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" an enduring monument of official fidelity " — " a proud
evidence of octogenarian ability." It is more than all this.
It is probably the most important judicial opinion ever
pronounced in this country. It is the highest and most
authoritative challenge known under our Constitution, of
the exercise of despotic power, and of sweeping, destructive
precedents of Executive usurpation ; and given at a time
when the question of the supremacy of law in our land, and
of the sanctity of constitutional guarantees of personal lib-
erty, possibly for all time to come, is being settled. It is
such a challenge as must check the progress toward despot-
ism, or else make it more rapid and resistless, by the
exposure of its lawlessness, and the natural acceleration of
evil when it has once broken through the most powerful
restraints, and begins unblushingly to trample under foot
the sacred authority of law. It has already been set at
defiance by the Executive, but it is to be hoped that it will


yet arouse the nation, at least when the people have suf-
fered more and have been put more upon the study of the
rudimental principles of their liberty.

The case eliciting the opinion is thus strongly stated by
the Chief Justice:

" A military officer, residing in Pennsylvania, issues an order to
arrest a citizen of Maryland, upon vague and indefinite charges,
without any proof so far as appears. Under this order his house is
entered in the night; he is secured as a prisoner, and conveyed to
Fort McHenry, and there kept in close confinement. And when a
habeas corpus is served on the commanding officer, requiring him to
produce the prisoner before a justice of the Supreme Court, in order
that he may examine into the legality of the imprisonment, the
answer of the officer is that he is authorized by the President to sus-
pend the writ of habeas corpus at his discretion, and, in the exercise
of that discretion, suspends it in this case, and on that ground
refuses obedience to the writ."

The arrest was made by Gen. Keim, of Pennsylvania, and
the prisoner was in the custody of Gen. Cadwallader. A
copy of the writ or order of arrest was refused to the pris-
oner's counsel. And it appears that there was no charge of
any specific act of violation of the laws of the United States,
but only a general charge of rebellion and treason, without
the testimony supported by oath, or even the names, of wit-
nesses. It is not necessary, however, to go into detail of the
circumstances, both because they are well known, and be-
cause such cases have since become very numerous. The
country has become familiar with that by which it was at
first so much startled. Political prisoners are now numbered
by the hundred, and even by the thousand — seized in the
same disregard of the provision of the Constitution that
no person " shall be deprived of life, liberty, or property,
without due process of law." Torn suddenly from their
families — in many cases refused the poor privilege of bid-
ding their wives and children adieu, or of procuring a change
of clothing. Denied the right which the Constitution guar-


antees to the person accused in all criminal prosecutions,
"to a speedy and public trial, by an impartial jury of the
state and district wherein the crime shall have been com-
mitted ; to be informed of the nature and cause of the
accusation ; to be confronted with the witnesses against
him ; to have compulsory process for obtaining witnesses in
his favor; and to have the assistance of counsel for his
defense." The officer of the law bearing the great writ of
habeas corpus, for their protection in this right, dismissed
with contempt, or repelled at the point of the bayonet.
Transported to some distant state, where no assistance of
friends can reach them. Lying now in remote prisons, soon
to be forgotten in the rapid succession of exciting public
events, save in the appalling gloom of their desolate homes
and the hearts of their stricken families — until the jealousy
of the people shall begin to inquire for them, and their
indignation burst in tones of thunder upon the ear of the

It only remains to be added, to complete the statement of
the case before Chief Justice Taney, that at the time of the
arrest of Merryman, the United States District Judge of
Maryland, Commissioner, District Attorney and Marshal, all
resided in Baltimore, a few miles from the house of the pris-
aner, offering a sure and speedy mode of apprehension and
commitment by " due process of law," if there had been the
proper evidence to authorize it, and amplest security against
any detriment to the public interest by delay. Further,
that after the arrest had been made, and the petition for a
habeas corpus was presented to Chief Justice Taney at "Wash-
ington, he did not order the prisoner to be brought before
him there, but repaired to Baltimore, which is in his circuit,
that Gen. Cadwallader might not be withdrawn from his
military post. Under these circumstances, the disobedience
to the writ was the most direct, deliberate and violent resist-
ance to judicial authority, in its most august form in this
land, and in a matter involving one of the most vital prin-
ciples of the Constitution, and one of the most sacred rights


of every citizen ; presenting a case of surpassing interest
and moment to the American people.

