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T TI E

M E R R Y M A

i HABEAS (^ORl^US CASE.

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Tiir. ri,MMi;i:iu\(i< i\ I'li.i. wi'

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oriMON or i'llIKF JISTK K TA\KY.«ej

THE UNITED STATES GOVERNMENT A MILITARY DESPOTISM.

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THE FlOmns COLLECTIOI^ ^A\Vt3T " ^^^

MEERYMAN HABEAS COEPUS CASE.

#6 3y

[from f/;c Baltimore Excliange. May 2Sth, 18G1.]

Yesterday morning the United States Court room was filled with a dense crowd, anxious to hear the resiilt of tlie writ of habeas coiyus issued by Chief Justice Taney in the case of John Merryuian, Esq., who was arrested on tlie nioruinj*' of the 25th inst. When it was found that General Cadwallader refused to obey the writ, a icelingof great indignation prevailed. Tho prompt and decided action of the venerable Ciii(;f- Magistrate of the nation was received with undis- guised approbation. The following is a report of tho proceedings :

The IbMov.'ing petition was filed in this case by Geo. M. Gill ait.l Geo. H. Williams, Esqs., counsel for Mr. Merrymau :

To THE Hon. Kogeb B. Taney, ,«

Chief Justice of the Supreme Coiirt :

The petition of John Merrynian, of Baltimorfi pounty, and State of Maryland, respectfully shows that, being at home in his own domicil, lie was, about the hour of two o'clock, A. M., on the 25th of May, A. D. 1801, aroused from his bed by an armed ibrce, pretending to act under military orders, from some person to your petitioner unknown ; that he was by the said armed force deprived of his liberty by being taken into custody and removed: from his said house to Fort McHenry, near to the city of Baltinioic, and in the District aforesaid, and where your petitioner now is in cl(»se custody.

That he has been so imprisoned without any process or color of law whatsoever, and that none such is pretended by those who are thus detaining him, and that no warrant from any court, magistrate or other person having legal authority to issue the same, exists to justify such arrest, but to the contrary, the san'ie as above is stated hath been done without color of law, and in violation of the Constitu- tion and laws of the United States, of which he was a citizen.

That since his arrest he has been informed that by some order pur- porting to come from one General Keim, of Pennsylvania, to tho peti- tioner unknown, directing the arrest of some captain in Baltimore county, of which company the petitioner never was, and is not cap- tain, was the pretended ground, as he believes, on which he is now- detained.

That the person now so detaining him and holding him at said fort is Brigadier-General George Cadwallader, njilitarj' commander of said fort, professing to act in the premises under or by order of the United States.

The petitioner, therefore, prays that the writ of habeas ccrpiis may issue, to be directed to the said George Cadwallader, commanding him to produce yonx petitioner before you, Judge as aforesaid, with the cause, if any, for his arrest and detention, to the end that your peti- tioner be discharged and restored to liberty, and is in duty bound^ etc. JOnN MERRYMzVN.

Fort McIlENRy, May 25, 1861.

Pd0761.

2 PROCEEDIKGS IN THE

This petition was duly sworn to by Geo. H. Williams, Esq., one of the Counsel before the United States Commissioner, and affidavit was- also made by him that he had applied to General Cadwallader for per- mission to see the written papers, by virtue of which said Merrymaii was detain(!d in cnstod}^, and to make copies thereof, which had been- refused him by the said General Cadwallader. These were laid before the Court, whereupon his Honor Gliief Justice Taney passed an order directing "that the writ of habeas c&rpws issue in this case as prayed," and that the same be directed to General George Cad- wallader.

The writ was accordi-ngly issued by the Clerk of the Court, as- follows :

The United States of America, ] Department of Maryland, to wit : ) ■

To General George Cadwallader, Greeting:

You are hereby commanded to be and appear before the Hon. Roger B. Taney, Chief Justice of the Supreme Court of the United States, at the United States Court room, in the Masonic Hall, in the cit}' of Baltimore, on Tuesday, the 2tth day of May, 1861, at eleven o'clock in the morning, and that you have with you the body of John Merry- man, of Baltimore county, and now in your custody, and that you certify and make known the day and cause of the capture and deten- tion of the said John Merryman ; and that you then and there do submit to, and receive whatsoever the said Court shall determine lupon concerning you, on their behalf, according to law, and have you- then and there this writ.

Witness, the Hon. Roger B. Taney, Chief Justice of the Supreme Court, the fourth Monday in May, in the year of our Lord, 1861.

THOMAS SPICER,

Issued, 26th May, 1861. Clerk Circuit Court.

The Chief Justice appeard in Court at the hour specified, and di- rected the Marshal to make his return in the case. The Marstial re- plied that the writ had been served, but as yet there was no return prepared. The Clerk was directed to prepare it. While he was com- plying with this order, Col. Lee, Aid-de-Camp of Gen. Cadwallader, appeared in court, about fifteen minutes after the commencement of the proceedings. He stated that, in the absence of General Cadwal- lader, who was unavoidably detained by pressing engagements, he was directed to read to thecourt the communication which he helu- in his hand. He then proceeded to read as follows :

Headquarters Dep't of Annapolis, \ ■ Fort McHenry, May 25, 1861. j

To the Hon. Roger B. Taney,

Cliicf Justice of the Supreme Court of the United States, Baltimore, Md. :

Sir : — The undersigned, to whom the annexed writ of this date* signed by Thomas Spicer, Clerk of the Supreme Court of the Unite^^. States, is directed, most respectfully states-—

MERRYJIAK HABEAS CORPUS CASE, S"

'jPTiat the arrest of Mr. John Mcrrj'man, in' the said writ named, -tas not made with the knowlcdj^-o or by his order or diroction, but was made by Col Samuel Yohe, acting under tlie orders of Maj. Geu. W. H. Keim, both of said officers being in the military service of the United States, but not within the limits of his command.

