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With such provisions in the Constitution, expressed in language too clear to be misunderstood by any one, I can see no ground whatever for supposing that the President, in any emergency or in any state of things, can authorize the suspension of the privilege of the writ of habeas corpus, or the arrest of a citizen, except in aid of the judicial power. He certainly does not faithfully execute the laws if he takes upon himself legislative power by suspending the writ of habeas corpus, and the judicial power also, by arresting and imprisoning a person without due process of law. Nor can any argument be drawn from the nature of sovereignty, or the necessity of Government for self-defense in times of tumult and danger. The Government of the United States is one of delegated and limited powers. It derives its existence and authority altogether from the Constitution, and neither of its branches, executive, legislative or judicial, can exercise any of the powers of Government beyond those specified and granted. For the tenth article of the Amendments to the Constitution in express terms provides that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Indeed, the security against imprisonment by executive authority, provided for in the fifth article of the Amendments to the Constitution, which I have before quoted, is nothing more than a copy of a like provision in the English Constitution, which had been firmly established before the Declaration of Independence.

Blackstone states it in the following words:

"To make imprisonment lawful, it must be either by process of law from the courts of judicature or by warrant from some legal officer having authority to commit to prison" (1 Bl. Com. 137).

The people of the United Colonies, who had themselves lived under its protection while they were British subjects, were well aware of the necessity of this safeguard for their personal liberty. And no one can believe that, in framing a government intended to guard still more efficiently the rights and liberties of the citizen against executive encroachments and oppression, they would have conferred on the President a power which the history of England had proved to be dangerous and oppressive in the hands of the Crown, and which the people of England had compelled it to surrender after a long and obstinate struggle on the part of the English Executive to usurp and retain it.

The right of the subject to the benefit of the writ 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 the statesmen engaged in framing a new, and, as they supposed, a freer government than the one which they had thrown off by the Revolution. From the earliest history of the common law, if a person were imprisoned, no matter by what authority, he had a right to the writ of habeas corpus to bring his case before the King's Bench; if no specific offense were charged against him in the warrant of commitment, he was entitled to be forthwith discharged; and if an offense were charged which was bailable in its character, the Court was bound to set him at liberty on bail. The most exciting contests between the Crown and the people of England from the time 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, commonly known as the Great Habeas Corpus Act. This statute put an end to the struggle, and finally and firmly secured the liberty of the subject against the usurpation and oppression of the executive branch of the Government. It nevertheless conferred no new right upon the subject, but only secured a right already existing. For, although the right could not justly be denied, there was often no effectual remedy against its violation. Until the statute of 13 William III, the judges held their offices at the pleasure of the King, and the influence which he exercised over timid, time-serving and partisan judges often induced them, upon some pretext or other, to refuse to discharge the party, although entitled by law to his discharge, or delayed their decision from time to time, so as to prolong the imprisonment of persons who were obnoxious to the King for their political opinions, or had incurred his resentment in any other way.

The great and inestimable value of the habeas corpus act of the 31st Charles II. is that it contains provisions which compel courts and judges, and all parties concerned, to perform their duties promptly in the manner specified in the statute.

A passage in Blackstone's Commentaries, showing the ancient state of the law on this subject, and the abuses which were practised through the power and influence of the Crown, and a short extract from Hallam's "Constitutional History," stating the circumstances which gave rise to the passage of this statute, explain briefly, but fully, all that is material to this subject.

Blackstone says: "To assert an absolute exemption from imprisonment in all cases is inconsistent with every idea of law and political society, and, in the end, would destroy all civil liberty by rendering its protection impossible.

"But the glory of the English law consists in clearly defining the times, the causes and the extent, when, wherefore and to what degree the imprisonment of the subject may be lawful. This it is which induces the absolute necessity of expressing upon every commitment the reason for which it is made, "that the court upon a habeas corpus may examine into its validity, and, according to the circumstances of the case, may discharge, admit to bail, or remand the prisoner.

