government and anarchy-between law ume of waters of the great lakes over and lawlessness-between liberty and Niagara; he would have led it onward slavery-between civilization and bar- to crush and overthrow this wicked rebarism; the result of which is to shape bellion. Yes, Mr. Speaker, had he lived the destiny of this continent. Had he until this day, there would have been lived he would have led this grand, heard in these Halls no voice louder, sublime uprising of the people-this ma- clearer, more emphatic than his, dejestic popular movement now sweeping manding action-action-prompt, vigor onward like the deep and resistless vol-ous, decisive action.” 1 CHAPTER XVII. AFFAIRS AT BALTIMORE. TURNING our attention from the occur- | people of the country, who had known rences in front of the Capital to the im- no other regulations of their conduct than portant city in the rear, we find the those incident to a state of peace, it is military administration of General Cad- not to be wondered at that its exercise walader, at Baltimore, conducted with was looked upon in many quarters with the prudence and moderation which had alarm. This was especially shown in | marked the policy of the Government regard to the arrests which at this time from the outset. The object was, from began to be made of suspected persons, the beginning, while proper protection and the suspension of the privilege of the was given to the Union interests, and the writ of habeas corpus, which became a insurrectionary tendencies of a portion necessary part of the system. The conof the inhabitants were firmly held in flict of military and civil law in these check, that the city should feel as little proceedings called forth considerable disas possible the interference of a foreign cussion. authority. The successive appointments One case in particular became of of military rulers afforded proofs of this especial note, as the occasion of a strongdisposition on the part of the Govern- ly pronounced judicial opinion from Chief ment. The officers chosen were known Justice Taney, who resolutely opposed for their moderation. They were pru- the action of the Administration. John dent and conciliatory, and their power Merryman, a wealthy and influential when it was displayed, being obviously citizen of Maryland, residing in Baltiexerted for the preservation of peace more County, was, at 2 o'clock on the and the maintenance of the common wel- morning of the 25th May, arrested on fare, and strictly limited to the necessities general charges of treason and rebellion, of the occasion, a majority of the citizens by an armed force under orders of Gensustained their action. As the authority, eral Keim of Pennsylvania, and lodged however, was an unusual one, abhorrent as a prisoner in Fort McHenry, in custody to the habits and cherished ideas of the of General Cadwalader. Under these THE HABEAS CORPUS PRIVILEGE. circumstances, Chief Justice Taney was applied to for a writ of habeas corpus, to bring the prisoner before a Justice of the Supreme Court, to test the legality of the arrest. The writ was granted, and duly served upon General Cadwalader, who declined obedience to it, alleging, in a written communication to the Chief Justice, that the prisoner was charged with various acts of treason, such as holding a commission as lieutenant in a company in possession of arms belonging to the United States and avowing his purpose of armed hostility against the Government, and in such cases he was authorized by President Lincoln to suspend the writ of habeas corpus, for the public safety. "This is a high and delicate trust," he added, "and it has been enjoined upon him that it should be exercised with judgment and discretion, but he is nevertheless also instructed, that in times of civil strife, errors, if any, should be on the side of safety to the country. He most respectfully submits to your consideration that those who should cooperate in the present trying and painful position in which our country is placed, should not by reason of any unnecessary want of confidence in each other, increase our embarrassments." He concluded by requesting the postponement of further action till he could receive instructions from the President.** 239 had directed the commander of the forces of the United States on the coast of that State, "to permit no person to exercise any office or authority upon the islands of Key West, the Tortugas and Santa Rosa, which may be inconsistent with the Laws and Constitution of the United States, authorizing him at the same time, if he shall find it necessary, to suspend there the writ of habeas corpus, and to remove from the vicinity of the United States fortresses all dangerous or suspected persons.' On receiving the answer of General Cadwalader to the writ, Chief Justice Taney, on the 27th May, ordered an attachment against that military commander of the department, for contempt of court, to which the marshal returned, on the following day, that on going to Fort McHenry to serve the writ, he was refused admittance. Upon this the Chief Justice read in court a statement declaring that "the President under the Constitution and Laws of the United States cannot suspend the privilege of the writ of habeas corpus. nor authorize any officer to do so. And that a military officer has no right to arrest and detain a person, nor subject him to the rules and articles of war for an offence against the laws of the United States, except in aid of the judicial authority and subject to its control, and if the party is arrested President Lincoln had in fact already by the military, it is the duty of the in a somewhat similar case publicly an- officer to deliver him over immediately nounced the suspension of the privilege to the civil authority to be dealt with of the writ in his Proclamation of the according to law." Under ordinary cir10th of May, when, for the better pre-cumstances he said, it would be the duty servation of the portion of Florida still of the marshal to proceed with posse remaining under the national control, he comitatus and bring the party into court, but as this was impossible from the * Major-General Geo. Cadwalader to Hon. Roger B. Ta- superior force he would meet, that officer ney, Chief Justice. Headquarters Department of Annapolis, Fort McHenry, May 25, 1861. in the present instance had done all in his power to discharge his duty. He the slightest resistance or obstruction to himself would during the week prepare his opinion in the premises and submit it to the President, calling upon him to perform his constitutional duty and see that the laws be faithfully executed and enforce the decree of the court. 