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CORNELL UNIVERSnV IBRARY 
 
 1924 072 356 870 
 
 HABEAS CORPUS 
 
 MARTIAL LAW. 
 
 A REVIEW OF THE OPINION OF CHIEF JUSTICE 
 TANEY, IN THE CASE OF JOHN MERRYMAN. 
 
 By JOEL PARKER. 
 
 Second Edition. Published by Authority. 
 
 PHILADELPHIA: 
 JOHN CAMPBELL, BOOKSELLER, 
 
 419 CHESTNUT STREET. 
 1862. 
 
Memorandum. — To the Students in the Law School of Harvard College, June 
 11, 1861, the argument contained in the following pages will not he novel, as it 
 was then presented to theii- consideration, in a Lecture delivered by the author as 
 Royall Professor of Law in that Institution. 
 
 It has since been revised, and is published in the October number of the North 
 American Review. 
 
 Cambridge, October 1, 1861. 
 
 fo// 
 
HABEAS CORPUS AND MARTIAL LAW. 
 
 The opinion of Chief Justice Taney, in the case of John Merry- 
 man, has necessarily attracted much attention. Several of the 
 accompanying circumstances have given it unusual prominence. 
 The case was one, as most of our readers well know, in which 
 Merryman, being held as a prisoner at Fort McHenry, the head- 
 quarters of General Cadwalader, then in command of the military 
 department in which the fort is situated, applied to Chief Justice 
 Taney, -the head of the judiciary of the United States, for a writ 
 of habeas corpus, in order that he might thereby be brought before 
 the Chief Justice and delivered from imprisonment, upon the ground 
 that it was without lawful warrant, unjust, and oppressive. Mer- 
 ryman was arrested by a military force, without any warrant from 
 a magistrate, on charges of treason and rebellion founded upon 
 certain acts done by him at, or immediately after, the attack by a 
 mob upon the Sixth Regiment of Massachusetts Volunteers, in its 
 passage through Baltimore ; the mob being incited to violence 
 through the agency of secessionists inhabiting that city, and the 
 regiment being on its way to Washington to sustain the govern- 
 ment of the United States, then gravely menaced by the insurrec- 
 tion in the Southern States, — the capital itself being threat- 
 ened by the leaders of the insurrection. Troops from Pennsylva- 
 nia proceeding to Washington for the same purpose, were attacked 
 and turned back by the same mob. It was alleged, especially, 
 that Merryman had participated in the destruction of the railroad 
 and bridges, with the design of preventing other troops from 
 reaching the capital by the route through Baltimore. Fort Mc- 
 Henry, in the immediate vicinity of Baltimore, was at the time of 
 the arrest held and occupied for the purposes of the war, which had 
 
 (3) 
 
then just commenced, an'd was regarded as a very important military- 
 post, serving among other purposes as a check — and perhaps for 
 the time as the only effectual check — upon the disaffected part of 
 the population of Baltimore. 
 
 The further facts which led to the issuing of the writ of habeas 
 corpus, as prayed for, are stated by the Chief Justice, in the 
 opinion delivered by him as follows : — 
 
 " The petition presents the following case. The petitioner resides in 
 Maryland, in Baltimore County. While peaceably in his own house with 
 his family, he was, at two o'clock on the morning of the 25th of May, 1861, 
 arrested 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 MeHenry, where he is imprisoned by the commanding officer, 
 without warrant from any lawful authority. 
 
 " The commander of the fort. General George Cadwalader, 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 a prisoner to 
 Fort McHenry by his order, and placed in his (General Cadwalader's) cus- 
 tody, 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 an offence 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 rebelhon, 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. 
 And having the prisoner thus in custody upon these vague and unsup- 
 ported 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 miUtary officer residing in Pennsyl- 
 vania, issues an order to arrest a citizen of Maryland, upon vague and in- 
 definite charges, without any proof, so fai; 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 ex- 
 amine 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 Presi- 
 dent 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 offi- 
 cer, 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 his 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." 
 
 From the concluding part of the opinion, it appears that the 
 Chief Justice not only denies the right of the President to suspend 
 the writ of habeas corpus, and the right of General Cadwalader to 
 decline compliance with the command of the writ requiring him to 
 appear with the prisoner and show the cause of the detention, but 
 he also denies the right of the military authority to make searches, 
 seizures, and arrests without warrant; and he insists that "great 
 and fundamental laws, which even Congress itself could not sus- 
 pend, have been disregarded and suspended, like the writ of habeas 
 corpus, by a military order, supported by force of arms." We 
 quote this part of the opinion, as it has an important bearing upon 
 the reasoning of the Chief Justice. 
 
 If the arrest might be made by the military authority, without 
 warrant, then it will probably be admitted that the same authority, 
 on making return of the nature of the arrest and detention, may 
 decline to produce the prisoner upon the writ of habeas corpus. 
 
 "But the documents before me show that the military authority in this 
 case has gone beyond the mere suspension of the privilege of the writ of 
 habeas corpus. It has, by force of arms, thrust aside the judicial authori- 
 ties and officers to whom the Constitution has confided the power and duty 
 of interpreting and administering the laws, and substituted a military go- 
 vernment 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 offence 
 against the laws of the United States, it was his duty to give information 
 of the fact, and the evidence to support it, to the District Attorney ; and 
 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 a warrant to the Marshal to arrest him, and, upon the hearing of 
 the party, would have held him to bail, or committed him for trial, accords 
 ing to the character of the offence, 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 re- 
 sistance to the action of the civil authorities, and therefore no reason what- 
 ever for the interposition of the military. 
 
 " And yet, under these circumstances', a military officer, stationed in 
 Pennsylvania, without giving any application to the District Attorney, and 
 without any information 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 having a hearing even before 
 himself, to close custody in a strongly garrisoned fort, there to be held, it 
 would seem, during the pleasure of those who committed him. 
 
 "The Constitution provides, as 1 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 secu]»e in their person, 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 particularly describing 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. 
 
 " And these great fundamental laws, which Congress itself could not sus 
 pend, have been disregarded and suspended, like the writ of habeas corpus' 
 by a military order supported by force of arms. Such is the case now be- 
 fore 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 and under any circumstances, be usurped by the military 
 power at its discretion, the people of the United States are no longer liv- 
 ing 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 dis- 
 trict he may happen to be found. 
 
 "In such a case, my duty was too plain to be mistaken. I have exer- 
 cised all the power which the Constitution and laws confer on 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 to 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 en- 
 forced." 
 
 The liberty of the subject, and the writ of habeas corpus as the 
 means of protecting that liberty from unlawful interference, have 
 long been the pride and boast of Englishmen ; and the American 
 people, as is abundantly shown in the Constitution and laws of the 
 United States, and of the several States, have been not less jealous 
 for the one, or less tenacious of the other. It is apparent, there- 
 fore, that whatever addresses itself to the popular mind as a vin- 
 dication of the right of personal freedom against oppression in any 
 of its forms, must meet a ready and hearty approval ; and if the 
 Chief Justice, as is undoubtedly the fact, has failed to secure the 
 support of the people in the assertion of his right to deliver Mer- 
 ryman from his imprisonment, it must be because there were cir- 
 cumstances of no ordinary character involved in the case, which 
 deprived the party imprisoned of the popular sympathy, and led to 
 grave doubts whether the principles of law relied on by the judicial 
 magistrate ought to, or do in fact, govern cases of that character. 
 
 Upon a superficial examination of the case, as stated by the 
 Chief Justice, it is not surprising, perhaps, that he should have 
 come to the conclusion that the return to the writ was insufiicient. 
 
8 
 
 But there is no case -whicli in all its circumstances comes up to this, 
 and there are certain matters of law and fact bearing upon it, and 
 appearing to deserve great weight, which do not seem to have pre- 
 sented themselves to his mind. He does not discuss the question 
 how far the provisions of the Constitution which he cited in the latter 
 part of the opinion have reference to a state of actual war existing 
 in the country, — how far they may be modified or controlled in 
 their operation by other provisions of the Constitution which in a 
 state of war may have a bearing upon the case, — nor how far the 
 authorities which he cites have a just application to the facts which 
 he must have known were not only existing, but which had a con- 
 trolling influence in producing the case before him. 
 
 It may be thought that the question, whether General Cad- 
 walader might not lawfully decline to obey the command of the 
 writ, or suspend its operation, because it would require him to 
 abandon for the time being the performance of his military duties, 
 and because he held the prisoner under military or martial law, 
 was not presented to the Chief Justice by the return, which stated 
 that the President had authorized a suspension of the writ of 
 habeas corpus. But if the return did not in terms present that 
 question to him, it was, notwithstanding, before him, and he passed 
 upon it ; for, after stating that Mr. Jefferson did not claim the 
 power to suspend the writ, but referred the matter to Congress, he 
 said in the opinion : — 
 
 " 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 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 higb 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." 
 
It seems, therefore, upon his own showing, that if General Cad- 
 walader had made a return that he claimed to hold the prisoner by 
 the general law martial, which suspended the habeas corpus, and 
 rendered his military duties and obligations inconsistent with a 
 compliance with the requirements of the writ, the Chief Justice 
 would have disposed of the case without arguing the question. 
 
 There are some cases which have a tendency to support his 
 conclusion. How far they can justify it, we shall see as we pro- 
 ceed. We propose at this time to follow out the investigation thus 
 indicated. 
 
 If it were admitted that the same rules are applicable to the 
 issue and determination of the habeas corpus in time of war as 
 those which govern the subject in time of peace, then it must also 
 be admitted that the opinion of the Chief Justice is well sustained ; 
 but if it shall appear that war brings with it its own rules, pre- 
 scribing the powers and duties of military commanders, and their 
 relations to persons within their military jurisdiction, then his 
 reasoning may fail in its application to the case before him, and 
 the opinion may be shown to have no sufficient foundation. 
 
 It may be well in the first place to consider briefly the nature 
 and character of the writ of habeas corpus, as deducted from its 
 early history, although there is very little in its practical applica- 
 tion in England which can serve to throw light upon the present 
 questions. 
 
 It is said that there are various kinds of the writ of habeas 
 corpus; but it might perhaps with greater precision be said, that 
 the writ is used for several different purposes, and the terms which 
 designate the different purposes have been applied as designations 
 for different writs ; as, for instance, the habeas corpus ad respon- 
 dendum, where the body of the party is brought into court that he 
 may answer 'to what is charged against him ; the habeas corpus ad 
 testificandum, where a party imprisoned is brought in to testify as 
 witness, and other cases furnishing similiar descriptions. 
 
 "But the great and efficacious writ in all manner of illegal confinement," 
 says Blackstone, "is that of habeas corpus ad subjiciendum, directed to the 
 person detaining another, and commanding him to produce the body of the 
 prisoner, with the day and cause of his capture and detention, ad facien- 
 
10 
 
 dum, subjiciendum, et recipiendvm, to do, submit to, and receive, whatso- 
 ever the judge or court awarding the writ shall consider in that behalf. 
 This is a high prerogative writ, and therefore, by the common law, issuing 
 out of the King's Bench not only in term time, but also during the va- 
 cation by a fiat' hom the chief justice or any other of the judges, and 
 running into all parts of the king's dominions; for the king is entitled at 
 all times to have an account why the liberty of any of his subjects, is 
 restrained, wherever- that restraint may be inflicted."* 
 
 There seems to be no authentic account of the issue of the writ 
 until long after Magna Charta, although it is said to be of right 
 by the common law, which may be true in the sense that it has its 
 foundation in the principles of the common law. 
 
 Coke says that "Magna Charta was for the most part declara- 
 tory of the principal grounds of the fundamental laws of England, 
 and for the residue it is additional to supply some defects of the 
 common law."t But the Great Charter did not in terms provide 
 for or recognize any right to this particular remedy. The pro- 
 visions which declare the right of the subject, and perhaps serve 
 to sustain this writ as an appropriate remedy for any unlawful 
 restraint of his person, are, — 
 
 " NvMus liber Jiomo capiatur, vel imprisonetur, aut disseisietur, de libero 
 
 tenemento suo, vel libertaiibus, vel liberis consuetudinibus suis, aut utlagetur, 
 
 aut exuletur, aut aliqiio modo destruatur, nee super euin ibimus nee super 
 
 eum mittemus, nisi per legale judicium parium suorum, vel per leg em terrse 
 
 "Nulli vendemus, nnlli negabimus, aut dtffereinus^justitiam vel rectmn." 
 
 As translated in Coke, these provisions read : — 
 
 " No freeman shall be taken, or imprisoned, or be disseised of his free- 
 hold, or liberties, or free customs, or be outlawed, or exiled, or any other- 
 wise destroyed; nor will we pass upon him, nor condemn him, but by lawful 
 judgment of his peers, or by the law of the land. 
 
 " We will sell to no man, we will not deny or defer to any man either 
 justice or right."J 
 
 There have been some differences of translation not material to 
 the present discussion. 
 
