The daily exchange. [volume] (Baltimore, Md.) 1858-1861, 1861-06-03
THE HABEAS CORPUS CASE,
OPINION OF THE CHIEF JUSTICE
OF THE UNITED STATES.
Frrdrte De'''e 'Ie Ohei justice OF the Su-
Jogy M,pRyy,H / preme Court Of the United States

Fq,oyte Before the Chief Justice Of the Su
JoHy M.RRYMAy / preme Court Of the United States
The application in this case for a writ of babeas corus
Is made To me under the lith section Judiciary Act
OF l'S9 which renders eectua the citizen the cons
tuona privilege of the writ of habeaS corpus That
gives to the courts OF the United States. well
rAc Justice of the Supreme Court aud every District
Judge to grant wrts of habeas corpus for the pur
pose OF an inquiry into the cause Of commitment The
petition was presented to me at Washington. under the
impression that would order the prisoner to be
before there but as he confined in Fort McIenry
dS the city OF Baltimore which Is IN my circuit resolv
ed to hear it in the latter city obed the writ
unGer such circumstances would not Wit General
adwallader, who had him in charge, from the limits
his military command.
The petition presents the following case The petitioner
resides in Maryland in Baltimore county While pe.ce
ably in his house, with his family't was at o'clock
on the of the 18th of May 1861 entered bv an
armed force, protesting to act under ary orders HI.
was then compelled to rise from bed taken into
tidy, and conveyed to Fort McTeurv where he il i'm
from any lawful authority '
The commander of the fort General George CadwalIa
aer by whom he IS detained in connem-nt in his re
tuth 10 'e wrlt does not deny the facts alleged
in the petition He states that the prisoner was arrested
ny outl o zen. hem' OF fenn-ylvania. and conducted
as prisoner TO Fort Mcienry by his order and placed
in his (Gen Cadwaaders custody to be there detained
by him as prisoner.
copy of the warrant order under which the prs.
oner was arrested was demanded by his COUNSEL and
fused And is not alleged return that apv spec
nc act, constituting an uFNhce against the laws of the
United states, has been charged against him upon OATH
but he appears to have been arrested upon general
cilhrSes OF treason and rebellion without And
without giving the names of the witnesses specifying
the acts which, in the judgment of the military officer
constituted these crimes And having the prisoner thus
IN custody upon these vague and unsupported
tons he refuses to obey the writ Of hnep& corpus upon
tn" ground that he is duly authorized by the President
to suspend it.
The case, then, is simply this military officer. re-
siding IN issues order to arrest citizen
of Maryland, upon vague and indefinite charges without
any proof so far appears Under this order his house
Is entered in the night he is seized as prisoner and
conveyed Fort McHenry and there kent in close
| when h0HgUS is Tho
Commanding officer, requiring him to produce the priso-
ner before Justice Of the Supreme Court in order that
he may examine into the legality of the imprsonment
the answer of the officer is that he is authorized by the
President to suspend the writ of habcas corpus his
ton and in the exercise Of that discretion suspends
| the writ.
As the comes before me. therefore, understand
that the President not only claims the right to suspend
the writ of hdbeaS corpus himself at his discretion
to delegate that discretionary power military officer
and to leave it to him to determine whether he will or
win not obey Judicial process that be upon
him.
No official notice has given to the Courts of Justice
or to the public by proclamation otherwise that the
President claimed this power and haG it in the
manner stated In the certainly stenpd IN
with some surprise for had supposed it to he one of
those points of constitutional law upon which there was
no difference OF opinion, and that it admitted on all
hands that the privilege of the writ could not be sus
pended, except by act of Congress.
When the conspiracy of which Aaron Burr was the
head became formid able was SO extensively RANT
fed as to Justify. in NJ r Jefersons opinion the susp.n
sion of the writ he claimed on his mart M nownr 70
suspend it-but communicated his opinion to Congress
with all the proofs in his possession in order that Con
gress might exercise its discretion upon subject and
determine whether the public safety required it, And in
the debate which took place upon the subject no one
gested that Mr. Jefferson might exercise the power him
self IT, in his opinion, the public safety demanded it.
Having therefore regarded the question as too plain
and too well settled to be open dispute if the com
manding officer had stated that upon his own RESPONSE
btty. and in the exercise OF his own discretion he re
| fused obedience to tie writ should have contented
myself with referring to the clause in the Constitution
anu 10 Tue IL received from every juris and
statesman Of that day when the Burr was
them But being thus officially notified that the privilege
m te writ mas been suspended under the orders and by
the authority Of the President and, believing as do
tha the resident has exercised power which he does
not possess under the Constitution proper respect for
the high office he fills requires to state plainly and
iuy Tue grounds OF my opinion in order show that
nave not 'entured to question the legality his with
out careful and deliberate examination of the whole
| subject. - WV ''
The clause in the Constitution, which authorizes the
suspension of the privilege of the writ of haben cors
is in the 9th section of the first article. ~
This article is devoted the legislative department of
the United States and has not the slightest reference to
the Executive department. Itbegins by providing that
all legislative powers therein granted sha N he vasf ~ "
Congress of the United States which shall consist og n
Senate and House of Representatives. And after pre
scrbing manner in which these two branchs F th
legislative depar rment shall be chosen it proceeds In
enumerate specifically the legislative powers which il
thereby grants and Legislative powers which it expressly
pohihs and. at the conclusion of this specification
clause is inserted giving Congress thc power to make all
laws which may be necessary and proper for carrying
into execution the foregoing powers and all other powers
vested by tins Constitution in the government of the
United States or in any department or Office thereof
me power OF legislation granted by this latter clause
is ny It's words carefully confined to the specific objects
before enumerated But this limitation was unavoid
,nard rinr % sr iule, II was deemed necessary to
Essential N 80 tih!S S.rd' cdri,ha pflhc!neS
and equality of the States by denying to Congress in
was annrsbnndd ~ VI est',thg over them 1t
he attempted under the pretext that was necessary and
it was darmigSd AN ~ me powers graned and
whar. mt ~ s,ch Ioud ne no room TO doubt
and accnr,;nI ~; Wa" 'nPort""st "re rnncerIvn,
an ennmcratinn of certain s,,h;n. t ~ 'o,'o"eu ny
of LEGISLATION shall not avtsnJ. a5 ~ - - e Po"ers
which the trainers of the Constellation atta.d - ,S
viegs of tha writ Of LJoc o ' t ae.cl.u u the
tv of the citizen is proved by the fact hat its
eycept in cases of inva.on and rnhei"n :; Gl, -: VI.
