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pursuance of the aforesaid special instructions; and the slave trade, it is instructive to read the letter sessel ehall be left at liberty. to pursue its voyage. The of J. P. Benjamin, Secretary of State of the rank of the othicer who makes the search must not be less than that of Heutenant in the navy, unless the command,
“ Confederate" Government, to L. Q. C. Lamar, either by reason of death or other cause, is at the time held "Confederate" Commissioner at St. Petersburg, by an officer of inferior rank. Fourthly. The reciprocal right of search and detention which was intercepted and transmitted from shall be exercised only within the distance of two hundred St. Petersburg, March 3, 1863, by Bayard Tay. ailes from the coast of Africa, and to the southward of the lor, Chargé d' Affaires : thirty second parallel of north latitude, and within thirty
CONFEDERATE STATES OF AMERICA, leagues from the coast of the Island of Cuba.
DEPARTMENT OF STATE, RICHMOND, January 15, 1863. 1862, June 26–10 Senate, the bill to carry source of unquestioned authenticity, that after the recogni.
SIR: It has been suggested to this Government, from a into effect this treaty, by providing for the offi- tion of our independence by the European Powers, an excials, &c., passed-yeas 34, nays 4, (Messrs. pectation is generally entertained by them, that in our Carlile, Kennedy, Powell, Saulsbury.)
treaties of amity and commerce a clause will be introduced
making stipulations against the African slave trade. It is July 7—The bill passed the House without a
even thought that neutral Powers may be inclined to insist division.
upon the insertion of such a clause as a sine qua non. 1863, February 17—The treaty was modified
You are well aware how firmly fixed in our constitution
is the policy of this Confederacy against the opening of that by the addition of an article authorizing the trade ; but we are informed that false and insidious suggesexercise of the reciprocal right of visit and tions have been made by the agents of the United States at decention within thirty leagues of the island of European courts of an intention to change our constitution Madagascar, within thirty leagues of the island ation of slaves from Africa. If
, therefore, you should find of Puerto Rico, and within thirty leagues of the in your intercourse with the Cabinet to which you are ao island of San Domingo.
credited that any such impressions are entertained, you will
uso every proper effort to remove them; and if an attempt THE " CONFEDERATE” RECORD.
is made to introduce into any treaty which you may be
charged with negotiating stipulations on the subject just Soon after the adoption of their Constitution mentioned, you will assume in behalf of your Government in 1861, the rebel Congress passed a bill in re- the position which, under the direction of the President, I
now proceed to develop. lation to the slave trade, which JEFFERSON Da
The constitution of the Confederate States is an agreement vis returned, with his objections, as follows: made between independent States. By its terms all the EXECUTIVE DEPARTMENT,
powers of government are separated into classes as follows,
February 28, 1861. GENTLIXEX OF CONGRESS: With sincere deference to the
1. Such powers as the States delegate to the General Gov.
ernment. judgment of Congress, I have carefully considered the bill in relation to the slave trade, and to punish persons offend- cising,
although they do not delegate them to the General
2. Such powers as the States agree to refrain from exering therein, but hare not been able to approve it, and,
Government. therefore, do return it with a statement of my objections. The Constitution-section seren, article one-provides the General Government, thought proper to exercise, by di
3. Such powers as the States, without delegating them to that the importation of African negroes from any foreign rect agreement between themselves contained in the concountry other than slaveholding States of the United States
stitution. Es hereby forbidden, and Congress is required to pass such laws as shall effectually prevent the same. The rule herein delegated to the Confederate States by the constitution, nor
4. All remaining powers of sovereignty which, not being gren is erpbatic, and distinctly directs the legislation Fadh shall effectually prevent the importation of African prohibited by it to the States, are reserved to the States, begroet. The lill before me denounces as high misdemeanor respectively, or to the people
On the formation of the constitution, the States thought the importation of African negroes, or other persons of proper to prevent all possible future discussions on the sub color, either to be sold as slaves or to be held to service or ject of slavery, by the direct exercise of their own power, labor, affixing heavy, degrading penalties on the act if done and delegated 110 authority to the Confederate Government, with such intent. To that extent it accords with the requirements of the Constitution, but in the sixth section of
save inimaterial exceptions, presently to be noticed. the bill provision is made for the transfer of persons who