The prisoner was brought to this post on the 20th instant by Adjutant James Wittimore and Lieutenant Wm. II. Abel, by order of Col. Yohe, and is charged with various* acts of treason, and with be- ing publicly associated witli, and holding a commission as Lieutenant in a company having in their possession arms belonging to the United States, and avowing his purpose of armed hostilities against the Government.

He is also informed that it can be clearly established that the prisoner has made often and unreserved declarations of his associa- tion with this organized foice, as being in avovired hostility to the (rovernment, and in readiness to Co-operate with those engaged iu the present rebellion against the Government of the United States.

He has further to inform you that he is duly authorized by the President of the United States, in such cases to suspend the writ «>f habeas corpus, for the public safety. This is a high and delicate trust, and it has been enjoined upon him that it should be executed with judgment and discretion, but he is nevertheless also instructed that, in times of civil stJrife, errors, if any, should be on the side of safety to the country.

He most respectfully submits to your consideration that those who should co-operate in the present trying and painful position in which our countrj'^ is placed, should not, by reasons of any unnec- essary want of confidence in each other, increase our embarrassments. He, therefore, respectfully requests that you will postpone further action upon the case until he can receive instructions from the Pres- ident of the United States, when you shall hear further from him.

I have the honor to be, with high respect, Your obedient servant,

GEO. CADWALLADER, ^ Brevet Major-General, United States Army Commanding.

On finishing the reading of the reply of General Cadwallader, Col. liCe was preparing to leave the Court, when the following interrog- atories were put to him by the Chief Justice :

Chief Justice — Have you brought with you the body of John Mer- ry man ?

Col. Lee — I have no instructions except to deliver this response to the Court.

Chief Justice — The commanding officer then declines to obey the writ ?

Col. Lee — After making that communication, my duty is ended, and I have no further power. [Rising and retiring.]

Chief Justice — The Court orders an attachment to issue against George Cadwallader for disobedience to the high writ of the Court,. I'eturnable at 12 o'clock to-mi)rrow.

P60761

PR0CEEDIN'G3 IN THI

Subscqnenlly tlic Chief Justice wrote and deliveved to the Clerk Uie follovvinp; order :

Ordered, Tiiat an attachment forthwith issue against General Georg'c Cadwallader for a contempt of refu^sinf^- to produce tlie body of Jolin Merrynian, accordinj^ to the cointnand of the writ of hnbeaa t'orpus returnable and returned before me to-day, andthat said attach- ment be returned before me at 12 o'clock to-morrow, at the room of the Circuit Court. «

Monday, May 27, 1861. EOGER B. TANEY.

[^From the Baltimore Exchange, May 29</(.] GEN. CADWALLADER REFUSES TO RECOGNIZE THE ATTACHMENT.

The attachment issued on Monday last, by Chief Ju.stico Tanc}', against Crjneral George Cadwallader, for refusing to obey the writ of habeas corpus in the case of John Merryman, Esq., was made returnable yesterday at 12 o'clock. At an, early hour of the day, the U. S. Circuit Court building was beseiged by an immense crowd. About twelve o'clock the venerable Chief Justice made 'lis appear- ance in the court room. Ujjon taking liis scat, he asked lb." Marshal if he had the return. The Marshal handed him the following papers, which the clerk read aloud :

The United States of America,. ) . District op Maryland, t'>-wit : )

To the Marshal of the Maryland District, Greeting ;

We command you that you attach the body of Gen. George Cad- wallader, and him to have bef(n'e the Hon. Roger B. T;iney, Chief Justice of -tho Supreme Court of the United States, on Tuesday, the 28th of May, 18G1. at 12 o'clock, M., at the Circuit C,)urt Rooms of the United States, in the city of Baltimore, to answer f>r his contempt by him committed in refusing to produce the body of John Merryman of Baltimore county, according to the command of the writ oT habeas corpus, r(.!turnable and returned before the said Chief Justice this 27th day of May, 1861.

Witness the Hontn-able Roger B. Taney, Chief Justice of the Su- preme Court, the first Jilonday in December, in this year of our Lord, 1861.

Issued 27th May, 1861. THOMAS SPICER, Clerk.

I hereby certify to the Honorable Roger B. Tano}'', Chief Justice of the Supreme Court of the United States, that by virtue of the witliin writ of attachment to me directed on the 27th of May, 1861, I pro- ceeded 0)1 the 28th day of May, 1861, to Fort McHenry, for the pur- pose of serving the said writ I sent in my name at the outer gate ; the messenger returned with the reply, "that there was no answer to my card." I, therefore, could not serve the writ as I was commanded.

So answers WASHINGTON BONIFaNT,

United States Marshal f#r the District of Maryland.

MERRYMAN HABEAS COnPCS CASE. 5

Chief Juslice Taney then turned to Deputy Marshal Vance and said : "Then the writ is not answered ?"

Deputy JJarshal Vuiice — Tiicro was no answer, sir. except that " there was no reply to my card." I was not permitted to enter tlic outer gate.

Chief Justice Tanej- — Well, you should state that. The fact does not ai)/)ear in yojr return.

Mr. Vance amended the return in coHTpliance with the sugg-estion, and, .handing; the paper to the Chief Justice, the latter proceeded to read from a manuscript the subjoined remarks, previously saying : "Gentlemen, I shall feel it ni}' duty to enforce the process of tlie Co'trt."

