Richmond daily Whig. [volume] (Richmond, Va.) 1842-1861, 1861-06-06

is made 10 me under the 14th section of the JuGiCry
Act OF 1882 which renders oectua for the citizen the
constitutional privilege of the wit OF habeas corpus
That act gives TO the courts of the United States as well
as to each Justice of the Supreme Court ard to every
District Judge power to grant wriis of haJsas corpus for
the purpose of an qury into the cause of commitment
The petition was presented to me at Washington under
the impression that | would order the prisoner TO be
brought before there but as he confined in Fort
McHenry at the City of Baltimore which is in my cir
cult resolved to hear il in the latter city, obedience
to the writ under such circumstances, would not with
draw Gen. Cadwaader who had him in aarge from the
limits Of bis military command.
The petition presents the following case The petit
tioler resides in Naryllnd in Baltimore county While
pesceaby in his house, with his family, he was, at
o'clock the morning of the 25:h of Nav, 1861,
rested by armed 10 ce rcf,ssing to under mill
tary orders lie then compelled to Iise from his
bed taken into custody, and conveyed TO Fort Mc,cn-
ry where he is imprisoned 5y the commanding officer
without warrant from any lawful authority.
| The Commander of the Fort, General George Cad
walader by whom he is detained in confinement, in his
the writ does no. deny any of the facts al
leg Il in III. petition. H. that the prisoner
arrested by order of General Kem, of Pennsy van aud
conducted prisoner to Fort Mclcnry by his order
and placed in his General Cadwaa iers custody 10 be
there detained ny him as a prisoner.
copy OF the order under which the prs-
oner was arrested was demanded by his counsel and
fused And il not alleged in the return that any gpe
cic act constituting offence against the laws OF the
United States, has been charged ag nst him upon OATH
| but he appears 10 have been aIr,scd upon general
charges OF ard rebellion, without proof, AMI
without giving the names Of the Witnesses, specifying
tie which, in the judgment o the military officer
constituted hese crimes. And having the prisoner thus
in custody upon ties, vague and unsupported aCcusa
bn IN he writ Oi I,Lsys
the ground that he is duly authorized by the President
| 10 suspend It.
The case thCr is simply this:A military officer, re-
siding in pennsy lvania, issues an order to arrest c
| zen OF Maryland upon vague and indefinite charges,
without any proof so far appears Under this order
his hou.e is entered in the nign he is seized prs
oarr and conveyed Fort Mcflcury and there kepti
close cOIinemert And WHEN hobeas corpus is served
"a the commanding officer, requiring him produce the
prisoner before Justice OF the Supreme Court 10 order
thai he may examine into lie eg iity OF the impri
aelt of the officer Is tia. he Is Authorized
by the President suspend the writ Of hGbcaS corp,s
bic discretion. AID, ia Ee exercise o; that discretion
reuds 10 GA case, .nd that ground refuses obed
| euCe to the writ.
As the case comes before me, therefore. understand
that tie lIeSideu: only claims tie gt to suspend
lie Wi, Of Agess corpus hims,lf his discretion but
Cel gate that ccr, i0n5ry power 10 military clser
and TO leave it to tia determine whether he will
VII Lot obey judcia! process that may be served upon
! h.m.
No oaci4 notice has been given to tie courts OF JUS
tee the public by proclamation Otherwise, that
Le President claimed this poser and had exercised i
10 the stated in toe return. And certainly list
eued to it with surprise, for had supposed il to be
one Of these points OF constitutional law upon which
here vas 10 difference Of cpuiQn, aud that It ad
uitcd on all hands that the privilege of the wri; could
| rot be suspended, except by act OF Congress
When the conspiracy Of which Aaron Burr was tn
head became so formidable, aud was so extensively
if d as to justify in Hr Je,rsoas opinion the suspen.
