491

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

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

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

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

could not have been lawfully exercised by the sov. ereign, even in the reign of Charles the First.

But I am not left to form my judgment upon this great question from analogies between the English government and our own, or the commentaries of English jurists, or the decisions of English courts, although upon this subject they are entitled to the highest respect, and are justly regarded and received as authoritative by our courts of justice. To guide me to a right conclusion, I have the Commentaries 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 the principles I have above stated.

Mr. Justice Story, speaking in his Commentaries of the habeas corpus 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 countries, and even in England, that the writ has, upon various pretexts and occasions, been suspended, whereby persons apprehended upon suspicion have suffered a long imprisonment, sometimes from design, and sometimes, because they were forgotten, the right to suspend it is expressly confined to cases of rebellion or invasion, where the public safety may require it. A very just and wholesome restraint, which cuts down at a blow a fruitful means of oppression, capable of being abused in bad times to the worst of purposes. Hitherto no suspension of the writ has ever been authorized by Congress since the establishment of the Constitution. It would seem, as the power is given to Congress to suspend the writ of habeas corpus in cases of rebellion or invasion, that the right to judge, whether exigency had arisen, must exclusively belong to that body." 3 tory's Comm. on the Constitution, section 1836.

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

"It may be worthy of remark that this act [speaking of the one under which I am proceeding,] was passed by the first Congress of the United States, sitting under a Constitution which had declared that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety might require it.' Acting under the immediate influence of this injunction, they must have felt with peculiar force the obligation of providing efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give to all the courts the power of awarding writs of habeas corpus. And again, in page 101:

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

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

But the documents before me show that the military authority in this case has gone far beyond the mere suspension of the privilege of the writ of habeas corpus. It has, by force of arms, thrust aside the judicial authorities and officers to whom the Constitution has confided the power and duty of interpreting and administering the laws, and substituted a military government in its place, to be administered and executed by military officers. For at the time these proceedings were had against John Merryman, the district judge of Maryland the commissioner appointed under the act of Congress the district attorney and marshal-all resi ded in the city of Baltimore, a few miles only from the home of the prisoner. Up to that time there had never been the slightest resistance or obstruction to the process of any court or judicial officer of the United States in Maryland, except by the military authority. And, if a military officer, or any other person, had reason to believe that the prisoner had committed any offense against the laws of the United States, it was his duty to give information of the fact, and the evidence to support it, to the district attorney, and it would then have been the duty of that officer to bring the matter before the district judge or commissioner, and if there was sufficient legal evidence to justify his arrest, the judge or commissioner would have issued his warrant to the marshal to arrest him; and upon the hearing of the party would have held him to bail, or committed him for trial, according to the character of the offense as it appeared in the testimony, or would have discharged him immediately, if there was not sufficient evidence to support the accusation. There was no danger of any obstruction or resistance to the action of the civil authorities, and therefore no reason whatever for the interposition of the military. And yet, under these circumstances, a military officer, stationed in Pennsylvania, without giving any information to the district attorney, and without any application to the judicial authorities, assumes to himself the judicial power in the district of Maryland; undertakes to decide what constitutes the crime of treason or rebellion; what evidence (if, indeed, he required any) is sufficient to support the accusation and justify the commitment; and commits the party, without having a hearing even before himself, to close custody in a strongly garrisoned fort, to be there held, it would seem, during the pleasure of those who committed him.

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

And these great and fundamental laws, which Congress itself could not suspend, have been disre garded and suspended, like the writ of habeas corpus, by a military order, supported by force of arms. Such is the case now before me, and I can only say, that if the authority which the Constitu tion has confided to the judiciary department 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, lliberty, and property, at the will and pleasure of the army officer in whose military district he may happen to be found. In such a case my duty was too plain to be mistaken. I have exercised all the power which the Constitution and laws confer on me, but that power has been resisted by a force too strong for me to overcome. It is possible that the officer who has incurred this grave responsibility may have misun derstood his instructions, and exceeded the authori ty intended to be given him. I shall, therefore, or der all the proceedings in this case, with my opin ion, 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 meas ures he will take to cause the civil process of the United States to be respected and enforced.

R. B. TANEY, Chief Justice

of the Supreme Court of the United States.

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

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

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

MAJOR-GENERAL PATTERSON'S DEFENSE.

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

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

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

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

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

On the 20th of June, he was asked by the Generalin-Chief to propose, without delay, a plan of operations. On the 21st he submitted to the General-inChief his plan, which was to abandon the present line of operations, move all supplies to Frederick, occupy Maryland Heights with Major Doubleday's

them, and with everything else-horse, foot and artillery-to cross the Potomac at Point of Rocks, and unite with Colonel Stone's force at Leesburgh, from which point he could operate as circumstances should demand and the General's orders should require. No reply was received; but, on the 27th, the General telegraphed him that he supposed be was that day crossing the river in pursuit of the enemy.

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