166
I
The Green Bag
whatsoever."22 The Chief Justice issued
Power” not only supports the Chief Jus
the writ, directing the commandant to
tice fully, but it would seem to the impar tial reader demonstrates, if further eluci dation were needed, “that the citizen has
produce the prisoner in court. The writ was duly served, but the prisoner was not produced, on the ground that he
nothing but the judiciary to which to
had been arrested and was held on the charge of treason. But holding that
appeal against the executive acts.”
under the Constitution the President
in time of insurrection, cannot be applied to citizens of a state not in rebellion,
The
doctrine of martial law, or of military law
had no power to suspend the writ of habeas corpus without authority from
and where the courts are open and their
Congress, which had not then acted,
process unobstructed.
though subsequently, March 3, 1863, it
setts by the Acts of 1786, c. 41, the writ during Shay’s Rebellion had been sus pended from November, 1786, to July,
passed a statute conferring this power
upon the President under certain limi tations, Taney directed a judgment for contempt to issue against the com mander, Gen. Cadwallader. The deputy
In
Massachu
1787, but this is the only instance where a state has taken such action, although
during the Civil War this course was pursued by the seceding states, but only
marshal, however, upon arriving at the fort, was not permitted to enter the gate, or serve the attachment. It being evi
gress.
dent that the court could not inforce its
and her citizens, of course, were within
process, the marshal was excused from
the full protection of the Constitution. Having shown conclusively that in
further efiort by the Chief Justice, who
under a statute of the Confederate Con
Maryland was not in rebellion,
now prepared and filed an opinion in
England only Parliament could suspend
this much discussed case, a report of which may be found in 1 Campbell 246.
the writ, Chief Justice Taney quotes
With hisusual clearness, he states the question, which was that the President without proclamation claims not only
the right to suspend the writ, but he can delegate this power to a military subordinate,
leaving
it
discretionary
with him either to obey the judi cial process or ignore it. Theie have not been wanting defenders of the course
pursued by the government, chief of whom were Horace Binney and Chief
Justice Joel Parker of New Hampshire. But while public opinion as voiced by a majority found no unjustifiable violation of the Constitution, because of necessity
inter arrna lege: silent and the preserva tion of the Union was paramount, Judge Curtis in his pamphlet on “Executive '’ See 3 Political Science Quarterly 454 for a full discussion of that case and a history of the contro versy as to whether the President was independent of Congress or the courts or could refuse to obey the writ.
from Marshall’s decision in Ex parte
Bollmanv. Swarlwout,23 and from Story's Commentaries on the Constitution, that here only Congress has this power, and closes with this paragraph :— I have exercised 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 may have misunderstood his instruc tions, 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 Mary land, 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 fulfillment of his constitutional obligations, to “take care that the laws be faithfully executed," and to determine what
measures he will take, and cause the civil process of the United States to be respected and inforced. 2' 4 Cranch 95.