The Chief Justice examines the monstrous claim of the
President, of the right " not only to suspend the writ of
habeas corpus himself, at his discretion, but to delegate that
discretionary power to a military officer,*and to leave it to
him to determine whether he will or will not obey the judi-
cial process that may be served upon him." He holds that
the President can not in any emergency, or in any state of
things, authorize the suspension of the privilege of the writ,
or arrest a citizen, except in aid of the judicial power; that
this is an authority belonging exclusively to the Legislative
department of the Government — to Congress. He supports
this opinion by an examination of the Constitution of the
United States ; of the English Constitution, which gives the
power to suspend the writ of habeas corpus to Parliament
only, and the analogy between the English Government and
our own ; of the Judiciary Act of 1789 ; and of the history
of the habeas corpus in England and in the United States.
He, further, charges that in this case the military authority
had gone far beyond the mere suspension of the privilege of
the writ of habeas 1 corpus. It had " by force of arms thrust
aside the judicial authorities and officers to whom the Con-
stitution has confided the power and duty of interpreting
and administering the laws, and substituted military govern-
ment in its place, to be administered and executed by military
officers." A military officer in Pennsylvania had assumed
judicial power in Maryland; had caused an arrest in the
immediate presence of the competent United States judicial
authorities and officers; had undertaken to decide what
constitutes the crime of treason or rebellion ; and had im-
prisoned, without even a hearing before himself, a citizen of
Maryland, to remain in confinement during the pleasure of
those who committed him. Fundamental laws had thus
been suspended which even Congress has not power to sus-
pend. For even if the privilege of habeas corpus be suspended
by the only constitutional power that can suspend it, it still


remains among the indestructible rights guaranteed in the
Constitution, that " no warrant shall issue, but upon probable
cause, supported by oath or affirmation "; that the accused
shall be "confronted with the witnesses against him"; and
shall have " a speedy and public trial, before an impartial
jury of the state and district wherein the offense shall have
been committed."

The venerable Chief Justice thus concludes:

"Such is the case now before me, and I can only say, that if the
authority which the Constitution has confided to the judiciary depart-
ment and judicial officers may thus, upon any pretext, or under any
circumstances, be usurped by the military power at its discretion, the
people of the United States are no longer living under a government
of laws, but every citizen holds life, liberty and property at the will
and pleasure of the army officer in whose district he may happen to
be found.

'•In such a case my duty was too plain to be mistaken. I have
exercised all the power which the Constitution and laws confer on
me, but that power has been resisted by a force too strong for me to
overcome. It is possible that the officer who has incurred this grave
responsibility may have misunderstood his instructions and exceeded
the authority intended to be given him. I shall, therefore, order all
the proceedings in this case, with my opinion, to be filed and recorded
in the Circuit Court of the United States for the District of Maryland,
and direct the Clerk to transmit a copy, under seal, to the President
of the United States. It will then remain for that high officer, in
fulfillment of his Constitutional obligation, to "take care that the
laws be faithfully executed," to determine what measure he will take
to cause the civil process of the United States to be respected and

The melancholy conclusion of the whole matter was the
sustaining of the military authority by the President, in the
continued disobedience to the judicial process and retention
of the prisoner, thus fixing the initial and the final responsi-
bility in this violent procedure, upon the highest executive
officer of our Government.

The papers which have now been noticed cover the whole


ground of the questions to which they relate. It were well
if they were put into the hands of every citizen of the United
States. We can only recommend them to our readers, while
for those under whose eye they may not fall, we develop
some of the arguments and present some of the authorities
which they furnish to our hand.

The writ of habeas corpus has been the great instrument
for the protection of the personal liberty of freemen, wherever
men have been free. Its history down to its engrafting from
the common law into our own Constitution, is thus sketched
by Judge Kane, of the United States District Court, (4 Am-
erican Law Register, 13 :)

"The writ of habeas corpus is of immemorial antiquity; it is
deduced by the standard writers on the English law from the Great
Charter of King John. It is unquestionable, however, that it is
substantially of much earlier date; and it may be referred, without
improbability, to the period of the Roman invasion. Like the trial
by jury, it entered into the institutions of Rome before the Christian
era, if not as early as the times of the Republic. Through the long
series of political struggles which gave form to the British Constitu-
tion, it was claimed as the birth-right of every Englishman, and our
ancestors brought it with them, as such, to this country. At the
common law it issued whenever a citizen was denied the exercise of
his personal liberty, or was deprived of his rightful control over any
member of his household, his wife, his child, his ward, or his servant.
It issued from the courts of the sovereign, and, in his name, at the
instance of any one who invoked it, either for himself or another.
It commanded, almost in the words of the Roman edict, < de libero
Jiomine exhibendo,' that the party under detention should be produced
before the Court, there to await its decree. It left no discretion with
the party to whom it was addressed. He was not to constitute him-
self the judge of his own rights or of his own conduct, but to bring
in the body, and to declare the cause wherefore he had detained it;
and the judge was then to determine whether that cause was sufficient
in law or not. Such in America, as well as England, was the well-
known, universally recognized writ of habeas corpus. When the
Federal Convention was engaged in framing a Constitution for the
United States, a proposition was submitted to it by one of the mem-