I ordered the attachment, yesterday, because, upon the face of the return, the detention of the prisoner was unlawful upon two g-rounds ;

1. The President, under the Constitution and laws of the United States, cannot suspend the privilcg'o of the writ of habeas corpus, nor authorize any militar}' ofticer to do so.

2. A military otiicer has no right to arrest and detain a person, not subject to the rules and articles of war, for an ofience against thq laws of the United States, except i]i aid of the judicial authority, and subject to its control — and if tiie party is arrested by the military, it is the duty of the ofiicer 'to deliver him over immediately to civil au- thorit}', to be derdt with ticcording to law.

1 forebore 3'esterday to state orally the provisions of tfie Constitui tion of the United States, which make these principles the fundamen- tal law of the Union, because an ora'l statement mig'iit be misuiid.-r- Ktood in some portions of it, and 1 shall therefore put my opinion in writing, and file it in tlie olSce of the Clerk of the Circuit Court in the course of this week.

After reading the above, the Chief Justice orally remarked :

In relation to the present return, it is proper to say that of course the Marshal has logall}^ the power to summon out the jiosse. comitatus to' seize ai.d bring into court the party named in the attachment : but it is apparent he will be resisl(.>d in the discharge of that duty by a force notoriously superior to the jyossce, and this being the fiase, such a proceeding can I'csult in no good, and is useless. I will not, there- fore, require the Marshal to perform this duty. If, however. General Cadwallader were before me, I should impose on him the punishment which it is within my province to inflict, that of fine and imprison- ment. I shall merely say to-day, that I shall i-educe to writing the rf'asons under which I have acted, and which have led me to the con- clusions expressed in my opinion, and shall report them with these j)r()ceedings to the President, and call upon him to perform his Con- stitutional duty — to enforce the laws, by compelling obc5.ienc'j to the civil process.

OPINION OF CHIEF JUSTICE TANEY.

j^ I Before the Chief Justice "f tli«

T . {'r " -; Supreme Court of the United

John Meruymax. i o.\ , ,,. i

( iStiites, at Chambers.

The application in this case for a writ of r.ahcas corpus is made to Jne under tlie 14th section of the Judiciary Act of 1789, wliich ren- ders effectual for the citizen the Constitutional privelege of the writ of habeas corpus. That act gives to the courts of tlie United States, as well as to each Justice of the Supreme Court, and to every District Judge, power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment. The petition was presented to- me at Washington under the impression that I would order the prisoner to be brought before me there, but as he "was confined in fort McHenry, at the city of Baltimore, which is in my circuit, I resolved to hear it in the latter city, as obedience to the writ, under such circumstances, would not withdraw General Cadwallader, who had him in charge, from the limits of his military command.

The petition presents the following case : The petitioner resides in Maryland, in Baltimore county. While peaceably in his own liouse, with his family, it was, at two o'clock in the morning of the 25th of May, 1861, entered by an armed force, professing to act un- military orders. He was then compelled to rise from his bed, taken into custody, and conveyed to Fort McHenry, where he is imprison- ed by tlie commanding officer, without warrant from any lawful authority.

The commander of tlie fort. Gen. George Cadwallader, by whom he is detained in confinement, in his return to the writ, does not deny any of the facts alleged in the petition. He states that the pi"isoner was arrested by order of Gen. Keim, of Pennsylvania, and con- ducted as a prisoner to Fort McHemy by his order, and placed in liis, (Gen. Gadwallader's) custody, to be there detained by hioi as a prisoner.

A copy of the w^arrant, or order, under which the prisoner was ar- rested, was demanded by his counsel, and refused. And it is nut alleged in the return that any specific act constituting an offence >against the laws of the United States, has been charged against him ■upon, oath, but he appears to have been arrested upon general char- ges of treason and rebellion, witliout proof, and without giving the names of the witnesses, or specifying the acts, which inthejudg- '.nent of the military ofiicer, cpnstituted these crimes. And having •he prisoner thus in custod}^ upon these vague and unsupported accu- sations, he refuses to obey the writ oi habeas corpus, upon the ground hat he is duly authorized by the President to suspend it.

The case, then, is simply this. A military officer, residing in ^enns^dvania, issues an order to arrest a citizen of Maryland upon ague and indefinite charges, without. any proof, so far as appea"s,

-KERRYMAN HABEAS CORPUS CASE. 7

A7ndcr lliis ovder his house is entered in the nig'lit.: he is seized as u jirisouor and conveyed to Fort McHcnr^', and there kept in close con- lineraent. And when a habeas ccAyiis is served on the commanding- officer, requiring him to produce the prisoner before a Justice of the Supreme Court, in order tliat he may examine into the legality of the imprisonment, the answer of the officer is, that he is authorized by the President to suspend the writ of habeas corpus at his discretion, jtnd, in the exercise of that discretion, suspends it in this case, and -ou that ground refuses obedience to the writ.

As the case comes before me, therefore, I understand that the President not only claims the right to suspend the writ of habeas corpus himself at his discretion, but to delegate that discretionary power to a nrllitary ofticer, and to leave it to him to determine whether he will or will not obc}' judicial process that may be served upon him.

No official notice has been given to the courts of justice or to the public, by proclamation or otherwise, that the President claimed tills power and had exercised it in the manner stated in the return. And I certainly listened to it with some surprise, for I had supposed it to be one of those points of constitutional law, upon which there was no difference of opinion, and that it was admitted on all hands that the privilege of the writ could not be suspended except by act of Congress.

AVhcn the conspiracy of which Aaron Burr was the head became 80 formidable, and was so extensively ramified, us to justify, in Mr. Jefferson's opinion, the suspension of the writ, he claimed, on his })art, no power to suspend it, but communicated his opinion to Con- gress, with all the proofs in his possession, in order that Congress might exercise its discretion upon the subject, aiwi determine whether the public safet}- required it. And in the .debate which took place upon the subject, no one suggested tliat Mr. Jefferson might exercise the power himself, if, in Ids opinion, the public safety demanded it.

