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OPINION OF CHIEF JUSTICE TANEY.

manner in which they are stated, bear a striking resemblance to those assigned in the warrant for the arrest of Mr Selden. And yet, even at that day, the warrant was regarded as such a flagrant violation of the rights of the subject, that the delay of the time-serving judges to set him at liberty upon the habeas corpus issued in his behalf excited the universal indignation of the bar. The extract from Hallam's Constitutional History is equally impressive and equally in point. It is in vol. 4, p. 14.

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could not have been lawfully exercised by the sov-
ereign, even in the reign of Charles the First.
But I am not left to form my judgment upon this
great question from analogies between the English
government and our own, or the commentaries
of English jurists, or the decisions of English
courts, although upon this subject they are entitled
to the highest respect, and are justly regarded and
received as authoritative by our courts of justice.
To guide me to a right conclusion, I have the Com-
mentaries on the Constitution of the United States,
of the late Mr. Justice Story, not only one of the
most eminent jurists of the age, but for a long time
one of the brightest ornaments of the Supreme
Court of the United States, and also the clear and
authoritative decision of that court itself, given
more than half
century since, and conclusively
establishing the principles I have above stated.

Mr. Justice Story, speaking in his Commentaries of the habeas corpus clause in the Constitution, says:

"It is a very common mistake, and not only among foreigners, but many from whom some knowledge of our constitutional laws might be expected, to suppose, that this statute of Charles II, enlarged in a great degree our liberties, and forms a sort of epoch in their history. But though a very beneficial enactment, and eminently remedial in many cases of illegal imprisonment, it introduced no new principle, nor conferred any right upon the subject. From the earliest records of the English law, no freeman could be detained in prison, except upon a criminal charge, or conviction, or for a civil debt. In the former case, it was always in his power to demand of the court of king's bench a writ of habeas corpus ad subjiciendum, directed to the person detaining him in custody, by which he was enjoined to bring up the body of the prisoner with the warrant of commitment that the court might judge of its sufficiency, and remand the party, admit him to bail, or discharge him, according to the nature of the charge. This writ issued of right, and could not be refused by the court. It was not to bestow an immunity from arbitrary imprisonment, which is abundantly provided for in Magna Charta (if, indeed, it were not more ancient,) that the statute of Charles II, was enacted, but to cut off all the abuses by which the government's pend it is expressly confined to cases of rebellion or invalust of power, and the servile subtlety of crown lawyers had impaired so fundamental a privilege."

While the value set upon this writ in England has been so great that the removal of the abuses which embarrassed its enjoyment have been looked upon as almost a new grant of liberty to the subject, it is not to be wondered at that the continuance of the writ thus made effective should have been the object of the most jealous care. Accordingly, no power in England short of that of Parliament can suspend or authorize the suspension of the writ of habeas corpus. I quote again from Blackstone (1 Comm., 136:)

"But the happiness of our Constitution is, that it is not left to the executive power to determine when the danger of the state is so great, as to render this measure expedient; for it is the Parliament only, or legislative power, that, whenever it sees proper, can authorize the crown, by suspending the habeas corpus act for a short and limited time, to imprison suspected persons without giving any reason for so doing."

And if the President of the United States may suspend the writ, then the Constitution of the United States has conferred upon him more regal and absolute power over the liberty of the citizen than the people of England have thought it safe to entrust to the crown--a power which the queen of England cannot exercise at this day, and which

"It is obvious, that cases of a peculiar emergency may arise, which may justify, nay even require, the temporary suspension of any right to the writ. But as it has frequently happened in foreign countries, and even in England, that the writ has, upon various pretexts and occasions, been suspended, whereby persons apprehended upon suspicion have suffered a long imprisonment, sometimes from design, and sometimes, because they were forgotten, the right to sus

sion, where the public safety may require it. A very just and wholesome restraint, which cuts down at a blow a fruitful means of oppression, capable of being abused in bad times to the worst of purposes. Hitherto no suspension of the writ has ever been authorized by Congress since the establishment of the Constitution. It would seem, as the power is given to Congress to suspend the writ of habeas corpus in cases of rebellion or invasion, that the right to judge, whether exigency had arisen, must exclusively belong to that body." 3 Story's Comm. on the Constitution, section 1836.

