"'State of Maryland,"'Executive Chamber,"'Annapolis,November 9, 1860."'Hon. E. H.Webster."'My Dear Sir:—I have pleasure in acknowledging receipt of your favor introducing a very clever gentleman to my acquaintance (though a Demo'). I regret to say that we have, at this time, no arms on hand to distribute, but assure you at the earliest possible moment your company shall have arms; they have complied with all required on their part. We have some delay, in consequence of contracts with Georgia and Alabama ahead of us. We expect at an early day an additional supply, and of first received your people shall be furnished. Will they be good men to send out to kill Lincoln and his men? If not, suppose the arms would be better sent South."'How does late election sit with you? 'Tis too bad. Harford nothing to reproach herself for."'Your obedient servant,"'Thos. H. Hicks.'
"'State of Maryland,"'Executive Chamber,
"'Annapolis,November 9, 1860.
"'Hon. E. H.Webster.
"'My Dear Sir:—I have pleasure in acknowledging receipt of your favor introducing a very clever gentleman to my acquaintance (though a Demo'). I regret to say that we have, at this time, no arms on hand to distribute, but assure you at the earliest possible moment your company shall have arms; they have complied with all required on their part. We have some delay, in consequence of contracts with Georgia and Alabama ahead of us. We expect at an early day an additional supply, and of first received your people shall be furnished. Will they be good men to send out to kill Lincoln and his men? If not, suppose the arms would be better sent South.
"'How does late election sit with you? 'Tis too bad. Harford nothing to reproach herself for.
"'Your obedient servant,
"'Thos. H. Hicks.'
"With the Presidential party was Hon. Norman B. Judd; he was supposed to exercise unbounded influence over the new President; and with him, therefore, the detective opened communications. At various places along the route Mr. Judd was given vague hints of the impending danger, accompanied by the usual assurances of the skill and activity of the patriots who were perilling their lives in a rebel city to save that of the Chief Magistrate. When he reached New York, he was met by the woman who had originally gone with the other spies to Baltimore. She had urgent messages from her chief—messages that disturbed Mr. Judd exceedingly. The detective was anxious to meet Mr. Judd and the President, and a meeting was accordingly arranged to take place at Philadelphia.
"Mr. Lincoln reached Philadelphia on the afternoon of the 21st. The detective had arrived in the morning, and improved the interval to impress and enlist Mr. Felton. In the evening he got Mr. Judd and Mr. Felton into his room at the St. Louis Hotel, and told them all he had learned. He dwelt at large on the fierce temper of the Baltimore secessionists; on the loose talk he had heard about 'fireballs or hand-grenades'; on a 'privateer' said to be moored somewhere in the bay; on the organization called National Volunteers; on the fact that, eavesdropping at Barnum's Hotel, he had overheard Marshal Kane intimate that he would not supply a police force on some undefined occasion, but what the occasion was he did not know. He made much of his miserable victim, Hilliard, whom he held up as a perfect type of the class from which danger was to be apprehended; but concerning "Captain" Ferrandini and his threats, he said, according to his own account, not a single word. He had opened his case, his whole case, and stated it as strongly as he could. Mr. Judd was very much startled, and was sure that it would be extremely imprudent for Mr. Lincoln to pass through Baltimore in open daylight, according to the published programme. But he thought the detective ought to see the President himself; and, as it was wearing toward nine o'clock, there was no time to lose. It was agreed that the part taken by the detective and Mr. Felton should be kept secret from every one but the President. Mr. Sanford, President of the American Telegraph Company, had also been co-operating in the business, and the same stipulation was made with regard to him.
"Mr. Judd went to his own room at the Continental, and the detective followed. The crowd in the hotel was very dense, and it took some time to get a message to Mr. Lincoln.But it finally reached him, and he responded in person. Mr. Judd introduced the detective, and the latter told his story over again, with a single variation: this time he mentioned the name of Ferrandini along with Hilliard's, but gave no more prominence to one than to the other.
"Mr. Judd and the detective wanted Lincoln to leave for Washington that night. This he flatly refused to do. He had engagements with the people, he said, to raise a flag over Independence Hall in the morning, and to exhibit himself at Harrisburg in the afternoon, and these engagements he would not break in any event. But he would raise the flag, go to Harrisburg, 'get away quietly' in the evening, and permit himself to be carried to Washington in the way they thought best. Even this, however, he conceded with great reluctance. He condescended to cross-examine the detective on some parts of his narrative, but at no time did he seem in the least degree alarmed. He was earnestly requested not to communicate the change of plan to any member of his party except Mr. Judd, nor permit even a suspicion of it to cross the mind of another. To this he replied that he would be compelled to tell Mrs. Lincoln, 'and he thought it likely that she would insist upon W. H. Lamon going with him; but, aside from that, no one should know.'