Daviug, therefore regarded the question as too plain and too well settled to be open to dispute, if the commanding officer had stated that upon his own responsibility, and in the exercise of his own dis- cretion, he refused obedience to the writ, I should have contented myself with referring to the clause in the Constitution, and to the construction it received from ever}' jurist and statesman of that day, when the case of Burr .was beforxj them. But being thus officially notified that the privilege of the writ has been suspended under the orders and b}' the aytliority of the President, and, believing, as I do, that the President has exercised a power which he does not posesss under the £!onstitution, a proper respect for the high office he fills, requires uK^tcj^state plainly aud fully the grounds of my opinion, in order to show that I have not ventured to question the legality of liis act without a careful and deliberate examination of the whole subject.

This clause in the Constitution, which authorizes the suspension of the privilege of the writ of Jiabeas corpus, is in the 9th section of :he iirst article.

This .ai'ticle is devoted to the legislative department of the United

S OPINION OF CHIEF JUSTICE TAXEV IN THE

States, and has not the slij2;iitest reference to the Executive depart- ment. It be_i>-ins by providing "tliat all legislative powers therein granted, siiall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." And after prescribing the numner in which these two branches of the legisla- tive department shall be cliosen, it proceeds to enumerate specifically the legislalivg powers which it thereby grants, and legislative pow- ers which it expressly prohibits, and, at tiic conclusion of this speci- fication, a clause is inserted, giving Congress "the power .to make all laws which may be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitu- tion in the government of the United States or in any department or office thereof."

The power of Icgislaton granted by this latter clause is b}'- its words carefully confined to the specific objects before enumerated. — But as this limitation was unavoidably scnnewhat indefinite, it was deemed neecssary to guard more effectually certaiii great cardinal l)rinciples essential to the liberty of the citi/.en, and to the rights and (.'quality of the States, by denying to Congress in express terms, any power of legislating over thein. It was apprehended, it seeins, that such legislation might be attempted under the pretext that it was }iecessary and proper to carry into execution the povv'crs granted ; and it was determined that there should be no room to doubt, where rights of such vital iuipoitance- were concerned, and accordingly, this clause is immediately followed by an enumeration of certain subjects, to wli,ich the powers of legislation shall not extend ;• and the great importance which the framers of the Constitution attached to the privilege of the Avrit of h'lheas corpus to protect the liberty of the citizen, is proved by the fact tliat its suspension, except in cases of invasion and rebellion, is first in the list of prohibited powers — and even in these cases, the power is denied, and its exercise pro- hibited, unless the public safety shall require it. It is true, that in il'C cases mentioned, Congress is of necessity the judge of whether 1 ho public safety does or does not require it ; and its judgement 18 conclusive. But the intioduction of these words is a standing ad- monition to the legislative bod^'- of the danger of suspending it, and of the extreme caution they should exercise before they give the (rovernment of the United States such i^ower over the liberty of a citizen.

It is the 2d article of the Constitution that provides for the organ- ization of the Executive Department, and enumerates the powers conferred on it, and prescribes its duties. And if the high power over the liberty of thj citizen now claimed, wa-5 iutendwd to be con- ferred oa the President, it vs'ould undoubtedly be foui^ in plain words in this article. But tliere is not a word in it that can furnisli the slighest ground to justify tlie exercise of this power.

'J'he article begins by declaring that tlie E.iecutive power shall bo vested in a President of the United States of "l\merica, to hold his f'flice during the term of four years — and then proceeds to prescribe I he mode of election, and to specify, in precise and plain words, the powers delegated to him and the duties imposed upon him. And tho

MEKRVMAK HABEAS CORPrS CAr.E. '^ ^

filiort term for Avliich ho is elected, and the nnvrow limits to which Jiis power is confined, show the jealously and npproheusioJis of future flanger whicii the i'raniera of the Constitution icit in relation to thut department of the Government — and liow carefully they withheld from it jnany of the powers belong-ing* to the Executive branch of ilie English (Joverninent, -which were considered as dang-erous to the lilicrfy of the subject — and conferred (and that in clear and spocilic tin-ms) tliose powers oidy whicli were deemed ^essential to secure thtf successful operation of the Government. *'^-

lie is elected, as I have already said, for the brief term of fou?" years, and is made personally responsible, by impeachment, for mal- l't>asanco in ofiice. Jb; is from necessity and the nature of his duties, the commander-in-chief of the arniy and navy, and of the militia, when called into actual service. But no appropriatioti for the sup- jHirt of the ^army can bo made by Congress for a longer term than iwo years, so that it is in the power of the succeeding' House of Representatives to withhold the appropriation for its support, and thus disband it, if, in their judgment, (he President used, or designed to use it for improper purposes.- And although tiio militia, when in actual service, are under his command, yet the appointment of the officers is reservq^l to the States, as a securit;^' against the use of the military power for purposes dangerous to the liberties of the people or the rights of the Slates.