"And yet, early in the reign of Charles I, the Court of King's Bench, relying on some arbitrary precedents (and those, perhaps, misunderstood), determined that they would not, upon a habeas corpus, either bail or deliver a prisoner, though committed without any cause assigned, in case he was committed by the special command of the King, or by the Lords of the Privy Council. This drew on a Parliamentary inquiry and produced the Petition of Right – 3 Charles I. – which recites this illegal judgment, and enacts that no freeman hereafter shall be so imprisoned or detained. But when, in the following year, Mr. Selden and others were committed by the Lords of the Council, in pursuance of His Majesty's special command, under a general charge of 'notable contempts, and stirring up sedition against the King and the Government,' the judges delayed for two terms (including also the long vacation) to deliver an opinion how far such a charge was bailable. And when at length they agreed that it was, they, however, annexed a condition of finding sureties for their good behavior, which still protracted their imprisonment, the Chief Justice, Sir Nicholas Hyde, at the same time declaring that 'if they were again remanded for that cause, perhaps the court would not afterwards grant a habeas corpus, being already made acquainted with the cause of the imprisonment.' But this was heard with indignation and astonishment by every lawyer present, according to Mr. Selden's own account of the matter, whose resentment was not cooled at the distance of four-and-twenty years" (3 Bl. Com. 133, 134).

It is worthy of remark that the offenses charged against the prisoner in this case, and relied on as a justification for his arrest and imprisonment, in their nature and character, and in the loose and vague manner in which they are stated, bear a striking resemblance to those assigned in the warrant for the arrest of Mr. Selden. And yet, even at that day, the warrant was regarded as such a flagrant violation of the rights of the subject, that the delay of the time-serving judges to set him at liberty upon the habeas corpus issued in his behalf excited universal indignation of the bar. The extract from Hallam's "Constitutional History" is equally impressive and equally in point:

"It is a very common mistake, and that not only among foreigners, but many from whom some knowledge of our constitutional laws might be expected, to suppose that this statute of Charles II. enlarged in a great degree our liberties, and forms a sort of epoch in their history. But though a very beneficial enactment, and eminently remedial in many cases of illegal imprisonment, it introduced no new principle, nor conferred any right upon the subject. From the earliest records of the English law, no freeman could be detained in prison, except upon a criminal charge, or conviction, or for a civil debt. In the former case it was always in his power to demand of the Court of King's Bench a writ of habeas corpus ad subjiciendum, directed to the person detaining him in custody, by which he was enjoined to bring up the body of the prisoner with the warrant of commitment, that the court might judge of its sufficiency, and remand the party, admit him to bail, or discharge him, according to the nature of the charge. This writ issued of right, and could not be refused by the court. It was not to bestow an immunity from arbitrary imprisonment – which is abundantly provided for in Magna Charta (if, indeed, it is not more ancient) – that the statute of Charles II. was enacted, but to cut off the abuses by which the Government's lust of power, and the servile subtlety of the Crown lawyers, had impaired so fundamental a privilege" (3 Hallam's "Const. Hist.," 19).

While the value set upon this writ in England has been so great that the removal of the abuses which embarrassed its employment has been looked upon as almost a new grant of liberty to the subject, it is not to be wondered at that the continuance of the writ thus made effective should have been the object of the most jealous care. Accordingly, no power in England short of that of Parliament can suspend or authorize the suspension of the writ of habeas corpus. I quote again from Blackstone (1 Bl. Com. 136): "But the happiness of our Constitution is that it is not left to the executive power to determine when the danger of the State is so great as to render this measure expedient. It is the Parliament only, or legislative power, that, whenever it sees proper, can authorize the Crown, by suspending the habeas corpus for a short and limited time, to imprison suspected persons without giving any reason for so doing." If the President of the United States may suspend the writ, then the Constitution of the United States has conferred upon him more regal and absolute power over the liberty of the citizen than the people of England have thought it safe to entrust to the Crown – a power which the Queen of England cannot exercise at this day, and which could not have been lawfully exercised by the sovereign even in the reign of Charles I.