And Chief Justice Marshall, in delivering the opinion of the Supreme Court in the case of ex parte Bollman and Swartwout, uses this decisive language in 4 Cranch, 95:

"It may be worthy of remark that this act [speaking of the one under which I am proceeding,] was passed by the first Congress of the United States, sitting under a Constitution which had declared that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety might require it.' Acting under the immediate influence of this injunction, they must have felt with peculiar force the obligation of providing efficient means by which this great constitutional privilege should receive life and activity for if the means be not in existence, the privilege itself would be lost.

although no law for its suspension should be enacted. Un-
der the impression of this obligation, they give to all the
courts the power of awarding writs of habeas corpus.'
And again, in page 101:

"If at any time the public safety should require the sus

pension of the powers vested by this act in the courts of the
United States, it is for the Legislature to say so.
That ques-
tion depends on political considerations, on which the Legis-
lature is to decide. Until the legislative will be expressed,
this court can only see its duty, and must obey the laws."
I can add nothing to these clear and emphatic
words of my great predecessor.

The Constitution provides, as I have before said. that "no person shall be deprived of life, liberty, or property, without due process of law." It de clares that " the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." It provides that the party accused shall be entitled to a speedy trial, in a court of justice.

And these great and fundamental laws, which Congress itself could not suspend, have been disre garded and suspended, like the writ of habeas corpus, by a military order, supported by force of arms. Such is the case now before me, and I can only say, that if the authority which the Constitution has confided to the judiciary department and judicial officers, may thus upon any pretext or under any circumstances be usurped by the military

But the documents before me show that the military authority in this case has gone far beyond the mere suspension of the privilege of the writ of habeas corpus. It has, by force of arms, thrust aside the judicial authorities and officers to whom the Constitution has confided the power and duty of interpreting and administering the laws, and substituted a military government in its place, to be administered and executed by military officers. For at the time these proceedings were had against John Merryman, the district judge of Marylandthe commissioner appointed under the act of Congress-the district attorney and marshal-all resided in the city of Baltimore, a few miles only from the home of the prisoner. Up to that time there 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 the United States in Maryland, except by the military authority. And, if a military officer, or any other person, had reason to believe that the prisoner had committed any offense against the laws of the United States, it was his duty to give information of the fact, and the evidence to support it, to the district attorney, and it would then have been the duty of that officer to bring the matter before the district judge or commissioner, and if there was sufficient legal evidence to justify his arrest, the judge or commissioner would have issued his warrant to the marshal to arrest him; and upon the hearing of the party would have held him to bail, or committed him for trial, according to the character of the offense as it appeared in the testimony, or would have discharged him immediately, if there was not sufficient evidence to support the accusation. There was no danger of any obstruction or resistance to the action of the civil authorities, and therefore no reason whatever for the interposition of the military. And yet, under these circumstances, a military officer, stationed in Pennsylvania, without giving any information to the district attorney, and without any application to the judicial authorities, assumes to himself the judicial power in the district of Maryland; undertakes to decide what constitutes the crime of treason or rebellion; what evidence (if, indeed, he required any) is sufficient to support the accusation and justify the commitment; and commits the party, without having a hearing even before himself, to close custody in a strongly garrisoned fort, to be there held, it would seem, during the pleasure of those who committed him.

States are no longer living under a government of laws, but every citizen holds life, lliberty, and property, at the will and pleasure of the army officer in whose military district he may happen to be found. In such a case my duty was too plain to be mistaken. I have exercised all the power which the Constitution and laws confer on me, but that power has been resisted by a force too strong for me to overcome. It is possible that the officer who has incurred this grave responsibility may have misunderstood his instructions, and exceeded the authori ty intended to be given him. I shall, therefore, order all the proceedings in this case, with my opinion, to be filed and recorded in the circuit court of the United States for the district of Maryland, and direct the clerk to transmit a copy, under seal, to the President of the United States. It will then remain for that high officer, in fulfillment of his constitutional obligation, to " take care that the laws be faithfully executed," to determine what measures he will take to cause the civil process of the United States to be respected and enforced.

R. B. TANEY, Chief Justice

of the Supreme Court of the United States.

[The question here raised is one which has been ably canvassed by our best legal minds. We may particularly refer to Reverdy Johnson's response to this opinion of Judge Taney, as a very powerful, and, in many respects, conclusive defense of the President's right to suspend the act.