"In the meantime, Mr. Seward had also discovered the conspiracy. He dispatched his son to Philadelphia to warn the President-elect of the terrible plot into whose meshes he was about to run. Mr. Lincoln turned him over to Judd, and Judd told him they already knew all about it. He went away with just enough information to enable his father to anticipate the exact moment of Mr. Lincoln's surreptitious arrival in Washington.
"Early on the morning of the 22d, Mr. Lincoln raised theflag over Independence Hall, and departed for Harrisburg. On the way Mr. Judd 'gave him a full and precise detail of the arrangements that had been made' the previous night. After the conference with the detective, Mr. Sanford, Colonel Scott, Mr. Felton, railroad and telegraph officials, had been sent for, and came to Mr. Judd's room. They occupied nearly the whole of the night in perfecting the plan. It was finally understood that about six o'clock the next evening Mr. Lincoln should slip away from the Jones Hotel, at Harrisburg, in company with a single member of his party. A special car and engine would be provided for him on the track outside the depot. All other trains on the road would be 'side-tracked' until this one had passed. Mr. Sanford would forward skilled 'telegraph-climbers,' and see that all the wires leading out of Harrisburg were cut at six o'clock, and kept down until it was known that Mr. Lincoln had reached Washington in safety. The detective would meet Mr. Lincoln at the West Philadelphia Depot with a carriage, and conduct him by a circuitous route to the Philadelphia, Wilmington and Baltimore Depot. Berths for four would be pre-engaged in the sleeping-car attached to the regular midnight train for Baltimore. This train Mr. Felton would cause to be detained until the conductor should receive a package, containing important 'Government dispatches,' addressed to 'E. J. Allen, Willard's Hotel, Washington.' This package was made up of old newspapers, carefully wrapped and sealed, and delivered to the detective to be used as soon as Mr. Lincoln was lodged in the car. Mr. Lincoln approved of the plan, and signified his readiness to acquiesce. Then Mr. Judd, forgetting the secrecy which the spy had so impressively enjoined, told Mr. Lincoln that the step he was about to take was one of such transcendent importance thathe thought 'it should be communicated to the other gentlemen of the party.' Mr. Lincoln said, 'You can do as you like about that.' Mr. Judd now changed his seat; and Mr. Nicolay, whose suspicions seem to have been aroused by this mysterious conference, sat down beside him and said: 'Judd, there is somethingup. What is it, if it is proper that I should know?' 'George,' answered Judd, 'there is no necessity for your knowing it. One man can keep a matter better than two.'
"Arrived at Harrisburg, and the public ceremonies and speechmaking over, Mr. Lincoln retired to a private parlor in the Jones House, and Mr. Judd summoned to meet him Judge Davis, Colonel Lamon, Colonel Sumner, Major Hunter and Captain Pope. The three latter were officers of the regular army, and had joined the party after it had left Springfield. Judd began the conference by stating the alleged fact of the Baltimore conspiracy, how it was detected, and how it was proposed to thwart it by a midnight expedition to Washington by way of Philadelphia. It was a great surprise to most of those assembled. Colonel Sumner was the first to break silence. 'That proceeding,' said he, 'will be a damned piece of cowardice.' Mr. Judd considered this a 'pointed hit,' but replied that 'that view of the case had already been presented to Mr. Lincoln.' Then there was a general interchange of opinions, which Sumner interrupted by saying, 'I'll get a squad of cavalry, sir, andcutour way to Washington, sir!' 'Probably before that day comes,' said Mr. Judd, 'the inauguration-day will have passed. It is important that Mr. Lincoln should be in Washington that day.' Thus far Judge Davis had expressed no opinion, but 'had put various questions to test the truthfulness of the story.' He now turned to Mr. Lincoln andsaid, 'You personally heard the detective's story. You have heard this discussion. What is your judgment in the matter?' 'I have listened,' answered Mr. Lincoln, 'to this discussion with interest. I see no reason, no good reason, to change the programme, and I am for carrying it out as arranged by Judd.' There was no longer any dissent as to the plan itself; but one question still remained to be disposed of. Who should accompany the President on his perilous ride? Mr. Judd again took the lead, declaring that he and Mr. Lincoln had previously determined that but one man ought to go, and that Colonel Lamon had been selected as the proper person. To this Sumner violently demurred. 'Ihave undertaken,' he exclaimed, 'to see Mr. Lincoln to Washington.'
"Mr. Lincoln was hastily dining when a close carriage was brought to the side door of the hotel. He was called, hurried to his room, changed his coat and hat, and passed rapidly through the hall and out of the door. As he was stepping into the carriage, it became manifest that Sumner was determined to get in also. 'Hurry with him,' whispered Judd to Lamon, and at the same time, placing his hand on Sumner's shoulder, said aloud, 'One moment, Colonel!' Sumner turned around, and in that moment the carriage drove rapidly away. 'A madder man,' says Mr. Judd, 'you never saw.'