ion cl the vrit lie claimed Oh bis par no power 10
suspend i.-but Communicated hs opinion Congress,
eth al L proofs ia hJ posa0S-ioD, order that Con-
gress nigh, xscSo It's discretion upon the su ject and
d-erune wLvtAer the public safety qaiIed i. Aud in
tho debate which took place upon the subject,
suggested that Ar. J,AersOn might exercise the power
hins;f it. in his Cpiuoa the public safety demanded /:
Having, therefore regarded the gu ston plaiu
aud tco vel. settled TO be open to dispute, the
uauJug thccr had stated tia; upon his RESPONSE
biHy and il the exercise Of Bis discretion, he
fused v5tu.Ca>G ~ iLS wu shcp!d nave eCDteuted
mysrf with referring TO the clause IN the Constitution
and to the ruciion It received tom every uSs and
statesman OF that day. when III, of Burr before
them But being thus officially not fed that the priv
ese Of the writ has been suspended under tie orders
and by the authority of the President aud believing,
do that TIE President has exercised power which he
does rot possess uud,r tie Constitution, proper re
spect for the high office lie fills requires mo 20 state
plainly and fully the giounds Of my opinion, in order to
show that have not veaure1 question the legality
Of bis act without careful and dcab rate examination
| oi the whole sut;er,,
The clause ii the Constitution which authorizes the
suspension Of The privilege of the writ of haJeas corpus
| is in The 9.h secliou Of tie first ariicle.
Thi article is devoted TO the legislative department Of
the United States and has not the slightest reference
the Executive department II begins by providing that
all legislative powers therein granted shall be vested IN
q Congress of the United Sates which shall consist of
Senate aud House OF Representatives Aud after pre-
scribng the in witch htse Two branches OF the
legislative department shall be chO3er IL proceeds to
euumerate specifically the legislative powers which it
thereby grants aud legislative powers which 10 expressly
prlhbi. aud at the conclusion Of hi- specification
clause is inserted giving Corgoss the power TO make
all laws which may be necessary aud proper for carrying
into execution the foregoing powers and all other powers
vested 10y this Constitution IN tho Government OF the
United States or in any deDar mcnt or Office thereof
The power of legislation granted by h,s Ia.eT clause
is sy ~ S"cGs oa.iuj cOnnned to The SPECIFIC Objects
before enumerated But as this limitation unavUd
ABLY some what indefinite; it deemed necessary to
guard Hectualy certain great cardinal principles
essential the liberty OF the citizen. AID 10 the rights
and equality Of the States by denyirg to Congress, ~
expreas terms any power Of legislation over them II
was apprehcnded il seems that such legislation might
be attempted under the petext that II and
prc TO carry into execution the powers granted and
il was determined that there Should be no room to doubt
where rights o svch vital Importance were concerned,
|
nm enumeration of certain subjects % WHICH the powers
of legislation shal cx:ehd and the great Importance
which the ifaners of the Constitution attached 10 the
pryece Of the writ of hdJeay eHpu to protect the lbcr
Nv of the otZtn is proved by the fact that its suspen
sou except in OF invasion aud II beon, u rst m
be s of prohibited poWers-aud even in these cases
the power denied and its exercise prohibited unless
The public SAFETY shall require it.
Is ttue that in the cases mentioned, Congress IS OF
necessity the Judge of whether the public safety does or
does not REQUIRE il and their Judgment Is conclusive
Rut the Introduction of these words is a standing admo
nion TO the legislative body of the danger OF suspend
ing IL srd of the extreme caution they should exercise
before they give the Government Of the United States
such power over the liberty OF citizen
IL is the second article OF the Cons tuition that provides
for the organization of the Executive Department, and
enumerates the powers coufrTed on IT. and pres rbt
IFS duties Aud il the high power over the liberty OF the
ci.izes row cimad was iGtsuaed 10 be conferred the
President i, would undoubtedly be found in plain words
in this article But there is not word in that can
furnish the slightest ground to justify the exercise OF the
power.
mower shall be vested In President Of the United States
o: America to hold bis office during the term Of four
year-aua then proceeds 10 prescribe lhe mode OF cleo
cn and specify in precise and ain words the po"
ers delegated 10 him eni the duties imposed upon him.
And the short for which he Is elected and the mar
row limits to which his power is confined chow the ea
ousy and spprcher sops of future danger which the fra
mers of the Constitution felt in Tea0a to that depart
ment of the Government how Carefully they withheld
from il of the powers belonging 10 the Executive
branch Of the English Cover ment which consider
ed as dangerous to the liberty of the subect-and
rred nd that in clear and specific terms those powers
only which were deemed essential TO the success
| FL opera ion Of the Government
He s elected as have already said, for the brief term
Of four years aud is made personally responsbe BY i'm
peachment for malieasance in Office. He is from
sx ard the nature Of his duties the commander chief