Ex parte Merryman

[1] It was a test of the authority of the President to suspend "the privilege of the writ of habeas corpus" under the Constitution's Suspension Clause, when Congress was in recess and therefore unavailable to do so itself.

John Merryman was a prominent planter from Baltimore County, Maryland, who had been arrested at his rural plantation for destroying railroad bridges on which Union troops were traveling.

U.S. Supreme Court Chief Justice Roger B. Taney ruled in this case that the authority to suspend habeas corpus lay exclusively with Congress.

Article I, Section 9 of the United States Constitution, which mostly consists of limitations upon the power of Congress, includes the Suspension Clause: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.In April 1861, when combat erupted in the Civil War, President Abraham Lincoln called for the states to provide militia troops to the Federal government to suppress the rebellion.

Militia Lieutenant John Merryman was arrested on May 25 by order of Brigadier General William High Keim of the United States Volunteers, for his role in destroying the bridges.

The commander of Fort McHenry, Major William W. Morris, wrote in reply, At the date of issuing your writ, and for two weeks previous, the city in which you live, and where your court has been held, was entirely under the control of revolutionary authorities.

Within that period United States soldiers, while committing no offense, had been perfidiously attacked and inhumanly murdered in your streets; no punishment had been awarded, and I believe, no arrests had been made for these atrocious crimes; supplies of provisions intended for this garrison had been stopped; the intention to capture this fort had been boldly proclaimed; your most public thoroughfares were daily patrolled by large numbers of troops, armed and clothed, at least in part, with articles stolen from the United States; and the Federal flag, while waving over the Federal offices, was cut down by some person wearing the uniform of a Maryland officer.

To add to the foregoing, an assemblage elected in defiance of law, but claiming to be the legislative body of your State, and so recognized by the Executive of Maryland, was debating the Federal compact.

Taney stated that he held court on this matter in Maryland, rather than Washington, D.C., in order to permit Gen. Cadwalader to answer the writ in Baltimore rather than the capital, and so not have to leave the limits of his military command.

Cadwalader responded to Taney's order on May 27 by sending a colonel to explain that the Army had suspended the writ of habeas corpus under presidential authority.

On the other hand, partisan Democrat or not, Taney's Merryman opinion was arguably a simple application of well-established law and consulting the president was irrelevant for General Cadwalader because Lincoln didn't have jurisdiction.

The case became historic because not only did President Lincoln refuse to comply with Taney's ruling, which does have precedent, but he directly violated it by continuing the suspension without congressional approval.

It has never been squarely determined whether the president has any independent authority to suspend habeas corpus, or whether Lincoln's intentionally violating Taney's ruling without legal consequence stands as a precedent.

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.

According to historian Michael Burlingame, "Lincoln had a good argument, for Congress in that era was often out of session, and an invasion or rebellion might well take place during one of its long recesses, just as had occurred in April.

[33] When prominent Baltimore newspaper editor Frank Key Howard (Francis Scott Key's grandson) in a September editorial criticized Lincoln's failure to comply with Chief Justice Taney's Merryman opinion, Howard was himself arrested by Federal troops under orders from Lincoln's Secretary of State Seward and held without charge or trial.

[36] The court objected that this disruption of its process was unconstitutional as the president had not declared martial law (while acknowledging that he had the power to do so) but noted that it was powerless to enforce its prerogatives.

[37][38] In November 1861, Richard Bennett Carmichael, a presiding state circuit court judge in Maryland, was imprisoned without charge for releasing, due to his concern that arrests were arbitrary and civil liberties had been violated, many of the southern sympathizers seized in his jurisdiction.

The federal troops executing Judge Carmichael's arrest beat him unconscious in his courthouse while his court was in session before dragging him out, initiating yet another public controversy.

On February 14, he ordered most political prisoners released, with some exceptions (such as editor Howard), and offered them amnesty for past treason or disloyalty, so long as they did not aid the Confederacy.

The indictment alleged that in cooperation with 500 armed men Merryman had "most wickedly, maliciously, and traitorously" waged war on the United States.

He was charged with destroying six railroad bridges and the telegraph lines along the tracks, all with the intent to impede the passage of troops and obstruct vital military communications.

Taney consistently refused to schedule hearings for any of those charged, claiming that he believed they would not receive a fair trial in Maryland during wartime conditions.

He also discouraged Judge Giles from hearing the case by himself and resisted efforts to have another Justice replace him (part of his delay was blamed on poor health).

After reconvening in July, Congress failed to pass a bill favored by Lincoln to explicitly approve his habeas corpus suspensions and to authorize the administration to continue them.

[45] May's bill passed the House in summer 1862, and its position would later be included in the Habeas Corpus Suspension Act 1863, which would require actual indictments for suspected traitors.

[46] Several months later, faced with opposition to his calling up of the militia, Lincoln again suspended habeas corpus in the entire country and made anyone charged with interfering with the draft, discouraging enlistments, or aiding the Confederacy subject to martial law.

Former Secretary of War Simon Cameron had even been arrested in connection with a suit for trespass vi et armis, assault and battery, and false imprisonment.

For instance, Catron's charge to a Saint Louis grand jury, saying that armed resistance to the federal government was treason, was quoted in the New York Tribune of July 14, 1861.

("I deem it advisable, adhering to the precedent set by other courts and judges under like circumstances, and out of respect to the national authorities, to withhold [granting habeas relief] until they shall have had time to consider what steps they should properly take in the case").