"Mr. Lincoln and Colonel Lamon got on board the car without discovery or mishap. Besides themselves, there was no one in or about the car but Mr. Lewis, General Superintendent of the Pennsylvania Central Railroad, and Mr. Franciscus, superintendent of the division over which they were about to pass. As Mr. Lincoln's dress on this occasion has been much discussed, it may be as well to state that hewore a soft, light felt hat, drawn down over his face when it seemed necessary or convenient, and a shawl thrown over his shoulders, and pulled up to assist in disguising his features when passing to and from the carriage. This was all there was of the 'Scotch cap and cloak,' so widely celebrated in the political literature of the day.
"At ten o'clock they reached Philadelphia, and were met by the detective and one Mr. Kinney, an under official of the Philadelphia, Wilmington and Baltimore Railroad. Lewis and Franciscus bade Mr. Lincoln adieu. Mr. Lincoln, Colonel Lamon and the detective seated themselves in a carriage which stood in waiting, and Mr. Kinney got upon the box with the driver. It was a full hour and a half before the Baltimore train was to start, and Mr. Kinney found it necessary 'to consume the time by driving northward in search of some imaginary person.'
"On the way through Philadelphia, Mr. Lincoln told his companions about the message he had received from Mr. Seward. This new discovery was infinitely more appalling than the other. Mr. Seward had been informed 'that aboutfifteen thousand menwere organized to prevent his (Lincoln's) passage through Baltimore, and that arrangements were made by these parties toblow up the railroad track, fire the train,' etc. In view of these unpleasant circumstances, Mr. Seward recommended a change of route. Here was a plot big enough to swallow up the little one, which we are to regard as the peculiar property of Mr. Felton's detective. Hilliard, Ferrandini and Luckett disappear among the 'fifteen thousand,' and their maudlin and impotent twaddle about the 'abolition tyrant' looks very insignificant beside the bloody massacre, conflagration and explosion now foreshadowed.
"As the moment for the departure of the Baltimore traindrew near, the carriage paused in the dark shadows of the depot building. It was not considered prudent to approach the entrance. The spy passed in first and was followed by Mr. Lincoln and Colonel Lamon. An agent of the former directed them to the sleeping-car, which they entered by the rear door. Mr. Kinney ran forward and delivered to the conductor the important package prepared for the purpose; and in three minutes the train was in motion. The tickets for the whole party had been procured beforehand. Their berths were ready, but had only been preserved from invasion by the statement that they were retained for a sick man and his attendants. The business had been managed very adroitly by the female spy, who had accompanied her employer from Baltimore to Philadelphia to assist him in this, the most delicate and important affair of his life. Mr. Lincoln got into his bed immediately, and the curtains were drawn together. When the conductor came around, the detective handed him the 'sick man's' ticket, and the rest of the party lay down also. None of 'our party appeared to be sleepy,' says the detective, 'but we all lay quiet, and nothing of importance transpired.'... During the night Mr. Lincoln indulged in a joke or two in an undertone; but, with that exception, the two sections occupied by them were perfectly silent. The detective said he had men stationed at various places along the road to let him know 'if all was right,' and he rose and went to the platform occasionally to observe their signals, but returned each time with a favorable report.
"At thirty minutes after three the train reached Baltimore. One of the spy's assistants came on board and informed him in a whisper that all was right. The woman [the female detective] got out of the car. Mr. Lincoln lay close in hisberth, and in a few moments the car was being slowly drawn through the quiet streets of the city toward the Washington Depot. There again there was another pause, but no sound more alarming than the noise of shifting cars and engines. The passengers, tucked away on their narrow shelves, dozed on as peacefully as if Mr. Lincoln had never been born....
"In due time the train sped out of the suburbs of Baltimore, and the apprehensions of the President and his friends diminished with each welcome revolution of the wheels. At six o'clock the dome of the Capitol came in sight, and a moment later they rolled into the long, unsightly building which forms the Washington Depot. They passed out of the car unobstructed, and pushed along with the living stream of men and women towards the outer door. One man alone in the great crowd seemed to watch Mr. Lincoln with special attention. Standing a little on one side, he 'looked very sharp at him,' and, as he passed, seized hold of his hand and said in a loud tone of voice, 'Abe, you can't play that on me.' The detective and Col. Lamon were instantly alarmed. One of them raised his fist to strike the stranger; but Mr. Lincoln caught his arm and said, 'Don't strike him! don't strike him! It is Washburne. Don't you know him?' Mr. Seward had given to Mr. Washburne a hint of the information received through his son, and Mr. Washburne knew its value as well as another. For the present the detective admonished him to keep quiet, and they passed on together. Taking a hack, they drove towards Willard's Hotel. Mr. Lincoln, Mr. Washburne and the detective got out into the street and approached the ladies' entrance, while Col. Lamon drove on to the main entrance, and sent the proprietor to meet his distinguished guest at the side door. A few minutes later Mr. Seward arrived, and was introduced to thecompany by Mr. Washburne. He spoke in very strong terms of the great danger which Mr. Lincoln had so narrowly escaped, and most heartily applauded the wisdom of the 'secret passage.' 'I informed Gov. Seward of the nature of the information I had,' says the detective, 'and that I had no information of any large organization in Baltimore; but the Governor reiterated that he had conclusive evidence of this.'...