bers, that ' the privileges and benefits of the writ of habeas corpus
shall be enjoyed in this Government in the most expeditious and
ample manner ; and shall not be suspended by the Legislature
except upon the most urgent and pressing occasions.' The committee
to whom it was referred for consideration, would seem to have regarded
the privilege in question as too definitely implied in the idea of free
government to need formal assertion or confirmation ; for they struck
out that part of the proposed article in which it was affirmed, and
retained only so much as excluded the question of its suspension
from the ordinary range of Congressional legislation. The Conven-
tion itself must have concurred in their views, for in the Consti-
tution, as digested and finally ratified, and as it stands now, there is
neither enactment nor recognition of the privilege of this writ, except
as it is implied in the provision that it shall not be suspended. It
stands then under the Constitution of the United States as it was under
the common law of English America, an indefeasible privilege, above
the sphere of ordinary legislation."

The benefit of this writ has always been the privilege of
Englishmen from the earliest history of the common law,
and the earliest period of their national existence — obscured,
violated, trampled upon, indeed, it has been by arbitrary and
despotic power, but never relinquished by them. It was not
created by the Magna Charta nor by the celebrated statutes
of 25th Edward III, or 31st Charles II. These were but
recognitions of the privilege by the crown — extorted secu-
rities of a right already existing — the latter more decisive
and final, putting an end to abuses and to the long contro-
versy respecting it. The severest and longest struggles
between the English Crown and the people related to the
privilege of this writ, and each issued in a more distinct
recognition of it, and an ampler security for its undisturbed
enjoyment, until finally the entire control of it was removed
entirely beyond the reach of the crown.* Our fathers brought
it to this continent with the English blood circling in their
veins. It stood in the common law, which was their heritage.

* Hallam's Constitutional History, vol. 8, p. 9.
C. J. Taney, Ex Parte Merryman, p. 531.


And when they came to make a government for themselves,
they put it into their Constitution.

This great writ, of immemorial antiquity : the right to
which our English ancestors, through all the period of their
history, steadily and unswervingly asserted; which they
vindicated with their blood ; the guarantees of which they
wrung from royal despots ; which our fathers brought with
them to this continent and put into their Constitution — this
great writ the President of the United States now assumes
to control ; and claims the authority ex officio to suspend the
privilege of it at his discretion, and even to delegate this
discretionary power to inferior military officers in every part
of the country ; and acting under this assumption of authority
he has caused to be arrested hundreds of citizens who now
lie in prisons, to continue there during his pleasure. And
this which might not be done by kings— by Plantageiiets,
Tudors and Stuarts — without challenge by a jealous people,
is done by a Eepublican President, about whom the framers
of our Constitution seem to have been at pains to throw
restrains to check his power, in view of which an eminent
member of the British Parliament pronounces him "the
feeblest executive perhaps ever known in any civilized com-
munity."* A claim of authority and an exercise of power so
extraordinary, surely should awaken the jealousy of the
American people.

The privilege of the habeas corpus is, of course, not
removed entirely beyond Constitutional restraint. The exi-
gencies of the State are imperious, against which no private
interest can stand. To such cases our Constitution limits
the suspension of this privilege. It provides, Art. I, sec. 9 :
" The privilege of the writ of habeas corpus shall not be sus-
pended, unless when, in cases of rebellion or invasion, the
public safety may require it." But the authority to judge
of this necessity — in the opinion of the most eminent author-
ities, among whom are all our Federal Courts, and, we

* Sir Edward Bulwer Lytton.


believe, in the opinion of all but those who would justify
themselves in the usurpation of this authority, and their
partisan supporters — it has not confided to the Executive,
against whose abuse of power the writ is designed to be a
protection, but to Congress. The decision of the question
of necessity, and the suspension of the privilege of the writ,
are legislative acts, and competent only for the National

The evidence in support of this view may be reduced to
three heads.

1. The analogy between the English Government and our
own. By the English Constitution the authority to suspend
the habeas corpus is limited to Parliament. Hallam, in the
outset upon his great work, The Constitutional History of
England (vol. I, p. 2),* enumerates five "essential checks
upon the royal authority," which were found firmly estab-
lished as early as the accession of Henry VII to the throne,
of which the last three are as follows :

" (3.) No man could be committed to prison but by a legal war-
rant specifying his offense; and by an usage nearly tantamount to
constitutional right, he must be speedily brought to trial by means
of regular sessions of gaol-delivery. (4.) The fact of guilt or
innocence on a criminal charge was determined in a public court,
and in the county where the offense was alleged to have occurred, by
a jury of twelve men, from whose unanimous verdict no appeal
could be made. Civil rights, so far as they depended on questions
of fact, were subject to the same decision. (5.) The officers and
servants of the Crown, violating the personal liberty or other right
of the subject, might be sued in an action for damages, to be assessed
by a jury, or, in some cases, were liable to criminal process ; nor
could they plead any warrant or command in their justification, not
even the direct order of the King."

