John Merryman was arrested for treason in the early days of the Civil War. Merryman is famous because President Lincoln denied him the right of habeas corpus. Chief Justice Taney declared this unconstitutional (only Congress could suspend habeas). Lincoln partially justified his actions by supposing suspension was necessary to save the Union – defending one law might threaten the whole country. Merryman was released and never convicted. The constitutional conflict is an important clash concerning the limits of presidential power.
First Blood
The Confederate guns fired at federal troops at Fort Sumter, South Carolina, in the early morning hours of April 12, 1861. The Civil War had begun. There were no casualties, except for friendly fire during the ceremonies relinquishing control of the fort.
President Lincoln called up the militia, seventy-five thousand of them, to suppress the rebellion. Virginia and three more states voted to secede (or rebel, depending on how you looked at it), making eleven states in all. If slave state Maryland followed, the nation’s capital would be surrounded. Could Congress, not in session, even be able to meet if that happened?
Maryland voted for the pro-Southern presidential candidate in 1860. Southern rights Democrats controlled the legislature. Baltimore, with a third of the population, had many Confederate sympathizers. A mob attacked federal troops who traveled through the city.
Four soldiers were killed, a dozen civilians were dead, with many more were wounded. The “first blood” of the Civil War had been spilled. The mayor of Baltimore ordered railroad bridges north of the city to be burned to block federal troops. Was Maryland lost?
President Lincoln Acts
The Maryland legislature would soon come into session. Lincoln feared that it would support secession. Should federal troops be sent to stop them from meeting? He decided not to do that. It would threaten a basic principle of self-government to stop them.
The president was still very worried about secession-friendly actions. For instance, John Merryman, a wealthy landowner, was a lieutenant in a secessionist cavalry unit that burned bridges and tore down telegraph wires. The nation’s capital did not seem safe.
There were few federal marshals to arrest such troublemakers, and it was doubtful local juries would agree to indict or convict them. Local judges also might be pro-Southern.
On April 27, Lincoln addressed a letter to General-in-Chief Winfield Scott. He authorized Scott to suspend the writ of habeas corpus if it was necessary to uphold public safety.
Habeas Corpus
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.
The writ of habeas corpus (“the Great Writ”) is a fundamental safeguard of liberty.
The writ requires the government to justify detaining someone. The government is ordered to “have the body” (habeas corpus) of the detainee in court, where an independent judge (a federal judge is protected from being fired) examines the supposed reasons justifying confinement.
A person in custody has rights of due process, protected by the Bill of Rights. Habeas corpus can be suspended if the public safety might require it. A rebellion was present. So, okay?
Ex parte Merryman
John Merryman was arrested and put in Fort McHenry on May 25. Our national anthem honors the successful defense of Fort McHenry during the War of 1812. The flag is still there!
The Maryland legislature had met and rejected secession. Federal troops found their way to Washington, D.C. Martial law in Baltimore also helped to suppress secessionist activities.
Merryman’s lawyer sought a writ of habeas corpus from Chief Justice Taney, who acted in his individual capacity. Taney ordered John Merryman to be brought into court.
Colonel Lee showed up without John Merryman. Lee informed Taney that McHenry was arrested for treason. General Cadwalader, commander of the military district, was authorized by Lincoln to suspend habeas corpus. Cadwalder would not “release the body” of Merryman.
Taney sent a marshal to the fort, but he was denied entry.
Taney was resigned to stating his views for the record. The constitutional provision to suspend habeas corpus is found in a section concerning Congress. Congress established the writ of habeas corpus and had the sole power to suspend it. The president did not have the authority to do so. Civilian courts were in session. Merryman should not be in military custody.
The federal government had an obligation to provide Merryman due process of law.
Lincoln Responds
President Lincoln argued that the placement of the suspension clause did not settle the matter.
The text is unclear. Congress was out of session. A rebellion threatened public safety. There was a danger that Congress itself would be unable to come back in session. He had an obligation to suppress the rebellion using any reasonable means available.
Lincoln argued he had the authority to suspend habeas corpus. Congress has the power to declare war. Nonetheless, if the country was attacked before they could do so, the president, as commander-in-chief, had the authority to defensively respond.
He added one more rhetorical flourish. Let’s say he did not (which Lincoln denied) have the authority to suspend habeas corpus. A president swears an oath to defend the Constitution. Did he have an obligation to follow this one law if the result was the collapse of the Union?
Legal eagles of the day split. Many, including a Maryland senator who argued the pro-slavery side in the Dred Scott Case, agreed with him. Others thought he was quite wrong.
Aftermath
Congress met and retroactively authorized Lincoln’s war measures. It authorized the suspension of habeas corpus. Many more Marylanders would be detained without trial.
John Merryman was transferred to civilian authority in mid-July. He was indicted for treason, released on bail, but never brought to trial. A local jury was unlikely to convict.
Merryman named his next son Roger Brooke Taney Merryman.