ónotable contempts and stirring up sedition corpus act. This statute put an end to the struggle against the king and government,' the judges delayed for and finally and firmly secured the liberty of the sub- two terms (including also tho long vacation) to deliver an ject from the usurpation and oppression of the ex. opinion how far such a charge was bailable. And, when at ecutive branch of the government. It nevertheless length thoy agreed that it was, they however annexed a conferred no new right upon the subject, but only still protracted their imprisonment, the chief justice, Sir

condition of finding suretics for the good behavior, which secured a right already existing. For, although the

Nicholas Hyde, at the same time declaring, that if they right could not justly be denied, there was often no were again remanded for that cause, perhaps the court effectual remedy against its violation. Until the stat. would not afterwards grant a habeas corpus, being already ute of the 13th of William III, the judges held their made acquainted with the cause of the imprisonment.' But offices at the pleasure of the king, and the influence lawyer preseut ; according to Mr. Selden's own account of

this was heard with indignation and astonishment by every which he exercised over timid, time-serving and

the matter, whose resentment was not cooled at the dis. partisan judges often induced them, upon some tance of four and twenty years." pretext or other, to refuse to discharge the party, It is worthy of remark that the offenses charged although he was entitled to it by law, or delayed against the prisoner in this case, and relied on as a their decisions from time to time, so as to prolong justification for his arrest and imprisonment, in the imprisonment of persons who were obnoxious their nature and character, and the loose and vague





manner in which they are stated, bear a striking re- could not have been lawfully exercised by the sov-
semblance to those assigned in the warrant for the ereign, even in the reign of Charles the First.
arrest of Mr Selden. And yet, even at that day, But I am not left to form my judgment upon this
the warrant was regarded as such a flagrant viola- great question from analogies between the English
tion of the rights of the subject, that the delay of government and our own, or the commentaries
the time-serving judges to set him at liberty upon of English jurists, or the decisions of English
the habeas corpus issued in his behalf excited the courts, although upon this subject they are entitled
universal indignation of the bar. The extract from to the highest respect, and are justly regarded and
Hallam's Constitutional History is equally impresso received as authoritative by our courts of justice.
ive and equally in point. It is in vol. 4, p. 14. To guide me to a right conclusion, I have the Com-

“ It is a very common mistake, and not only among for- mentaries on the Constitution of the United States,
eigners, but many from whom some knowledge of our con-

of the late Mr. Justice Story, pot only one of the stitutional laws might be expected, to suppose, that this statute of Charles II, enlarged in a great degree our liberties,

most eminent jurists of the age, but for a long time and forms a sort of epoch in their history. But though a one of the brightest ornaments of the Supreme very beneficial enactment, and eminently remedial in many | Court of the United States, and also the clear and cases of illegal imprisonment, it introduced no new princi- authoritative decision of that court itself, given ple, nor conferred any right upon the subject. From the

more than half a century since, and conclusively earliest records of the English law, no freeman could be detained in prison, except upon a criminal charge, or convic-establishing the principles I have above stated. tion, or for a civil debt. In the former case, it was always Mr. Justice Story, speaking in his Commentaries in his power to demand of the court of king's bench a writ of the habeas corpus clause in the Constitution, of habeas corpus al subjiciendum, directed to the person

says: detaining him in custody, by which he was enjoined to

" It is obvious, that cases of a peculiar emergeney may bring up the borly of the prisoner with the warrant of com

arise, which may justify, nay even requiro, the temporary mitment that the court might judge of its sufliciency, and

suspension of any right to the writ. But as it has frequently remand the party, admit him to bail, or discharge him, ac

happened in foreigo countries, and even in England, that tho cording to the nature of the charge. This writ issued of

writ has, upon various pretexts and occasions, been susright, and could not be refused by the court. It was not to

pended, whereby persons apprehended upon suspicion luve bestow an immunity from arbitrary imprisonment, which is

suffered a long imprisonment, sometimes from design, and abundantly provided for in Magna Charta(if, indeed, it were

sometimes, because they were forgotten, the right to sus. not more ancient,) that the statute of Charles II, was enact.

pend it is expressly confined to cases of rebellion or in ra. ed, but to cut off all the abuses by which the government's

sion, where the public safety may require it. A very just lust of power, and the servile subtlety of crown lawyers had

and wholesomo restraint, which cuts down at a blow a fruitimpaired so fundamental a privilege."

ful means of oppression, capable of being abused in bad While the value set upon this writ in England has

times to the worst of purposes. Hitherto no suspension of tho been so great that the removal of the abuses which

writ has ever been authorized by Congress since the estab. embarrassed its enjoyment have been looked upon lishment of the Constitution. It would scem, as the power as almost a new grant of liberty to the subject, it is

is given to Congress to suspend the writ of habeas corpus in not to be wondered at that the continuance of the

cases of rebellion or invasion, that the right to jurge,

whether exigency bad arisen, must exclusively belong to writ thus made effective should have been the ob

that body." 3 Story's Comm. on the Constitution, section ject of the most jealous care. Accordingly, no

