Baltimore and The Nineteenth of April, 1861 Part 11

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 the company 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 pa.s.sage.' '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 pa.s.sed 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 circ.u.mstances. But he was not disposed to take all the responsibility to himself, and frequently upbraided the writer for having aided and a.s.sisted 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 surrept.i.tious entry into Was.h.i.+ngton 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 a.s.sume the power confided to his hands."

APPENDIX II.

EXTRACT FROM THE OPINION OF THE SUPREME COURT OF THE UNITED STATES, DELIVERED BY CHIEF JUSTICE TANEY IN THE CASE OF DRED SCOTT _vs._ 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 Const.i.tution 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 a.s.sociate 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."

APPENDIX III.

THE HABEAS CORPUS CASE EX PARTE JOHN MERRYMAN, CAMPBELL'S REPORTS, P. 246. -- OPINION OF THE CHIEF JUSTICE OF THE UNITED STATES.

_Ex parte_ } Before the Chief Justice of the Supreme JOHN MERRYMAN. } Court of the United States, at Chambers.

The application in this case for a writ of _habeas corpus_ is made to me under the fourteenth section of the Judiciary Act of 1789, which renders effectual for the citizen the const.i.tutional privilege of the writ of _habeas 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 of _habeas corpus_ for the purpose of an inquiry into the cause of commitment. The pet.i.tion was presented to me at Was.h.i.+ngton, 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 circ.u.mstances would not withdraw General Cadwallader, who had him in charge, from the limits of his military command.

The pet.i.tion presents the following case:

The pet.i.tioner 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 pet.i.tion. 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, const.i.tuting 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, const.i.tuted these crimes. Having the prisoner thus in custody upon these vague and unsupported accusations, he refuses to obey the writ of _habeas 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 a _habeas corpus_ is 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 the legality of the imprisonment, the answer of the officer is that he is authorized by the President to suspend the writ of _habeas corpus_ at 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 of _habeas corpus_ himself 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 const.i.tutional 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 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, I should have contented myself with referring to the clause in the Const.i.tution, 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 Const.i.tution, 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 Const.i.tution which authorizes the suspension of the privilege of the writ of _habeas corpus_ is 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 Const.i.tution 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 Const.i.tution attached to the privilege of the writ of _habeas corpus_ to 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 Const.i.tution 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 citizen now 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 Const.i.tution 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 his command, 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 Const.i.tution 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 of _habeas corpus_ were 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 Const.i.tution 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 compulsory process for obtaining witnesses in his favor, and to have the a.s.sistance 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 a.s.signed by the Const.i.tution. 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 a.s.sistance of the executive arm. But in exercising this power he acts in subordination to judicial authority, a.s.sisting it to execute its process and enforce its judgments.

With such provisions in the Const.i.tution, 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 of _habeas 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 of _habeas 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 authority altogether from the Const.i.tution, 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 Const.i.tution in express terms provides that "the powers not delegated to the United States by the Const.i.tution, 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 Const.i.tution, which I have before quoted, is nothing more than a copy of a like provision in the English Const.i.tution, 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 of _habeas corpus_, it must be recollected, was one of the great points in controversy during the long struggle in England between arbitrary government and free inst.i.tutions, 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 of _habeas corpus_ to bring his case before the King's Bench; if no specific offense were charged against him in the warrant of commitment, he was ent.i.tled 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 of _Magna Charta_ were in relation to the privilege of this writ, and they continued until the pa.s.sage of the statute of 31st Charles II, commonly known as the Great _Habeas Corpus_ Act. 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 ent.i.tled 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 their political opinions, or had incurred his resentment in any other way.

The great and inestimable value of the _habeas corpus_ act 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 pa.s.sage 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 "Const.i.tutional History," stating the circ.u.mstances which gave rise to the pa.s.sage of this statute, explain briefly, but fully, all that is material to this subject.

Blackstone says: "To a.s.sert 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 a _habeas corpus_ may examine into its validity, and, according to the circ.u.mstances 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 a _habeas corpus_, either bail or deliver a prisoner, though committed without any cause a.s.signed, 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 inquiry and produced the Pet.i.tion 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 a _habeas 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 a.s.signed 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 the _habeas corpus_ issued in his behalf excited universal indignation of the bar. The extract from Hallam's "Const.i.tutional 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 const.i.tutional 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 of _habeas 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 in _Magna 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 l.u.s.t 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 embarra.s.sed 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 power in England short of that of Parliament can suspend or authorize the suspension of the writ of _habeas corpus_. I quote again from Blackstone (1 Bl. Com. 136): "But the happiness of our Const.i.tution 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 the _habeas corpus_ for 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 Const.i.tution 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.