So, too, his powers in ndation to the civil duties and authority noccssarily conierred on him, are carefully restricted, as well as thoso belonging to his military character. He cannot appoint the ordinary officers of Government nor make a treaty with a foreign nation ojp Indian tribe without the advice and consent of the Senate, and can- not appoint even inferior officers unless he is authorized by an act of ('Ongress to do so. He is not empowered to arrest any one charged with an olfence against the United States, and whom he may, from the evidence before him, believe to be guilty — nor can he authorize any officer, civil or military, to exercise this power ; for the 5tii arti- cle oi the amendments to the Constitution expressly provides that no pprson " shall be dcin-ived of life, liberty or property witliou-t dui) ])rocess of law," — that is, judicial process. And even if the privilege of the writ Oi haheas corpus v,-i\^ suspended by act of Congress, and a party not subject to the rules and articles of war was afterwards arrested and imprisoned l)y regular judicial process, ho could not bo detained in prison or brought to trial before a military tribunal, for the article in the amendments to Constitution, immediately I'ollowiiig the one above referred to — that is, the 6th article — provides that " in all criminal pi'osecutions the accused shall enjoy the right to a speedy and public trial by an imparlial jury of the State and district wherein the crime shall have been connnitted, which district shall have been jirevionsly ascertained by law, and to be informed of the nature and cause of the accusation ; to be confronted wiih the witnesses against liira ; to have comj)uls(yi'y process for obtaining witnesses in his favor, and lo have the assistance of counsel for his defence."

And the only power, therefore, which the Presi.lent possesses, where the "life, liberty or property" of a private citizen is concerned,

£» OPISION OF CHIEF JUSTICE TANEY IN THE

is the power aiid duty presciibed in tlio tliird section of the 2d ar(ii-!o, whicii requires " that lie shall take care that the laws be faithlully ixecuted." He is not authorized to execute them himself, or tlirougU u.L^ents or officers, civil or military, appointed by himself, but he ist.. take care that they ,be faithfully carried into execution as they are (,'xpounded and adjudged by the co-ordinate branch of the Govern- ment, to which that duty is assigned b}'- the Oonstitutiou. it is thus made his duty to come in aid of the judicial authority, if it shall be resisted by a force too strong to be overcome without the assistance /.>f the Executive arm. Bui iu exercising this power, he acts in sub- ordinate to judicial authority', assisting it to execute its process and ontbrce its judgments.

With such. provisions in the Constitution, expressed in language loo clear to be misunderstood by any on«, I can see no ground what- ever for Eupposing that the President, in any emergency or in any state of tilings, can authorize the suspension of the privilege of the v.-r\toi' habeas corpus, or arrest a citizen, except in aid of the judicial ])ower. He certainly does not faithfully execute the laws if he takes apon himself legislative power by suspending the writ of habeas cor- pus— and the judicial power, also, by arresting and imprisoning a person without due process of law. 'Mor can any argument be drawn from the nature of sovereignty, or the necessitiee of government for self defence in times of tumult and danger. The Government of the ■ "Jnited States is one of delegated and limited powers. It derives its •jxistence and authority altogether from the Constitution, and neither of its branches. Executive, Legislative or Judicial, can exercise anj'- •d" the powers of government beyond those specified and granted. For the 10th article of the amendments to the Constitution, in express terras, provides that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States are reserved to the States respectively, or to the people."

Indeed, the security against imprisonment by executive authority, provided for in the fifth article of the amendments to the Constitution, which I have before quoted, is nothing more than a copy of a like ))rovision in the English Constitution, which had been firmly estab- lished before the Declaration of Independence.

Blackstone, in his Commentaries, (1st vol., 131) states it in the following words :

"To make imprisonment lawful, it must be either by process from the Courts of Judicature or by warrant from some legal officer having authority to commit to prison." And the people of the United Colo- nies, who had themselves lived under its protection while they were British subjects, were well aware of the necessit}' of this safeguard Ibr their personal liberty. And no one can believe that in framing a government intended to guard still more efficiently the rights and liberties of the citizens against executive encroachment and oppres- sion, they would have conferred on the President a power which the liistory of England had proved to be dangerous and oppressive in the hands of the Crown, and which the people of England had compelled it to surrender after a long and obstinate struggle on the part of the jljnglish Executive to usurp and retain it.

MF.nilYMAN IIAHKAS CORPUS CAHf.. ill

The right of tl)e subject to the benefit of the writ of habeas corpii<. it must be recollected, was one of the great points in coatrovorsy ill England between arbitrary government and free institutions, an<! must, therefore, have strongly attracted the attention of statesmen <!ngaged in framing anew, and, as they supposed, a freer government; than the one which they had thrown otl" by the revolution. For, from the earliest history of the Common Law, if the person was innprisonc'l — no matter by what authorit}' — he had a right to the writ oUiabca^ iorpws to bring his case before the King's Bench ; and if no specifi«; Ajlfence was charged against him in the warrant of commitment, ho ■was entitled to be forthwith discharged ; and if an ofience was charged which wius bailable in its character, the cocrt was bound to net him at liberty on bail. And the most exciting contests between the Grown and the people of England from the time of the Magna ('harta, were in relation to the privilege cf this writ, and thej' con- tinued until the passage of the statute of Slst Ciiarlcs 2d, commonly ;,known as the great Jmbnas corpus act. This statute )>nt an end to the struggle, and finally and firmly seor.red the liberty of the subject from the usurpation and oppressioji of the executive branch of the (iovernment. It nevertheless conferred no right upon the subject, but only secured aright already existing. For, although the right could not justly be denied, there was often no effectual remedy against its violation. Until the statute of the 13th William 8d, the Judges held their offices at the pleasure of the King, and the influence which he exercised over timid, time-serving and partisan Judges «ftcn induced them, upon some pretext or other to refuse to discharge ihe party, although he was entitled to it by lav/, or delayed their decisions from time to time, so as to prolong the imprisonment of persons who were obnoxous to the King for their political opinions, or had incurred his resentment in any other way.

The great and ir.estimable value of the kaheas ccrpus act of the 31st <vbarles 2, is that it contains provisions which compel courts and judges, and all ])arties concer;icd, to .perform their duties promptly, in the manner specified in the statute.