 That these provisions of the Great Charter did not secure to the 
 subject deliverance from imprisonment at the will of the crown, even 
 
 * 3 Blackstone's Commentaries, 131. \ 2 Inst. 66 et sea 
 
 X 2 Inst. 45. 
 
11 
 
 in times of peace, and that the general principles of the common law, 
 as then administered, furnished no better security, is apparent from 
 the fact that in 1627, more than four centuries afterward, a writ of 
 habeas corpus was issued in the case of John Hampden and others, 
 to which the Warden of the Fleet returned that they were detained 
 by a warrant from the Privy Council, that no particular cause was 
 assigned, but that they were committed by the special command of 
 his Majesty; and the court held this a. sufficient return. Un- 
 doubtedly the decisions of the judicial tribunals at that period, 
 upon subjects involving the prerogatives of the crown, cannot be 
 regarded as of high authority. This case led to divers proceed- 
 ings in Parliament condemnatory of the decision ; to the Petition 
 of Right, for the better security of the liberty of the subject; and 
 to the habeas corpus act, in the thirty-first year of Charles II., 
 which recited that "great delays have been used by sheriiFs, jailers, 
 and other officers, to whose custody any of the king's subjects 
 have been committed for criminal or for supposed criminal matter, 
 in making returns of writs of habeas corpus to them directed," and 
 then enacted, in substance, that whensoever any person should 
 bring a writ of habeas corpus, directed to any sheriff or other person, 
 for any person in his custody, the officer should, within three days 
 after service of the writ in the mode designated, (except in certain 
 cases enumerated,) upon payment of charges and security given, 
 bring, or cause to be brought, the body of the party so committed 
 or restrained, unto or before the Lord Chancellor, according to the 
 command thereof, and certify the cause of his commitment. There 
 were divers provisions regulating the subsequent proceedings. It 
 has been said that this statute was designed to secure the benefit 
 of the writ, rather than to extend its operation, one great object 
 being to insure the performance by the judges of their duty. 
 Mr. Chief Justice Taney says in his opinion : — 
 
 "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 
 institutions, and must, therefore, have strongly attracted the attention of 
 statesmen engaged in framing a new, and, as they supposed, a freer 
 government than the one which they had thrown ofi' by the Kevolution. 
 
12 
 
 For, from the earliest history of the common law, if a person was im- 
 prisoned — no matter by what authority, — ^he had a right to the writ of 
 habeas corpus to bring his case before the King's Bench; and if no specific 
 offence was charged against him in the warrant of commitment, he was 
 entitled to be forthwith discharged ; and if any offence was charged which 
 was bailable in its character, the court was bound to set him at liberty on 
 bail. And 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 passage of the statute 
 of 31st Charles II., comtnonly 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 from the usurpation and oppression of the execu- 
 tive 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 be justly denied, there was often no effectual remedy 
 against its violation. Until the statute of the 13th of William III. the 
 judges held their offices at the pleasure of the king, and the influences 
 which he exercised over timid, timeserving, and partisan judges, often 
 induced them, upon some pretext or another, to refuse to discharge the 
 party, although he was entitled to it by law, or delayed the decisions from 
 time to time, so as to prolong the imprisonment of the persons who were 
 obnoxious to the king for 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." 
 
 If by this the Chief Justice refers to imprisonment for alleged 
 offences in time of peace, and to detentions having no connection 
 with military operations in time of war, it may be true, theoreti- 
 cally ; but it is quite clear, that neither Magna Charta nor the 
 common law prescribes rules to govern the conduct of a war, or 
 professes to set forth the principles which in time of war 'shall 
 regalate the military service of the country ; and we have found 
 no case in England in which the writ of habeas eorpus has been 
 used, in time of war, to deliver from any detention by military 
 authority, which detention had its origin in causes and proceedings 
 connected with the war. So far from its being true that "from 
 
13 
 
 the earliest history of the common law, if a person was imprison- 
 ed, no matter by what authority, he had a right to the writ of 
 habeas corpus, to bring his case before the King's Bench, and if 
 no specific offence was charged against him in the warrant of com- 
 mitment, he was entitled to be forthwith discharged'," — and that 
 the statute of Charles II. secured such right already existing, — 
 it is a fact, that, more than a century after the passage of the act, 
 "a gentleman having been impressed before the commissioners, 
 under a pressing act passed in the preceding session, and confined 
 in the Savoy, his friends made application for a writ of habeas 
 corpus, which produced some hesitation and difficulty ; for accord- 
 ing to the above statute, the privilege relates only to persons com- 
 mitted for criminal or supposed criminal matter." Before the 
 question could be determined, he was discharged on an application 
 to the Secretary at War. This case being supposed to show a 
 defect in the statute of Charles II., a bill was introduced into 
 Parliament, in 1757, for giving a more speedy remedy to the sub- 
 ject upon the writ of habeas corpus. The bill was passed by the 
 House of Commons, but was thrown out on its second reading in 
 the House of Lords, principally, it would seem, through the 
 agency of Lord Mansfield. He made a speech upon it in June, 
 1758, of which Horace Walpole said, "I am not averse to own 
 that I never heard so much argument, so much sense, so much 
 oratory united." In the course of this speech, according to a 
 report of Dr. Birch, cited by Lord Campbell, , Lord Mansfield, 
 among other things, said, "that the writ of habeas corpus at com- 
 mon law was a sufficient remedy against all these abuses which this 
 bill was supposed to rectify." But such evidently was not the 
 view of Lord Campbell, who says: "I am concerned to say 
 that Lord Mansfield, from whom better things might have been 
 expected, stirred up a furious opposition to this bill, and threw it 
 out." And Horace Walpole adds: "Nor did I ever know how 
 true a votary I was to liberty, till I found I was not one of the 
 number staggered by that speech."* 
 
 If the statute of Charles II. conferred no new right upon the 
 subject, but only secured a right already existing, as is said by 
 
 *Lord Campbell's lives of the Chief Justices, Vol. II., pp. 453, 454, and note. 
 
14 
 
 Mr. Chief Justice Taney, and has been said by others, it is quite 
 clear that the common-law right to the writ did not extend to such 
 a case ; for while the bill was before the House of Lords, that 
 body proposed ten questions to the Judges, the ninth question 
 being, " Whether the said statute of 31 Car. II., and the several 
 provisions therein made for the immediate awarding and returning 
 the writ of habeas corpus, extend to the case of any compelled 
 against his will, in time of peace, to enter into the land or sea 
 service without any color of legal authority, or to any case of 
 imprisonment, detainer, or restraint whatsoever, except cases of 
 commitment or detainer for criminal or supposed criminal mat- 
 ter?" — and the judges who answered, ten in number, were unani- 
 mously of opinion that it did not. Mr. Justice Noel, Mr. Justice 
 Wilmot, Mr. Baron Adams, Mr. Baron Smyth, Mr. Baron Legge, 
 Mr. Justice Dennison, and Lord Chief Baron Parker, answered 
 directly in the negative, in the language of the question. The 
 answers of Mr. Justice Bathurst, Mr. Justice Clive, and Lord 
 Chief Justice Willes were, that "the words of the statute, &c., do 
 not extend to such a case." Mr. Justice Bathurst added to his 
 answer : " But in favor of liberty, the judges of the Court of 
 King's Bench have in conformity to that statute extended the 
 same relief to all cases."* 
 
 "In a more enlightened age," says Lord Campbell, (to wit, 56 
 George III.,) "the bill was again introduced, and received unani- 
 mous support in both Houses of Parliament." But this act does 
 not provide for liberation from arrest by the military authority in 
 actual service in time of war ; nor does the usage of the judges, 
 as mentioned by Mr. Justice Bathurst, appear to have done so. 
 
 The remarks, therefore, of Blackstone and Hallam, cite.d by 
 Chief Justice, Taney, are not applicable ; and the English history 
 of the writ of habeas corpus fails to sustain his opinion with refer- 
 ence to the case before him. 
 
 The American cases, although some of them are founded upon 
 a state of facts much more nearly approaching the present case 
 afford us no satisfactory discussion of the principles which must 
 settle it. They may be found collected in Mr. Kurd's valuable 
 
 * Bacon's Abridgment, Art. Habeas Corpus, Editor's note. 
 
15 
 
 treatise on Habeas Corpw. Most of them have occurred in time 
 of peace, and did not, therefore, involve the consideration of 
 principles applicable to a state of war. 
 
 There have been several cases in Massachusetts in which the 
 writ has issued in time of war to the commanding oflScer of a fort 
 within the State, for the discharge of minors who had enlisted 
 without the consent of parents or guardians. But the service of 
 the writ seems to have been regarded as a matter of course, and 
 perhaps no reason is to be inferred why it should not have been, 
 as the military force at the place might not have been in such 
 active service as to require a refusal.* 
 
 The case which most nearly resembles Merryman's is that of 
 Stacy, which occurred in 1813, in which a habeas corpus was, by 
 a commissioner of the Supreme Court of New York, directed to 
 "Isaac Chauncey, Commandant of the Navy of the United States 
 on Lake Ontario, and to Morgan Lewis, commanding the troops of 
 the United States at the station of Sackett's Harbor, and to each 
 and every subordinate officer under the said commandants, or 
 either of them," commanding them to bring before the commis- 
 sioner the body of Samuel Stacy, Jr., together with the cause, 
 fec.f Morgan Lewis, as general of division in the army of the 
 United States, returned that Stacy was not in his custody. Royal 
 Torrey, Provost Marshal, returned that he held Stacy by virtue of 
 a warrant directed to him by J. Chambers, Assistant Adjutant- 
 General, commanding him to receive Stacy into the custody of the 
 provost guard, from Commodore Chauncey, who charged him with 
 an act of high treason against the United States, committed within 
 the territory of the king of Great Britain. Affidavits were filed, 
 and the commissioner submitted the papers to the Supreme Court 
 for aid and advice. In that court a motion was made for an 
 attachment, or a rule to show cause why an attachment should not 
 be issued, against General Lewis, Torrey, &c. The opinion of the 
 court was delivered by Chief Justice Kent, who said that the return 
 of General Lewis was bad on the face of it ; that it was evidently 
 an evasive return ; that he ought to have stated, if he meant to 
 excuse himself for the non-production of the body of the party, 
 
 *11 Mass. Bep. 63, 67, 83. t^ Johns. Rep., 239. 
 
16 
 
 that Stacy was not in his possession or power. And after examin- 
 ing the evidence tending to show that Stacy was in the custody of 
 General Lewis, and stating that the court was bound to consider 
 the order issued from the Adjutant-General's office and the deten- 
 tion under it as the act of .General Lewis, the Chief Justice said 
 that there was apparent on the face of the return a contempt of 
 the process, and that one of the affidavits proved not only that 
 Stacy was in custody under the order and by the authority of 
 General Lewis, but that the direction of the writ was intentionally 
 disregarded, and that the only question that could be made was, 
 whether the motion for an attachment should b0 granted, or 
 whether there should be a rule upon the party offending to show 
 cause, by the first day of next term, why an attachment should 
 not issue. The conclusion was, an order that an attachment 
 should issue, but should not be served if General Lewis should 
 forthwith, on being served with a copy, discharge Stacy, or cause 
 him to be brought before the commissioner in obedience to the 
 habeas corpus. > 
 
 The only remark which it is necessary to make upon this case, 
 in connection with the present discussion, is, that the attention of 
 the court does not seem to have been directed for an inStant to 
 the question whether the existence of the war at that time could 
 have any effect upon the right of the military force to make the 
 arrest, or of the commander to hold the party arrested. And as 
 General Lewis did not claim the right to hold him exempt from 
 the operation of the habeas corpus, but made a return to the writ, 
 in the ordinary course, perhaps it may be said that he must be 
 held thereby to have waived any such right, if he possessed it. 
 There can be no doubt that, supposing an exemption from the 
 operation of the habeas corpus to exist by reason of the existence 
 of a war, a commanding officer may, in his discretion, waive any 
 right to insist upon the exemption, and yield obedience to the 
 command of the writ, unless controlled by the orders of a superior 
 officer. If a party exempt from the performance of military duty 
 should, notwithstanding, be summoned to the performance of that 
 duty, he may, if he please, waive his right to the exemption. 
 