Especially in relation to the importation of African ne
groes was it deemed important by the States that no power Bay have been illegally imported into the Confederate to permit it should exist in the Confederate Government. Esates to the cu ody of foreign States or societies, upon The States, by the Constitution, (which condition of deportation and future freedom, and, if the
a treaty between
themselves of the most solemn character that States can proposition thus to surrender them shall not be accepted, make,) unanimously stipulated “ that the importation of It is then made the duty of the President to cause said negroes to be sold at public outcry to the highest bidder in negroes of the African race, from any foreign country other Say one of the states where such sale shall not be incon- States of Americn, is hereby forbidden; and Congress is re
than the slaveholding States or Territories of the United estent with the laws thereof. This provision seems to me quired to pass such laws as shall effectually prevent the to be in opposition to the policy declared in the Coustitu
." (Art. 1, sec. 9, par. 1.) tico-the prohibition of the importation of African negroes
It will thus be seen that no power is delegated to the und in derogation of its mandate to legislate for the effec- Confederate Government over this subject, but that it is in. teation of that object. Wherefore the bill is returned to cluded in the third class above referred to, of power exeryou for your further consideration, and, together with the cised directly by the States. adjections, most respectfully submitted.
It is true that the duty is imposed on Congress to pass JEFFERSON DAVIS.
laws to render effectual the prohibition above quoted. But This veto was sustained by the following vote this very imposition of a duty on Congress is the strongest -the question being, “ Shail the bill pass not- proof of the absence of power in the President and Senate
alone, who are vested with authority to make treaties. In withstanding the President's objections ?”
a word, as the only provision on the subject directs the two 1243-Messrs. Carry and Chilton, of Alabama; Morton branches of the legislative department, in connection with and Owens, of Florida; Toombs, H. Cobb, T. R. R. Cobb, the President, to pass laws on this subject, it is out
of the Bartos, Nisbet, and Kenan, of Georgia; Rhett, Barnwell, power of the President, aided by one branch of the legislam Keitt, and Miles, of South Carolina; Ochiltree, of Texas-16. tive department, to control the same subject by treaties;
Nais-Messrs. Smith, Ilale, Shorter, and Fearn of Alaba- for there is not only an absence of express delegation of na; Wright and Stephens, of Georgia; DeClonet, Conrad, authority to the treaty-making power, which alone would Kenner , Sparrow, and Marshall, of Louisiana; Harris, suffice to prevent the exercise of such authority,
but there Brooke Wilson, Clayton, Barry, and Harrison, of Mississippi; is the implied prohibition resulting from the fact that all Chernut, Witbers, and Boyce, of South Carolina; Reagan, duty on the subject is imposed on a different branch of the Waul, Gregs, and Oldham, of Texas--2A.
I need scarcely enlarge upon the familiar principle, that INTERCEPTED “CONFEDERATE” DESPATCH OPON authority expressly delegated to Congress cannot be as
sumed in our Government by the treaty-making power. THE AFRICAN SLAVE TRADE.
The authority to levy and collect taxes, to coin money, to As sbowing the temper of the “Confederate” declare war, &c., &c., are ready examples, and you can be
at no loss for argument or illustration in support of 80 well Government upon the revival of the African recognized a principle.
The view abore expressed is further cnforced by the clause in the Constitution which follows immediately that from the Headquarters of the Army at Wash
July 1, General Banks, in pursuance of orders which has already been quoted. The second paragraph of the same section provides that “Congress shail also have ington, arrested the four first-named members, power to prohibit the introrluction of slaves from any State for these reasons: not a member of, or territory not belonging to, this Confederacy." Here thero is no direct exercise of power by the
The incidents of the past week afforded full justification States which formed our Constitution, but an express dele- for this order. The headquarters, under the charge of the gation to Congress. It is thus seen that while the States board, when abandoned by the officers, resembled in some were willing to trust Congress with the power to prohibit respects, a concealed arsenal. After public recognition and the introduction of African slaves from the United States, protest against the “suspansion of their functions," they they were not willing to trust it with the power of prohib- continued their sessions daily. Upon a forced and anwariting their introduction from any other quarter, but deter- rantable construction of my proclamation of the 27th ultimo, mined to insure the execution of their will by'a direct in they declared tisat the police law was suspended,
and the terposition of their own power.
