Cincinnati daily press. [volume] (Cincinnati [Ohio]) 1860-1862, 1861-05-31

Dispute betWeen the CtVu ana the Mill
tnry-The Hnbens Corpus Case.
General adwalader, in command of United
States troops at Baltimore, having arrested
an individual by the name of Merrimsn
upon 8 charge of destroying bridges on the
Northern Pennsylvania Railroad, to prevent
the passage OF troops of the Government,
and holding him in custody at Fort Nc
Henry, a writ of ha6sdS corpus was allowed
by Chief Justice fancy, sitting in Baltimore,
commanding General Cadwslader to have
the prisoner brought before him, that the
cause of his capture and detention might DO
inquired into.
General Cadwalader declines to comply
with the requirements of this writ, inform
ing the Court that, for the sake of the public
safety, be has, in pursuance Of authority de-
rived from the President, suspended the
operation of the writ Of hdbeas corpus, and
suggests that those whose duty it is to CO.
operate in the present trying and painful po-
sition in which our country is placed, should
not, by reason of any unnecessary want of
confidence in each other, increase her embar-
easements. He therefore respectfully re-
quests that you will postpone further action
upon this case until be can receive ~instruc-
lions from the President of the United States,
when you shall hear further from him.
Unaffected by this remonstrance, Judge
fancy orders a writ of attachment to issue
against General Cadwallader for contempt,
in refusing to comply with the previous
mandate; but this the Marshal is unable to
serve-being refused admittancs to Fort
McHenry, where the General is located.
Upon making his return, the Court declares
the military proceeding illegal, and prepares
a statement or protest to be filed in the
records Of the Court, and a copy forwarded
to the President with 3 call upon him to
perform his constitutional duty, and see that
the laws and the DEGREES OF the Court are
faithfully executed; and there the case stands
at present. The question is, What is to be
done2
Judge fancy is a supersnnuated, testy,
old gentleman, with Secession proclivities,
having a constitutional fondness for the
sensational, and a strong native propensity
to play fast and loose with the law. Like
most men late in life, who have holden high
positions, be is insuperably vain and opin.
donated; and may be relied upon to do all
he can to carry his point, and to make mis-
chief, if he is defeated.
The only provision of the Constitution in
respect to the writ Of habeaS corpus is as fol.
lows;
"The privilege of the writ Of habeas corpus
shall not be suspended, unless when, in cases
Of rebellion or invasion, the public safety
may require it" 4s
The provision that the writ may not be
suspended except in a certain contingency, is
legally equivalent TO O declaration that it
may be suspended when the contemplated
contingency arrives. We are certain that
the hobeGs corpus may be suspended; but
how or by whom the act of suspension may
be performed is not 80 clear. From the fact
that suspension is only to be resorted to in
case of danger to the country-which may
arise suddenly-it would seem as if the
power to suspend should be in the hands of
the Executive. In England, from whence
we derive the writ Of hGbsas corpus, a sus-
pension is effected by act of Parliament
which empowers the Crown, for a limited
period, to imprison suspected persons with
out stating any reason for the Imprisonment.
In the United States we have no knowledge
Of any instance in which a suspension by act
Of Congress has taken place; nor is there
any thing in the laws which seems to con-
template such a event.
The Government of the United States.
however, is one whose legislative powers
are enumerated in the Constitution; and
as the power TO suspend the Asbeas corpus
is not in terms conferred upon our Con
gress in that instrument, nor necessarily
deducible from any other power which is
conferred and as the power is permitted to
reside somewhere, it is not unreasonable to
infer that it belongs 70 the Executive.
In England martial law, which suspeudl
all the ordinary forms Of legal proceeding
the habeas corpus included, and substitutes
the forus offs military code, whose rules are
apart Of the written law Of the land, is de
elared by act Of Parliament. In the United
States, the term martial law Is equally m
known to the Constitution and the laws o
Congress; and If the power 70 declare 4
resides anywhsre-as from the necessity o
the case II must-it Is in the President.
If these powers are . part Of the preroga
tive Of the President, no doubt can arise al
TO his right 70 delegate them 10 such per
sons As may TO him seem fl to exercise them
nor ns 70 his, and their right TO FIX the tint
when, and place where they should be exsr
cised and If General Cadwaiadsr has been
as be afhrms. duly empowered yathe Presi
dent in The premises, it Is aot probable tina
the circumstances or commands Of the cap
ilOus cd gebtlemen Of Baltimore win NEE
Nith much attentioa At the seat of Govern
s'ent ieis q, uafu fa1 ga