 The high character of the judicial tribunal which passed upon 
 Stacy's case undoubtedly gives a kind of weight even to its omis- 
 
17 
 
 sions ; but it is not to be inferred tlaat no distinction exists in res- 
 pect to the duty of obedience to the writ of habeas corpus in time 
 of war and in time of peace, merely because that distinguished tri- 
 bunal failed to make one, when its attention was called to the sub- 
 ject. If such an inference were drawn, it would cover every case ; 
 and yet it is most clear that cases exist in time of war in which a 
 commanding officer is exempt from arrest on civil process, and from 
 any command to produce a prisoner before a judicial tribunal, even 
 when constitutional provisions are found asserting the liberty of 
 the citizen and the supremacy of the civil authority in much more 
 emphatic terms than those cited by Mr. Chief Justice Taney from 
 the Constitution of the United States. One provision of the Con- 
 stitution of Massachusetts is, that " Every subject has a right to 
 be .secure from all unreasonable searches and seizures of his per- 
 son, his houses, and all his possessions. All warrants are contrary 
 to this right, if the cause and foundation of them ai'e not previously 
 supported by oath or affirmation." Another clause declares, that 
 " the military power shall always be held in exact subordination to 
 the civil authority, and be governed by it." Another, that "the power 
 of suspending the laws, or the execution of the laws, ought never to 
 be exercised but by the Legislature, or by authority derived from 
 it," &c. Another, that " no person can in any case be subjected to 
 the law martial, or to any penalties or pains by virtue of that law, 
 except those employed in the army or navy, and except the militia 
 in actual service, but by authority of the Legislature." Now 
 whether, consistently with this last 'provision, any officer acting 
 under the authority of Massachusetts can declare martial law, or 
 whether martial law can exist in connection with any proceedings 
 of the officers of that Commonwealth, while acting under State au- 
 thority, so as to affect citizens hot in the militia or naval service, 
 without an act of the Legislature for the purpose, is a question the 
 discussion of which may be waived at this time, as there is no 
 similar provision in the Constitution of the United States controll- 
 ing persons acting under, that government. But the question 
 whether in the time of an actual insurrection, and an attempt to 
 quell that insurrection by a military force actually in the field^ 
 the commander of the military force, and the officers and men 
 under him, would be subject to all thp ordinary civil liabilities 
 
18 
 
 for acts done, to which they would be subject for like acts 
 -done in time of peace, is, notwithstanding all these constitu- 
 tional provisions, another and a very different question. That the 
 military ought always to be subject to the civil power is a general 
 truth applicable to times of peace, but applicable in its full extent 
 only to times of peace. The most ordinary effort of reflection will 
 assure us that in a time of war it has no application to the military 
 power in the field, actively prosecuting the war, even if there is no 
 action of Congress or of the President, under the Constitution of 
 the United States, suspending the writ of habeas corpus. On the 
 contrary, thus applied, it would or might be subversive of the effi- 
 ciency of military operations. It requires but a moderate degree 
 of common sense to arrive at the conclusion, that a commanding 
 general in Massachusetts, marching to the battle-field at the head 
 of his column, in performance of his military duty to suppress an 
 insurrection, is for the time exempt from arrest on civil process, 
 whether the action be in contract or tort. Otherwise the army 
 must stop while the sheriff makes the arrest and the general gives 
 bail ; but in the mean time the insurrectionists may attack and 
 rout his forces, who are waiting for the execution of the bail- 
 bond. 
 
 It may perhaps be argued, that there is no legal exemption in 
 such cases, but that no arrest could be made because the com- 
 manding oificet would resist ; and although the resistance would 
 be unlawful, yet no jury could ever be found which would give more 
 than nominal damages. But if it be true that there is no exemp- 
 tion from the arrest, it would be the duty of the commander to 
 submit to it ; the resistance would be the obstruction of an offi- 
 cer in the execution of his duty, subjecting the party to indictment ; 
 and, moreover, the sheriff who attempted to make the arrest might 
 summon the posse eomitatus, and thereupon insist that the general 
 should give bail; and answer also to a complaint for resisting the 
 arrest ; or else he must fight the posse before he could be permitted 
 to fight the insurrectionists. 
 
 To talk of a duty to suspend the military operations, submit to 
 an arrest, and give bail under such circumstances, is sheer non- 
 sense. It is clear that the officer, being in duty bound to the State 
 and the people to perform the military service upon which perhaps 
 
19 
 
 the fate of the government was depending for the time heing, could 
 not consistently be held to be a wrong-doer for persisting in the 
 performance of that as the superior duty. The civil responsibility 
 to arrest must be held by any court giving a reasonable construc- 
 tion to the Constitution and to the law, as suspended for the time 
 being by the paramount military obligation. In other words, the 
 military law must be held to supersede the civil in that exigency, 
 and this in consistency with, and not in antagonism to, the Consti- 
 tution. 
 
 Still more clear must it be to the most indifferent comprehension, 
 that the commander of a column, thus marching to battle against 
 insurgents, is not bound to encamp his men, and in obedience to 
 the command of a writ of habeas corpus, to repair forthwith to the 
 court-house, wherever that may be, or to a judge's chamber if that 
 be the place selected, taking with him a soldier, whose friends, 
 anxious lest he should be killed in the encounter, have procured 
 the writ upon the ground that he is a minor, and his enlistment 
 into the service illegal and void, and that the order of the com- 
 manding officer requiring him to march to the battle is an unlaw- 
 ful duress and detention, he having previously requested a dis- 
 charge. An examination of the case might require two or three 
 days. The party who should procure such a writ, and attempt 
 thereby to suspend the military operations, would be loaded with 
 execrations ; and the general who, under such circumstances, should 
 yield obedience to it, would be deservedly cashiered. But if the 
 civil responsibilities existed as in time of peace, the refusal to 
 make a return would be a contempt of court, for which an attach- 
 ment should issue ; and the general should be arrested, taken before 
 the judge, and fined, perhaps imprisoned. If we find no special 
 exemption from the operation of the civil process in such case in 
 the Constitution or laws of the State, the exemption will rest, not 
 merely upon the fact that the commander would' assuredly forth- 
 with use his military power to prevent the attachment, but upon 
 the military responsibility which then rests upon him, and the mili- 
 tary law by which he is governed under the Constitution, altogether 
 inconsistent with, and superseding, the civil responsibility. 
 
 But it is not sufficient that we reach the conclusion by intuition, 
 as it were, in cases of such an extreme character. The inquiry 
 
20 
 
 presents itself — How far does the principle apply upon which this 
 exemption from civil responsibility rests ? The cases which have 
 occurred, and which are likely to occur hereafter, are not cases of 
 an attempt to serve the writ of habeas corpus on the actual battle- 
 field, or on the immediate march to it. 
 
 If, in discussing the principles involved in the subject, we turn 
 to the early history of the habeas corpus in this country, we find 
 very little to aid us in our investigation. The American Colonists 
 generally claimed all the liberties and privileges of natural-born 
 subjects of the realm, and the benefit of the common law for the 
 vindication of those liberties, as a part of their birthright. There 
 is nothing, however, to be found respecting this writ in their earlier 
 history which can render us any service. 
 
 In 1689, an application to Judge Dudley in Massachusetts for 
 the writ was " arbitrarily refused," which denial was made the 
 subject of a subsequent suit against the judge.* A pamphlet was 
 published in Boston during that year, in which the denial of the 
 writ was alleged as one of the grievances of the people. In 1692 an 
 act was passed by the Assembly for the better securing of the 
 liberty of the subject and the prevention of illegal imprisonment, 
 which regulated proceedings on the writ. 
 
 About the same time the Assembly of South Carolina adopted 
 the Act of 31 Charles II., it would seem for the especial benefit of 
 the pirates who were then in the habit of settling in that State, and 
 who, making themselves friends of the mammon of unrighteousness 
 which they had acquired, procured the passage of the act as a pro- 
 tection against the Proprietary government, which was desirous of 
 punishing them for their piracy. f 
 
 After the year 1700 there is evidence of the use of the writ from 
 time to time in several of the Colonies. Instances are collected in 
 Mr. Kurd's treatise, but we have found no case in Colonial history 
 were there was a question respecting its application to military 
 operations in time of war. 
 
 The denial or suspension of the writ is- not alleged, in terms, in 
 the Declaration of Independence, as one of the grievances of the 
 Colonies; but "transportation beyond the seas, to be tried for 
 
 * Washburn's Judicial History of Massachusetts, p. 106. 
 f Kurd's Habeas Corpus, p. Ill ; Hewitt's History of S. Carolina, pp. 115-117. 
 
21 
 
 offences," is in the enumeration; and the abolition "of the free 
 system of the English laws in the neighboring Province, establish- 
 ing therein an arbitrary government and enlarging its boundaries 
 so as to render it at once an example and fit instrument for intro- 
 ducing the same absolute rule into these Colonies," which is the next 
 charge in the Declaration, refers, it is understood, to an act mak- 
 ing more effectual provision for the government of the Province of 
 Quebec, passed by Parliament in 1774, and which was opposed in 
 the House of Commons because it left the inhabitants under the 
 civil law of France, denying them the right of trial by jury, the 
 writ of habeas corpus, &c.* 
 
 There seems to be little in the ante-Revolutionary history, there- 
 fore, which can serve to give a construction to the provision in the 
 Constitution of the United States which has recently become the 
 subject of so much comment. The debates upon the Quebec Bill 
 may have had some influence in producing it ; but an act of Par- 
 liament, passed in 1777, may have had a more direct effect. That 
 act recited that rebellion and war had been traitorously levied and 
 carried on in certain of his Majesty's Colonies in America, and that 
 acts of treason and piracy had been committed on the high seas; 
 that many persons had been seized and taken who were expressly 
 charged, or strongly suspected, of such treasons and felonies ; and 
 that it might be inconvenient to proceed forthwith to the trial of 
 them, and at the same time of evil example to suffer them to go at 
 large; — and thereupon it was enacted, that all such persons, 
 committed by any magistrate having competent authority in that 
 behalf, should be detained in safe custody, without bail or mainprise, 
 until the first day of January, 1778 ; and that no judge or justice 
 should bail or try any such person until that date, without an order 
 from the Privy Council. The fourth section confined it to acts 
 committed without the realm, f 
 
 The original motion which gave rise to the clause in the Consti- 
 tution was made by Mr. Charles Pinkney of South Carolina, but 
 his proposition was amended on motion of Mr. Gouverneur Morris.J 
 
 * Hurd p 119 t Statutes at Large, 17 Geo. III. chap. 9. 
 
 {3 Madison Papers, 1365, 1441. 
 
22 
 
 The constitutional provision, instead of settling anything upon 
 the subject, except a restriction of the power of suspension to two 
 occasions, has introduced a new element of uncertainty, by raising 
 a question whether suspension of the writ (which the clause, by 
 implication, admits may exist) may be made or authorized by the 
 President, or whether the power of suspension is confined to Con- 
 gress alone. This question may involve another, to wit, whether 
 the suspension is a denial of the writ itself, so that it cannot be 
 issued during the term of the suspension ; or whether it is merely 
 an authority, in some way existing, permitting persons accused of 
 certain classes of offences to be held against the operation of the 
 writ when issued, so that a return that the party is committed or 
 held on an accusation of such offence, if true in point of fact, will 
 be a bar to further proceedings upon the writ. If it were the first, 
 as the term "suspension" might seem to indicate, then it would be 
 clear that the suspension which is thus restricted could be made only 
 by Congress ; for from the nature of the case no power could exist 
 forbidding the writ to issue, except in Congress. It would require 
 an act of legislation. If, on the other hand, the suspension which 
 I is thus restricted is only an authority to hold a person arrested, 
 against the operation of the writ, so that the party to whom it is 
 directed is not bound to produce the prisoner according to its com- 
 mand, and may by a return show that he is not bound to produce 
 him, or may refuse to produce him without a return, then the sus- 
 / pension may not only not require a legislative act in certain cases, but 
 \ it may result from circumstances, without any act, legislative or 
 otherwise, declaring a suspension. There seems to ^e~n6 reason- 
 able doubt that the suspension referred to in the Constitution is of 
 this character, and not a prohibition of the issue of the writ. It 
 is believed that the acts of Parliament which are known as suspen- 
 sions of the habeas corpus do not purport to forbid the issue of the 
 writ, or authorize a denial of it. Mr. Hurd* speaks of the statute 
 17 George III. chap. 9, as an act by which the writ of habeas 
 corpus was denied, but it did not restrain the issue of it; and the 
 act of 34 George III. chap. 64, referred to in Bacon,t only provi- 
 ded that persons detained for high treason, &c. might be held in 
 
 * Habeas Corpus, p. 132. j Abridgment, Tit. Habeas Corpus, B. 4 note. 
 
23 
 
 custody -without bail or mainprise until a certain day, and that no 
 judge should bail or try a person so committed without an order 
 from the Privy Council. It also suspended an act for preventing 
 wrong imprisonment. 
 
 Now it is to be noted, that the constitutional provision is not a 
 grant of power, but a restriction upon a power assumed to exist, 
 and the exercise of which is to be limited; without any assertion 
 or assumption when it exists, by whom it may be exercised, or 
 under what circumstances it might be exercised but for the restric- 
 tion and limitation. By whatever body or person, or under what- 
 ever circumstances, the habeas corpus might have been suspended 
 but for this constitutional limitation, by that body or person, and 
 under those circumstances, it may still be suspended in time of 
 rebellion or invasion; but by no body or person, nor under any 
 circumstances, can it be suspended by means of any authority 
 emanating from the United States, at any other time than when 
 there is either rebellion or invasion, and the public safety requires it. 
 