"That same day Mr. Lincoln's family and suite passed through Baltimore on the special train intended for him. They saw no sign of any disposition to burn them alive, or to blow them up with gunpowder, but went their way unmolested and very happy.
"Mr. Lincoln soon learned to regret the midnight ride. His friends reproached him; his enemies taunted him. He was convinced that he had committed a grave mistake in yielding to the solicitations of a professional spy and of friends too easily alarmed. He saw that he had fled from a danger purely imaginary, and felt the shame and mortification natural to a brave man under such circumstances. But he was not disposed to take all the responsibility to himself, and frequently upbraided the writer for having aided and assisted him to demean himself at the very moment in all his life when his behavior should have exhibited the utmost dignity and composure.
"The news of his surreptitious entry into Washington occasioned much and varied comment throughout the country; but important events followed it in such rapid succession that its real significance was soon lost sight of; enough that Mr. Lincoln was safely at the Capital, and in a few days would in all probability assume the power confided to his hands."
EXTRACT FROM THE OPINION OF THE SUPREME COURT OF THE UNITED STATES, DELIVERED BY CHIEF JUSTICE TANEY IN THE CASE OF DRED SCOTTvs.SANDFORD, 19 HOW. 407.
"It is difficult at this day to realize the state of public opinion in relation to that unfortunate race" (the African) "which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted.
"But the public history of every European nation displays it in a manner too plain to be mistaken.
"They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit."
THE HABEAS CORPUS CASE EX PARTE JOHN MERRYMAN, CAMPBELL'S REPORTS, P. 246. — OPINION OF THE CHIEF JUSTICE OF THE UNITED STATES.
The application in this case for a writ ofhabeas corpusis made to me under the fourteenth section of the Judiciary Act of 1789, which renders effectual for the citizen the constitutional privilege of the writ ofhabeas corpus. That act gives to the courts of the United States, as well as to each justice of the Supreme Court and to every district judge, power to grant writs ofhabeas corpusfor the purpose of an inquiry into the cause of commitment. The petition was presented to me at Washington, under the impression that I would order the prisoner to be brought before me there; but as he was confined in Fort McHenry, in the city of Baltimore, which is in my circuit, I resolved to hear it in the latter city, as obedience to the writ under such circumstances would not withdraw General Cadwallader, who 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 his own house, with his family, it was, at two o'clock on the morning of the 25th of May, 1861, entered by an armed force professing 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 commanding officer, without warrant from any lawful authority.
The commander of the fort, General George Cadwallader, by whom he is detained in confinement, in his return to the writ, does not deny any of the facts alleged in the petition. He states that the prisoner was arrested by order of General Keim, of Pennsylvania, and conducted as aforesaid to Fort McHenry by his order, and placed in his (General Cadwallader's) custody, to be there detained by him as a prisoner.
A copy of the warrant or order under which the prisoner was arrested was demanded by his counsel and refused. And it is not alleged in the return that any specific act, constituting any 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 judgment of the military officer, constituted these crimes. Having the prisoner thus in custody upon these vague and unsupported accusations, he refuses to obey the writ ofhabeas corpus, upon the ground that he is duly authorized by the President to suspend it.
The case, then, is simply this: A military officer, residing in Pennsylvania, issues an order to arrest a citizen of Maryland upon vague and indefinite charges, without any proof, so far as appears. Under this order his house is entered in the night, he is seized as a prisoner and conveyed to Fort McHenry, and there kept in close confinement. And when ahabeas corpusis served on the commanding officer, requiring him to produce the prisoner before a justice of the Supreme Court, in order that he may examine into thelegality of the imprisonment, the answer of the officer is that he is authorized by the President to suspend the writ ofhabeas corpusat his discretion, and, in the exercise of that discretion, suspends it in this case, and on that ground refuses obedience to the writ.
As the case comes before me, therefore, I understand that the President not only claims the right to suspend the writ ofhabeas corpushimself at his discretion, but to delegate that discretionary power to a military officer, and to leave it to him to determine whether he will or will not obey judicial process that may be served 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 power, and had exercised it in the manner stated in the return. And I certainly listened to it with some surprise; for I had supposed it to be one of those points of constitutional law upon which there was no difference of opinion, and that it 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 so extensively ramified as to justify, in Mr. Jefferson's opinion, the suspension of the writ, he claimed on his part no power to 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 safety required it. And in the debate which took place upon the subject, no one suggested that Mr. Jefferson might exercise the power himself, if, in his opinion, the public safety demanded it.