police officers and meu putoff duty for the present, intendMoreover, any attempt on the part of the treaty-making ing to leave the city without any police protection whatpower of this Government to prohibit the African slave
ever. They refused to recognizo the officers or men pecet trado, in addition to the insuperable objectious above sug- sarily selected by the provost marshal for its potection, gested, would leave open the implication that the same
and hold subject to their orders, now and hereafter, the old power has authority to permit such introduction. Noguch police force, a large body of armed men, for some purpose implication can be sanctioned by us. This Government un
not known to the Government, and inconsistent with its equivocally and absolutely denies its possession of any pow. peace or socurity: To anticipate any intentions or orders er whatever over the subject, and caunot entertain any
on their part, I have placed temporarily a portion of the proposition in relation to it.
force under my command within the city. I disclaim on While it is totally beneath the dignity of this Govern- | the part of the Government I represent, all desire, intenment to give assurances for the purpose of vindicating it-tion, and purpose to interfere, in any manner whatever, self from any unworthy suspicions of its good faith on this
with the ordinary municipal affairs of the city of Baltimore. subj«cc, that may be disseminated by the agents of the Whenever a loyal citizen cau be named who will execute United States, it may not be improper that you should point its police laws with impartiality and in good faith to the out the superior efficacy of our constitutional provision to
United States, the military force will be withdrawn from any treaty stipulations we could make. The constitution
the central parts of the municipality at once. No soldier is itself a treaty between the States, of such binding force, will be perniitted in the city, except under regulations eatthat it cannot be changed or abrogated without the deliber-isfactory to the niarshal; and if any so admitted violate ate and concurrent action of pine out of the thirteen States
the municipal law, they shall be punished according to the that compose the Confederacy. A treaty might be abrogated civil law, by the civil tribunals. by a party temporarily in power in our country, at the sole They were transferred to Fort Lafayette, and risk of disturbing amicable relations with a foreign Power. The Constitution, unless by approach to unanimity, could
on the 6th of August, Judge Garrison of Brooknot be changed without the destruction of this Government | lyn, issued a writ directing Col. Burke to proitself; and even should it be possible hereafter to procuro duce the persons in court. Col. Burke declined the consent of the number of States necessary to change it, the forms and delays, designedly intorposed by the framers
on the authority of an order from Lieut. Gen. to check rash innovations, would give ample time for the Scott. Col. Burke was then cited to answer for most mature deliberation, and for strenuons resistance on contempt of court, but he did not appear, and the part of those opposed to such a change.
After all, it is scarcely the part of wisdom to attempt to August 22, Judge Garrison, “submiting to inimpose restraint on the actions and conduct of men for all evitable necessity,” dismissed the proceedings. future time. The policy of the Confederacy is as fixed and They were subsequently released." See Presiimmutable on this subject as tho in perfection of human na dent's Orders, p. 154. ture permits human resolve to be. No additional agreements, treaties, or stipulations can commit these States to the prohibition of the African slave trade with more bind.
ARREST OF MEMBERS OF THE LEGISLATURE 01 ing efficacy than those they have themselves devised. A
MARYLAND. just and generous confidence in their good faith on this subject, exhibited by friendly Powers, will be far more efficacious than persistent efforts to induce this Government to
By Telegraph to the Associated Press. assume the exercise of powers which it does not possess, and BALTIMORE, Sept. 13.—Tho Provost Marshal, George P. to bind the Confederacy by ties which would have no consti- Dodge, this morning, beforo diy, arrested the Mayor of tutional validity. We trust, therefore, that no unnecessary Baltimore, Mr. Brown, and Messrs. Chas. S. Pitts, Lawrence discussion on this matter will be introduced into your Sangston, S. Truckle Willis, T. Parkin Scutt, and Ross negotiations. If, unfortunately, this reliauce should provo Winans, members of the Maryland Lexislature of Baltimore i l-lounded, you will decline continuing negotiations on city, and F. K. lIowarı, the editor of the Exchange nerfsyour side, and transfer them to us at home, where, in such paper. They were taken to Fort Mclenry. event, they could be conducted with greater facility and BALTIMORE, Spl, 13.-Tho following additional artrsts advantage, under the direct supervision of the President. havelucon made: Messrs. Dennison, Quinlan, and Dr. Lynch, With great respect, your obedient servant,
members of the Larrislature from Baltinore county; and J. P. BENJAMIN, Secretary of State. Messrs. Henry M. Warfield, Dr. J. ILauson Thomas, John C. Hon. L. Q. C. LAMAR,
Brune, city members; also, Thomas W. Hall, editor of the Commissioner, &c., &c., St. Petersburg, Russia. South newspaper.