A passage in 13 hickf: tone's Conimcntaries, showing the ancient state of the law upon this subject, and the abuses which were practiced through tlie power ai>d infiuence of the Crown, and a short extract from Ilallam's Constitutional 'History, stating the circumstances which gave rise to the. passage of this statute, explain briefly, but fully, all that is material to this subject.

Blackstone, in his Commentaries on the Laws of England, 3d vol., 133-134, says :

"To assert an absoiute exemption from imprisonment in all cases, is inconsistent with every id(>a of law and political society, and in thj ,end would destroy all civil liljcrty, by rendering its protection impos- silile.

"But the glory of the English law consists in clearly defining th.c

times, the causes, and th(! extent, when, wherefore, and to Avhat df-

gree the imjn-isonment of the subject may be lawful. This it is which

'induces the absolute necessity of expressing upon every commitment

he reason for which it is made, that the court upon a habca>^ c6'?-j>»o:

■

MB

12

OPINION OF CHIEF JUSTICE TANEY IN THE

may examine into its validity, and according- to the circumstances ctf the case, may discharg'c, admit to bail, or remand the prisoner.

"xVnd yet early in the rcig'u of Charles I., the Court of King's Bench, relying on some arbitrary precedents (and those perhaps misunder- stood,) determined that they would not, upon a habeas corpus, either bail or deliver a prisoner, though committed without any cause as- fiigned, in case he was connnittcd by the sjiecial command of the . King or by the Lords of the i'rivy Council. This drew on a Parlia- mentary inquiry, and produced the Fef.ition of Bights — 3 Chas. I — which recites this illegal judgment and enacts that no freeman here- after shall be so imprisoned or detained. But when in the following year Mr. Selden and (others were committed l)y the Lords of the Council in pursuance of his Majes'ty's sj)ecial command, under a gen- eral charge of 'notable contempts, and stirring* up sedition against (he King and the Government,' the judges delayed for two terms (including also the long vacation,) to deliver an opinion how far such a charge was bailable. And when at length they agreed that it vvas, they anaiexcd a condition of finding sureties for their good behavior, which still protracted their imprisonment, the Chief Justice, Sir Nicii- f>la8 Hyde, at the samo time declaring that ' if they Avere again re- manded for that cause perhaps the court would not grant a habeas ri)rpus, being already acquainted Avith the cause of the imprisonment.' But this Vv'as heard with indignation and astonishment by every law- yer present, according to Mr. Seidell's own account of the matter, whose resentment was not cooled at the distance of four-and-twenty years."

It is worthy of remark that the offences charged against the priso- ner in this case, and relied on as a justification for his arrest and im- prisonment, in their nature and character, and in the loose and vague 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 :

''It is a very common mistake, and not only among foreigners, but many from whom some knowledge of our constitutional laws might 1)0 expected, to suppose that this statute of Charles 11. enlarged in a great degree our liberties, and forms a sort of epoch in their history. i5ut though a very beneficial enactment, and eminently remedial in many cases of illegal imjn-isonmcnt, it introduced no new principle, nor conferred any right upon the subject. From the earliest records of the English law, no freeman could bo. detained in prison, except upon a criminal charge, or •conviction, or for a civil debt. In the :!i!rmer case it was alwaj'S in his power to demand of tlie Court of J'Cing'/^ Bench a writ of habeas corpus ad imbjiciendum directed to the persozi detaining him in custody, by which he was enjoined to bring up the body of the prisoner with tlie warrant of commitment, that the court might judge of its oufficieucy, and remand the party, admit

MERRYMAX HABEAS CORPUS CASK.

in

liim to bail, or discharG:e him accordinj^ to the nature of the charg-e. This writ issued of rig-ht, and could not bo refused by the court. It was not to bestow an innuunity iVom arbitrary ini])risonment, which is abu!idantly provided for in Mag-na Charta, (if indeed it were not niore ajicient,) that tiie .statute of Cliarles II. was enacted, but to cut ofU'thc abuses by which the g'overnment's hist of powei-, and the sci- viU) subtlety of Crown hiwycrs had impaired so fundanic;itul a privi- Icg-e."

While the value set upon this writ in Eng'land has been so gTcat that the removal of the abuses whi(;h embarrassed its enjoyment liave been looked upon as almost a new grant of liberty to tiie subject, it is not to be wonden.-d that tiie continuance of the writ thus made eifective should have IxMni the object of the most jealous care. Ac- cordingly, no i)ower in Eng'land short of that of Parliament can sus- pend or authorize the suspension of the writ of habeas corjms. I quote again from Blackstono (1 Comm. lo(i): "But the happiness of our Constitution is, that it is not left to the executive power to determine when the dang'er of the state is so g-rcat as to render this measun; inexpedient. It is the Parliament only, or log-islative power, that whenever it sees proper, can authorize tlie CroWn by suspending' the habeas. vorpui^ for a short and limited time, to imprison susp(»cted per- sons witl'.ijut g'iving- any reason for so doing-." And if the President of the United States nray suspend the writ, tlM!n the Constitution of the United States has conferred upon him moffi reg-al and absolute jjower over the liberty of the citi/.en than the people of I'^ng^land have thought it safe to entrust to the Crown — a power wliich the Queen of England cannot exercise at this day, and v/hicli could not have been lawfully exercised'by the Sovereign even in the reiu'u of Charles the First. ■ ' ^ .