Having therefore regarded the question as too plain and toowell 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, I should have contented myself with referring to the clause in the Constitution, and to the construction it received from every jurist and statesman of that day, when the case of Burr was before them. But being thus officially notified that the privilege of the writ has been suspended under the orders and by the authority of the President, and believing, as I do, that the President has exercised a power which he does not possess under the Constitution, a proper respect for the high office he fills requires me to state plainly and fully the grounds of my opinion, in order to show that I have not ventured to question the legality of his act without a careful and deliberate examination of the whole subject.
The clause of the Constitution which authorizes the suspension of the privilege of the writ ofhabeas corpusis in the ninth section of the first article.
This article is devoted to the legislative department of the United States, and has not the slightest reference to the Executive Department. It begins by providing "that all legislative powers therein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives"; and after prescribing the manner in which these two branches of the legislative department shall be chosen, it proceeds to enumerate specifically the legislative powers which it thereby grants, and at the conclusion of this specification a clause is inserted giving Congress "the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or office thereof."
The power of legislation granted by this latter clause is by its words carefully confined to the specific objects before enumerated. But as this limitation was unavoidably somewhat indefinite, it was deemed necessary to guard more effectually certain great cardinal principles essential 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 legislation over them. It was apprehended, it seems, that such legislation might be attempted under the pretext that it was necessary and proper to carry into execution the powers granted; and it 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 certain subjects to which the powers of legislation shall not extend. The great importance which the framers of the Constitution attached to the privilege of the writ ofhabeas corpusto protect the liberty of the citizen, is proved by the fact that its suspension, except in cases of invasion or rebellion, is first in the list of prohibited powers—and even in these cases the power is denied and its exercise prohibited, unless the public safety shall require it. It is true that in the cases mentioned, Congress is of necessity the judge of whether the public safety does, or does not, require it; and its judgment is conclusive. But the introduction of these words is a standing admonition to the legislative body of the danger of suspending it, and of the extreme caution they should exercise before they give the Government of the United States such power over the liberty of a citizen.
It is the second article of the Constitution that provides for the organization of the Executive Department, and enumerates the powers conferred on it, and prescribes its duties. And if the high power over the liberty of the citizennow claimed was intended to be conferred on the President, it would undoubtedly be found in plain words in this article. But there is not a word in it that can furnish the slightest ground to justify the exercise of the power.
The article begins by declaring that the executive power shall be vested in a President of the United States of America, to hold his office during the term of four years, and then proceeds to prescribe the mode of election, and to specify in precise and plain words the powers delegated to him, and the duties imposed upon him. The short term for which he is elected, and the narrow limits to which his power is confined, show the jealousy and apprehensions of future danger which the framers of the Constitution felt in relation to that department of the Government, and how carefully they withheld from it many of the powers belonging to the Executive Branch of the English Government which were considered as dangerous to the liberty of the subject, and conferred (and that in clear and specific terms) those powers only which were deemed essential to secure the successful operation of the Government.
He is elected, as I have already said, for the brief term of four years, and is made personally responsible by impeachment for malfeasance in office. He is from necessity and the nature of his duties the Commander-in-Chief of the Army and Navy, and of the militia when called into actual service. But no appropriation for the support of the Army can be made by Congress for a longer term than two years, so that it is in the power of the succeeding House of Representatives to withhold the appropriation for its support, and thus disband it, if, in their judgment, the President used or designed to use it for improper purposes. And although the militia, when in actual service, is under hiscommand, yet the appointment of the officers is reserved to the States, as a security against the use of the military power for purposes dangerous to the liberties of the people or the rights of the States.
So, too, his powers in relation to the civil duties and authority necessarily conferred on him are carefully restricted, as well as those belonging to his military character. He cannot appoint the ordinary officers of Government, nor make a treaty with a foreign nation or Indian tribe, without the advice and consent of the Senate, and cannot appoint even inferior officers unless he is authorized by an Act of Congress to do so. He is not empowered to arrest any one charged with an offense against the United States, and whom he may, from the evidence before him, believe to be guilty; nor can he authorize any officer, civil or military, to exercise this power; for the fifth article of the Amendments to the Constitution expressly provides that no person "shall be deprived of life, liberty or property without due process of law"—that is, judicial process. Even if the privilege of the writ ofhabeas corpuswere suspended by Act of Congress, and a party not subject to the rules and articles of war were afterwards arrested and imprisoned by regular judicial process, he could not be detained in prison or brought to trial before a military tribunal; for the article in the Amendments to the Constitution immediately following the one above referred to—that is, the sixth article—provides that "in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law; and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsoryprocess for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."