list df nrohibited powersond avan IN h n,s - III ~ me
power is denied and its exerc nroihitd Ias e M
pnblir safaty hal. rsonira - !, . ".ieSe '"e
ment TONED Congress is of necassit tb 80 ~ r @ nv
the public safety does or dos not renr ~, VA M
indictment /, conclusive ~ tb i,i1; 49, ~ "lr iIs
| words is n starJir, o5roon;t; % u Inese
of the danger Of snsnendirg ~ a5 e nS pony
tion tbay sborId xrc h, IT, an" % VI tne extreme eau
ment of The United Sats snn, ! sIEe IlIe "overh,
| citizen '~ ''' p'"e' 0'ef Tue loer'y oi
| lis The ond article Of .bo ru.;,,.; 4, -.,
for tho organ1aior of ,ha u'r'h ~ @ 'dl l'oVlaes
enumsr.tes tba ,oyrers cn cI w DepHrtment' ana
duties And if the high power over tba lihsrtv of ,
Ecitigans ,Ion, oia;raa oNe, 'he iloer'y OF the
prasidant IL would nrdo,h,di ~ 90 . W S"n'ertu on t'e
in this ar,ic,e Rt ,h G 9e uun9 IN pam words
f,rn;t ,ha st;.h,o", 80, . ~. ~. "Viu III II that can
nowar ~ 'e'' '0uiu 'oJus'i'y ule exercise oil the
PTba or,;c,o HAHN. h. a,.
r0 r - ~ " 'te" ln ireS'Ieht OF the United States
Ua TO hoiu ms once during the term of four
| 4;
sr., m | ~ -, N precise an" pa'n words the powers
tha sho.t ,, ~ CO. ~ - ny tt nPoSr' upon MN Ana
limits 70 hih bi @ @ nc ls erected ana the narrow
and annr.h.nsioS ~ S rt 10 lineu si"" the yea ouSy
the nstitti ft Hanger which the trainers of
ovrt % d et I'm ~ lelatnn 10 that department "f the
now care lnly they withheld from il
f "a " oV ne."neing 10 the Executive branch
daprarons - a., ,;n, e WINCH were considered as
dangerous 10 the liberty OF the suhject-and conferred
-, - @ - m , o anu sIcinc terhiSl those powers only
ti " th . @ ssset'iai 10 secure The successful ope
IIa is aiactad es 'h hor" ., ..,,.,
. |
bt % % O. % % ,ie leISomi on NY rTSponsl sloe, by I'm
% , ., - ~. iaeasance as IN Once lie Is from necessi
~ ~ % @ i 'uae @ o' ms uutieS the commanderin chief o
80, ~ 10y ; % nav anu oI the mi.lua when called into
49, go o h 80 - ~ ~ Up "rlop'ldtoh LOT the support oi
two yaars So that ~ ior longer term tmar
H. af p 80 ..; ~ 10 III 'nc power OF the succeeding
Co.. ;t srrt "a a. 70 wiuihon the appropriation
,ba pras;aant 80, ~ 5Ialu ~ II III thelr Judgment
,.aaS A., IL, w "eSEheu 70 use II Tor improper
vica ora ,,ndar bis co,I "len III actu" ser
ni i ] d IA ~ I'm ,h uisnu' S yet the appointment OF th
uss Of the military NO VIZ as security against th
Iibarties of tha.naoi,. ~ +h fpes i"hgerous 10 IN
e. @ , u 'e @ psople OF Of the rights OF the States
authority necessariIv confd ~ " te civil uuteS anu
Striced az we'll ne ,bo on MN @ are caeiuIiy re
ter He cannot annon tho nriis ~ s nltilay cla DC
nor make treaty win t,rei ,i VI @ nm -,
ritbout ,to -; @ @ ~ ."'elEn nation or lnaah tlo
annoint even infsrior ei %, e senate, ana cl1ho
| an act of Congress to do So He ia nnt - - d -" y :
arrest any one CHARGED W; a., @ e. gu y,
states and whom he, ,na fr m agalnsI tte ohi.e
believe to be guilty. nor can he antbori% o'o eir @
civil military to exercise this mover for 10 Sth ~
| ticle of the amendments tn the Cnnstitn;on avrs
provides that no person ''sha be dpnrved Of If ihe
or property without due procass of ,w, tbat i ;d
cia process And even If the nri yiie,,a - - -,
maptu rot Pbi, ~ stenueu ny ACT OF congress and
arterwords oryoS,a5 orJ ;,:., ~ a'tioes Va wal W"
rocess-he could not he detained in prison mr. broSgh
trial before a military tribunal fr ~ o,;,o =; -,
, 80, a a aiy M u'nihai Tor the article in tn
the one above referred to-thati is The s,h arc,
8 that an .iI o;;i rs 'he oth article PROV lde
~ an criminal prosecutions the accused shall er
jury Of the State and district wherein the crime
;l eIn i' oonm'tteu' wnich distrlct shal have bee