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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.