The day of the meeting of the Legislature is Tnesday Arrests of Citizens, and the writ of the Government was to be attempted. All the arrests made
next, when, it is suspected, further legislation hostile to Habeas Corpus.
were under orders direct from the War Department.
BALTIMORE, Sept. 13.-I just licar of the arrest of Henry June 27, 1861, Major General N. P. BANKS, May, member of Congress; also, Henry M. Morfit and w. commanding the Department of Annapolis, had G. Harrison, members of tho Legislature from this city. George P. Kane, Chief of Police of Baltimore, city delegates. Upon the arrest of Gordon, (member of the arrested for being, in contravention of his duty Maryland Legislature, some days ago, papers were found and in violation of law, by direction or indirec- in his baggage reading liko amendments to be offered to a tion, both witness and protector to transactions proposed secessionordinance to be brought up at the coming
meeting of the Legislature. hostile to the authority of the Government, and BALTIMORE, Sept. 18.-The police are arresting secession to conspirators avowedly its enemies.
members of the legislature as fast as they reach this city, Same day, Charles Howard, Wm. H. Gatchell, for the meeting of the Legislature, but there can be no quo
on their way to Frederick. Tomorrow is the day set apart Charles D. Hinks, John W. Davis, and George rum present, as nearly three fourths of both Houses are Wm. Brown, Mayor and ex-officio member of secessionists, all of whom it is presumed, will be arrested. Board of Police of Baltimore, protested against and Messrs. Landing and Raisin, of the Honse of Delegates
This evening Messrs. Dennis and Heckart, of the Senate, the arrest of Marshal Kane, and the suspension were arrested. There are now fifteen members of the House of the Board of Police, by a militar» provost bers cannot be found, and have, it is said, fled from the marshal.
[From the Baltimore American.]
Ex-Mayor James G. Berret, of Washington, We are not advised of the specific charges against those was arrested in August, but released Septemfarctionaries who have been arrested in the State by order ber 12, 1861, on taking the oath of allegiance, of the General Government; but, from what has already oc- and resigning the office of mayor. curred, the inference seems safe enough that the reasons were such as were fully justified in the needful preservation arrested late in August.
Ellis B. Schnable, of Pennsylvania, was also of the peace of the State. One thing is certain that the malority of the distinguished body thus interfered with was James W. Wall, of Burlington, N. J., was tbwronghly disloyal; and judging from what they already arrested, and others. have done, and their persistant waiting for something to happen to give them a chance to do something more in the di- ORDERS ON WHICH CERTAIN ARRESTS WERE rection of " State sovereignty," we believe they thought the
MADE time might come when they might follow other illustrious fraraples, and treat the State to that outrage upon the peo
Seeretary of War to General Banks. ple , the Constitution, and the Union, a “secession ordinance."
WAR DEPARTMENT, Sept. 11, 1861. They are effectually estopped from such a purpose now, and GENERAL: The passage of any act of secession by the Fill have a chance to reflect at their leisure on their utter Legislature of Maryland must be prevented. If necessary disregard of the wishes of the people in their doings. all, or any part of the members must be arrested. Exercise The astounding disregard of popular sentiment, definitely your own judgment as to the time and manner, but do the ebowo, bas been the chief feature in the secession movement, work effectually. and Maryland has only escaped the worst consequences of it Very respectfully, your obedient servant, by the firm action of the Governor in the first instance, and
SIMON CAMERON, bare by the interposition of the strong hand of the General
Secretary of War.
Gen. McClellan to Gen. Barks.
