Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1861-06-09
NUMBER so

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 Enaland
have thought it safe to ent-ust 10 the Cow.
/ power which the Queen Of England cannot axe-eire
at this day, and which could not have Been law
fully exercised by the sovereign even in The reign
I Of Charles the First.
But lam not left to form my Judgment upon this
great question from analogies between the Earlish
Government and our own. OF the Commentaries Of
English jurists, the decisions Of English courss
although upon this subject they are entitled 70 the
highest respect, AMI are Justly regarded and re-
ceived as authoritative by our courts Of lstsaee.
To guide me to : right conclusion, have the con
mentaries the Constitution Of the United States
of the late Mr.. Justice Story, not only Of the
most eminent jurists Of the age, but for 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 eonclnsively
establishing the principles have above stated.
ar Justice Story, speaking in his Commentaries
VI the hdbeas corpus clause in the Constitution,
1t is obvious that cases of peeul,ar ener0epev
may arise which may justify. nay even require, the
temporary suspension the writ But as t has often
happened IN foreign countries and even in England
tnas ue writ has, upon various pretexts and coca
| SONS, oeen suspended whereby persons sppreheu-
| ded upon suspicion have suffered a long imnr;s0D
! ment, sometimes from design and sometimes be-
cause they were forgotten-the RIGHT 10 snsDer5 IL
Is expressly confined to Of rebellion or inva-
| sion, where the public safety nav REQUIRE ii A
very Just and wholesome restraint which cuss down
at blow fruitful means Of Oppression eanahla of
being abused in bad times to the worst Of pnrDsas
Hitherto, suspension Of the writ has ever been
authorized by Congress since the establishments OF
the Constitution. IL would seem, as the mower ia
given to Congress to suspend the writ Of Rabeqs cor
pas in cases of rebellion INVASION that the RIGHT
to judge whether the exigency had arisen must ex-
clusivey belong to that body.'-S Story's Com. on
! the Constitution. section $50.
And Chief Justice Marshall in delivering the oOin-
ion of the Supreme Court in the case Of e. parts
BOllman and Swartwoat, this decisive language
in Cranch, IS: 1t may be worthy Of remark that
this % set Speaking oE the one under which am
proceeding) passed by the first Congress ofthe
United States sitting under Constitution which had
declared that the privilege Of the writ of hdbeGs
corpus should not be suspended, unless when, in
cases OF rebellion or INVASION the public safety ght
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 re-
eeve lie and activity for. if the means be noe in
existence, the privilege itself would be lost although
no law for It's suspension sho1ld be enacted. IN
der the impression of this obligation, they gave to
all the courts power of awarding writs Of habas
corpus" e
And again, in page I0I:
''If at any time the public safety should require
a suspension of the powers vested by this act il the
courts Of the United States il is for the Legislature
to say That question depends on political con
siderstions. which the Legislature ia to decide.
Until the legislature viii be expressed, this court
can only see its duty, and must obey the laws
can add nothing to the clear and emphatic words
of my great predecessor.
But the documents before me show that the mill
tary authority in this has gone far beyond the
mere suspension Of the privilege of the writ Of habss
corpus 1t has, by force Of arms, thrust aside the
judicial authorities and officers to whom the CoDsf-
tuition has conded the power and duty of interpret
ing and administering the laws, and substituted
military government IN its place. to be administer
ed and executed by military Offices, for az the time
these proceedings were had against ohm Merrlmsa,
the District Judge of Maryland the Commissioner
appointed under the act Of Congress. the District
Attorney, and the Marshal all resided in the city Of
Baltimore, few miles only from the home of the
prisoner. Up to that time there had never been
the slightest resistance obstruction to the pro
cess of any court Judicial officer Of the United
States in Maryland, except by the military suthori
ty. And if military officer, any other person,
had reason to believe that the prisoner had commit
ted any offence against the laws Of the United States,
it was his duty to give information Of the fact and
the evidence 70 support it. to the District Attorney
and it would have then become the duty Of that Of
fcer to bring the matter before the District Judge
or Commissioner, and if there sufficient legal
evidence to justify his arrest the Judge or Com
missioner would have issued his warrant TO the
Marshal to arrest him and upon the hearing OF the
party would have held him 10 bail, or committed
him for trial. according to the character OF the OF
fence as it appeared in the testimony, or would
have discharged him Immediately, If there was not
sufficient evidence to susportthe accusation There
was no danger of any obstruction or reslstanee 70
the action of the civil authorities and therefore no
reason whatever for the interpOsition Of the militia
| ~.
| And yet, under these circumstances, q military
officer stationed in Pennsylvania, without giving
any information to the District Attorney and with
annlioafiOn IN the Iudical authOrifine
sumes himself the Judicial power in the District
of Maryland undertakes TO decide what constitutes
the crime of treason rebeliOn what evidence III,
indeed he required any is sufficient to support the
accusation. and justly the commitment; and com
mits the party, without having hearing even be-
fore himself, to close custody IN strongly gnrri-
soned fort, TO be there held, It would seem, during
| the pleasure of these who committed hun.
The Constitution provides, a. have before said,
that mo person shall be deprived Of life, liberty,
or property, without due process OF law" lt de-
elares that 1.-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 warrant shall issue but upon pr0ba
bic cause, supported by oath or affirmation, and
particularly describing the place to be searched and
the persons or things TO be seized" provides
that the party accused shall be entitled to speedy
trial In court of justice.
And these great and fundamental laws, which
Congress itself could not suspend, have been dsre
gared and suspended, like the writ OF bdbeos corpus
by military order, supported by force OF arms
Such is the case now before me, and can ony zay
that if the authority which the Constitution hes
conided 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 Government Of laws, but
every citizen holds life liberty, and property at the
will and pleasure Of the army officer in whose null
tary district he may happen to be found.
In such case my duty was too plain TO be mssta-
ken. have exercised all the power which the Con-
stltution and laws confer on me, but that power
has been resisted by force strong for to over
come. It is possible that the officer who has IN
cured this grave responsibility may have misuEr
derstood his Instructions and exceeded the Gthorl
ty intended to be given him. l shall therefore,
order 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 trans NIT copy under seal 70 the
President of the United States 1t viii then remain
for that highOficer, in fslflment Of his eonsttn-
tional obligation to stake care that the laws be fatn
fully executed" to determined what measures ne
will take to cause the civil process Of she United
States to be respected and enforced
R. B. TASEY,
Chief Justice of the Supreme Court U, 5