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[392] not suspend the privilege of the writ of habeas corpus, nor authorize any military officer to do so.

2. A military officer has no right to arrest and detain a person not subject to the rules and articles of war for an offense against the laws of the United States, except in aid of the judicial authority and subject to its control; and, if the party is arrested by the military, it is the duty of the officer to deliver him over immediately to the civil authority, to be dealt with according to law.

Under the Constitution of the United States, these principles are the fundamental law of the Union. 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.

I shall reduce to writing the reasons under which I have acted, and which have led me to the conclusions expressed in my opinion, and shall report them, with these proceedings, to the President of the United States, and call upon him to perform his constitutional duty to enforce the laws; in other words, to enforce the process of this court.

During the month of July arrests were made of 361 persons, on charges like the above mentioned, by the military authority. Of this number, 317 took the oath of allegiance to the government of the United States and were released; 5 were sent to Fort McHenry, 3 to Washington for the action of the authorities there, 11 to the North, 6 across the lines, and 19 were held for further examination.

On September 11, 1863, one of the city newspapers published the poem entitled ‘The Southern Cross.’ The publishers and editor were immediately arrested, not allowed communication with any person whatever, and on the same day sent across the lines, with the understanding that they should not return during the war. On July 2d an order was issued which forbade the citizens of Baltimore city and county to keep arms unless they were enrolled as volunteer companies. The Fifty-first Regiment of Massachusetts Volunteers was placed at the disposal of General E. B. Tyler, assisted by the provost marshal and the chief of police. The soldiers, in concert with the police, formed into parties of three or four, and were soon diligently engaged in searching houses. Large wagons were provided, and muskets, carbines, rifles, revolvers of all kinds, sabers, bayonets, swords, and bird and ducking guns in considerable quantities were gathered. The Constitution of the United States says:

The right of the people to keep and bear arms shall not be infringed.1 A further subversion of the state government of Maryland was next

1 Article II, amendment

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