HEADQUARTERS ARMY OP THE POTOMAC, sized seven members of the house of a very bitter character,
WASHINGTON, Sept. 12, 1861. and four officers, clerks, &c., who are intensely bitter, and
GENERAL: After full consultation with the President, afe said to have been
very forward and to have kept some of Secretaries of State, War, &c., it hus been decided to effect the weaker men up to the work. Several arrests were made been made to have a Government steamer at Annapolis to
the operation proposed for the 17th. Arrangements have of violent or resisting persons, whom I shall let go after the receive the prisoners and carry them to their destination. otbers are gone. I shall send four men at least to General Iris, at Baltimore, who are very bad men. I have advised
Some four or five of the chief men in the affair are to be Colonel Rager to send to Sharpsburg Landing to seizu 500 arrested to-day. When they meet on the 17th, you will Sacks of salt, which are waiting for the Southerners to come please have everything prepared to arrest the whole party,
and be sure that none escape. and take them. They have tried twice to do it. We have ako heard of some arms which the colonel will look up. Gov. Seward the modus operandi. It has been intimated to
It is understood that you arranged with Gen. Dix and There is a very bitter man here, a Mr. Sinn, who is currently me that the meeting might take place on the 14th; please reported by General Shriver and others to be the medium of be prepared. I would
be glad to have you advise me freof the members are: B. 8. Salmon, R. C. Mècubbin, J. H. quently of your arrangements in regard to this very imGordon, C. J. Durant, Thomas Cleggett, Andrew Kessler,
portant matter. and Bernard Mills. We shall get T. Lawrence Jones. The
If it is successfully carried out it will go far toward efficers of the Legislaturo: J. N. Brewer, Chief Clerk Sen- / breaking the backbone of the rebellion. It would probably ate; Thomas Moore, reuling do; Sanitel Penrose, jr., Asa be well to have a special train quietly prepared to take sistant; N. Kilgore, reading do.; Milton Kidd, Chief of the
prisoners to Annapolis. House. Mr.Jones is taken; Edward Houser, citizen;
Riley, discretion and have but
one thing to impress upon your
I leave this exceedingly important affair to your tact and very bad.) Printer to the House : John Hogan, (very bad,) the absolute necessity of secrecy and success. With the citizen; Joseph Elkins, do.; Mr. Mason, Folder to the House . We shall leave here for headquarters this after highest regard, I am, my dear General, your sincere friend,
GEO. B. MOCLELLAN, nowl. The arrested were nearly all seized by the police
Maj. Gen. U.S.A. I am, Fours respectfully, R. MORRIS COPELAND,
Copy of Gen. Banks's instructions concerning the Legislature. Aid-de-Camp.
(IMPORTANT AND CONFIDENTIAL.] Mr. McCubbin is a person whom I should recommend you to net at large if he takes the oath, which I have no doubt
HEATQUARTERS, CAMP NEAR DARNESTOWN, he will. He is brother-in-law to General Hammond, and a
September 16, 1863. man much respected; also a man of rather timid nature, Lieut. Col. RUGER, Commanding Third Wisconsin regiment, and greatly troubled by his arrest. General Shriver has on special service at Frederick: lieeti very active for us, and is very earnest that we should Sir: Tho Legislature of Maryland is appointed to meet in kthim go on these terms. If you can do it, it will be well special session to-inorrow, Tuesday, Sept. 16. It is not imto telegraph to Annapolis to have the oath tendered, and possible that the members, or a portion of them may be releuse him. I should do it under my instructions, only deterred from meeting there on account of certain arrests that Colonel Ruger thinks he has no authority to allow any recently maule in Baltimore. It is also quite possible mab on the list any liberty.
R. M. C. that on the first day of meeting the attendance may be
small. Of the facts, as to this matter, I shall see that you OTHER ARRESTS.
are well informed, as they transpire. It becomes necessary PHILADELPHIA, August 19.
that any meeting of this Legislature, at any place or time, Pierce Bntler was arrested this afternoon by the United shall be prevented. States Marshal by order of Secretary Cameron
You will hold yourself and you
Everything in the execution of these orders is confided to Executive Order No. 2-In Relation to State Prisoners. your secrecy, discretion, and promptuess.