A singular illustration is also bad in the case of the seizure by Gen. Wilkinson, at New Orleans, (1807,)

MAJOR-GENERAL PATTERSON'S DEFENSE.

of two persons charged with conspiracy, and their transportation to Washington for trial, in spite of the demand of their friends for their release under the habeas corpus act. Jefferson, in his letter to Mr. Colvin, (1810,) justified this seizure, upon suspicion, as a primary right. See 4 Jefferson's Memoirs, &c., 149, 151, (edition 1829 ;) and 3 Story's Commentaries, 749, where the matter is referred to. Story regards the seizure as a "gross violation of the Constitution."]

MAJOR-GENERAL PATTERSON'S DEFENSE.

In the absence of the full statement promised by General Patterson concerning the failure of his campaign on the Upper Potomac, [see pages

Vol. II.,] we extract from the proceedings of a public dinner given in Philadelphia, Nov. 16th, 1861, the substance of the General's remarks.

After stating that he was not in the habit of giving reasons for what he did or did not do, he went on to say that, during the latter part of July, all August, and part of September, there was no slander against him so gross that it could not be asserted and reiterated with impunity and swallowed with avidity. The gentlemen of the Troop knew how false these slanders were. He had submitted to them in quiet, although he had the documents in his possession to prove that he did all that he was ordered to do, and more than any one had a right to expect under the circumstances in which he and his command were placed, and he defied any man, high or low, to put his finger on an order disobeyed. He asserted what they knew to be true, that the column was well conducted. There was not a false step made, nor a blunder committed. The skirmishers were always in front, and the flanks well protected. They were caught in no trap, and fell into no ambuscade. They repeatedly offered the enemy battle, and when they accepted it they beat them. There was no defeat and no retreat with his column.

It might be asked, "Why have you not made this statement sooner?" Because the publication of the documents sooner would have been most detrimental to the public interests. He preferred bearing the odium so liberally bestowed on him, rather than clear himself at the expense of the cause in which we were all engaged. The time had arrived when the matter could, without injury to the service, be inquired into; and he was determined that it should be done, and that before long all the documents referred to should be published and spread before the American people, unless those whose duty it was to do so should in the mean time do him justice.

493

He would state a few facts. On the 3d of June he took command at Chambersburg. On the 4th he was informed by the General-in-Chief that he considered the addition to his force of a battery of artillery and some regular infantry indispensable. On the 8th of June a letter of instructions was sent him, in which he was told that there must be no reverse; a check or a drawn battle would be a victory to the enemy, filling his heart with joy, his ranks with men and his magazines with voluntary contributions, and, therefore, to take his measures circumspectly, and attempt nothing without a clear prospect of success. This was good instruction-most sensible advice. Good or bad, however, his duty was to obey, and obey he did.

On Friday, the 13th, he was informed that, on the supposition that he would cross the river on the next Monday, General McDowell would be instructed to make a demonstration on Manassas Junction. He was surprised at the order, but promptly obeyed. On the 15th he reached Hagerstown, and on the 16th two-thirds of his forces had crossed the Potomac. The promised demonstration by General McDowell, in the direction of Manassas Junction, was not made; and on the 16th. just three days after he had been told he was expected to cross, he was telegraphed by the General-in-Chief to send him "at once all the regular troops, horse and foot, and the Rhode Island regiment and battery," and told that he was strong enough without the regulars, and to keep within limits until he could satisfy him that he ought to go beyond them. On the 17th, he was again telegraphed: "We are pressed here. Send the troops I have twice called for without delay." This was imperative, and the troops were sent, leaving him without a single piece of artillery, and, for the time, a single troop of cavalry. It was a gloomy night, but they were all brought over the river again without loss.

On the 20th of June, he was asked by the Generalin-Chief to propose, without delay, a plan of operations. On the 21st he submitted to the General-inChief his plan, which was to abandon the present line of operations, move all supplies to Frederick, occupy Maryland Heights with Major Doubleday's heavy guns, and a brigade of infantry to support them, and with everything else-horse, foot and artillery-to cross the Potomac at Point of Rocks, and unite with Colonel Stone's force at Leesburgh, from which point he could operate as circumstances should demand and the General's orders should require. No reply was received; but, on the 27th, the General telegraphed him that he supposed he was that day crossing the river in pursuit of the enemy.

On that day the enemy was in condition to cross the river in pursuit. He had over fifteen thousand

men, and from twenty to twenty-four guns. Gen-ceived no reply. He expected to be attacked where eral Patterson had about ten thousand men and six he was, and if Manassas was not to be attacked on guns, the latter immovable for want of harness. that day as stated in General Scott's dispatch of the On the 28th he informed the General of the strength day previous, he ought to have been ordered down of the enemy and of his own force; that he would forthwith to join in the battle, and the attack denot, on his own responsibility, attack without ar- layed until he came. He could have been there on tillery, but would do so cheerfully and promptly if the day that the battle was fought, and his assisthe would give him an explicit order to that effect. ance might have produced a different result. No order was given. On the 29th he received the harness for his single battery of six smooth-bore guns, and on the 30th gave the order to cross. On the 2d of July he crossed, met the enemy and whipped them.