1836. power in England short of that of Parliament can And Chief Justice Marshall, in delivering the suspend or authorize the suspension of the writ of opinion of the Supreme Court in the case of ex parte babeas corpus. I quote again from Blackstone (1 Bollman and Swartwout, uses this decisive lanComm., 136:)

guage in 4 Cranch, 95 : “ But the happiness of our Constitution is, that it is not " It may be worthy of remark that this act (speaking of left to the executive power to determine when the danger of the ono under which I am proceeding,) was passed by the the stato is so great, as to render this measure expedient ; first Congress of the United States, sitting under a Coustituie for it is the Parliament only, or legislative power, that, tion which had declared that the privilege of the writ of whenever it sees proper, can authorize the crown, by sus- habeas corpus should not be suspended, unless whou, in pending the habeas corpus act for a short and limited time, cases of rebellion or invasion, the public safety might reto imprison suspected persons without giving any reason for quire it.' Acting under the immediato influence of this in60 doing.”

junction, they must have felt with peculiar force the obliga. And if the President of the United States may tion of providing efficient means by which this great constisuspend the writ, then the Constitution of the Uni.

tutional privilege should receive life and activity : for if the ted States has conferred upon him more regal and although no law for its suspension should be enacted.

meaus be not in existence, the privilege itself would be lost,

tuabsolute power over the liberty of the citizen than

der the impression of this obligation, they give to all the the people of England have thought it safe to en- courts the power of awarding writs of habeas corpus.' trust to the crown--a power which the queen of And again, in page 101: England cannot exercise at this day, and which “ If at any time the public safety should roguire the sus.

[ocr errors]
[ocr errors]

That ques

pension of the powers posted by this act in the courts of the The Constitution provides, as I have before said, [nited States, it is for the Legislature to say so.

that “no person shall be deprived of life, iiberty: tion depends on political considerations, on which the legislature is to decide. Until the legislative will be expressed,

or property, without due process of law.” It de. this court can only see its duty, and must obey the laws.”

clares that the right of the people to be secure in [ can add nothing to these clear and emphatic their persons, houses, papers, and effects, against words of my great predecessor.

unreasonable searches and seizures, shall not be But the documents before me show that the mili- violated ; and no warrants shall issue but upon tary authority in this case has gone far beyond the probable cause, supported by oath or affirmation, mere suspension of the privilege of the writ of ha- and particularly describing the place to be searchbeas corpus. It has, by force of arms, thrust aside ied, and the persons or things to be seized.” It the judicial authorities and officers to whom the provides that the party accused shall be entitled to Constitution has confided the power and duty of in- a speedy trial, in a court of justice. terpreting and administering the laws, and substi- And these great and fundamental laws, which tuted a military government in its place, to be ad Congress itself conld not suspend, have been disre. ministered and executed by military officers. For garded and suspended, like the writ of habeas corat the time these proceedings were had against pus, by a military order, supported by force of John Merryman, the district judge of Maryland-- arms. Such is the case now before me, and I can the commissioner appointed under the act of Con- only say, that if the authority which the Constitugress—the district attorney and marshal-all resi- tion has confided to the judiciary department and ded in the city of Baltimore, a few miles only from judicial officers, may thus upon any pretext or unthe home of the prisoner. Up to that time there der any circumstances be usurped by the military had never been the slightest resistance or obstruc-power at its discretion, the people of the United tion to the process of any court or judicial officer of States are no longer living under a government of the United States in Maryland, except by the mili- laws, but every citizen holds life, lliberty, and protary authority. And, if a military officer, or any perty, at the will and pleasure of the army officer in other person, had reason to believe that the pris. whose military district he may happen to be found. oner had committed any offense against the laws of In such a case my duty was too plain to be misthe United States, it was his duty to give informa- taken. I have exercised all the power which the tion of the fact, and the evidence to support it, to Constitution and laws confer on me, but that power the district attorney, and it would then have been has been resisted by a force too strong for me to the duty of that officer to bring the matter before

overcome. It is possible that the officer who has the district judge or commissioner, and if there was incurred this grave responsibility may have misuo. sufficient legal evidence to justify his arrest, the derstood his instructions, and exceeded the authorijudge or commissioner would have issued his war

ty intended to be given him. I shall, therefore, or. rant to the marshal to arrest him ; and upon the der all the proceedings in this case, with my opinhearing of the party would have held him to bail, ion, to be filed and recorded in the circuit court of or committed him for trial, according to the char- the United States for the district of Maryland, and acter of the offense as it appeared in the testimony, direct the clerk to transmit a copy, under seal, to or would have discharged him immediately, if there the President of the United States. It will then rewas not sufficient evidence to support the accusa- main for that high officer, in fulfillment of his contion. There was no danger of any obstruction or

stitutional obligation, to " take care that the laws resistance to the action of the civil authorities, and be faithfully executed,” to determine what mcastherefore no reason whatever for the interposition

ures he will take to cause the civil process of the of the military. And yet, under these circumstan. United States to be respected and enforced. ces, a military officer, stationed in Pennsylvania,