But I am not left to form my judgment upon this great question, from analogies between the English Government and oui- ovni, or the commentaries of Eii£>-lisli jurists, or the decisions of English courts, although upon this sidiject they are entitled to the highest resjiect, and are justly regarded and received as authoritative by our Courts of Justice. To guide me to a right conclusion, I have the commenta- ries 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 (mo of tlio brightest ornaments of the Supreme Court of the United States, and also tlio clear and authoritative decision of that Court itself, given more than half a century since, and conclusively establishing the principles I have above stated.

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

"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 coiuitries, and even in England, that the writ has, upon various pretexts and occasions, been suspended, whereby persons aftprehended upon sus- picion have; suffered a long imprisoimient, sometimes from design and sometimes because they were forgotten, the right to suspend it is expressly coniined to cases of rebellion or invasioji, Avhcre the public

12 OPINION OF CHIEF JUSTICE TAXEY IN THE

may examine into its validity, and according^ to the circumstances of the case, may discharge, admit to bail, or remand the prisoner.

"And yet early in the reign of Charles I., the Court of King's Bench, relying on some arbitrary precedents (and those perhaps misunder- stood,) determined that they would not, upon a habeas co7'pus, either bail or deliver a prisoner, though committ(Kl without any cause as- signed, in case he was committed by the b])ecial command of the. King or by the Lords of the Privy Council. This drew on a Parlia- mentary inquiry, and produced the Petition of Bights — 3 Chas. I — which recites this illegal judgment and enacts that no freeman here- after shall be so imprisoned or detained. But when in the following year Mr. Selden and others Avere committed V)y the Lords of the Council in pursuance of his Majes'ty's special command, under a gen- oral charge of 'notable contempts, and stirring up sedition against (ho King and the Government,' the judges delayed for two terms (including also the long vacation,) to deliver an opinion how far such a charge was bailable. And when at lonp:th they agreed that it was, they ai^nexed a condition of finding sureties for their good behavior, which still protracted their imprisonment, the Chief Justice, Sir Nich- olas Hyde, at the same time declaring that ' if they Avere again re- manded for that cause perhaps the court would jiot grant a habeas corpus, being already acquainted with the cause of the imprisonment.' i>ut this Vi'as heard with indignation and astonishment by every law- yer present, according to Mr. Selden's own account of the matter, whose resentment was not cooled at the distance of four-and-twenty years."

It is worthy of remark that the offences charged against the priso- nev in this case, and relied on as a justification for his arrest and im- prisonment, in their nature and character, and in the loose and vague manner in which they are stated, bear a striking resemblance to those assigned in the warrant Jbr the arrest of Mr. iSelden. And yet, even at tliat 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 MCt him at liberty upon the habeas corpus issued in his behalf, excited the universal indignation of the bar. The extract from Hallam's < 'onstitutional History is equally impressive and equally in point. It irf in vol. 4, p. 14 :

"It is a very com^mon mistake, and not only among foreigners, but man}' from whom some knoAvlcdge of our constitutional laws might he 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, ikit though a very beneficial enactment, and eminently remedial in niany cases of illegal imjjrisonmcnt, it introduced no ncAv principle, i!or conferred any right upon the subject. From {he earliest records ui' the English law, no freeman could be detained in prison, except iil^m a criminal charge, or conviction, or for a civil debt. In the fnrmer case it was alv.'-a.ys in his power to demand of the Court of King'^ Bench a writ of habeas corpus nd subjiciendum directed to the p(?r.so-i detaining him in custody, by which he was enjoined to bring iij> the body of the prisoner with the warrant of conunitment, that Hie court might judge of its sufucicnry, and remand the party, admit

MERRYMAX HABEAS CORPUS CASK. IH

him to bail, or discharg'e him according to the nature of the charg-o. Tills writ issued of riyht, and coukl not be refused by the court. It was not to bestow an imnumity from arbitrary im])risonment, whicli is abu!idantly provided for in Mag-na Charta, (if indeed it were not more ancient,) tliat tlie statute of Ciiarles II. was enacted, bnt to cut oflf the abuses by whicli the g'overnnient's hist of power, and the ser- vile subtlety of Crown lawyers had impaired so fundanic;ital a iirivi- lege."

While the value set upon this writ in Eng'land has been so ^'>nrcat that the removal of the abuses which embarrassed its enjoyment have been lotjkcd upon as almost a new g-rant of liberty to the subject, it is not to be wondered that the continuance of the writ thus made elFective should have been the object of the most jealous care. Ac- cordingly, no ])ower in England short of that of Parliament can sus- pend or authorize the suspension of the writ of JiabmHcorj^tis. I quote again from Blackstone (1 Comm. lo()) : "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 nieasuiH! inexpedient. It is the Parliament only, or legislative power, that whenever it sees proper, can authorize the Cro^t^n by suspending the habeas. vorpit>t for a short and limited time, to imprison susp(»cted per- sons without giving any reason for so doing." And if the President of the United ^^tates may suspend tlie writ, tlM;n the Constitution of the United States has conferred upon him more i;egal and absolute ))ower over the liberty of the citizen than the people of England have thought it safe to entrust to the Crown — a poAver Avhich the Queen of England cannot exercise at this day, and v/hich could not have bee:i lawfully exerciscd*by the Sovereign even in the reign of Charles the First.

But I am not left to form my judgment upon this groat question, from analogies between the Englisli Government and our owv, or the commentaries of English jurists, or the decisions of English courts, although upon this subjc^ct 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 commenta- ries 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 a century since, and conclusively establishing t!ie jirinciples I have above stated.