WAR DEPARTMENT, WASHINGTON CITY, Feb. 27, 1862
It is ordered:
First. That a special commission of two person, one of
WASHINGTON, September 10, 1861. examine the cases of the State prisoners remaining in the mil-
itary custody of the United States, and to determine whether SIR: I have received your letter of yesterday relating to in view of the public safety and the existing rebellion, they Algernon
S. Sullivan, a political prisoner now in custody at should be discharged, or remain in military custody, or bie Fort Lafayette. This Department is possessed of treason- remitted to the civil tribunals for trial. able correspondence of that person which no right or privi
Second. That Major General John A. Dix, commanding lege of a lawyer or counsel can justify or excuse. The pub in Baltimore, and the Hon. Edwards Pierrepont, of New lic safety will not admit of his being discharged.
York, be and they are hereby appointed Cumbuissionens for In view of the many representations made to me in this the purposes above meutioned, and they are authorized to case, I pray your excuse for giving this letter to the public. examine, hear, and determine the chaos afuresaid ex parte With great respect, sir, your obedient servant,
and in a summary manner, at such times and places as in WILLIAM H. SEWARD. their discretion they may appoint, and make tull report to
the War Department. The Case of Robert Elliot.
By order of the President:
EDWIN M. STANTON,
Secretary of War.
ORDER OF THE SECRETARY OF WAR.
WAR DEPARTMENT, the release of Robert Elliot, a political prisoner held in cus
WASHINGTON, Norember 22, 1862 tody at Fort Lafayette.
Ordered-1. That all persons now in military custody, The evidence taken in his case shows that he had not only who have been arrested for discouraging rolurteer enlist conceived the purpose of treasonable co-operation in the ments, opposing the draft, or for otherwise giving aid and State of Maine with the insurrectionary citizens arrayed in comfort io the enemy, in States where the draft has been arms, in other States, for the overthrow of the Government made, or the quota of volunteers and militia has been fur and the Union, but that he had even gone to the extremo nished, shall be discharged from further military restraint length of getting up an unlawful armed force to operate in 2. The persons who, by the authority of the military.com Maine against the lawful action of the State and of the Fed-mander or governor in rebel States, have been arrested and eral Government. His associates in that treasonable enter- sent from such State for disloyalty or hostility to the Gur: prise, since his arrest, have taken an oath of allegiance to ernment of the
United States, and are now in military cus the United States. This proceeding is very proper in itself. tody, may also be discharged upon giving their parole to do But the representations they make, that they and he were no act of hostility against the Government of the United loyal to the Union at the time when they were combining States, nor render aid to its enemies. But all such persons in arms against it, cannot be accepted, at least in his behalf. shall remain subject to military surveillance and liable to It appears that he is too intelligent to misunderstand the arrest on breach of their parole. And if any such persons legitimate tendency of his criminal acts. He cannot be re- shall prefer to leave the loyal Stutes on condition of their leased. On the contrary, your vigilance in ferreting out the pot returning again during the war, or until special leare couspiracy and in arresting it , by denouncing it to the Gov- for that purpose
be obtained from the President, then such ernment and the country, is deemed worthy of special com- person shall, at his option, be released and depart from the mendation.
United States, or be conveyed beyond the military lines of If any of the other offenders are still persisting in their the United States forces. treasonable course, you will, I am sure, not fail to give in
3. This order sliall not operate to discharge any person formation to this Department.
who has been in arms against the Government, or by force I have the honor to be, very respectfully, your obedient and arms has resisted or attempted to resist the draft, nor servant, WILLIAM H. SEWARD. relieve any person from liability to trial and punishment
by civil tribunals, or by court-martial or military commis THE PRESIDENT'S ORDERS.