The only power, therefore, which the President possesses, where the "life, liberty, or property" of a private citizen is concerned, is the power and duty prescribed in the third section of the second article, which requires "that he shall take care that the laws be faithfully executed." He is not authorized to execute them himself, or through agents or officers, civil or military, appointed by himself, but he is to take care that they be faithfully carried into execution as they are expounded and adjudged by the co-ordinate branch of the Government to which that duty is assigned by the Constitution. It is thus made his duty to come in aid of the judicial authority, if it shall be resisted by a force too strong to be overcome without the assistance of the executive arm. But in exercising this power he acts in subordination to judicial authority, assisting it to execute its process and enforce its judgments.
With such provisions in the Constitution, expressed in language too clear to be misunderstood by any one, I can see no ground whatever for supposing that the President, in any emergency or in any state of things, can authorize the suspension of the privilege of the writ ofhabeas corpus, or the arrest of a citizen, except in aid of the judicial power. He certainly does not faithfully execute the laws if he takes upon himself legislative power by suspending the writ ofhabeas corpus, and the judicial power also, by arresting and imprisoning a person without due process of law. Nor can any argument be drawn from the nature of sovereignty, or the necessity of Government for self-defense in times of tumult and danger. The Government of the United States is one of delegated and limited powers. It derives its existence and authorityaltogether from the Constitution, and neither of its branches, executive, legislative or judicial, can exercise any of the powers of Government beyond those specified and granted. For the tenth article of the Amendments to the Constitution in express terms provides that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Indeed, the security against imprisonment by executive authority, provided for in the fifth article of the Amendments to the Constitution, which I have before quoted, is nothing more than a copy of a like provision in the English Constitution, which had been firmly established before the Declaration of Independence.
Blackstone states it in the following words:
"To make imprisonment lawful, it must be either by process of law from the courts of judicature or by warrant from some legal officer having authority to commit to prison" (1 Bl. Com. 137).
The people of the United Colonies, who had themselves lived under its protection while they were British subjects, were well aware of the necessity of this safeguard for their personal liberty. And no one can believe that, in framing a government intended to guard still more efficiently the rights and liberties of the citizen against executive encroachments and oppression, they would have conferred on the President a power which the history of England had proved to be dangerous and oppressive in the hands of the Crown, and which the people of England had compelled it to surrender after a long and obstinate struggle on the part of the English Executive to usurp and retain it.
The right of the subject to the benefit of the writ ofhabeascorpus, it must be recollected, was one of the great points in controversy during the long struggle in England between arbitrary government and free institutions, and must therefore have strongly attracted the attention of the statesmen engaged in framing a new, and, as they supposed, a freer government than the one which they had thrown off by the Revolution. From the earliest history of the common law, if a person were imprisoned, no matter by what authority, he had a right to the writ ofhabeas corpusto bring his case before the King's Bench; if no specific offense were charged against him in the warrant of commitment, he was entitled to be forthwith discharged; and if an offense were charged which was bailable in its character, the Court was bound to set him at liberty on bail. The most exciting contests between the Crown and the people of England from the time ofMagna Chartawere in relation to the privilege of this writ, and they continued until the passage of the statute of 31st Charles II, commonly known as the GreatHabeas CorpusAct. This statute put an end to the struggle, and finally and firmly secured the liberty of the subject against the usurpation and oppression of the executive branch of the Government. It nevertheless conferred no new right upon the subject, but only secured a right already existing. For, although the right could not justly be denied, there was often no effectual remedy against its violation. Until the statute of 13 William III, the judges held their offices at the pleasure of the King, and the influence which he exercised over timid, time-serving and partisan judges often induced them, upon some pretext or other, to refuse to discharge the party, although entitled by law to his discharge, or delayed their decision from time to time, so as to prolong the imprisonment of persons who were obnoxious to the King for theirpolitical opinions, or had incurred his resentment in any other way.
The great and inestimable value of thehabeas corpusact of the 31st Charles II. is that it contains provisions which compel courts and judges, and all parties concerned, to perform their duties promptly in the manner specified in the statute.
A passage in Blackstone's Commentaries, showing the ancient state of the law on this subject, and the abuses which were practised through the power and influence of the Crown, and a short extract from Hallam's "Constitutional History," stating the circumstances which gave rise to the passage of this statute, explain briefly, but fully, all that is material to this subject.
Blackstone says: "To assert an absolute exemption from imprisonment in all cases is inconsistent with every idea of law and political society, and, in the end, would destroy all civil liberty by rendering its protection impossible.