On the 9th of July a council was held, at which all the commanders of divisions and brigades, and chiefs of staff were present. Colonel Stone, the junior line officer, spoke twice and decidedly against an advance, advocating a direct movement to Shepardstown and Charlestown. All who spoke opposed an advance, and all voted against one. On the same day, he informed the General-in-Chief of the condition of affairs in the valley, and proposed that he should go to Charlestown and occupy Harper's Ferry, and asked to be informed when he would attack Manassas. On the 12th he was directed to go where he had proposed, and informed that Manassas would be attacked on Tuesday, the 16th. On the 13th he was telegraphed-" If not strong enough to beat the enemy early next week, make demonstrations so as to detain him in the valley of Winchester." He made the demonstrations, and on the 16th, the day General Scott said he would attack Manassas, he drove the enemy's pickets into his intrenchments at Winchester, and on the 17th, marched to Charlestown.

On the 13th he telegraphed the General-in-Chief that Johnston was in a position to have his strength doubled just as he could reach him, and that he would rather lose the chance of accomplishing something brilliant than by hazarding his column, to destroy the fruits of the campaign by defeat, closing his telegram thus: "If wrong, let me be instructed." But no instructions came. This was eight days before the battle of Manassas. On the 17th, General Scott telegraphed: "McDowell's first day's work has driven the enemy beyond Fairfax CourtHoues To-morrow the Junction will probably be carried." With this information he was happy. Johnston had been detained the appointed time, and the work of General Patterson's column had been done.

On the 18th, at half-past one in the morning, he telegraphed General Scott the condition of the enemy's force and of his own, referring to his letter of the 16th for full information, and closed the dispatch by asking, "Shall I attack ?" This was plain English and could not be misunderstood, but he re

On the 20th he heard that Johnston had marched with thirty-five thousand Confederate troops, and a large artillery force, in a southeasterly direction. He immediately telegraphed the information to General Scott, and knew that he received it the same day.

In accordance with instructions he came to Har per's Ferry on the 21st, which place he held until relieved.

This ex parte statement relieves the General from much of the odium affixed to his name; but, thongh much time has elapsed since it was made, and none in authority have done him the justice demanded above, the more complete expose promised by him, with proper vouchers, has not been published; and we are, therefore, to infer that the defense is confined to the showing made above. In our notice of the battle of Bull Run, we shall have occasion to review at some length General Patterson's respon sibility for that disaster.

EVIDENCE BEFORE THE INVESTIGATING COM-
MITTEE IN THE MATTER OF GENERAL PAT-
TERSON'S MISCONDUCT OF HIS CAMPAIGN.

In a speech made in the United States Senate, July 16th, 1862, by Mr. Chandler, he said, among other things:

Upon the cause or causes of that disaster, (Bull Run,) I propose to dwell very briefly. The army of the Potomac at that time was composed of two columns. The one under Patterson, at Martinsburg, consisted of a force of about twenty thousand effective men of all arms; the other, under McDowell, of about thirty-five thousand, and a reserve in Washington, Lieutenant-General Scott in command of all, conducting both columns.

I will read General Patterson's orders :

WASHINGTON, July 13th, 1861. GENERAL R. PATTERSON: I telegraphed you yesterday. If not strong enough to beat the enemy early next week, make demonstrations so as to detain him in the valley of Winches ter. But if he retreats in force toward Manassas, and it he hazardous to follow him, then consider the route via Keyes' Ferry, Leesburg, &c. WINFIELD SCOTT.

WASHINGTON, July 17th, 1861. GENERAL PATTERSON, &C. I have nothing official from you since Sunday last, but am glad to learn through Philadelphia

THE PATTERSON

INVESTIGATING

COMMITTEE.

495

papers that you have advanced. Do rot let the enemy amuse and delay you with a small force in front, while he reenforces the Junction with his main body. McDowell's

first day's work has driven the enemy beyond Fairfax Courthouse. The Junction will probably be carried to-morrow. WINFIELD SCOTT.

