General Cadwallader having declined acceding to the demand for the body of
Merriman, until he could hear from
Washington, a writ of attachment was issued against him, for contempt of court.
The
Marshal reported that, on going to
Fort McHenry to serve the writ, he was refused admittance.
Chief-Justice Taney then read the following statement:
I ordered the attachment, yesterday, because upon the face of the return the detention of the prisoner was unlawful, upon two grounds:
First.--The President, under the Constitution and laws of the United States, cannot suspend the privilege of the writ of habeas corpus, nor authorize any military officer to do so.
Second.--A military officer has no right to arrest and detain a person, nor subject him to the Rules and Articles of War for an offence 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.
I forbore yesterday to state orally the provisions of the Constitution of the United States which make these principles the fundamental law of the Union, because an oral statement might be misunderstood in some portions of it, and I shall therefore put my opinion in writing, and file it in the office of the Clerk of the Circuit Court in the course of this week.
The
Judge added that the military authority was always subordinate to civil.
That, under ordinary circumstances, it would be the duty of the
Marshal to proceed with
posse comitatus and bring the party named in the writ into Court; but from the notoriously superior force that he would encounter, this would be impossible.
He said the
Marshal had done all in his power to discharge his duty.
During the week he should prepare his opinion in the premises, and forward it to the
President, calling upon him to perform his constitutional duty, and see that the laws be faithfully executed, and enforce the decrees of this Court.--
N. Y. Times, May 29.