sion, who may be amenable to such tribuuals for offenen
committed. 1862, February 14—The PRESIDENT issued an By order of the Secretary of War: order reciting the circumstances of the country,
E. D. TOWNSEND, the defection of officials in every department,
Assistant Adjutant General the treason which pervaded and paralyzed ARREST OF JOIN MERRYMAN AND PROCEEDING
THEREON. every branch of the service, in justification of the resort to extraordinary measures, and adds : 1861, May 25—John Merryman, of Baltimo
county, Mu., was arrested, charged with holdi Meantime a favorable change of public opinion has occurred. The line between loyalty and disloyalty is plainly a commission as lieutenant in a company are defined; the whole structure of the Government is firm and ing its purpose of armed hostility against stable; apprehensions of public danger and facilities for Government; treasonablo practices have diminished with the passione with the rebels, and with various acts of t
with being in communica which prompted heedless persons to adopt them. The in. surrection is believed to bave culminated and to be declin- son. He was lodged in Fort McHenry, in. ing
mand of Gen. Geo. Cadwalader. Merrym The primat, in view of tbere facts, and anxions to favor
CHIEF JUSTICE TASET'S REMARKS.
having the prisoner thas in custody upon these vague and I ordered the attachment yesterday, because upon the unsupported accusations, he refuses to obey the writ of face of the return the detention of the prisoner was unlaw. habeas corpus, upon the ground that he is duly authorized fal apon two grounds.
by the President to suspend it. 1. The President, under the Constitution and laws of the The case, then, is simply this: A military officer residing Caited States, cannot suspend the privilege of the writ
of in Pennsylvania issues an order to arrest a citizen of Mary. habeas corpus, nor authorize any military officer to do so. land, upon vague and indefinite charges, without any prook
2. A military officer has no right to arrest and detain a so far as appears. Under this order his house is entered in person, not subject to the rules
and articles of war, for an the night; he is seized as a prisoner, and conveyed to Fort offence against the laws of the United States, except in and McHenry, and there kept in close confinement. And when of the judicial authority and subject to its control; and if a habeas corpus is served on the commanding officer, requir the party is arrested by the military, it is the duty of the ing him to produce the prisoner before a Justice of the Suefficer to deliver him over immediately to the civil author- preme Court, in order that he may examine into the legality If, to be dealt with according to law.
of the imprisonment, the answer of the officer is that he is I forbore yesterday to stato orally the provisions of the authorized by the President to suspend the writ of habeas Constitution of the United States which make these prin- corpus at his discretion, and, in the exercise of that discre tiples the fundamental law of the Union, because an oral tion, suspends it in this case, and on that ground refuses statement might be misunderstood in some portions of it, obedience to the writ. od I shall therefore put my opinion in writing and file it
As the case comes before me, therefore, I understand that in the office of the Clerk of the Circuit Court, in the course the President not only claims the right to suspend the writ of this week.
of habeas corpus himself, at his discretion, but to delegate
that discretionary power to a military officer, and to leave After reading the above, the Chief Justice it to him to determine whether he will or will not obey juorally remarked:
dicial process that may be served upon him. La relation to the present return, I propose to say that
No official notice has been given to the courts of justice, the marsbal has legally the power to summon out the posse President claimed this power, and had exercised it in the
or to the public, by proclamation or otherwise, that tho baiktus to seize and bring into court the party named in the attachment; but it is apparent he will be resisted in with some surprise, for I had supposed it to be one of those
manner stated in the return. And I certainly listened to it the discharge of that duty by a force notoriously superior to the puse comitatus,
and such being the case, the Court points of constitutional law upon which there was no differkas no power under the law to order the necessary force to
ence of opinion, and that it was admitted on all hands that
the privilege of the writ could not be suspended except by compel the appearance of the party. If, however, he was
act of Congress. before the Court, it would then impose the only punishment it is empowered to inflict--that by fine and imprison became so formidable, and was so extensively ramified as to
When tho conspiracy of which Aaron Burt was the head Cader these circumstances the Court can barely say, to- he claimed, on his part, no power to suspend it, but com.
justify, in Mr. Jefferson's opinion, the suspension of the writ, day, I shall reduce to writing the reasons under which I municated his opinion to Congress, with
all the proofs in his bare acted and which have led me to the conclusions ex: possession, in order that Congress might exercise its discre pressed in my opinion, and shall report them with these tion upon the subject, and determine whether the public proceedings to the President of the United States, and call safety
required it. And in the debate which took place upon upon him to perform his constitutional duty to enforce the kws; in other words, to enforce the process of this Court. cise the power himself, if, in his opinion, the public safety
the subject no one suggested that Mr. Jefferson might exerThis is all this Court has now the power to do.