Had these orders been obeyed, Johnston could never have joined Beauregard; had Johnston not joined Beauregard, the battle of Bull Run would have been but a skirmish between forces greatly unequal, and the army of the South would have been destroyed. The failure, therefore, of Patterson to hold Johnston was the primal cause of that inglorious defeat. Why did not Patterson obey orders?

Before the battle was fought, General Scott telegraphed to General Patterson :

WASHINGTON, July 18th, 1861. MAJOR-GENERAL PATTERSON, &C.: I have certainly been expecting you to beat the enemy. If not, to hear that you had felt him strongly, or at least had occupied him by threats and demonstrations. You have been at least his equal, and I suppose superior, in number. Has he not stolen a march and sent reenforcements toward Manassas Junction? A week is enough to win a victory. •

WINFIELD SCOTT.

Patterson had turned off from Bunker Hill, where he was threatening Johnston, to Charlestown, on the 17th of July. Upon receipt of the above telegram, he replied as follows:

I

CHARLESTOWN, July 18th, 1861. COLONEL E. D. TOWNSEND, A. A. G., &c.: Telegram of today received. The enemy has stolen no march upon me. have kept him actively employed, and by threats and reconnoissances in force caused him to be reenforced. I have accomplished more in this respect than the General-in-Chief asked, or could well be expected, in face of an enemy far superior in numbers, with no line of communication to protect.

R. PATTERSON.

General Scott says, in relation to this matter: "General Patterson was never ordered by me, as he seems to allege, to attack the enemy without a probability of success; but on several occasions he wrote as if he were assured of victory. For example, June 12th, he says he is resolved to conquer, and will risk nothing;' and July 4th, expecting supplies the next day, he adds: As soon as they arrive I shall advance to Winchester to drive the enemy from that place. Accordingly, he issued orders for the movement on the 8th, next called a council of war, and stood fast at Martinsburg.

"But although General Patterson was never specifically ordered to attack the enemy, he was certainly told and expected, even with inferior numbers, to hold the rebel army in his front on the alert, and to prevent it from reenforcing Manassas Junction, by threatening manoeuvres and demonstrations; results often obtained in war with half numbers.

"After a time General Patterson moved from Bunker Hill, and then fell off upon Charlestown, whence he seems to have made no other demonstration that did not look like a retreat out of Virginia. From that moment Johnston was at liberty to join Beauregard with any part of the army of Winchester."

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"He (General Patterson) got positive information at Bunker Hill that Johnston had forty-two thousand men at Winchester, and, I think, sixty-three pieces of artillery." Colonel Biddle says:

"Everybody represented the force of General Johnston at from thirty to forty thousand men."

That is the testimony of Patterson and his staff The facts were that Johnston had received no reenforcements except of undisciplined, unorganized militia from the surrounding country, and held an effective force less than that of Patterson.

Nathaniel F. Palmer (prisoner at Winchester)

says:

"We concluded that by the 18th (July) there were but very little over thirteen thousand men there."

Dr. Ira Tripp (prisoner at Winchester) says that there were about twelve thousand men of the enemy at Winchester on the 18th of July.

Alfred Spates, President of the Chesapeake and Ohio Canal, says:

"The general impression in that vicinity was that Johnston's army was between eight and ten thousand men. I never heard any man put it higher than ten thousand men," A. R. Stoke, General Superintendent of the Chesapeake and Ohio Canal, says:

"I know that it was the impression throughout the community, and in the army, that there were not more than ten thousand men under Johuston; and there is this additional fact ascertained since, from perfectly trustworthy gentlemen, that there never was at any time in Winchester as many as fourteen thousand men, and of those there were perhaps four or five thousand militia, badly armed and equipped."

Colonel David B. Birney (Twenty-third Pennsyl vania volunteers) says:

"I thought, from information that I got from the people there in the country, that he (General Johuston) had from fifteen to twenty thousand men,”

General Sanford says, in reference to the story that Johnston had been reenforced :

"They all had got this story, which was without the slightest shadow of foundation, for there bad not a single man arrived at the camp since we had got full information that their whole force consisted of twenty thousand men, of whom eighteen hundred were sick with the measles. The story was, however, that they had ascertained by trastworthy information of this reenforcement. Where they got their information, I do not know. None such reache! 13, and I picked up deserters and other persons to get all the information I could. And we since have learned, as a matter of certainty, that Johnston's force never did exceed twerty thousand men."

Upon this melancholy statement of facts I will

The reason assigned by Patterson and his staff neither comment nor dwell.

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