But I am not left to form my judgment upon this great question from analogies between the English Government and our own, or the commentaries of English jurists, or the decisions of English courts, although upon this subject they are entitled to the highest respect, and are justly regarded and received as authoritative by our courts of justice. To guide me to a right conclusion, I have the Commentaries on the Constitution of the United States of the late Mr. Justice Story, not only one of the most eminent jurists of the age, but for a long time one of the brightest ornaments of the Supreme Court of the United States, and also the clear and authoritative decision of that court itself, given more than half a century since, and conclusively establishing the principles I have above stated.

Mr. Justice Story, speaking in his Commentaries of the habeas corpus clause in the Constitution, says: "It is obvious that cases of a peculiar emergency may arise which may justify, nay, even require, the temporary suspension of any right to the writ. But as it has frequently happened in foreign countries, and even in England, that the writ has, upon various pretexts and occasions, been suspended, whereby persons apprehended upon suspicion have suffered a long imprisonment, sometimes from design, and sometimes because they were forgotten, the right to suspend it is expressly confined to cases of rebellion or invasion, where the public safety may require it. A very just and wholesome restraint, which cuts down at a blow a fruitful means of oppression, capable of being abused in bad times to the worst of purposes. Hitherto no suspension of the writ has ever been authorized by Congress since the establishment of the Constitution. It would seem, as the power is given to Congress to suspend the writ of habeas corpus in cases of rebellion or invasion, that the right to judge whether the exigency had arisen must exclusively belong to that body" (3 Story's Com. on the Constitution, Section 1836).

And Chief Justice Marshall, in delivering the opinion of the Supreme Court in the case of ex parte Bollman and Swartwout, uses this decisive language in 4 Cranch 95: "It may be worthy of remark that this Act (speaking of the one under which I am proceeding) was passed by the first Congress of the United States, sitting under a Constitution which had declared 'that the privilege of the writ of habeas corpus should not be suspended unless when, in cases of rebellion or invasion, the public safety might require it.' Acting under the immediate influence of this injunction, they must have felt with peculiar force the obligation of providing efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give to all the courts the power of awarding writs of habeas corpus."

And again, on page 101: "If at any time the public safety should require the suspension of the powers vested by this Act in the courts of the United States, it is for the Legislature to say so. That question depends on political considerations, on which the Legislature is to decide. Until the legislative will be expressed, this court can only see its duty, and must obey the laws."

I can add nothing to these clear and emphatic words of my great predecessor. But the documents before me show that the military authority in this case has gone far beyond the mere suspension of the privilege of the writ of habeas corpus. It has, by force of arms, thrust aside the judicial authorities and officers to whom the Constitution has confided the power and duty of interpreting and administering the laws, and substituted a military government in its place, to be administered and executed by military officers. For, at the time these proceedings were had against John Merryman, the district judge of Maryland, the commissioner appointed under the Act of Congress, the district attorney and the marshal, all resided in the city of Baltimore, a few miles only from the home of the prisoner. Up to that time there had never been the slightest resistance or obstruction to the process of any court or judicial officer of the United States in Maryland, except by the military authority. And if a military officer, or any other person, had reason to believe that the prisoner had committed any offense against the 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; it would then have become the duty of that officer to bring the matter before the district judge or commissioner, and if there was sufficient legal evidence to justify his arrest, the judge or commissioner would have issued his warrant to the marshal to arrest him, and upon the hearing of the case would have held him to bail, or committed him for trial, according to the character of the offense as it appeared in the testimony, or would have discharged him immediately, if there was not sufficient evidence to support the accusation. There was no danger of any obstruction or resistance to the action of the civil authorities, and therefore no reason whatever for the interposition of the military. Yet, under these circumstances, a military officer stationed in Pennsylvania, without giving any information to the district attorney, and without any application to the judicial authorities, assumes to himself the judicial power in the District of Maryland; undertakes to decide what constitutes the crime of treason or rebellion; what evidence (if, indeed, he required any) is sufficient to support the accusation and justify the commitment; and commits the party without a hearing, even before himself, to close custody in a strongly garrisoned fort, to be there held, it would seem, during the pleasure of those who committed him.

