Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9487), is a well-known U.S. federal court case which arose out of the American Civil War. It was a test of the authority of the President to suspend "the privilege of the writ of habeas corpus".[1] Chief Justice Roger Taney, sitting as a federal circuit court judge, ruled that the authority to suspend habeas corpus lay with Congress, not the president. President Lincoln ignored the ruling, as did the Army under Lincoln's orders. The case was rendered moot by Lincoln's subsequent order in February 1862 to release almost everyone held as a political prisoner.[2]
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When a person is detained by police or other authority, a court can issue a writ of habeas corpus, compelling the detaining authority either to show proper cause for detaining the person (e.g., by filing criminal charges) or to release the detainee. The court can then remand the prisoner to custody, release them on bail, or release them outright. Article I, Section 9 of the United States Constitution, which enumerates the powers given to Congress, says, "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, actual fighting in the Civil War began. President Lincoln called for the states to provide militia troops to the Federal government to suppress the rebellion. Troops traveled to Washington via Baltimore, Maryland. Pro-Confederate mobs attacked some of them on April 19. It seemed possible that these pro-Confederates would seize control of Maryland, cutting off Washington from the rest of the Union. Mayor Brown of Baltimore and Governor Hicks of Maryland asked that no more troops cross Maryland, but Lincoln refused.[3] However, for the next few weeks, troops were brought to Washington via Annapolis, avoiding Baltimore. Also on April 19, Lincoln asked Attorney General Edward Bates, for an opinion on the suspension of the writ of habeas corpus.
The threat to Washington was serious, and Lincoln eventually responded by declaring martial law in Maryland. On April 27, 1861, he told General Winfield Scott (commander-in-chief of the army) that if there was any resistance on the "military line" from Annapolis to Washington, Scott or "the officer in command at the point" was authorized to suspend habeas corpus if necessary. Within a few days, it was found necessary. The suspension was not announced, and Taney claimed to have not been informed of it.[4]
Among the pro-Confederates in the Maryland militia was Lieutenant John Merryman. He had recruited and trained soldiers for the Confederate Army. After the Baltimore Riot he was involved in cutting telegraph wires and burning railroad bridges.[5] On May 25, Merryman was arrested by order of General William H. Keim, and charged with treason and being a commissioned lieutenant in an organization intending armed hostility toward the government, namely the Confederate Army.[6]
Merryman's lawyers appealed to Roger Taney to issue the writ. Taney promptly issued a writ of habeas corpus for Merryman demanding that General George Cadwalader, the commander of Fort McHenry, where Merryman was being held, bring Merryman before him the next day. At this time, Supreme Court Justices sat as circuit court judges, as well. Taney decided to issue the writ while sitting as the circuit court judge for the District of Maryland rather than as Chief Justice of the Supreme Court. His reason, he states, was that it would permit Gen. Cadwalader to answer the writ in Baltimore rather than Washington, D.C., and so not have to leave the limits of his military command.[7]
Cadwalader responded to Taney's order by sending a colonel to explain that he had suspended the writ of habeas corpus in Merryman's case. Taney reacted by issuing a writ of attachment for Cadwalader, which ordered a U.S. Marshal to seize him and bring him before the court the following day. The marshal was refused entry into the fort.[7]
In response, Taney ruled that the president can neither suspend habeas corpus nor authorize a military officer to do it, and that military officers cannot arrest people except as ordered by the courts. He noted that, while the marshal had the right to call up the posse comitatus to assist him in seizing Gen. Cadwalader and bringing him before the court, it was probably unwise for him to do so and thus that he would not punish the marshal for failing in his task. He then promised a more lengthy, written ruling within the week and ordered that it be sent to President Lincoln, "in order that he might perform his constitutional duty, to enforce the laws, by securing obedience to the process of the United States."[4]
Taney was politically a partisan Democrat and an opponent of Lincoln. In his written opinion, he raged at length against Lincoln for granting himself easily abused powers. Taney asserted that the president was not authorized to suspend habeas corpus, observing that none of the Kings of England exercised such power.
"These great and fundamental laws, which congress itself could not suspend, have been disregarded and suspended, like the writ of habeas corpus, by a military order, supported by force of arms. 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."[8]
Taney noted in a footnote to the above passage that the United States Declaration of Independence listed making the military power independent of and superior to the civil power as one justification for dissolving political allegiance.[9]
Lincoln disregarded the ruling. Lincoln also got an opinion supporting his suspension from Attorney General Bates. It formed the basis for Lincoln's July 4 speech to Congress, in which he rhetorically asked, "Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?" Lincoln subsequently expanded the zone within which the writ was suspended.
After reconvening, Congress failed to pass a bill favored by Lincoln to sanction his suspensions,[10] and several more district and circuit court rulings affirmed Taney's opinion.[11] Lincoln rendered these cases moot on February 14, 1862, when he issued an order releasing almost all political prisoners on parole.[2] In response to opposition to conscription, however, Lincoln again suspended habeas corpus six months later, this time throughout the entire country.[12] The passage of the Habeas Corpus Suspension Act in March 1863 ended the controversy, at least temporarily, by authorizing the suspension of habeas corpus upon Congress's authority rather than on the president's authority.
The Merryman decision is still among the best-known Civil War-era court cases and it is one of Taney's most famous opinions, alongside the Dred Scott case. Its legal argument holding that Congress alone may suspend the writ is noted for reiterating the opinion of John Marshall and the court in Ex Parte Bollman and was recently restated by the Supreme Court in Hamdi v. Rumsfeld.
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