Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1861-06-07
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7 Z B N 8
THE DIERRYMAN CASE.
opinion Of Chief Justice Taney,
Before the Chief Justice of
Er parts the Supreme Court Of the
JOHN MERnrnAN. United States, at Cham

ti0n OF the judiciary act Oh lio', "niSu Ienuer'
effectual for the citizen the constitutional privi
lege of the writ of habeas corpus. That ac
gives to the courts Of. the United States, as vel
as to each justice of the Supreme Court, and to
every district Judge, power 70 grant writs o.
habeas corpus for the purpose OF an inquiry into
the cause OF commitment.
The petition was presented to me at WASH
ington, under the impression that would order
the prisoner to be brought before me there, but
as he was confined In Fort McHeDTy, at the
city Of Baltimore, which is In my circuit, re-
solved to hear it in the latter city, as obedi-
ence to the writ, under such circumstances,
would not withdraw Gen. CadWallader, Tho had
him In charge, from the limits OF his military
command.
The petition presents the following case:--
The petitioner resides In Maryland, in Baltimore
county. While peaceably in bis own house, with
his family, it was, at two o'clock on the morn
ing of the 25th Of May, 1861, entered by an
armed force, protesting to act under military
orders. He was then compelled to rise from his
bed taken into custody, and conveyed TO Fort
McHenry, where he is imprisoned by the COM
mandiDg officer, without warrant from any law
full authority.
The commander OF the fort, General George
Cadwallader, by whom he is detained in con-
fnement, in his return to the writ, does not de-
ny any of the facts alleged in the petition. He
states that the prisoner was arrested by order Of
Gen. Keim, of Pennsylvania, and conducted as
a prisoner to Fort McHenry by his order, and
placed in his (Gen. Cadwallader's) custody, to
be there detained by him as prisoner.
A copy of the warrant, or order, under which
the prisoner was arrested, was demanded by biz
counsel, and refused. And it is not alleged in
the return that any specific act, constituting an
offense against the laws of the United States
has been charged against him upon oath; but
he appears to have been arrested upon general
charges Of treason and rebellion, without proof
and without giving the names OF the
witnesses, or specifying the acts, which, In
the iudgemnt of the military officer, constitu-
ted these crimes. And having the prisoner thus
in custody upon these vague and unsupported &C
cusations, he refuses to obey the writ of habsas
corpus, upon the ground that he is duly author
ized by the President to supend 1t.
The case, then, lie simply this. A military
officer, residing in Pennsylvania, issues an Or
der to arrest citizen of Maryland, upon vague
and indefinite charges, without any proof, go far
as appears. Under this order his house ia en-.
tered in the night; he is seized as prisoner,
and conveyed to Fort McHenry, and there kept
in close confinement. And when habeas cor
pus is served on the commanding officer, requir
ing him to 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 officer is, that he is authoriz.
ed by the President to suspend the writ of ha-
oeds corpus at his discretion, and, in the e1er-
else of that discretion, suspends it in this case
n ha oh hadi 10 81
writ,
AS the case comes before me, therefore, un.
derstand that the President not only claims the
right to suspend the writ of habsas corpus him :
self, at his discretion, but to delegate that dis
cretionary power to military officer, and to
leave it to him to determine whether be will or
will not obey judicial process that may be serv.
ed upon him.
No official notice has been given to the courts
of justice, or to the public, by proclamation or
otherwise, that the President claimed this DOW
er, and had exercised it in the manner stated in
the return. And certainly listened to il with
some surprise, for / had supposed it to be one
of those points of constitutional law upon which
there was no difference of opinion, and that Il
was admitted on all hands that the privilege of
the writ could not be suspended, except by act
of Congress.
When the conspiracy of which Aaron Burr
was the head became so formidable, and was 80
extensively ramified as to justify, in Mr. Jeffer-
sons opinion, the suspension Of the writ, he
claimed, on his part, no power 10 suspend it,
but communicated his opinion to Congress, with
all the proofs in his possession, in order that
Congress might exercise its discretion upon the
subject, and determine whether the public safe.
ty required it. And in the debate which took
place upon the subject, no one suggested that
Mr.. Jefferson might exercise the power himself,
II, in his opinion, the public safety demanded
it.
Having, therefore, regarded the question as too
plain and too well settled to be open to dispute,
if the commanding officer had stated that upon
his own responsibility, and in the exercise of
his own discretion, he refused obedience to the
writ, should have contented myself with re-
ferring to the clause In the Constitution, and to
the construction 1t received from every jurist and
statesman of that day, when the case of Burr
tilted that the privilege of the writ has been
of the President, and believing, as / do, that
the President has exercised power which he
does not possess under the Constitution, prop
me to state plainly and fully the grounds of nv
opinion, in order to show that have not ven.
tured to question the legality Of his act without
a careful and deliberate examination Of the
whole subject.
The clause in the Constitution which auth
orizes the suspension Of the privilege of the writ
Of habeas corpus is in the 9th section of the first
article,
This article is devoted to the legislative de-
of the United States, and has not th Q
slightest reference to the executive depart
ment. 1t begins by providing "that all legis-
lative powers therein granted shall be vested In
q Congress of the United States, which shall
consist of Senate aud House Of Representa-
tives." And, after prescribing the manner In
which these two branches Of the legislative de-
partment shall be chosen, IL proceeds to emu
merate specifically the Legislative powers which
it thereby grants, and legislative powers which
il expressly prohibits; and, at the conclusion of
this specification, o clause is inserted giving
Congress "the power to make all laws which
may be necessary and proper to carry into exc
cution the foregoing powers, and all other pow
or, vested by this Constitution In the Govern.
ment of the United States, or in any department
or office thereof" at
The power Of legislation granted by this lat
ter clause is by its words carefully confined to
the specific objects before enumerated. But, as
this limitation was unavoidably somewhat in
definite, 1t was deemed necessary to guard more
effectually certain great cardinal principles es.
sential to the liberty Of the citizen, and to the
rights and equality Of the States, by denying to
Congress, in express terms, any power of legis-
lating over them. It was spprehended, il seems,
that such Legislation might be attempted under
the pretext that II was necessary and proper to
carry into execution the powers granted, and IL
was determined that there should be no room TO
doubt, where rights Of such vital Importance
were concerned, and accordingly this clause is
Immediately followed by an enumeration of Ger.