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 offence against the In the written "decision" which he sub- laws of the United States, it was his sequently rendered, Chief Justice Taney duty to give information of the fact, and supported the opinion which he had given the evidence to support it, to the District by a review of the provisions of the Con- Attorney; and it would then have bestitution for the protection of liberty, come the duty of that officer to bring 'life and property," an examination of the matter before the District Judge or the limited powers expressly conferred Commissioner, and if there was sufficient upon the President, a deduction from legal evidence to justify his arrest, the the analogies between the English and Judge or Commissioner would have isAmerican Governments, and the cita- sued his warrant to the Marshal to arrest tion of several eminent judicial authori- him; and upon the hearing of the party ties, including Marshall and Story. Hav- would have held him to bail, or coming thus argued that the power to sus-mitted him for trial, according to the pend the writ resided in Congress, and character of the offence, as it appeared not in the Executive, he presented in in the testimony, or would have disconclusion the following view of the charged him immediately, if there was particular circumstances attending the Merryman arrest :-"The documents before me show that the military authority in this case has gone 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 Maryland, the Commissioner appointed under the act of Congress, the District Attorney and the 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 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 JUDGE PARSONS ON MARTIAL LAW. 241 the pleasure of those who committed the Merryman case arose. Defining the him. "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 declares 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 warrant 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 disregarded and suspended, like the writ of habeas corpus, by a military officer, 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 offices may thus upon any pretext and under any circumstances be usurped by the military power at its discretion, the people of the United States are no longer living under a Government of laws, but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found." authority as the creature of a state of war, and as wholly arbitrary in its nature, he found its exercise justifiable by adequate necessity, of which the governing power was obviously the judge. Though necessarily undefined in its principles, extent and operation, "practically," said he, "the very essence and substance of martial law is, in England and the United States, the suspension of the right to the writ of habeas corpus," and consequently its supremacy, for the time, over the civil law. Citing next the provision of the Constitution that "the privilege of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion and invasion, the public safety may require it," he fairly interpreted it as a declaration that, when the conditions spoken of arose, the writ might be suspended. He thus in a few sentences, with great clearness, sets forth his interpretation of the mode of exercising the authority conferred or allowed. "The first and most important question is, who may decide when the exigency occurs, and who may, if it occurs, declare martial law? On this point I have myself no doubt. The clause on this subject is contained in the first article of the Constitution, and this article relates principally to Congress. Nor can there be any doubt that Congress may, when the necessity occurs, suspend the right to the The obvious explanation and justifica-writ of habeas corpus, or, which is the tion of the act of the President, and un-same thing, declare or authorize martial doubtedly the one which was accepted law. The question is, has the President by the majority of the people of the country who looked into the matter, was presented by Judge Theophilus Parsons, the Dane Professor of the Law School at Harvard, in a lecture on martial law, delivered just previous to the time when this power? The Constitution does not expressly give this power to any department of Government, nor does it expressly reserve it to Congress, although, in the same article, it does make this express reservation as to some of the provisions exercise it at his discretion, when either invasion or rebellion occurs, subject, however, to two qualifications. One-a universal one-applicable to his exercise of every power. If he abuses it, or exercises it wrongfully, he is liable to impeachment. The other is more a matter of discretion or propriety. I suppose that he would, of course, report his doings in such a matter to Congress when he could, and be governed by their action. My conclusion is, therefore, that in case of invasion from abroad or rebellion at home, the President may declare or exercise, or authorize martial law, at contained in the article. This may be a vent, take place if there be any delay. Another high authority in questions of civil law and polity, Mr. Horace Binney of Philadelphia, in an elaborate pamphlet discussing "The privilege of the writ of habeas corpus under the Constitution," differing from Chief Justice Taney, unhesitatingly assigned the exercise of the power of suspension to the President. An idea of the range of his argument may be gathered from the final paragraph of his essay. "The conclusion," says he "of the whole matter is this: that the Constitution itself is the law of the privilege, and of the exception to it; that the exception is expressed in the Constitution, and that the Constitution gives effect to the act of suspension when the conditions occur: that the conditions consist of two matters of fact, one a naked matter of fact, and the other a matter-of-fact conclusion from facts, that is to say, rebellion and the public danger, or the requirement of public safety. Whichever power of the constituted government can most properly decide these facts, is master of the exception, and competent to apply it. Whether it be Congress or the President, the power |