R. B. TANEY, Chief Justice without giving any information to the district attor.

of the Supreme Court of the United States. ney, and without any application to the judicial authorities, assumes to himself the judicial power in the district of Maryland; undertakes to decide what

[The question here raised is one which has been constitutes the crime of treason or rebellion; what ably canvassed by our best legal minds. We may evidence (if, indeed, he required any) is sufficient to particularly refer to Reverdy Johnson's response to support the accusation and justify the commitment; this opinion of Judge Taney, as a very powerful, and commits the party, without having a hearing and, in many respects, conclusive defense of the even before hiniself, to close custody in a strongly President's right to suspend the act. garrisoned fort, to be there held, it would seem, A singular illustration is also bad in the case of the during the pleasure of those who committed him. seizure by Gen. Wilkinson, at New Orleans, (1807,)




of two persons charged with conspiracy, and their He would state a few facts. On the 3d of June he transportation to Washington for trial, in spite of took command at Chambersburg. On the 4th he was the demand of their friends for their release under informed by the General-in-Chief that he considered the habeas corpus act. Jefferson, in his letter to the addition to his force of a battery of artillery and Mr. Colvin, (1810,) justified this seizure, upon suspi- some regular infantry indispensable. On the 8th of cion, as a primary right. See 4 Jefferson's Memoirs, June a letter of instructions was sent him, in which he &c., 149, 151, (edition 1829 ;) and 3 Story's Com- was told that there must be no reverse ; a check or mentaries, 749, where the matter is referred to. a drawn battle would be a victory to the enemy, fill. Story regards the seizure as a gross violation of ing his heart with joy, his ranks with men and his the Constitution."']

magazines with voluntary contributions, and, there. fore, to take his measures circumspectly, and attempt nothing without a clear prospect of success.

This was good instruction-most sensible advice. MAJOR-GENERAL PATTERSON'S DEFENSE.

Good or bad, however, his duty was to obey, and In the absence of the full statement promised by obey he did. General Patterson concerning the failure of his cam

On Friday, the 13th, he was informed that, on the paign on the Upper Potomac, (see pages supposition that he would cross the river on the Vol. II.,] we extract from the proceedings of a next Monday, General McDowell would be instructpublic dinner given in Philadelphia, Nov. 16th, 1861, ed to make a demonstration on Manassas Junction. the substance of the General's remarks.

He was surprised at the order, but promptly obeyAfter stating that he was not in the habit of giv. ed. On the 15th he reached Hagerstown, and on ing reasons for what he did or did not do, he went

the 16th two-thirds of his forces had crossed the Po.

tomac. on to say that, during the latter part of July, all

The promised demonstration by General August, and part of September, there was no slan- McDowell, in the direction of Manassas Junction, der against him so gross that it could not be assert- was not made ; and on the 16th. just three days afed and reiterated with impunity and swallowed

ter he had been told he was expected to cross, he with avidity. The gentlemen of the Troop knew was telegraphed by the General-in-Chief to send how false these slanders were. He had submitted him “at once all the regular troops, horse and foot, to them in quiet, although he had the documents in and the Rhode Island regiment and battery,” and his possession to prove that he did all that he was told that he was strong enough without the regnordered to do, and more than any one had a right | lars, and to keep within limits until he could satisfy to expect under the circumstances in which he and him that he ought to go beyond them. On the 17th, his command were placed, and he defied any man, he was again telegraphed: We are pressed here. high or low, to put his finger on an order dis- Send the troops I have twice call for withont deobeyed. He asserted what they knew to be true, lay.” This was imperative, and the troops were that the column was well conducted. There was sent, leaving him without a single piece of artillery, not a false step made, nor a blunder committed. and, for the time, a single troop of cavalry. It was The skirmishers were always in front, and the flanks a gloomy night, but they were all brought over the well protected. They were caught in no trap, and river again without loss. fell into no ambuscade. They repeatedly offered On the 20th of June, he was asked by the Generalthe enemy battle, and when they accepted it they in-Chief to propose, without delay, a plan of operabeat them. There was no defeat and no retreat tions. On the 21st he submitted to the General-inwith his column.

Chief his plan, which was to abandon the present It might be asked, “ Why have you not made this line of operations, move all supplies to Frederick, statement sooner ? Because the publication of the occupy Maryland Heights with Major Doubleday's documents sooner would have been most detriment- heavy guns, and a brigade of infantry to support al to the public interests. He preferred bearing them, and with everything else-horse, foot and arthe odium so liberally bestowed on him, rather than tillery-to cross the Potomac at Point of Rocks, and clear himself at the expense of the cause in which we unite with Colonel Stone's force al Leesburgh, from were all engaged. The time had arrived when the which point he could operate as circumstances should dematter could, without injury to the service, be in. mand and the General's orders should require. No required into; and he was determined that it should ply was received; but, on the 27th, the General be done, and that before long all the documents re- telegraphed him that he supposed he was that day ferred to should be published and spread before the crossing the river in pursuit of the enemy. American people, unless those whose duty it was to On that day the enemy was in condition to cross do so should in the mean time do him justice. the river in pursuit. He had over fifteen thousand

« PreviousContinue »