"But the glory of the English law consists in clearly defining the times, the causes and the extent, when, wherefore and to what degree the imprisonment of the subject may be lawful. This it is which induces the absolute necessity of expressing upon every commitment the reason for which it is made, "that the court upon ahabeas corpusmay examine into its validity, and, according to the circumstances of the case, may discharge, admit to bail, or remand the prisoner.
"And yet, early in the reign of Charles I, the Court of King's Bench, relying on some arbitrary precedents (and those, perhaps, misunderstood), determined that they would not, upon ahabeas corpus, either bail or deliver a prisoner, though committed without any cause assigned, in case he was committed by the special command of the King, or by the Lords of the Privy Council. This drew on a Parliamentary inquiryand produced the Petition of Right—3 Charles I.—which recites this illegal judgment, and enacts that no freeman hereafter shall be so imprisoned or detained. But when, in the following year, Mr. Selden and others were committed by the Lords of the Council, in pursuance of His Majesty's special command, under a general charge of 'notable contempts, and stirring up sedition against the King and the Government,' the judges delayed for two terms (including also the long vacation) to deliver an opinion how far such a charge was bailable. And when at length they agreed that it was, they, however, annexed a condition of finding sureties for their good behavior, which still protracted their imprisonment, the Chief Justice, Sir Nicholas Hyde, at the same time declaring that 'if they were again remanded for that cause, perhaps the court would not afterwards grant ahabeas corpus, being already made acquainted with the cause of the imprisonment.' But this was heard with indignation and astonishment by every lawyer present, according to Mr. Selden's own account of the matter, whose resentment was not cooled at the distance of four-and-twenty years" (3 Bl. Com. 133, 134).
It is worthy of remark that the offenses charged against the prisoner in this case, and relied on as a justification for his arrest and imprisonment, in their nature and character, and in the loose and vague manner in which they are stated, bear a striking resemblance to those assigned in the warrant for the arrest of Mr. Selden. And yet, even at that day, the warrant was regarded as such a flagrant violation of the rights of the subject, that the delay of the time-serving judges to set him at liberty upon thehabeas corpusissued in his behalf excited universal indignation of the bar. The extract from Hallam's "Constitutional History" is equally impressive and equally in point:
"It is a very common mistake, and that not only among foreigners, but many from whom some knowledge of our constitutional laws might be expected, to suppose that this statute of Charles II. enlarged in a great degree our liberties, and forms a sort of epoch in their history. But though a very beneficial enactment, and eminently remedial in many cases of illegal imprisonment, it introduced no new principle, nor conferred any right upon the subject. From the earliest records of the English law, no freeman could be detained in prison, except upon a criminal charge, or conviction, or for a civil debt. In the former case it was always in his power to demand of the Court of King's Bench a writ ofhabeas corpus ad subjiciendum, directed to the person detaining him in custody, by which he was enjoined to bring up the body of the prisoner with the warrant of commitment, that the court might judge of its sufficiency, and remand the party, admit him to bail, or discharge him, according to the nature of the charge. This writ issued of right, and could not be refused by the court. It was not to bestow an immunity from arbitrary imprisonment—which is abundantly provided for inMagna Charta(if, indeed, it is not more ancient)—that the statute of Charles II. was enacted, but to cut off the abuses by which the Government's lust of power, and the servile subtlety of the Crown lawyers, had impaired so fundamental a privilege" (3 Hallam's "Const. Hist.," 19).
While the value set upon this writ in England has been so great that the removal of the abuses which embarrassed its employment has been looked upon as almost a new grant of liberty to the subject, it is not to be wondered at that the continuance of the writ thus made effective should have been the object of the most jealous care. Accordingly, no powerin England short of that of Parliament can suspend or authorize the suspension of the writ ofhabeas corpus. I quote again from Blackstone (1 Bl. Com. 136): "But the happiness of our Constitution is that it is not left to the executive power to determine when the danger of the State is so great as to render this measure expedient. It is the Parliament only, or legislative power, that, whenever it sees proper, can authorize the Crown, by suspending thehabeas corpusfor a short and limited time, to imprison suspected persons without giving any reason for so doing." If the President of 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 England have thought it safe to entrust to the Crown—a power which the Queen of England cannot exercise at this day, and which could not have been lawfully exercised by the sovereign even in the reign of Charles I.
But I am not left to form my judgment upon this great question from analogies between the English Government and our own, or the commentaries of English jurists, or the decisions of English courts, although upon this subject they are entitled to the highest respect, and are justly regarded and received as authoritative by our courts of justice. To guide me to a right conclusion, I have the Commentaries on the Constitution of the United States of the late Mr. Justice Story, not only one of the most eminent jurists of the age, but for a 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 conclusively establishing the principles I have above stated.