Upon this point the authority of Blackstone (1 Com. 135)
will be conclusive :

* The edition to which our references are made, is that of Paris, 1841, which
does not correspond in form to that to which the references in the papers
before us are made.


" Of great importance to the public is the preservation of personal
liberty ; for if once it were left in the power of any, the highest
magistrate to imprison, arbitrarily, whomsoever he or his officers
thought proper, there would soon be an end of all other rights and
immunities. Some have thought that unjust attacks even upon life,
or property, at the arbitrary will of the magistrate, are less danger-
ous to the commonwealth than such as are upon the personal liberty
of the subject. To bereave a man of life, or by violence to confis-
cate his estate, without accusation or trial, would be so gross and
notorious an act of despotism as must at once convey the alarm of
tyranny throughout the whole kingdom ; but confinement of the
person by secretly hurrying him to jail, where his sufferings are
unknown or forgotten, is a less public, or less striking, and therefore
more dangerous engine of arbitrary government. Yet sometimes,
when the State is in real danger, even this may be a necessary
measure. But the happiness of our Constitution is, that it is not left to
the Executive power to determine when the danger of the State is so
great as to render this measure expedient; for it is the Parliament
only, or legislative power, that can authorize the Crown, by suspending
the habeas corpus act for a short or limited time, to imprison suspected
persons without giving any reason for so doing."

Such is the English Constitution, from which our fathers
derived most of their ideas of constitutional liberty. It is
not probable that they meant to put into the Constitution
they made for themselves and for their children, fewer guar-
antees of personal liberty than existed in the one under
which they had before lived. Especially having just emerged
from the struggle for Independence, in which they had
thrown off the old government on account of the abuses of
power by the Executive, it is not probable that they meant,
in the new government which they constructed for them-
selves, to enlarge the power of the Executive. They were
not dissatisfied with the English Constitution, but with its
abuses ; nor with the Government, but with the tyrannical
and oppressive acts in its administration. In their Declara-
tion of Independence nearly all their complaints are directed
against the King, the Executive head of the Government.
This was the power, then, they would be expected to guard


most jealously in making a government for themselves, being
the power from the abuse of which they had suffered most
in the past. It certainly cannot be supposed that they would
give to their Executive a more than regal power over the
liberties of the citizen — a power deemed unsafe, and denied
to the King under the English Constitution.

2. The position and natural relation of the clause of the
Constitution in question — which is the only one in the
instrument that relates to the suspension of the privilege of
the writ of habeas corpus. Here the exposition of Chief
Justice Taney is so luminous and concise, that it would be
presumption to attempt to give it in any other than his own

" The clause in the Constitution which authorizes the suspension
of the privilege of the writ of habeas corpus, is in the ninth section
of the first Article. This Article is devoted to the Legislative De-
partment of the United States, and has not the slightest reference to
the Executive Department. It begins by providing 'that all legis-
lative powers therein granted shall be vested in a Congress of the
United States, which shall consist of a Senate and House of Repre-
sentatives.' And after prescribing the manner in which these two
branches of the Legislative Department shall be chosen, it proceeds
to enumerate specifically the legislative powers which it thereby
grants, and legislative powers which it expressly prohibits, and, at
the conclusion of this specification, a clause is inserted, giving Con-
gress '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 Constitution in the Government of the
United States, or in any department or office thereof.'

" The power of legislation granted by this latter clause is by its
words cai-efully confined to the specific objects before enumerated.
But as this limitation was, unavoidably, somewhat indefinite, it was
deemed necessary to guard more effectually certain great cardinal
principles essential to the liberty of the citizen, and to the rights and
equality of the States, by denying to Congress, in express terms, any
power of legislating over them. It was apprehended, it seems, that
such legislation might be attempted, under the pretext that it was
necessary and proper to carry into execution the powers granted, and


it was determined that there should he no room to doubt where rights
of such vital importance were concerned ; and, accordingly, this
clause is immediately followed by an enumeration of certain subjects
to which the power of legislation shall not extend ; and the great
importance which |the framers of the Constitution attached to the
privilege of the writ of habeas corpus to protect the liberty of the
citizen, is proved by the fact that 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 prohibited,
unless the public safety shall require it. It is true that in the cases
mentioned, Congress is. of necessity, the judge of whether the pub-
lic safety does or does not require it; and its judgment is conclusive.
But the introduction of these words is a standing admonition to the

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Online LibraryRobert L BreckThe habeas corpus, and martial law → online text (page 2 of 4)