 This distinction between a grant of power and a restriction upon 
 a power has not been suflB.ciently adverted to in some of the discus- 
 sions upon the subject. Mr. Chief Justice Taney himself treats 
 the constitutional provision as a grant of power. He says, " The 
 clause in the Constitution which authorizes the suspension of the 
 privilege of the writ of habeas corpus is in the ninth section of the 
 first article; " and as the provisions of that article relate mainly to 
 Congress, he argues that the authority to suspend is conferred on 
 Congress alone. Then he says: "It is the second article of the 
 Constitution which provides for the organization of the Executive 
 Department, and enumerates the powers conferred on it and pre- 
 scribes its duties. And if the high power over the liberty of the 
 citizens, now claimed, was intended to be conferred on the Presi- 
 dent, it would undoubtedly be found in plain words in this article." 
 Whereas, in truth, the Constitution did not intend to confer, in 
 terms, any power to grant the writ of habeas corpus, nor any power 
 to suspend it, but left the power to grant and the power to suspend 
 to be settled by general principles, with the single exception of a 
 limitation upon the power of suspension to the two exigencies which 
 it specified. 
 
24 
 
 There is therefore no question whether the Constitution, *in the 
 dause mentioned, confers the power of suspension upon Congress 
 ' alone, or whether it gives it to the President also ; for it gives it to 
 neither. The power exists as an incident to other powers expressly 
 conferred. That it is thus given as an incident is clear from the 
 restriction itself, which would otherwise be wholly nugatory ; for 
 a restraint upon a power is in itself in no sense a grant of the 
 power upon which the restraint is imposed. Congress possesses the 
 power to suspend the habeas corpus, as an incident to its power to 
 suppress an insurrection, and as an incident to its power to make war, 
 because a suspension may be made by a legislative act; and but 
 for the restriction. Congress might suspend it in case of war when 
 there was no invasion of the United States. Whether the Presi- 
 dent possesses the power to order or authorize it, as an incident 
 to his office as commander-in-chief of the army and navy, or whether 
 he has it as an incident to his duty to see the laws faithfully execu- 
 ted, we do not propose to inquire. The opinion of the learned 
 Attbrney-General upon the latter point is already before the public, 
 and we do not deem the settlement of those questions necessary to 
 our present purpose. 
 
 Taking the constitutional provision as a clause of restraint, the 
 inquiry which is presented to us is, under what circumstances, upon 
 the more general principles of law, may there lawfully be a refusal 
 to produce, in obedience to the writ of habeas corpus, a person 
 detained or imprisoned in time of rebellion or invasion. Starting, 
 as Mr. Chief Justice Taney did, with the grave error in his premi- 
 ses of supposing a restraint upon a power to be a grant of it, it is 
 not surprising that he did not reach any right conclusion upon this 
 subject. It would have been wonderful had he done so. 
 
 Upon the inquiry thus indicated, our first proposition is, that in 
 tinie of actual war, whether foreign or domestic, there may be justi- 
 fiable refusals to obey the command of the writ, without any act of 
 Congress, or any order or authorization of the President, or any 
 State legislation for that purpose ; and the principle upon which 
 such cases are based is, that the existence of martial law, so far as 
 ' the operation of tha,t law extends, is, ipso facto, a suspension of 
 the writ. 
 
25 
 
 The existence of martial law and the suspension of the habeas 
 corpus have been said to be one and the same thing; but in fact the 
 former includes the latter, and much more. Wherever that law 
 exists, searches and seizures may be made without warrant, and 
 persons may be arrested without process. The search, seizure, 
 and arrest give no cause of action. The detention, unless there 
 is an abuse, furnishes no claim -for damages against the oiScer who 
 enforces it. 
 
 The case Luther vs Borden and others* covers this whole ground. 
 That case, it is familiary known, arose out of an attempt to change 
 the government of Rhode Island, and was an action of trespass for 
 assault and false imprisonment, brought for breaking and entering 
 the plaintiff's house with an armed force, and taking and holding 
 him as a prisoner. The defendants offered several pleas in justifi- 
 cation, setting forth in substance the existence of an insurrection 
 to overthrow the government of the State by military force, — that 
 at the time of the alleged trespasses the State was under martial 
 law, declared by the General Assembly in defence of the govern- 
 ment, — that the plaintiff was aiding and abetting the insurrection, 
 and the defendants, being enrolled in a certain company of infantry, 
 were ordered to arrest the plaintiff, and if necessary to break and 
 enter his dwelling-house for that purpose, — that it was necessary, 
 and thereupon they did break, and enter, and search his house, doing 
 as little injury as possible, &c. The action was designed not merely 
 for the private remedy, but to test the questions which arose between 
 the two political parties. Mr. Chief Justice Taney then said, speak- 
 ing of the state of affairs in Rhode Island (where, by the way, 
 armed collision was only threatened, without an actual conflict of 
 the opposing forces) : — 
 
 '' In relation to the act of the Legislature declaring martial law, it is not 
 necessary in the case before us to inquire to what extent, nor under what 
 circumstances, that power may be exercised by a State. Unquestionably 
 a mihtary government, established as the permanent government of the State, 
 would not be a republican government, and it would be the duty of Congress 
 to overthrow it. But the law of Rhode Island evidently contemplated no 
 such government. It was intended merely for the crisis, and to meet the 
 
 * 7 Howard's Supreme Court Reports, 1. 
 
26 
 
 peril in which the existing government was placed by the armed resistance 
 to its authority. It was so understood and construed by the State authori- 
 ties. And unquestionably a State may use its military power to put dow^ 
 an armed insurrection too strong to be controlled by the civil authority. 
 The power is essential to the existence of every government, essential to the 
 preservation of order and free institutions, and is as necessary to the States 
 of this Union as to any other government. The State itself must determine 
 what degree of force the crisis demands. And if the government of 
 Ehode Island deemed the armed opposition so formidable and so ramified 
 throughout the State as to require the use of its military force and the 
 declaration of martial law, we see no ground upon which this court can 
 question its authority. 
 
 "It was a state of war; and the established government resorted to the 
 rights and usages of war to maintain itself, and to overcome the unlawful 
 opposition. And in that state of things the ofi6.cers engaged in its military 
 service might lawfully arrest any one who, from the information before them, 
 they had reasonable grounds to believe was engaged in the insurrection, and 
 might order a house to be entered and searched, where there were reasonable 
 grounds for supposing he might be there concealed. Without the power 
 to do this, martial law and the military array of the government would be 
 mere parade, and rather encourage attack than repel it." 
 
 He added: — 
 
 " No more force, however, can be used than is necessary to accomplish 
 the object. And if the power is exercised for the purpose of oppression, 
 or any injury wilfully done to person or property, the party by whom or by 
 whose order it is committed would undoubtedly be answerable." 
 
 This last is but the application of the ordinary principles of law 
 to cases of the abuse of powers conferred by lav^r. 
 
 Now it is quite clear that if a state of war and the existja.ce_of 
 martial law will authorize the officers engaged in 'the military 
 service to break open and search a house where there is reason to 
 suppose that a person, whom they have reasonable grounds to 
 believe was engaged in an insurrection, is 'concealed, and to arrest 
 him if found, without any warrant from a magistrate for that 
 purpose, a fortiori they may hold him after his arrest against any 
 civil process issued for his liberation. The law of the arrest is the 
 law of the detention, and the habeas corpus is suspended so far 
 
27 
 
 that no return to the writ can be required of the officer who holds 
 the pi-isoner under the law which authorized the arrest. To say 
 that the military authorities had a right without warrant to break 
 and enter what in time of peace is denominated a man's castle, 
 and that they may without warrant lawfully arrest any one, on 
 reasonable information that he was engaged in the insurrection, 
 and then to hold that the authority thus making the arrest was 
 bound thereupon to obey the writ of habeas corpus and bring the 
 party before a magistrate, on the ground that the arrest and 
 imprisonment were unlawful, and that he was entitled to his dis- 
 charge forthwith, because the arrest and detention were thus ivithout 
 a civil warrant, would be an inconsistency and absurdity of which 
 Mr. Chief Justice Taney could hardly be guilty when he put this 
 and that together. And yet he relies upon the constitutional 
 provision that no person can be "arrested without warrant, to show 
 that Merryman ought to have been brought before him, and that 
 ^ he was entitled to be discharged. 
 
 If, therefore, Merryman's arrest or detention was under martial 
 law, then, on the principle enunciated by the Chief Justice, as the 
 organ of the court, in Luther vs. Borden, the arrest or imprison- 
 ment cannot be declared to be unlawful. 
 
 Before proceeding to inquire whether martial law was actually 
 in existence at Fort McHenry when the Chief Justice issued the 
 writ requiring General Cadwalader to produce the body of Mer- 
 ryman before him, and to make return of the cause of his detention, 
 it may be well to dispose of 'two or three incidental questions. 
 
 Supposing martial law to have been in existence at the time, 
 and that General Cadwalader held Merryman lawfully under it, 
 was not the General bound to make his appearance before the 
 Chief Justice, with his prisoner, and to make a return according 
 to the requirement of the writ of habeag corpus, so that it might 
 appear to the civil authority that the prisoner had been arrested, 
 and was held, under martial law? So far from this being true, we 
 are of opinion that it may safely be asserted that, if the prisoner 
 was actually held under martial law when the writ was issued, the 
 military commander who was then authorized to enforce martial law, 
 and was himself subject to it, was not bound to obey the writ, even 
 supposing the arrest and the imprisonment tb have been So far 
 
28 
 
 unlawful that an action would lie to recover damages for an abuse 
 of the power under which the arrest and detention were had. 
 
 The right to a remedy in damages would not interfere with the 
 due maintenance and execution of martial law, if there was no 
 attempt to enforce it by an arrest of the military officer while in 
 the execution of his military office ; which, if attempted, might, as 
 we have seen, raise another question. But it seems to be perfectly 
 clear that the party holding a prisoner under martial law cannot 
 be required to bring him up for an examination under the municipal 
 law. If he might be, then, in the language of Mr. Chief Justice 
 Taney, in Luther vs. Borden, before cited, "martial law and the 
 military array of the government would be mere parade, and 
 rather encourage attack than repel it." Let us test this. It will 
 not be denied, we presume, that it is one of the first duties of a 
 military commander in time of war, if not the very first, to hold 
 the post and perform the military duty assigned to him, and to 
 keep watch and ward, not only that there may be no detriment to 
 the service by open assault of the public enemy, or by secret plots 
 of concealed traitors, but to make sure that the troops under him, 
 with the material of war intrusted to his care and management, 
 are at all times in readiness for such service as may be required 
 of him by the orders of his superior officers, or by the exigencies 
 of the public service if he have a separate, independent command. 
 If he is a subordinate officer, he cannot, according to the law which 
 ordinarily governs him, leave the post he is ordered to occupy and 
 hold, without a military order for that purpose, upon the penalty 
 denounced by that law; and that penalty may be death itself. 
 Now the question comes. May the command of the civil process 
 justify him in abandoning the duty with which he is thus intrusted, 
 or m committing it to other parties for the time being, in order 
 that he may attend court ? If the military law which governs him 
 is martial law, it is very clear that he cannot justify or excuse his 
 absence from his post on such a command ; for if martial law, when ' 
 it is in existence, supersedes the civil law, as we have seen from 
 the opinion of Mr. Chief Justice Taney that it does, and as it 
 evidently must do, then "it follows, as the night the day," that no 
 command of any civil officer, requiring a commander to leave his 
 post and violate his military obligation, could impose any duty 
 
29 
 
 upon him. As we have said, an officer in an independent com- 
 mand might exercise a discretion on the suhject; but that is not 
 material to the argument. 
 
 It appears in the opinion of the Chief Justice that the application 
 for the habeas corpus was made to him while in Washington, under 
 the impression that he would order the prisoner to be brought 
 before him there ; but as Merryman was confined at Fort McHenry, 
 within his circuit, he resolved to hear the case at Baltimore, "as 
 obedience to the writ, under such circumstances, would not withdraw 
 Greneral Cadwalader, who had Mm in charge, from the limits of his 
 military command." The Chief Justice very coolly puts this as a 
 matter of discretion, and as if he might be entitled to some credit 
 for not requiring the General to absent himself from the limits of 
 his military command in time of war, thereby superseding him 
 for the time being, depriving the military arm of the country of 
 the service of an officer of such high grade, who had command of 
 a district which required sleepless and untiring vigilance for the 
 preservation of order; without once considering the consequences 
 which might have resulted had he thus required the officer to leave 
 his post, to repair with his prisoner to a place outside of his 
 military district, and there to remain with the prisoner until the 
 lawvers could argue the case, and a decision could be made. If a 
 thought had been given to that matter, it might have led to the 
 inquiry, how far, upon general principles, without any legislative 
 suspension or any formal declaration pf martial law, the writ of 
 habeas corpus can penetrate a military camp, in time of war, and 
 arrest the whole military operations of the government at that 
 place. 
 