Mr. Justice Story, speaking in his Commentaries of thehabeas corpusclause in the Constitution, says: "It is obvious that cases of a peculiar emergency may arise which may justify, nay, even require, the temporary suspension of any right to the writ. But as it has frequently happened in foreign countries, and even in England, that the writ has, upon various pretexts and occasions, been suspended, whereby persons apprehended upon suspicion have suffered a long imprisonment, sometimes from design, and sometimes because they were forgotten, the right to suspend it is expressly confined to cases of rebellion or invasion, where the public safety may require it. A very just and wholesome restraint, which cuts down at a blow a fruitful means of oppression, capable of being abused in bad times to the worst of purposes. Hitherto no suspension of the writ has ever been authorized by Congress since the establishment of the Constitution. It would seem, as the power is given to Congress to suspend the writ ofhabeas corpusin cases of rebellion or invasion, that the right to judge whether the exigency had arisen must exclusively belong to that body" (3 Story's Com. on the Constitution, Section 1836).
And Chief Justice Marshall, in delivering the opinion of the Supreme Court in the case ofex parteBollman and Swartwout, uses this decisive language in 4 Cranch 95: "It may be worthy of remark that this Act (speaking of the one under which I am proceeding) was passed by the first Congress of the United States, sitting under a Constitution which had declared 'that the privilege of the writ ofhabeas corpusshould not be suspended unless when, in cases of rebellion or invasion, the public safety might require it.' Acting under the immediate influence of this injunction, they must have felt with peculiar force the obligation of providingefficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give to all the courts the power of awarding writs ofhabeas corpus."
And again, on page 101: "If at any time the public safety should require the suspension of the powers vested by this Act in the courts of the United States, it is for the Legislature to say so. That question depends on political considerations, on which the Legislature is to decide. Until the legislative will be expressed, this court can only see its duty, and must obey the laws."
I can add nothing to these clear and emphatic words of my great predecessor. But the documents before me show that the military authority in this case has gone far beyond the mere suspension of the privilege of the writ ofhabeas corpus. It has, by force of arms, thrust aside the judicial authorities and officers to whom the Constitution has confided the power and duty of interpreting and administering the laws, and substituted a military government in its place, to be administered and executed by military officers. For, at the time these proceedings were had against John Merryman, 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, a few miles only from the home of the prisoner. Up to that time there had never been the slightest resistance or obstruction to the process of any court or judicial officer of the United States in Maryland, except by the military authority. And if a military officer, or any other person, had reason to believe that the prisoner had committed any offense against the lawsof the United States, it was his duty to give information of the fact, and the evidence to support it, to the district attorney; it would then have become the duty of that officer to bring the matter before the district judge or commissioner, and if there was sufficient legal evidence to justify his arrest, the judge or commissioner would have issued his warrant to the marshal to arrest him, and upon the hearing of the case would have held him to bail, or committed him for trial, according to the character of the offense as it appeared in the testimony, or would have discharged him immediately, if there was not sufficient evidence to support the accusation. There was no danger of any obstruction or resistance to the action of the civil authorities, and therefore no reason whatever for the interposition of the military. Yet, under these circumstances, a military officer stationed in Pennsylvania, without giving any information to the district attorney, and without any application to the judicial authorities, assumes to himself the judicial power in the District of Maryland; undertakes to decide what constitutes the crime of treason or rebellion; what evidence (if, indeed, he required any) is sufficient to support the accusation and justify the commitment; and commits the party without a hearing, even before himself, to close custody in a strongly garrisoned fort, to be there held, it would seem, during the pleasure of those who committed him.
The Constitution provides, as I have before said, that "no person shall be deprived of life, liberty or property without due process of law." It declares that "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 probable cause, supported by oath or affirmation, and particularlydescribing the place to be searched, and the persons or things to be seized." It provides that the party accused shall be entitled to a speedy trial in a court of justice.
These great and fundamental laws, which Congress itself could not suspend, have been disregarded and suspended, like the writ ofhabeas corpus, by a military order, supported by force of arms. Such is the case now before me, and I 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 circumstances be usurped by the military power 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 be found.
In such a case my duty was too plain to be mistaken. I have exercised all the power which the Constitution and laws confer upon me, but that power has been resisted by a force too strong for me to overcome. It is possible that the officer who has incurred this grave responsibility may have misunderstood his instructions and exceeded the authority intended to be given him. I shall therefore order all the proceedings in this case, with my opinion, to be filed and recorded in the Circuit Court of the United States for the District of Maryland, and direct the clerk to transmit a copy, under seal, to the President of the United States. It will then remain for that high officer, in fulfilment of his constitutional obligation, to "take care that the laws be faithfully executed," to determine what measures he will take to cause the civil process of the United States to be respected and enforced.
R. B. Taney,Chief Justice of the Supreme Courtof the United States.
On the 12th of July, 1861, I sent a message to the First and Second Branches of the City Council referring to the events of the 19th of April and those which followed. The first paragraph and the concluding paragraphs of this document are here inserted: