The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1878-05-30
THE WRIT OF HAREAs CORPUS,
Chief Justice Taney's Decision Showing
That Not Even the President of the
United states Can suspend his Writ.

| On the twenty sixth Of May A. D. 1861. John
Merryman. imprisoned Mt Fort McHenry, mil
itary fortress of the United States near Balti-
more, applied to Chief Justice Roger g. Taney
| CT the Supreme Court of the United States, for
n writ OF habeas corpus. asserting that he had
been arrested in Baltimore by an armed force
Of soldiers. pretending to act under military
orders and taken by them to Fort McIIenry.
where he was kept in close confinement: that
he had been imprisoned there without any pro-
cess or color Of law whatsoever. and that none
such had been pretended by those who detained
him in prison
Upon this petition the Chief Justice at once
issued a writ of habeas corpus. directed to
Gen. Geo. Ca2wallader. commanding at Fort
McHenry. ordering him to produce the body of
John Merryman in the United States Circuit
Court room at Baltimore.
The, marshal made his return that he had
served the writ on Gen. Cadwallader on the same
dav on which 1t was issued Col Lee. a military
officer, appeared at the same time, in court
wi, h Gen Cadwalladers replied to the writ
Gen Ga GadWaIlader gave as his reason for ar
gagged in organizing force to be used in hos
tility to the government and to co-operate with
mont OF the United States. He informed the
court that be had been duly authorized by the
President OF the United States Lincon) to sus-
pend in such cases the writ of habeas corpus
for public safety, and in accordance with This
order would refuse to surrender possession of
the prisoner to the court.
Upon he airing that Gen CadwalIader had not
produced the body of John Merryman in court,
as ordered by him, the Chief Justice at once is-
sued an attachment for the arrest of Gen. Cad
whllader for contempt Of court in refusing to
obey It's commands in the writ of habeas corpus
Jhe vi ited States marshal who served this
attachment was refused admittance to the fort
and therefore could not produce Gen. Cadwal-
lader.
The Chief Justice then empowered the mar
posse aid m in
Selling and bringing before the court the party
name! In the attachment. who would when so
brought be liable to punishment by fine and
Imprisonment,
The Chief Justice then proceeded as follows
L ordered this attachment yesterday because
upon the face of the return. the detention Of the
prisoner was unlawful.
>, The President. under the constitution of the
United States. cannot suspend the privilege OF
the rrit Of habeas corpus nor authortze a mill
tary officer to do it.
1t is, therefore. very clear that John Merry
man the prisoner. is entitled to be set at liberty
and discharged Immediately from imprison-
On June the Chief Justice filed an elaborate
opinion in the case. In which he said:
understand that the President not only |
claims the right to suspend the writ of habeas |
corpus himself at his discretion. but to dele |
gate that discretionary power to military Off
Ger, and to leave it to him whether he will or
served him. ceran tna may ia
doctrine with some SURPRISE as | supposed it |
to be one of those points upon which there was
mitted on all hands that the privilege of the
writ OF habeas corpus could not be suspended
except by act of Congress. | can see no ground /
for surprising that the President. in any emer-
gency or in any state of things, can authorize
the suspension of the privileges of the writ of
habeas corUus or arrest q citizen, except In and |
. 1 the judicial poweF. He certainly does not
PAINFULLY execute the laws if he takes upon
himself Legislative power by suspeDding the
writ OF habeas corpus and the judicial power
also. by arresting and imprisoning a person
without due process of law. Nor can any ar
gument be drawn from the nature of sovereign
" or the necessity of government for self-de-
tense In times OF tumult and danger.
Inc constitution provides, as | have said
before. that no person shall be deprived OF life
liberty or property without due process of law
aud these great and fundamental laws which
Congress itself could not suspend have b en-
disregarded and suspended by military order,
supported by force of arms. Such l. the case
now before M. and can only say that if the
authority which the constitution has confided
to the judiciary department and judicial officers
may thus. upon any pretext or under any cir
at its discretion, the people of the United States
are no longer living under a government of
laws. but every citizen holds life, liberty and
property at the will and pleasure of the army
officer in whose military district he may happen
to he found.
In this case my duty Is too plain to be mis-
AIKEN. shall order all the PROCEEDINGS in this
"a g. with my opinion. to be FL, d and recorded
70 the Circuit Court of the United States for the
district of Maryland, and direct the clerk to {
transmit copy. under seal, to the President of /
he United States. L will then remain for that
Ugh officer. In fulfllment of his constitutional