 If Mr. Chief Justice Taney could thus have required the attend- 
 ance of General Cadwalader at Washington, Mr. Justice Catron, 
 if the insurgents had not driven him from Tennessee, might require 
 the general in command at St. Louis to repair to Nashville, bring 
 with him the body of any person taken in Missouri in arms against 
 the government, and there show cause why he holds him as a 
 prisoner. If there were any other Confederate General than 
 Pillow threatening to come up the Mississippi, the idea of such a 
 legal power at the time we are writipg would be perfectly pre- 
 posterous. 
 
30 
 
 If such might be the eonsequences of the propositions laid down 
 by Mr. Chief Justice Taney, the judicial power may be made quite 
 as effectual to overthrow the government in time of war as the 
 suspension of the habeas corpus, by order of the President, in time 
 of peace, could be to overthrow the liberties of the people, — some- 
 what more so, indeed, as the effect of the latter could be more 
 readily and securely avoided. Judge Catron may probably make 
 his peace with the insurgents, if he will take his stand at Nashville, 
 issue the writ, and cause it to be obeyed. 
 
 But it may be urged, that the return to the writ in Merryman's 
 case, so far as there was a return, was that the President had 
 suspended the habeas corpus, or had authorized General Cadwalader 
 to suspend it ; that, if neither of them had power to do so, there 
 was nothing to show the existence of martial law, or any impedir 
 ment to the full operation of the writ ; and that it is necessary, 
 therefore, to establish the power of the President in the case. 
 
 To this it may be answered, that the Chief Justice had know- 
 ledge of the existence of war. That was a fact which did not 
 require proof before him. He was bovmd to take judicial notice of 
 the President's proclamation. If, without further proof than was 
 then before him, he could not judicially know, al-so, that troops 
 from Massachusetts and from Pennsylvania, hastening to the relief 
 of the capital, had been assailed in the very city where he was pro- 
 posing to bring up the prisoner, he was not bound to ignore that 
 fact, but might well, upon such knowledge as he must undoubtedly 
 have had in common with the rest of the community, have made an 
 inquiry whether there had not been an actual armed collision, by 
 which several persons had been killed, and troops from Pennsylvania 
 turned back, showing a state of insurrectionary violence; for, 
 although this collision was brought on by the irregular force of a 
 mob, the evidence before him, and on which he assumes to found 
 his opinion, might have shown him that this violence of the mob 
 was in fact insurrectionary, as is abundantly shown by the destruc- 
 tion of the bridges and railroads for the purpose of preventing 
 more troops from reaching the capital. It was for the destruction 
 of the bridges with this intent, among other things, that the prisoner, 
 Merryman, was arrested. If the judicial mind of the Chief Justice 
 required more formal evidence of these .matters, it could readily 
 
31 
 
 have been furnished. But this is not material, for the Chief Jus- 
 tice knew, from the evidence before him, that Merryman was held 
 by a military power called out for the purpose of suppressing the 
 insurrection against the government, and that he was held in a mili- 
 tary fortress belonging to the government, and then occupied by 
 the military forces of the government, for the purpose of resisting 
 and quelling this insurrection. He sent his writ to the fort, directed 
 to the general, who, as he understood, commanded the military 
 district, — a district which had been created by reason of the insur- 
 rection, and a general who had been called into service for the very ~ 
 purpose above mentioned ; and if martial law existed at the time 
 and place, from general principles of law applicable to such a 
 condition of things, the Chief Justice was bound to take judicial 
 notice of that fact without further evidence. 
 
 This brings us to the question, Was martial law in existence at 
 Fort McHenry at the time when the writ Avas issued and the return 
 made? In order to determine this question, we inquire, What is 
 martial law? It is said that there is a distinction between military law 
 and martial law. Undoubtedly there is to this extent, that military 
 law is for the government of the military force, and does not neces- 
 sarily imply the existence of martial law. Military law may and 
 does exist in time of peace, for the government of the army ; but 
 martial law includes military law, and it exists only in time of war. 
 The Duke of Wellington is quoted as having said, that " martial 
 law is the will of the commander-in-chief," and Blackstone says it 
 " is built upon no settled principles, but is entirely arbitrary in its 
 decisions." With such a scope and extent it cannot exist in this 
 country consistently with the Constitution, for it would be utterly 
 subversive of the Constitution for the time being. Neither the 
 President nor Congress can constitutionally proclaim or authorize 
 such a power, nor can it exist by the general principles of law. 
 Burrill, in his Dictionary, defines it as " An arbitrary kind of law 
 or rule sometimes established in a place or district occupied or con- 
 trolled by an armed force, by which the civil authority and the or- 
 dinary administration of the law are either wholly suspended or sub- 
 jected to military power." This is founded upon the idea of 
 Blackstone and is clearly imperfect as a definition, unless the mili- 
 tary power which exercises this law or rule is not responsible to 
 
32 
 
 the civil authority in any mode for the manner of its exercise ; 
 which in this country is clearly contrary to the fact. It has been 
 said, that it is " founded upon a paramount necessity." Of course, 
 then, it extends as far as the necessity extends, and no further. 
 It may be that in certain cases the military authority must judge 
 of the military exigency, so that its determination whether the 
 military necessity exists will be conclusive ; but still the power will 
 be restricted to the scope of the necessity which it has been deter- 
 mined exists, so that if an arbitrary force is used, having no con- 
 nection with the exigency, or not within the possible scope of the 
 necessity, the party guilty of it will be civilly responsible for his 
 acts. 
 
 If the military commander should depart from the possible scope 
 of the military necessity, and commit a private wrong, disconnected 
 from it, as for instance a personal assault to gratify private re- 
 venge, the existence of martial law would not excuse him from 
 punishment afterward by a judicial tribunal. So if, under pre- 
 tence of the exercise of martial law, he should be guilty of unne- 
 cessary force or oppression, showing an abuse of the power de- 
 manded by the military necessity. This is substantially the prin- 
 ciple laid down in Luther vs. Borden, where the court say: "No 
 more force can be used than is necessary to accomplish the object, 
 and if the power is exercised for the purposes of oppression, or 
 any injury wilfully done to person or property, the party by whom 
 or by whose order it is committed would undoubtedly be answerable." 
 
 Martial law, then, is that military rule and authority which ex- 
 ists in time of war, and is conferred by the laws of war, in relation 
 to persons and things under and within the scope of active military 
 operations in carrying on the war, and which extinguishes or sus- 
 pends civil rights, and the remedies founded upon them, for the 
 time being, so far as it may appear to be necessary in order to the 
 full accomplishment of the purposes of the war ; the party who exer- 
 cises it being liable in an action for any abuse of the authority thus 
 conferred. It is the application of military government the go- 
 vernment of force — to persons and property within the scope of it, 
 according to the laws and usages of war, to the exclusion of the 
 municipal government, in all respects where the latter would impair 
 the efficiency of military rule and military action. 
 
33 
 
 Founded upon the necessities of war, and limited by those ne- 
 cessities, its existence does not necessarily suspend all civil pro- 
 ceedings. Contracts may still be made, and be valid, so long as 
 they do not interfere with or affect the military operations. A 
 mere tresspass by A. upon the land of B., unconnected with mili- 
 tary service, is none the less a tresspass, and does not require 
 a military trial or determination. The courts are not necessarily 
 closed, for all actions relating merely to the private affairs of indi- 
 viduals may still be entertained without detriment to the public 
 service ; but it closes the consideration there of any action, suit, or 
 proceeding in which the civil process would impair the efficiency of 
 the military force. Chief Justice Taney's court might be open, 
 but he could not subject General Cadwalader to any civil duty 
 which conflicted with his military duty. 
 
 We shall ascertain its extent in some measure if we inquire, 
 What are the rights and usages of war under which, according to 
 the opinion of the court in Luther vs. Borden, the government, in 
 order to maintain itself, and to overcome the unlawful opposition, 
 may lawfully arrest persons without warrant, and for this purpose 
 may forcibly enter a house on suspicion that a person engaged in 
 the insurrection is concealed there ? What are the rights and 
 usages of war according to which persons may be seized and held 
 because the public safety requires it — or because the conduct of 
 the enemy requires that hostages be taken — or according to which 
 persons may be impressed, for the time being, mtq the military 
 service, and required to perform military duty — or property may 
 be destroyed, or seized and used for the military service, without 
 the assent of the owner ? If such rights and usages might exist 
 without the existence of martial law, they would be sufficient for 
 our present purpose ; for when such rights exist, we have already 
 shown that 'the habeas corpus is necessarily suspended. But the 
 existence of such rights seem to indicate with precision the exist- 
 ence of martial law. 
 
 A question has arisen whether a commanding general can, by 
 proclamation of martial law, give force to this military rule be- 
 yond the limits of his camp, or of the military position occupied by 
 him. Mr. Justice Woodbury, in Luther vs. Borden, expressed the 
 opinion that he might do so over a space near the field of his ope- 
 
34 
 
 rations.* And it is well known that other very distinguished gen- 
 tlemen have entertained like opinions, or perhaps those giving the 
 proclamation a greater territorial operation. 
 
 Now it may, we think, be laid down as a safe principle, that in 
 time of war any fort or camp occupied by a military force, for the 
 purposes of the war, is if so facto, without any special proclamation, 
 under the government of martial law, such as we have described it. 
 And the same, in our opinion as at present advised, is equally true 
 of any column of soldiers mustered into active service for the like 
 purpose, whether on the march or at rest. It is not necessary to 
 speak of soldiers mustered into the service of the government, 
 but stationed at a distance for the purpose of being called into 
 active service when occasion may require. They may, or they 
 may not, be under the government of military law only, as in time 
 of peace. But this cannot be said of troops actively engaged in 
 the service of the government. Whether those troops are in the 
 face of the enemy, in battle array, or whether they are merely 
 garrisoning a fort to aid thereby in suppressing a rebellion, or 
 whether they are opening and holding the avenues by which the 
 passage of other troops to the theatre of active war is to be facili- 
 tated, the law which governs the place where they are is martial, 
 and not municipal. This is necessary to enable the government to 
 use the military force efficiently, and also for the protection of 
 the officers and soldiers. 
 
 There are very respectable authorities which tend to support this 
 position, although we admit that the subject has not been very 
 fully discussed. 
 
 We, refer in the first place, to a speech of Mr. John Quincy 
 Adams in the House of Representatives, on the 14th and 15th of 
 April, 1842, which was reported in the National Intelligencer, 
 April 16th and 19th, and afterward printed in pamphlet form at 
 the Emancipator office, in Boston. Upon a motion to strike out so 
 much of an appropriation bill as related to the salary of a minis- ' 
 ter to Mexico, and a motion to amend that amendment by reduc- 
 ing the appropriation for the missions to Austria and Prussia one 
 half, the debate, as usual, ran off into topics having no connection 
 
 * 7 Howard's Hep. 
 
35 
 
 whatever with the subject nominally under consideration, and, 
 among other matters, into the consideration of the emancipation 
 of slaves. Mr. Adams said : 
 
 " "When your country is actually at war, whether it he a war of invasion 
 or a war of insurrection, Congress has power to carry on the war, and must 
 carry it on according to the laws of war ; and by the laws of war an in- 
 vaded country has all its laws and municipal institutions swept by the 
 board, and martial law takes the place of them. This power in Congress 
 has, perhaps, never been called into exercise under the present Constitution of 
 the United States. But when laws of war are in force, what, I ask, is one 
 of those laws ? It is this : that when a country is invaded, and two hos- 
 tile armies are set in martial array, the commanders of both armies have 
 power to emancipate all the slaves in the invaded territory. Nor is this a 
 mere theoretic statement. The history of South America shows that the 
 doctrine has been carried into practical execution within the last thirty 
 
 years And here I recur again to the example of General Jackson. 
 
 What are you now about in Congress ? You are about passing a grant to 
 refund to General Jackson the amount of a certain fine imposed upon him 
 by a judge under the laws of the State of Louisiana. You are going to re- 
 fund him the money, with interest ; and this you are going to do because 
 the imposition of the fine was unjust. And why was it unjust ? Because 
 General Jackson was acting under the laws of war, and because the moment 
 you place a military com,mander in a district which is the theatre of war, 
 
 the laws of war apply to that district I might furnish a thousand 
 
 proofs to show that the pretensions of gentlemen to the sanctity of their 
 municipal institutions under a state of actual invasion and of actual war, 
 whether servile, civil, or foreign, is wholly unfounded, and that the laws of 
 war do in all such cases take the precedence. 1 lay this down as the law of 
 nations. I say that the military authority takes, for the time, the place of 
 all municipal institutions, and slavery among the rest. I am open to con- 
 viction, but until that conviction comes, I put it forth, not as a dictate of 
 feeling, but as a settled maxim of the laws of nations, that in such a case 
 the military supersedes the civil power." 
 
