And Chief Justice Marshal in delivering the opinion of the Supreme Court in the case 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 sittingunder 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 may require it. " Acting under the immediate inlufence of this injunction they must have flet with peculair 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 courts the power of awarding writs of habeas corpus.
And again in 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 itis for the legislature to say so. That question depends on political considerations on which the legislature is to decide. Until the legislature 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 authorityin 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 judciail 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 pro against John Merryman the district judge of Maryland-the commissioner appointed under the act of Congress-the districct 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 their had never been the slightest resistance of obstructions to the process of any courtof jdicial 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 vidence to support it to the district attorney, and 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 tothe marshal toa rrest him, and upon the hearing of the party would have held himto bail or committedhim 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. And 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; understakes 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 having a hearing even before himself to close custody in a strongly-garrisoned for to be there held it would seem during the pleasure of those who committed him.