In returns to writs of habeas corpus by whomsoever issued you will most respectfully decline for the time to produce the prisoners but will say that when the present unhappy difficulties are at an end you will duly respond to the writs in question.
I am, sir, very respectfully, your obedient servant,
E. D. TOWNSEND,
EX PARTE JOHN MERRYMAN.
Before the Chief Justice of the Supreme Court of the United States, at chambers.
The application in this case for a writ of habeas corpus is made to me under the fourteenth section of the judiciary act of 1789 which renders effectually for the citizens the constitutional privilege of the writ of habeas corpus. That act gives to the courts of the United States as well as to each justice of the Supreme Court and to every district judge power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment. The petition was presented to me at Washington under the impression that I would order the prisoner to be brought before me there, but as he was confined in Fort McHenry, at the city of Baltimore which is in my circuit, I resolved to hear it in the latter city, as obedience to the writ under such circumstances would not withdraw General Cadwalader who had him in charge from the limits of his military command.
The petition presents the following case; The petitioner resides in Maryland, in Baltimore County. While peaceably in his own house with his family, it was at 2 o'clock on the morning of the 25th of may, 1861, entered by an armed force prefessing to act under military orders. He was then compelled to rise from his bad, taken into custody and conveyed to Fort McHenry where he is imprisoned by the commanding officer without warrant from any lawful authority.
The commander of the fort, General George Cadwalader, by whom he is detained in confinement in his return to the writ does not deny any of the facts alleged in the petition. He states that the prisoner was arrested by order of General Keim, of Pennsylvania, and conducted as a prisoner to Fort McHenry by his order and placed in his (General Cadwalader's) custody to be there detained by him as a prisoner.
A copy of the warrant or order under which the prisoner was arrested wad demanded by his counsel and refused. And it is not alleged in the return that any specific acn offense against the laws of the United States has been charged against him upon oath; but he appears to have been arrested upon general charges of treason and rebellion without proof and without giving the namesof the witnesses or specifying the acts which in the judgment of the military officer constituted these crimes. And having the prisoner thus in custody upon these vague and unsupported accusations he refuses to obey the writ of habeas corpus upon the ground that he is duly authorized by the President to suspend it.
The case then is simply this: A military officer residing in Pennsylvania issues an order to arrest a citizen of Maryland upon vague and indefinite charges without any proof so far as appears. Under this order his house is entered in the night; he is seized as a prisoner and
37 R R-SER II, VOL I