 A writer of several articles published in the Louisville Journal, 
 and afterward collected in a pamphlet, — who admitted that he had, 
 up to the time of writing, " supposed that, in the estimation of all 
 intelligent men in this country, martial law stood upon the precise 
 same footing, and none other, as Lynch law, Regulators' law, or 
 
36 
 
 mob law," and who said that "in a legal or moral sense they all 
 have the precise same basis," and that "they are equally the same 
 arbitrary usurpation of power, without a particle of law or right to 
 sustain either," — denounced Mr. Adams' speech, and the speeches 
 also of Mr. Buchanan and Mr. Berrien upon the question of remit; 
 ting General Jackson's fine, in very strong terms ; asserting that 
 the doctrine "promulged" was, that martial law is "a law para- 
 mount to the Constitution itself, — a law which sweeps the Consti- 
 tution and all other civil law by the board, and leaves the property, 
 the liberty, and the life of every citizen at the will of a military 
 despot." 
 
 In a subsequent debate in the House, January 5, 1843, Mr. 
 Adams referred to this pamphlet, and said that in it he was charged 
 with having given an opinion in relation to the power of a com- 
 manding general to declare martial law that was utterly at vari- 
 ance with freedom and the laws of nations, and he wished to have 
 an opportunity of answering that charge. He wished to have an 
 opportunity to explain and defend the opinions he had given. But 
 the debate was continued, so far as we are aware, without the de- 
 sired defence and explanation. 
 
 Mr. Berrien is reported to have said, that " General Jackson 
 was perfectly excusable, under all the circumstances of the case, 
 in declaring martial law, and that he was equally excusable in 
 disobeying the writ of habeas corpus. 
 
 Mr. Justice Woodbury, in the dissenting opinion delivered by 
 him in Luther vs. Borden, while taking a diflferent view of martial 
 law from that adopted by a majority of the court, and denying the 
 authority of the Legislature of Rhode Island to declare martial law 
 under the existing circumstances, said : 
 
 " The necessities of foreign war, it is conceded, sometimes impart great 
 powers as to both things and persons. But they are modified by those 
 necessities, and subjected to numerous regulations of national law and 
 justice and humanity. These, when they exist in modern times, while 
 allowing the persons who conduct war some necessary authority of an ex- 
 traordinary character, must limit, control, and make its exercise under 
 certain circumstances, and in a certain manner, justifiable or void with 
 almost as much certainty and clearness as any provisions concerning 
 
37 
 
 municipal authority or duty. So may it be in some extreme stages of 
 civil war. Among these, my impression is that a state of war, whether 
 foreign or domestic, may exist, in the great perils of which it is competent, 
 under its rights and on principles of national law, for a commanding officer 
 of troops under the controlling government to extend certain rights of war, 
 not only over his camp, but its environs and the near field of his military 
 operations. (6 American Archives, 186.) But no further, nor wider. 
 (Johnson vs. Davis et al., 3 Martin, 530, 661.) On this rested the justi- 
 fication of one of the great commanders of this country and of the age, in 
 a transaction so well known at New Orleans. 
 
 "But in civil strife they are not to extend beyond the place where insur- 
 rection exists (3 Martin, 551); nor to portions of the State remote from 
 the scene of military operations, nor after the resistance is over, nor to 
 persons not connected with it (Grant vs. G-ould et al., 2 Hen. Bl. 69); nor 
 even within the scene can they extend to the person or property of citizens 
 against whom no probable cause exists which may justify it (Sutton vs. 
 Johnson, 1 D. and E. 549); nor to the property of any person without 
 necessity or civil precept. If matters in this case had reached such a 
 crisis, and had so been recognized by the General Government, or if such 
 t a state of things could and did exist as to warrant such a measure inde- 
 pendent of that government, and it was propeflj pleaded, the defendants 
 might perhaps be justified within those limits, and under such orders, in 
 making search for an ofiender or an opposing combatant, and, under some 
 circumstances, in breaking into houses for his arrest."* 
 
 In the closing part of his opinion, he says :- 
 
 " And though it is very doubtful whether in any other view, as by the 
 general rights of war, these respondents can justify their conduct on the 
 facts now before us, yet they should be allowed an opportunity for it." 
 
 It is quite clear, therefore, that the learned judge recognized 
 '■^certain general rights of war," under which parties would be 
 justified in making searches and seizures without warrant, and in 
 breaking into houses for that purpose. The limitations which he 
 suggests would to a great extent defeat the right, unless the judg- 
 ment of the military authority respecting the existence of the 
 exigency in which the right may be exerted is to be held conclu- 
 sive on that point. To submit that question, in all cases, to the 
 subsequent determination of a jury, would not be consistent with 
 
 * 7 Howard's Eep. 83. 
 
38 
 
 the principle upon which the right is founded, — which must be the 
 existence of a rule superseding the municipal law in the particular 
 case, which rule is martial law. 
 
 The personal irresponsibility of officers and soldiers for acts 
 which would in time of peace be trespasses upon other persons 
 will serve to show the existence of martial law ; for the irresponsi- 
 bility can be sustained only on the laws of war. The existence 
 of martial law formed, as we have seen, the justification of the 
 defendants in Luther vs. Borden, for breaking the house and 
 seizing and holding the plaintiff without warrant. It was the 
 only justification. 
 
 To state the question, then, in another form. How far does this 
 personal irresponsibility or justification extend in such cases ? 
 Upon this question, undoubtedly, opinions have not been uniform. 
 
 We believe it to be a sound principle, that, in time of war, every 
 soldier mustered for the active purposes of the war, whether in 
 fojrt, camp, or column, is bound to yield implicit obedience to any 
 command of his superior which may be within the scope of the 
 military service due from him, without any inquiry whether such 
 command would be justifiable according to the rules of the munici- 
 pal law ; and he is excused from civil responsibility for the per- 
 formance of the act required, because of this obligation. Our 
 principle, of course, does not embrace acts required and done 
 which are entirely aside from his military duties. 
 
 It must be admitted that the writer in the Louisville Journal, to 
 whose articles we have referred, does not sustain our proposition. 
 He says : — 
 
 " We are told of two cases of the violation of law and private right by 
 Washington, at the siege of York, as the two greatest, if not the only, 
 instances of the usurpation of power by him during the whole of the 
 Revolutionary war. They will serve as examples to elucidate the subject, 
 verging as they do to the very utmost limit of what an officer may do, and 
 stand morally excused, without being excused by the law. One was the 
 demolition of a house that stood in the way of his approaches to the works 
 of the enemy, and the other authorizing the seizure of some cattle, indis- 
 pensable to the sustenance of his army. Both were, even strictly speak- 
 ing, necessary violations of law and private right, but no otherwise so 
 
39 
 
 except in a moral sense, than if the same things had been done by a 
 private individual. Legally speaking, the acts derived no validity from 
 the facts of their having been done by a military commander under circum- 
 stances of the most urgent State necessity. He, no doubt, would volun- 
 tarily have made good the damage out of his own pocket, if redress could 
 have been had in no other way ; but he could have been compelled to do 
 so in a court of law. The circumstances attending the acts would have 
 aided his defence no otherwise than to prevent the jury from giving what 
 is termed smart-money. If he had sold the cattle or bartered them for 
 other provisions, he would not have transferred the title ; but the owner 
 could still have recovered them from whomsoever he might have found in 
 possession. If the owner had resisted, and killed the officer making the 
 seizure, it would have been justifiable homicide j if the officer had killed 
 him, it would have been murder." 
 
 Such doctrine needs no other refutation than its evident absur- 
 dity. If General Washington was a trespasser in ordering the 
 acts thus specified, every private soldier who assisted in the per- 
 formance of the service was equally so ; for the command to com- 
 mit a trespass aiFords no justification for the act. Such is the 
 general principle, and the principle was applied in Mitchell vs. 
 Harmony, 13 Howard's Rep. 115. 
 
 The opinion of the Supreme Court of New York in the case of 
 McLeod, even supposing it to be sound, does not conflict with our 
 position. McLeod, who was a subject of the Queen of Great 
 Britain, residing in Canada, was arrested in New York, charged 
 with the murder of Durfee, who was killed at the time of the 
 destruction of the steamer Caroline, on the American side of the 
 Niagara River, in December, 1837, because, as was alleged, she 
 was employed in aiding the rebels in Canada, by carrying mili- 
 tary stores to Navy Island. He was brought up on habeas corpus, 
 in 1841, and his discharge was moved, among other reasons, be- 
 cause the attack on the Caroline was an act of public force, com- 
 mitted by command of the British Government, all the defendant 
 did being by the command of his superior officer, and in obedience 
 to his own government; and because for acts done under such 
 authority he was not responsible, personally and individually, in 
 any court of law whatever. The court refused to discharge or 
 bail him, holding that he was liable to be proceeded against 
 
40 
 
 individually in the criminal courts of New York for arson and 
 murder.* The soundness of the opinion was impunged by Mr. 
 Webster, then Secretary of State,t and by other distinguished 
 jurists; and it was controverted in a very able review by Judge 
 Talmadge. But supposing it to be beyond question, the grounds 
 upon which the court in New York proceeded were, that a nation 
 can exercise the right of war only within its own territory, or that 
 of its enemy, or in one which is vacant; that an order of a nation 
 at war, for the destruction , of life or property of its enemy within 
 the territory of a neutral power is void, and affords no protection 
 to persons acting under it ; and that a sovereign has no right to 
 compel his subject to enter a neighboring country and commit any 
 unlawful act, whether in peace or war. J 
 
 The case Blphinstone vs. Bedreechund§ is not precisely to the 
 point, but it may serve to illustrate the subject. The marginal 
 abstract of it as follows : 
 
 " The members of the provisional govermnent of a recently conquered 
 country seized the property of a native of the conquered country who had 
 been refused the benefit of the articles of capitulation of a fortress, of 
 which he was governor, but who had been permitted to reside under mili- 
 tary surveillance in his own house in the city in which the seizure was 
 made, and which was at a distance from the scene of actual hostilities. 
 Held, that the seizure must be regarded in the light of a hostile seizure, 
 and that a municipal court had no jurisdiction on the subject. 
 
 " Semble, — The circumstances, that at the time of the seizure the city 
 where it was made had been for some months previously in the undisturbed 
 possession of the provisional government, and that courts of justice under 
 the authority of that government were sitting in it for the administration 
 of justice, do not alter the character of the transaction." 
 
 In the course of the argument the Attorney-Greneral, Sir James 
 Scarlett, said : — 
 
 "It is unnecessary to refer to any decisions upon the law of England, or 
 any modern jurists, to illustrate the position, that in a state resulting from 
 a state of war, if property is seized under an erroneous supposition that it 
 
 *25 Wendell's Rep. 488; 1 Hill's N. Y. Rep. 377. f 25 Wendell's Rep. 512, note. 
 1 1 Hill's Rep. 378. ^ 1 Knapp's Reports of Cases before the Priyy Council, 316. 
 
41 
 
 belongs to the enemy, it may be liberated by the proper authority, but no 
 action can be maintained against the party who has taken it in a court of 
 law. If our English naval commander seizes property as enemies' pro- 
 perty, that turns out clearly to be British property, he forfeits his prize in 
 the Court of Admiralty, and that court awards the return of it to the party 
 from whom it was taken; but the case of Le Caux vs. Eden (Douglas, 573) 
 decides the question that no British subject can maintain an action against 
 the captor."- 
 
 And 
 
 again : — 
 
 "If property is taken by an officer under the supposition that it is the 
 property of a hostile state, or of individuals, which ought to be confiscated, 
 no municipal court can judge of the propriety or impropriety of the seizure ; 
 it can be judged of only by an authority delegated by his Majesty, and by 
 his Majesty ultimately, assisted by your Lordships as his Council. There 
 are no direct decisions upon such questions, because, as was stated by Lord 
 Mansfield in Lindo vs. Rodney (Douglas, 592), they are cases of rare occur- 
 rence."* 
 
 The opinion given by Lord Tenterden, without reasons assigned, 
 is in these words : — 
 
 " We think the proper character of the transaction was that of hostile 
 seizure made, i{ not flagrante, yet nondum cessante hello, regard being had 
 both to the time, the place, and the person, and consequently that the 
 municipal court had no jurisdiction to adjudge upon the subject; but that, 
 if anything was done amiss, recourse could only be had to the government 
 for redress. We shall, therefore, recommend it to his Majesty to reverse 
 the judgment." 
 
