One of the more troubling features of the Civil War is the roughshod way that both the governments of the Union and of the Confederacy tended to treat the civil rights of those who opposed them. Both Lincoln and Davis suspended the right of habeas corpus during the war. Habeas corpus, also called the Great Writ, dates back to the reign of Henry II in the Twelfth Century. It is basically a petition by someone held by a government requesting that a court order, traditionally court orders were called writs, the government to show cause why the individual should continue to be held. Hence the phrase “petition for a writ of habeas corpus”. It is an important safeguard against arbitrary arrest and imprisonment without trial, and against wrongful imprisonment due to the rights of the prisoner petitioner having been violated at trial. It has been regarded as an essential legal safeguard against government tyranny. This week on Almost Chosen People, the American history blog that Paul Zummo and I run, I will have a series of posts examining the suspension of the writ of habeas corpus North and South. Today we look at the most famous case to come out of the suspension of the writ, Ex parte Merryman.
Lincoln first suspended the writ of habeas corpus at the onset of the War, initially only between Philadelphia and Washington. This was aimed at secessionists in Maryland who were viewed as posing a threat to the lines of communication between Washington and the North. Many Marylanders were arrested after the suspension of the writ and held without trial. In the case of Ex Parte Merryman, John Merryman petitioned for a writ of habeas corpus from the Federal district court. Merryman had been a Third Lieutenant in the Maryland state militia. He was pro-Confederate and had been involved in burning railroad bridges and cutting telegraph wires under orders from his pro-Confederate superiors in the Maryland militia. He had been arrested for treason by the Union Army and held without trial. Chief Justice Roger Taney, pro-Confederate himself, sitting as a Federal circuit court judge for the District of Maryland, ruled that the President had no authority to suspend the writ of habeas corpus, that power residing in Congress, and that as a result he certainly could not delegate such a power he did not have to the military. Taney ended his opinion on this ringing and acerbic note:
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; undertakes 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 a hearing, even before himself, to close custody, in a strongly garrisoned fort, to be there held, it would seem, during the pleasure of those who committed him.
The constitution provides, as I have before said, that “no person shall be deprived of life, liberty or property, without due process of law.” It declares that “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” It provides that the party accused shall be entitled to a speedy trial in a court of justice.
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.