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

"It is obvious that (;ases 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 aj^prchended upon sus- })icion have suffered a long imprisonment, sometimes from design and sometimes because they were forgotten, the right to suspend it is expressly confined to cases of rebellion or invasion, where the public

14 OPINION OF CHIEF JUSTICE TANEY IN THE

safety may require it. A very just and wholesome restraint, whicl cuts down at a blow a fruitful means of oppression, capable of bcin;." used in bad times to the worst of purposes, llithevfo no suspensioi' of the writ has ever been authorized by Congivsi* since the establish- laent of the Constitution. It would seem,- as the pow'er is given ti' (Congress to suspend the writ of hctbeafi corjnis in cases of rebel lioi or invasion, that the right to judge whether the exigency had arise) . must exclusively belong to that Ijody." 3 Story's Com. on the Con stitution, section 1836.

AndCliief Justice Marshall, in delivering the opinion of the Supreme Court, in the case of ex jxirte Bollman and SAvartwout, uses this deci sive language in 4 Cranch, 95 :

"It may be worthy of remark, that this act (speaking of the onr under which I am proceeding) was passed by the lirst Congress o the United States, sitting under a Constitution which had declarei. 'that the privilege of the writ of habeas eorjnis should not be suspen- ded, unless, when in cases of rebellion or invasion, the public safetv might require it.' Acting under the immediate influence of this in- junction, tiRy nuist have felt, with peculiar force, the obligation of providing efficient means by which this great constitutional privilege should receive life and activity ; for if tiie means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation they give to all courts the power of awarding writs of habeas corpu^P

And again, in page 101 :

"If at any time the public safety should- require the suspension of the powers vested by this act in the courts of the United States, it is for the Legislature to say so. That question depends on political considerations, on which the Legislature is to decide. Until the Leg- islative 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.

But the documents before me sho-vV- that the military authority in this case lias gone far bcj^ond the mere suspension of the privilege of the writ of habeas cornms. It has, by force of arms, thrust aside the judicial authorities and officers to whom the Constitution has con-- fided the power and dnty of interpreting and administering the laws, and substituted a military government in its place, to be administered and executed by military officers. For, at tlie 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 tlie home of the prisoner. Up to that time, there^had never been the slightest resistance or obstruction to the process of any court or judicial officer of the United States in Maryland, exccpr, 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 laws of the United States, it was his duty to give- information of the fact, and the evidence to support it, to the Dis- trict'Attorney ; and it would then have become the duty of that offi.-

MERKYJfAjT 3ASEAS CORPUS CASE. lf»

'"or to bring the matter beffvre the District JiKl<i:c or CommissioncT, and if there avus sufficient legal evidence to justiiy his arrest, tlio •fudge or Commissioner wonld have issued his Avarrant to the Marshal ti> arrest him ; and upon the hearing- of the part}', would have held him to bail, or committed hin\ for trial, according to the charactei" of the offence as it appeared in the testimony, or would have dit^^ cliarged him immediately, if there was not sufiicient evidence to sup-* port the accusation. There was no danger of any obstruction or re- sistance to the action of the civil authorities, and therefore no reasoji. whatever for the interposition of the military. And yet, under the.s(^ circumstances, a military officer stationed in Pennsylvania, without; giving any information to the District Attorney, and without any aji-. plication to the judicial authorities, assumes to himself the judicial ))ower in the District of Maryland, undertakes to decide what consti-^ tutes the crime of treason or rebellion, what evidence (if, indeed h<> rc(|uired any) is sufficient to support the accusation an ! justify thd commitment, and commits the party, without having a hearing even before himself, to close custody in a sti'ongly garriso;icd fort, to be there JK-dd, it would seem, during tlie pleasure of those Avho commit- ted him.

The Constitution provides, as I have before said, tliat "no persoi' shall be deprived of life, liberty or property, without due process o' law." It declares that "the right of the peopl^ to be secure in theii persons, houses, papers and etVects, against unreasonable searches and seis^ures, 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 person and thing-s to bd seized." It provides that the party accused, shall be entitled to ;i» speedy trial, in a court of justice.

And these great and fundamental laws, which Congress itself could not suspend, have been disregarded an<l suspended, like the writ of habeas corpm, by a military order, supported hy force of arms. Such is the case now before me, and I can only say that, if the authority which the Constitutiun has confided to the judiciary department and judiciary officers, may thus, upon any pretext, or luider any circum- stances, be usurped by the military power at its discretion, the peo- ple of the United States are no longer living under a' government of laws, but every citizen holds life, liberty and property, at the will aniJ 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 ex- ercised all the pOAver which the Constitution and laAvs confer on me, but that power has l>ecn resisted by a force too strong for me to overcome. It is possible that the officer Avho has incurred this graA-e responsibility, may have misunderstood his instructions, and exceeded the authority intended to be gi\'en 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 Avill th'Mi remain for that high officer, in. fulfilment of his constitutional obligation, to "take care that the law.H-

16 mi:kry.\!a"S" habeas corpus cask.

W. fiiithfully executed," to determine what measures lie will take to cause the eivil process of the United States to be respected and en-

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U. 15. TANEY.

Chief' J'udi'X uf tJw Supreme Court of the ZMifcd S:.'fr,^.

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N P	I	DATE	I	PG	L L	Y P
C C		2/28/85	B B	3	P	F R
C C C		10/0<./R^ lO/l7/8<, 5/03/85	B A A	7 12 7	P	F L F
c		10/26/8^	A	16	P	N
c		3/19/85	A	12	P	N
c		8/27/8'!	A	16		J
c		9/20/n<.	A	9		J
c		ll/30/8<»	A	7		J
c c c		3/27/85 3/27/85 3/27/85	B 8 D	3 6	P P P	F F F
c c c		1/13/85 3/11/85 3/27/85	A A B	3 <•	P P P	N F
c		1/31/85	A	3		N
c		6/14/8^	A	10		R
c c		lo/ia/g^f 10/26/8^.	A A	7 5	T	T N