 The case Mitchell vs. Harmonyf distinctly recognizes the prin- 
 ciple which we state, but with some limitations, which may here- 
 after be found too stringent for its fair operation. In that case 
 Mr. Chief Justice Taney said : — 
 
 "There are, without doubt, occasions in which private property may 
 lawfully be taken posses.sion of or destroyed to prevent it from falling 
 into the hands of the public enemy; and also where a military officer, 
 
 * 1 Knapp's Reports, 357. t ^^ Howard's Rep. 115. : 
 
42 
 
 charged with a particular duty, may impress private property into tl 
 public service, or take it for public use. Unquestionably, in such cases 
 the government is bound to make full compensation to the owner, but the 
 officer is not a trespasser. 
 
 "It is impossible to define the particular circumstances of danger or 
 necessity in which this power may be lawfully exercised. Every case 
 must depend on its own circumstances. It is the emergency that gives 
 the right, and the emergency must be shown to exist before the taking 
 can be justified." 
 
 " In deciding upon this necessity, however, the state of the facts, as 
 they appeared to the officer at the time he acted, must govern the decision ; 
 for he must necessarily act upon the information of others, as well as his 
 own observation. And if, with such information as he had a right to 
 rely upon, there is reasonable ground for believing that the peril is imme- 
 diate and menacing, or the necessity urgent, he is justified in acting upon 
 it ; and the discovery afterwards that it was fajse or erroneous will not 
 make him a trespasser." 
 
 " The case mentioned by Lord Mansfield, in delivering his opinion in 
 Mostyn vs. Pabrigas, 1 Cowp. 180, illustrates the principle of which we 
 are speaking. Captain Gambier, of the British navy, by the order of 
 Admiral Boscawen, pulled down the houses of some settlers on the coast 
 of Nova Scotia who were supplying the sailors with spirituous liquors, the 
 health of the sailors being injured by frequenting them. The motive 
 was evidently a laudable one, and the act done for the public service. 
 Yet it was an invasion of the rights of private property, and Without the 
 authority of law, and the officer who executed the order was held liable 
 to an action, and the settlers recovered damages against him to the value 
 of the property destroyed." 
 
 " If the power exercised by Colonel Doniphan had been within the 
 limits of a discretion confided to him by law, his order would have jus- 
 tified the defendant, even if the commander had abused his power, or 
 acted from improper motives. But we have already said that the law did 
 not confide to him a discretionary power over private property. Urgent 
 necessity would alone give him the right, and the verdict finds that this 
 necessity did not exist. Consequently the order given was an order to do 
 an illegal act, to commit a trespass upon the property of another, and can 
 afford no justification to the person by whom it was executed. The case 
 of Captain Gambler, to which we have just referred, is directly in point 
 upon this question. And upon principle, independent of the weight of 
 judicial decision, it can never be maintained that a military officer can 
 
43 
 
 justify himself for doing an unlawful act, by producing the order of his 
 superior. The order may palliate, but it cannot justify."* 
 
 Let us illustrate the subject a little further. The march of the 
 New York Seventh Regiment, and of the Eighth Massachusetts 
 under command of General Butler, to Washington, by the way 
 of Annapolis, is too fresh in the recollection of most our readers 
 to require a minute detail of facts. At Annapolis they found that 
 the Secessionists of Maryland had disabled the locomotive, and, as 
 had been done on the direct route, had torn up the railroad track 
 and destroyed the bridges. Under the direction of General Butler 
 and other officers the locomotive was repaired, the cars put in run- 
 ning order, the track relaid, the bridges rebuilt, the transit of the 
 troops secured, and Washington thereby rendered safe for the time 
 being. It was the military duty of General Butler to march his 
 force to Washington with all possible diligence ; but if his com- 
 mand was not under the government of martial law, then it was, 
 so far as the rights of other persons were concerned, subject to 
 the municipal law. 
 
 If Mr. Chief Justice Taney's positions in Merryman's case are 
 correct, then General Butler, and all of the Massachusetts Eighth 
 and New York Seventh, were mere trespassers, severally liable to 
 actions of trespass in favor of the railroad company and the in- 
 habitants upon whose lands they came ; and in such actions the 
 sheriff would probably have been ordered to arrest the bodies of 
 the defendants if it could have been done. Bail could hardly have 
 been procured, and instead of arriving in Washington for the de- 
 fence of the capital, the sheriff would have filled the jail of the 
 county, and hired extra prisons in which to incarcerate them. If 
 we are not misinformed, the Chief Justice of the State was one of 
 the signers of a petition to that true and tried patriot. Governor 
 Hicks, to call the Legislature together for the purpose of securing 
 the secession of Maryland ; and he would perhaps have presided 
 at ithe trial, and with a Baltimore or any other Secession mob for 
 a jury, the result may be imagined. In the meantime the Seces- 
 sionists of that State would have mustered in force; those of 
 Virginia and the other rebellious States would have been en- 
 
 * 13 Howard's Eep. 134, 1S7. 
 
44 
 
 couraged thereby to assail Washington on the "other side, where- 
 upon it must have fallen into the hands of the rebels, and the 
 dismembermenfr-of the Union have been surely accomplished. 
 
 If there is any person who has been of opinion that the ordinary 
 principles of municipal law are applicable in times of war to bodies 
 of troops under arms for active service ; that such troops are go- 
 verned by martial law on the one hand, so that it is death to 
 refuse obedience to the command of their officers, and by the 
 municipal law on the other, so that they are trespassers, liable to 
 arrest and imprisonment if they do obey ; that martial law re- 
 quires them to arrest spies and traitors, and that the habeas 
 corpus immediately requires the commanding officer who has the 
 charge of the military operations of the camp to leave his command 
 for the purpose of making a return before Chief Justice Taney, on 
 penalty of an attachment, fine, and imprisonment ^if he disobeys — let 
 him contemplate the practical result to which that doctrine leads, 
 and then say which is the greatest evil, the entire arrest of mili- 
 tary operations in time of war by civil process, or the imprison- 
 ment of a few persons, more or less, without warrant, some of 
 them, we may admit, being quite innocent, and their imprisonment 
 unjust. 
 
 But perhaps some one will say, that the catastrophe supposed 
 could not have taken place ; that General Butler would not have 
 permitted himself and his command to be arrested in that way, 
 but would have effectually resisted the arrest. Quite probable. 
 But if Mr. Chief Justice Taney is right in his positions, it would 
 have been the legal duty of the commander and the men to submit 
 to the arrest, and his and their refusal and forcible resistance 
 would have been an outrage on the law, some fifteen hundred 
 times greater than that of General Cadwalader in declining to 
 bring up his prisoner on the habeas corpus. Besides, forcible 
 resistance of a sheriff in the execution of his office is a crime, 
 and the General and all his troops engaged in the resistance would 
 thereby have made themselves liable to imprisonment. 
 
 The question has suggested itself, whether General Butler, in 
 occupying the railroad aind his places of encampment, was not 
 exercising a right of eminent domain merely, and that from the 
 necessity of the case. In one view it may be so regarded. The 
 
45 
 
 goTernment may be bound to make compensation. But he was 
 just as much authorized and bound to pursue his march at the 
 peril of any opposing force, and to make arrests without warrant, 
 for the accomplishment of his object, as he was to take private 
 property for the purpose ; and these are martial rights. The case 
 is quite as clear with reference to a military force in a fort, or 
 camp, in time of war. They are bound to military obedience 
 under the penalties of martial- law. And if the persons who hold 
 and occupy the military station are under the government of mar- 
 tial law, no persons can come from without, bringing with them a 
 different rule for the government of their actions within its limits. 
 They can have no egress and regress except by permission of the 
 commander or a superior officer, in the shape of a military order. 
 This will, doubtless, be readily conceded in the case of private 
 persons. But it extends equally to the judges, and, in the case 
 of a United States military station, even to the Governor of the 
 State in which it is situated. If they enter by permission, they 
 subject themselves to the rule. It is not intended by this that 
 they are enlisted and subject to duty, for martial law does not so 
 order. But it is not quite clear that, in- cas9 of an attack, they 
 might not be required to nfen the defences and do the duty of 
 a soldier. Probably such is the fact. And the service thus per- 
 formed would not entitle them to an action, either of contract or 
 tort, against the commanding officer. Possibly Mr. Chief Justice 
 Taney would admit that no one but the marshal or sheriff could 
 claim admission, and that he could do so only for the service of 
 process. But if he possessed such a right, as the officer of the 
 municipal law, it would subject the military service in time of war 
 to the interference of any and every one who pleased to sue out 
 writs for the arrest of persons engaged in the military service, or 
 who desired to have an investigation made into the affairs of the 
 station, through the agency of a search-warrant. 
 
 The issuing of the process, it may be said, is a matter of right, 
 and if issued, the sheriff on the receipt of it is bound to obey the 
 command of the writ, if he may rightfully do so. It is nothing to 
 him that the service of his process requires him to enter a military 
 camp, if he has the legal right so to enter. It will not suffice to 
 say that the sheriff should exercise a discretion. The municipal 
 
46 
 
 law does not vest him with a discretion. It is nothing to him that 
 the camp is in the vicinity of the public enemy, and that active 
 military operations are hourly expected — except as this might, 
 affect his personal safety. He is bound to serve his process, and 
 for that purpose to search, if necessary. If he is resisted, it is his 
 duty to summon the posse comitatus, and to proceed at its head, 
 and with its assistance, in the execution of his duty. And thus he 
 assaults the camp in the rear, perhaps, while the public enemy 
 attack it in front. Such a right would be entirely antagonistic to 
 the right of the commander to conduct his military operations, ac- 
 cording to the exigencies of the war, without interference. 
 
 But all this sinks into insignificance when compared with the" 
 mischief which might ensue from the right to have writs of habeas 
 corpus executed within military stations, as a matter of right, at 
 the pleasure of all petitioners, or even as a matter resting in the 
 discretion of a judge who has no means of determining whether it 
 can be done without detriment to the public service. In time of 
 war, the warrant of the provost marshal and the writ of habeas 
 corpus are antagonistic forces, which cannot subsist together, and 
 the latter must give way ; otherwise a party under sentence of a 
 court-martial to be hung as a spy, and upon the gallows with the 
 rope around his neck, may be effectually reprieved by the order of a 
 jud^e that the commanding officer shall produce the person before 
 him, that the cause of his imprisonment may be inquired into, it 
 being alleged that the conviction was erroneous. 
 
 In the present instance, Mr. Chief Justice Taney issued an at- 
 tachment against General Cadwalader for his contempt in not pro- 
 ducing the prisoner on the habeas corpus. The marshal returned, 
 that he proceeded, on the 25th of May, to Fort McHenry for the 
 purpose of serving the writ ; that he sent in his name at the outer 
 gate ; that the messenger returned with the reply that there was 
 no answer to his card ; and that, therefore, he could not serve the 
 writ as commanded, not being permitted to enter the outer gate ; 
 whereupon the Chief Justice remarked, "It is a plain case, gentle- 
 men, and I shall feel it my duty to enforce the process of the 
 court." This certainly looked like testing the principle by a prac- 
 tical illustration. But after stating the reasons for ordering an 
 attachment, he remarked: — 
 
47 
 
 " In relation to the present return I propose to say that the marshal has 
 legally the power to summon out the posse comitatus to seize and bring 
 into court the party named in the attachment ; but it is apparent he will 
 be resisted in the discharge of that duty by a force notoriously superior 
 to the posse comitatus, and, such being the case, the court has no power 
 under the law to order the necessary force to compel the appearance of 
 the party. If, however, he was before the court, it would then impose 
 the only punishment it is empowered to inflict, — that by fine and im- 
 prisonment." 
 
 This is certainly a remarkable collision, only equalled, if equalled, 
 by the case of General Jackson and Judge Hall at New Orleans 
 in the war of 1812. 
 
 The Chief Justice delared that, if the General commanding the 
 fort and the military district were before him, he would imprison him, 
 and thus, it seems, deprive the government of his services without 
 regard to consequences. He is withheld from requiring the mar- 
 shal to summon the posse, break into the fort, and capture the com- , 
 manding general, only by the fact, of which he assumes to take 
 judicial notice, that the marshal would be resisted in the discharge 
 of that duty by a force notoriously superior to the posse. He 
 declines to require the marshal to commence another civil war only 
 because he was likely to get the worst of it. But how was he 
 assured of this? If the marshal had summoned the posse, the 
 Secessionists of Maryland would have had a better chance to cap- 
 ture the fort by volunteering under his banner than they are likely 
 to have under any military commander. 
 