The Constitution provides, as I have before said, that "no person shall be deprived of life, liberty or property without due process of law." It declares that "the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and 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.

These great and fundamental laws, which Congress itself could not suspend, 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 before me, and I can only say that if the authority which the Constitution has confided to the judiciary department and judicial officers may thus upon any pretext or under any circumstances be usurped by the military power at its discretion, the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found.

In such a case my duty was too plain to be mistaken. I have exercised all the power which the Constitution and laws confer upon me, but that power has been resisted by a force too strong for me to overcome. It is possible that the officer who has incurred this grave responsibility may have misunderstood his instructions and exceeded the authority intended to be given him. I shall therefore order all the proceedings in this case, with my opinion, to be filed and recorded in the Circuit Court of the United States for the District of Maryland, and direct the clerk to transmit a copy, under seal, to the President of the United States. It will then remain for that high officer, in fulfilment of his constitutional obligation, to "take care that the laws be faithfully executed," to determine what measures he will take to cause the civil process of the United States to be respected and enforced.

R. B. Taney,

Chief Justice of the Supreme Courtof the United States.

APPENDIX IV

On the 12th of July, 1861, I sent a message to the First and Second Branches of the City Council referring to the events of the 19th of April and those which followed. The first paragraph and the concluding paragraphs of this document are here inserted:

"The Mayor's Message

"To the Honorable the Members of the First and Second Branches of the City Council.

"Gentlemen: – A great object of the reform movement was to separate municipal affairs entirely from national politics, and in accordance with this principle I have heretofore, in all my communications to the city council, carefully refrained from any allusion to national affairs. I shall not now depart from this rule further than is rendered absolutely necessary by the unprecedented condition of things at present existing in this city…

"After the board of police had been superseded, and its members arrested by the order of General Banks, I proposed, in order to relieve the serious complication which had arisen, to proceed, as the only member left free to act, to exercise the power of the board as far as an individual member could do so. Marshal Kane, while he objected to the propriety of this course, was prepared to place his resignation in my hands whenever I should request it, and the majority of the board interposed no objection to my pursuing such course as I might deem it right and proper to adopt in view of the existing circumstances, and upon my own responsibility, until the board should be enabled to resume the exercise of its functions.

"If this arrangement could have been effected, it would have continued in the exercise of their duties the police force which is lawfully enrolled, and which has won the confidence and applause of all good citizens by its fidelity and impartiality at all times and under all circumstances. But the arrangement was not satisfactory to the Federal authorities.

"As the men of the police force, through no fault of theirs, are now prevented from discharging their duty, their pay constitutes a legal claim on the city from which, in my opinion, it cannot be relieved.

"The force which has been enrolled is in direct violation of the law of the State, and no money can be appropriated by the city for its support without incurring the heavy penalties provided by the Act of Assembly.

"Officers in the Fire Alarm and Police Telegraph Department who are appointed by the mayor and city council, and not by the board of police, have been discharged and others have been substituted in their place.

"I mention these facts with profound sorrow, and with no purpose whatever of increasing the difficulties unfortunately existing in this city, but because it is your right to be acquainted with the true condition of affairs, and because I cannot help entertaining the hope that redress will yet be afforded by the authorities of the United States upon a proper representation made by you. I am entirely satisfied that the suspicion entertained of any meditated hostility on the part of the city authorities against the General Government is wholly unfounded, and with the best means of knowledge express the confident belief and conviction that there is no organization of any kind among the people for such a purpose. I have no doubt that the officers of the United States have acted on information which they deemed reliable, obtained from our own citizens, some of whom may be deluded by their fears, while others are actuated by baser motives; but suspicions thus derived can, in my judgment, form no sufficient justification for what I deem to be grave and alarming violations of the rights of individual citizens of the city of Baltimore and of the State of Maryland.

"Very respectfully,

"Geo. Wm. Brown, Mayor."