Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1861-06-07

T. = IN g 't5 act under militia
b Orders! He was then compelled to rise from
his bed, taken into custody, and conveyed ic
Fort Mcllcrry, where he is imprisoned by tht
commanding officer, without warrant frcm any
lawful authority.
The commander Of the fort, Gen. George
Cadwala.cr, hy whom he is detained in con
tinclncnt, in his return to the writ, dies not
deny any Of the facts alleged in the petition
He states that the prisoner was arrested by
order of Gen. krin, Of Pennsylvania, and con
duc!el As prIsuncr to Fort McIIcnry by lis
order, and placed in his Gen. CadwaladcI' <l
custody, 10 bc there detained by him AS Il
prisoner
\ copy pf the warrant, or order. u!rler
which the prisoner was arrested, was DEMAND.
Ell By his counsel, and refused. And il Is nos
alleged in tho return that any specific act, con.
Stituting m offence against the laws OF the
United States, has been charged agains! him
upon oath, hut he appears Ia have been ar
rested upon general charges Of treason and re-
bcllion, without proof, md without giving the
names OF the witnesses, or specifying the acts,
"hich in the Judgment Of the military officer,
constituted these crimes And having the prS
on,r thus in custody upon these vague ard
unsupported accusations he r,I;iSeS 10 obey
the writ Of hnb,as corpus, upnn rhr ground
that he is duly authorized by tie President to
suspend il
The case, then. is simply this. 4 military
officer, residing in Pennsy ylvania. is>nes an
order 10 arrest citizen .! Maryland upon
vague ard Indefinite charges, without any
proof, so far As appears Under this "r!rr his
house is entered in ,:iG night; H. is scizrd as
prisoner and conveyed to Fort McIlsa:", and
there kcp! in close cr.riincnient Aad when a
ka5cns cOrpRs is served On the commanding
officer, requiring hiln 10 produce the prisoner
before Justice Of the Supreme Court, IN order
That he may examine into the legality Of the
Imprisonment, the answer Of the ctlicer is,
that he is authorized by the President to sus.
pend the writ Of ha6taS c0rpUs at his discretion,
and, in the exercise OF that discretion, sus.
lends i il this case. and on that ground &c.
uses Obedience to the writ.
As the case comes before me, therefore, |
understand tia: the President not only claims
the right 10 suspend the wrt Of hnj,ds corpus
himself ut his discretion, but to delegate that
discretionary power tu military ollicrr, and
10 leave il 10 him TO determine whether he will
or will not obey Judicial process that Elay bc
served upon him.
No official notice has been given TO lhc
courts OF Justice or to the public, by proclama-
iiun or otherwise; that the President claimed
this power and had exercised it in the manner
stated in the return. And certainly listened
to it with some surprise, for had supposed it
to be one OF those points Of constitutions! las
upon which there was no difference Of opinion
,,>I !, o,,,;t,,t n all hpr,,. tor yu
privilege. of the writ could not he suspended
except 5y act Of Congress.
When the conspiracy Of which Aaron Barr
was ;hc head became 50 formidable, ard was So
extensively ramied, as to justify, in Mr.. JeIIsr-
sons opinion, TIC suspension Of the writ, hc
claimed, on his part, no power 10 suspend it,
but communicated his opinion 10 Congress,
with all the proofs in his possession, in order
that Congress might exercise its discretion
upon the subject and determine whether the
public safety required it. And in the debate
which took place npon the subject, no ore
suggested that Mr.. jefferson might exercise
the power himself if, in his opinion, the pub.
lie safety demanded it,
Having, therefore, regarded the question aS
,on plain and too well settled 20 be open to
dispute, If the commanding officer had stated
that upon his own responsibility, and in the
exercise of his own discretion, be refused
ohrdicnca to the writ, should lave ccEtcnGea
myself with referring to the clause in the Con-
stltulion, and to the construction it rrcci"cGi
from every ju,ist and statesman rf that day,
when the case OF Burr Wis before them. But
being thus officially notified that the privilege
OF the writ has been suspended under the Or
tlcrs and ny the authority Of the President,
and, believing, us do, that the President has
exercised power which he docs not possess
under the Constitution, proper respect i"r
the high uncc he fills requires Inc to State
plainly and fully the grounds OF ny opinion,
! III order to show that ! have not reutWrcd t.
question the legality of his act without care
iul and deliberate examination Of TIE whole
subject.
This clause in the Cunsttu.inn which ~
thor;zes the suspension ol the privilege ut the
writ of habeas c9rYHS, Is in the 9th section oi
the first article.
This article is devoted to the legislative de-
partment OF the United States, and has hot the
slightest reference to the Executive depart
meat. 1t begins by providing 'Ahat all lcglS
latve powers therein granted shall be vested
in Congress OF the United States, which shall
consist Of "a Senate and House Of Representa-
tiyes." And after prescribing the snannsr III
which these two branches OF the legislative
department Shall be chosen, it proceeds tn
enumcratc specifically the legislative powers
which it thereby grants, and legislative pow
! 1'yS ghich,it expressly prohibits, ard, at tic
tbnciiiSi"s~! y" et;%.!r.sion, clause is in
serted, giving Congress "the power to make
all laws which may be necessary and proper
for carrying into execution the foregoing pow
crs, ard all other powers vested by tins Con
stilulion in the government of the United
States or in any department Or cilicc thereof.
The power of legislation granted By this
latter clause is by It's words carefully confined
70 the specific objects before enumerated y
But as this imitation was unaroldably scIne-
what indefinite, it wis deemed necessary Ia
guard more etfectually certain great cardinal
Drinci2!rs essential to the liberty of the cti-
zen, and 10 the rights and equality OF The
States, By denying TO Congress IN express
terms, any power Of legislating over theu.-
It was apprencndcd. it seems, That such lesls
laton might be attempted under the prete%t
that Ii was necessary and proper to carry into
execution the powers granted; and it was de
rermined that there should be 10 room to
doubt. where rights Of such vital importance
were concerned, and accordingly, this clause
is Immediately followed by On enumeration oi
certain subjects, to which the powe:s oflcsisla'
ton shall not extend; and the great importance
which the trainers ot the Constitution attach
cd to the privilege Of the writ of haleas cor
pus to protec. the liberty OF the citizen, is
proved by the fact that lis suspension, exePp'
in cases Of invasion and rebellion, is first IN
the list Of prohibited poHers-and even IN
these cases, the power is denied, and its eXer:
else prohibited, unless the public safety shall
require it. Itis!rue that in the cases mention.
Cd, Congress is of necessity the judge OF
whether the public safety does or does nor re-
qure it; and lis judgment is conclusive. bu'
the Introduction of these words is standing