 If newspaper reports may be trusted, a New York county judge 
 named Garrison, recently made a demonstration as if he would carry 
 the precedent a little farther. Having issued a habeas corpus, in 
 the case of the Police Commissioners of Baltimore, and failing to 
 receive a return of the prisoners before him, he prudently made 
 the inquiry how many men in the county could be mustered as a 
 posse comitatus to enforce the process. The answer, that the 
 number might be about fourteen hundred, but that it would require 
 from five to ten thousand men to effect the object, and that more- 
 over the county was not provided with the necessary artillery, is 
 significant of results, if foolish judges forget that a time of war 
 brings with it other duties and obligations than those ivhich govern 
 
48 
 
 in time of pieace.* The circumstance forcibly reminds us of a 
 paragraph in an opinion of a late learned Attorney General, Mr. 
 Caleb Gushing, in the case of the Sitka, as follows : — 
 
 "I do not mean to say, or to intimate, that the issue of a writ of 
 habeas corpus in the present instance was particularly exceptionable, at 
 least in comparison with other cases of more obvious indiscretion in this 
 respect, which daily occur in the United States. But, indeed, if there be 
 anything in the practice of the courts of the States, at the present time, 
 most of all exceptionable, it is the indiscreet levity with which they issue 
 the writs of habeas corpus ad subjiciendum, regardless of the old and 
 sound rule to refuse it, when the petition itself shows the absence of good 
 cause, or that the petitioner is lawfully held by some other jurisdiction. 
 {Ex parte Kearney, 7 Wheat. 38. Ex parte Watkins, 3 Peters, 201. 
 Ex parte Milburn, 9 lb. 704.) That great prerogative writ is now so 
 cheapened by the multitude of hands to which it is committed, and by the 
 consequent abuse of it, that it is itself rapidly degenerating into a mere 
 abuse." f 
 
 We are aware that, when we reason upon legal subjects with a 
 reference to consequences, there are generally those who are ready 
 to say, "Let consequences take care of themselves, — Fiat justitia 
 mat ccelum." It is to be noted, however, that we do not base 
 our opinions in this case upon any considerations of expediency ; 
 nor upon any necessity which requires that the provisions of the 
 Constitution in favor of private right and personal liberty should 
 be subverted, or even suspended for a time; nor upon any notion 
 that there are times when he who possesses the power should exer- 
 cise it for the public good and take the consequences that may there- 
 by ensue from the violation of private right. Such cases may exist, 
 but we do not rely upon them. Our position is, that the principles 
 we have thus endeavored to maintain are in accordance with the 
 Constitution, and under the Constitution. 
 
 Magna Charta and the general principles of the common law, 
 while they recognize and protect private rights, such as the right 
 to be secure from searches and seizures, the right to the habeas 
 corpus, and the like, recognize at the same time the necessities of 
 
 * Since this article was written, Judge Garrison has surrendered to "inevitable 
 necessity." f ^ Opinions of Attorneys-General, 132. 
 
49 
 
 war ; and, in case of actual war, make those rights subservient to 
 the martial law, wherever that exists. 
 ^ The Constitution of th« United States recognizes these private 
 rights, and it confers at the same time the right to make war and 
 to suppress insurrection. This right carries with it, as an incident, 
 the power and right to carry on military operations in the usual 
 mode, and with the usual effect ; to have armies, forts, and camps, 
 and to govern them in time of war, as other nations govern armies 
 and military stations, by martial laiv ; which, when it comes into 
 existence in time of war, under the constitutioanal right to make 
 war or to suppress insurrection, is necessarily the paramount con- 
 stitutional right and power, from the nature of the case. It will 
 always be so in practice, whatever might be supposed to be the 
 strict legal right, and we need not shudder, therefore, if we find 
 that the practice is sustained by sound constitutional principles, 
 instead of being a violation of the rights of the citizen. 
 
 Peace and war cannot exist in the same place at the same time. 
 Let us not murmur if we cannot have peace, with the arts of peace 
 and the rights of peace, at the same time that we are obliged to 
 have war, with the necessities of war and the powers of war. Let 
 us be thankful that it is so seldom that this constitutional martial 
 rule is over us, and that when it is so, its operations are very limited 
 as respects territoi-y, and its powers in regard to persons and pro- 
 perty ; and that, in this case, the private inconvenience and suffer- 
 ing are but as the small dust of the balance when compared with 
 the great public good to be obtained by the preservation of the 
 constitutional government of the country. 
 
APPENDIX. 
 
 The following note to an article on Constitutional Law, in the 
 number of the North American Eeview for April, 1862, explains 
 itself, and the reasons for its publication : 
 
 Perhaps in this connection we ought to pay '• the cold respect of a pass- 
 ing glance " to what appeared as an editorial in a Boston daily newspaper, 
 assailing our article respecting Habeas Corpus and Martial Law, in the 
 number for October, 1861. 
 
 There is a kind of argumentation in which we are not inclined to parti- 
 cipate, and for which we have no respect, since it consists in grave mis- 
 statements of the positions maintained by others, followed by an attempt to 
 controvert the positions thus assumed for them. 
 
 The writer of that editorial placed himself beyond the pale of fair dis- 
 cussion when he said : " The return to the writ, a copy of, which is before 
 us, presents only the nakfed question whether the President of the United 
 States can suspend the writ of habeas' corpxis without an act of Congress ? 
 The Reviewer says he can do so in time of war." Again : " If the Re- 
 viewer means to assert, as we presume he does, that any or all of these 
 things constituted a state of war in legal acceptation in the State of Mary- 
 land, so that all its citizens were under martial law, as the Reviewer de- 
 fines it, he means to assert a proposition which he would have done well to 
 have supported by some show of argument." And again : " According, then, 
 to this Reviewer, a proclamation of the President, (Congress not being in 
 session, and no war foreign or civil declared by them,) calling out the militia 
 to suppress an insurrection in certain States, places every other State, in 
 which any portion of those forces may happen to he moving or resting, 
 under martial law, as defined by the Reviewer himself; or, in other words, 
 it creates a state of war throughout the country, where there are any such 
 
 (51) 
 
52 
 
 troops even in transitu. This doctrine rests for the present on the authority 
 of the North American Review." 
 
 The first of the above extracts certainly presents itself as a very gross 
 misrepresentation vphen taken in connection with a paragraph contained 
 in an extract from our article in the editorial itself, and which the writer 
 therefore must be presumed to have read. It is in these words : " Whether 
 the President possesses the power to order or authorize it [the suspension of 
 the writ of habeas carpus'] as an incident to his office of commander-in- 
 chief of the army and navy, or whether he has it as an incident to his duty 
 to seethe laws faithfully executed, we do not propose to inquire. The opinion 
 of the learned Attorney General upon the latter point is already before the 
 public, and we do not deem the settlement of those questions necessary to 
 our present purpose." And in accordance with the statements thus made, 
 we carefully forbore to express any opinion upon that subject, arguing the 
 right of General Cadwalader to refuse to produce Merryman upon other 
 and entirely different grounds, saying that, " in time of actual war, whether 
 foreign or domestic, there may be justifiable refusals to obey the command 
 of the writ without any act of Congress, or any order or authorization of 
 the President, or any State legislation for that purpose ; and the principle 
 upon which such cases are based is, that the existence of martial law, so 
 far as the operation of that law extends, is ipso facto, a suspension of the 
 writ." 
 
 Then, again, in relation to the statements that we maintained that all 
 the citizens of Maryland weire under martial law, or even that war existed 
 there, and that calling out the militia to suppress an insurrection in certain 
 States places every other State, in which any portion of those forces may 
 happen to he moving or resting, under martial taw, there is not the least 
 possible excuse for such a misrepresentation. Having come to the conclu- 
 sion that the existence of martial law, so far as it extends, operated as a 
 suspension of the writ, we proceeded to the question, " Was martial law in 
 existence at Fort McHenry at the time when the writ was issued and the 
 return made ?" We neither inquired whether all the citizens of Maryland 
 were under martial law, nor indicated an opinion that they were so. Nor 
 did we imply that martial law existed when and where Merryman committed 
 the acts, whatever they were, for which he was arrested. We stated our 
 position in these express words ; " Now, it may, wfe think, be laid down as 
 a safe principle, that in time of war any fort or camp occupied by a military 
 force, for the purposes of the war, is ipso facto, without any special procla- 
 mation, under the government of martial law such as we have described it. 
 And the same, in our opinion, as at present advised,-is equally true of any 
 
53 
 
 column of soldiers mustered into active service for the like purpose, whether 
 on the march or at rest. It is not necessary to speak of soldiers mustered 
 into the service of the government, but stationed at a distance for the purpose 
 of being called into active service when occasion may require. They may, 
 or they may not, be under government of military law only, as in time of 
 peace. But this cannot be said of troops actively engaged in the service of 
 the government. Whether those troops are in the face of the enemy in 
 battle array, or whether they are merely garrisoning a fort to aid thereby 
 in suppressing a rebellion, or whether they arc opening and holding the 
 avenues by which the passage of other troops to the theatre of active war 
 is to be facilitated, the law which governs the place where they are is mar- 
 tial, and not municipal." 
 
 This character of misrepresentation runs through the paper so far as it 
 relates to our article ; but we do not propose to follow this matter further. 
 Our inducement to refer to the paper aj this time was what seemed to be 
 ihe course of its argument that there was no " war," because war had not 
 been defclared by Congress. In one of the paragraphs above quoted, we 
 find, " Congress not being in session, and no war, foreign or civil, declared 
 by them." In another paragi-aph the writer says : " From beginning to 
 end the article reiterates, through forty-seven pages, that there was a 
 
 ' state of war,' a ' time of war,' and an ' existence of war.' But the whole 
 
 of this is the ipse dixit of the Reviewer." Again : "No one can fail to 
 see how serious must be the doubt whether any proclamation of the Presi- 
 dent can create a state of war, and bring into exercise all the laws of wax, where 
 no war, foreign or civil, has been declared by Congress. If the suppression 
 of a rebellion, however extensive, comes within the war power of the fede- 
 ral government at all, in the strictly legal sense of that power, it is clear 
 that Congress alone can exercise that power under the Constitution." 
 
 Now, as the United States cannot declare war against any State of the 
 Union, and as war is not usually declared against an insurrection, or against 
 insurgents, and we may safely conclude never will be so declared by Con- 
 gress, the conclusion seems to follow that we cannot have a civil war in the 
 United States. What is now going on along the coast at diflFerent places — 
 in Albemarle Sound, Kentucky, and Tennessee — is not war ? It is only 
 fighting ! Great Britain, France, and Spain have acknowledged the Confed- 
 erates as belligerents ; but that does not constitute the contest a foreign 
 war. And so, according to the editorial, there are two belligerents with- 
 out any war. 
 
 But we are not without authority on this subject. See the case of "The 
 Tropic Wind," decided by Judge Diinlop, U. S. District Court for the Dis- 
 
54 
 
 trict of Columbia, June Term, 1861 ; in which his Honor said, referring 
 to the President's proclamation: "These facts, so set forth by the Presi- 
 dent, with the assertion of a right of blockade, amount to a declaration that 
 civil war exists." See also the case of the " Amy Warwick," decided by 
 Judge Sprague, U. S. District Court for the District of Massachusetts, 
 February, 1862, where the learned Judge disposed of the matter in this 
 wise : " As the Constitution gives Congress the power to declare war, some 
 have thought that, without previous declaration, war in all its fulness, that 
 is, carrying with it all the incidents and consequences of a war, cannot 
 exist. This is a manifest error. It ignores the fact that there are two 
 
 parties to a war, and that it may be commenced by either How this 
 
 civil war commenced, every one knows This war — open, flagrant, was 
 
 flagitious war ; and it has never ceased to be waged by the same confede- 
 rates with their utmost ability. Some have thought that, because the 
 rebels are traitors, their hostilities cannot bs deemed war, in the legal or 
 constitutional sense of that term. But without such war there can be no 
 traitors. Such is the clear language of the Constitution." 
 
 The editorial admits that Chief Justice Taney had judicial knowledge 
 of the proclamation. On these authorities, then, he had judicial know- 
 ledge of the existence of war ; and he was of course put upon the inquiry 
 whether he could require the military commander of Fort McHenry to 
 come out of the fortress in time of war, and bring a prisoner before him. 
 The return that the President had suspended the habeas corpus pressed 
 that inquiry upon him, whether the President could or could not suspend 
 the writ. 
 
 In the introductory chapter to a pamphlet upon "Presidential 
 Power over Personal Liberty ;" " Imprinted for the author, 1862," 
 it is said : 
 
 " The arguments in favor of the right of the Executive to arrest and de- 
 tain, without the benefit of the writ, may be found in the North American 
 Keview for October, 1861, said to have been written by the Hon. Joel 
 
55 
 
 Parker, of the Cambridge Law School ; the opinion of the Attorney Gene- 
 ral of the United States, and a pamphlet written by Horace Binney, Esq., 
 of Philadelphia." 
 
 The writer of the article in the North American Review will be 
 obliged to the anonymous author of the foregoing paragraph, if he 
 will either point out the portion of the article where he finds the 
 argument in question, or make an acknowledgement of his error as 
 publicly as he has made the assertion. 
 
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