demanded it. Subjoined is the opinion of the Chief Jus- Having, therefore, regarded the question as too plain and tice:*
too well settled to be open to dispute, if the commanding
officer had stated that upon his own responsibility, and in Ex parte JOIN MERRYMAN.
the exercise of his own discretion, he refused obedience to Before the Chief Justice of the Supreme Court of the the writ, I should have contented myself with referring to United States, at Chambers.
the clause in the Constitution, and to the construction it Tbe application in this case for a writ of habeas corpus the case of Burr was before them. But being
received from every jurist and statesman of that day, when s made to me under the 14th section of the judiciary
act notified that the privilege of the writ has been suspended of 1769, which renders effectual for the citizen the consti. under the orders and by the authority of the President, and tutional privilege of the writ of habeas corpus That act
believing as I do that the President has exercised a power gives to the courts of the United States, as well as to each which
ho does not possess under the Constitution, a proper power to grant writs of habeas corpus, for the purpose of respect for the
high office he fills requires me to state plainly un inquiry into the canso of commitment. The petition I havo not ventured to question the legality of his act with
and fully the grounds of my opinion, in order to show that was presented to me at Washington, under the impression
out a careful and deliberato examination of the whole subject. that I would order the prisoner to be brought before me there, but as he was confined in Fort McHenry, at the city pension of the privilege of the writ of habeas corpus is in
Tho clauso in the Constitution which authorizes the sus of Baltimore, which is in my circuit, I resolved to hear it the ninth section of the first article. in the latter city, as obedience to the writ, under such This article is devoted to the Legislative Department of circumstances, would not withdraw Gen. Cadwalader, who the United States, and has not the slightest reference to the had him in charge, from the limits of his military command. Executive Department. It begins by providing " that all The petition presents the following case:
Tho potitioner legislativo powers therein granted shall bo vested in a Conresides in Maryland, in Baltimore county. While
peaceably gress of the United States, which shall consist of a Senate in his own house, with his family, it was at two o'clock, on and House of Representatives.” And after prescribing the the morning of the 25th of May, 1861, entered by an armed manner in which these two branches of the legislative deforce, professing to act under military orders. He was partment shall be chosen, it proceeds to enumerate specifithen compelled to rise from his bed, taken into cus-cally the legislative powers which it thereby grants, and tedy, and conveyed to Fort McHenry, where he is im- legislative powers which it expressly prohibits, and, at the prisoned by the commanding officer, without warrant from conclusion of this specification, a clauso is inserted giving aby lawful authority. The commander of the fort, Gen. George Cadwalader, by sary and proper for carrying into execution the foregoing
Congress “the power to make all laws which may be neces hotu be is detained in confinement, in his return to the powers, and all other powers vested by this Constitution in writ, does not deny any of the facts alleged in the petition. the Government of the United States or in any department Ele states that the prisoner was arrested by order of Gen. or office thereof." Kelm, of Pennsylvania, and conducted as a prisoner to
The power of legislation granted by this latter clause is Fort McHenry ly his order, and placed in his (Gen. Cad- by its word carefully confined to the specific objects before Salader's)custody, to be there detained by him as a prisoner. onumerated. But as this limitation was unavoidably
A copy of the warrant, or order, under which the prisoner somewhat indefinite, it was deemed necessary to guard Fa arrested, was demanded by his counsel, and refused. more effectually certain great cardinal principles essential And it is not alleged in the return that any specific act, con- to the liberty of the citizen and to the rights and equality titating an offence against the laws of the United States, of the States by denying to Congress, in express terms, has been charged against him upon oath; but he appears any power of legislation over them. It was apprehended, to have been arrested upon general charges of treason and it seems,
that such legislation might be attempted under rebellion, without proof, and without giving the names of the pretext that it was necessary and proper to carry into the witnesses, or specifying the acts, which, in the judg: execution the powers granted; and it was determined that ment of the military officer, constituted these crimes. And there should be no room to doubt, where rights of such
vital importance were concerned, and accordingly this For reply by Hon. Reverdy Job on, see Moore's clause is immediately followed by an enumeration of corRebellion Record, vol. 2, p. 186.
tain subjects to which the powers of legislation shall not