Ex parte Merryman

Sunday, December 2, AD 2012

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.[3]

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5 Responses to Ex parte Merryman

  • Interesting, Don, thanks. Also interesting is that Taney’s affection for the rule of law was curiously absent in the case of one Dred Scott.

  • True Mike! Merryman makes a poor example of a misuse of the suspension of habeas corpus in my view. His actions of burning bridges and cutting telegraph wires to impede Union troops were, in my mind, tantamount to rebellion and treason and if the US were to face such a rebellion in the future I would want people like Merryman locked up. There were many other examples, North and South, where people were jailed for a time simply for speaking out, and those instances do bother me.

  • Unless, of course, we were the rebels.

  • From 1776:

    “Dr. Benjamin Franklin: A rebellion is always legal in the first person, such as “our rebellion.” It is only in the third person – “their rebellion” – that it becomes illegal.”

  • Just so. His statement on beer is just as profound.

    I do so hope Dr. Franklin made it to Heaven. Such an extraordinary wisdom could only be Divinely inspired.

Edwin M. Stanton and Temporary Insanity

Tuesday, November 27, AD 2012



Edwin M. Stanton could be a pill.  Irritable, sarcastic and often completely unreasonable, no doubt many of the Union Generals who had to deal with him often thought that they were dealing with a very mad man.  Mad in an emotional sense Stanton often was, anger often seeming to be the prime emotion he displayed throughout his career, at least after the death of his beloved first wife in 1844 which had a souring impact on his disposition.  However, he was also a very able man, and that compensated for his complete lack of tact in dealing with virtually everyone he came into contact with.  Prior to becoming Secretary of War he had been one of the ablest attorneys in the country.  Doubtless his most famous, or rather infamous case, was in the defense of future Union general Daniel Sickles.

Sickles in 1859 was a Democrat Congressman from New York, already notorious for having been censured for bringing a prostitute into the New York General Assembly chamber.  Leaving his pregnant wife at home, on a trip to England he had introduced the same prostitute, Fanny White, to Queen Victoria under an alias, the surname of which was that of a political opponent in New York.  Sickles obviously viewed his vow of marital fidelity with complete contempt.  However he did not view the vow of fidelity given to him by his wife Teresa in the same light.  When he found out on February 26, 1859 that his long-suffering wife was carrying on an affair with the United States Attorney for the District of Columbia, Philip Barton Key II, the son of Francis Scott Key, the composer of the Star Spangled Banner, he murdered Key the next day in Lafayette Park across from the White House, shooting him through the heart.  Sickles immediately surrendered to the Attorney General who lived just a few blocks away.

His trial was one of the most sensational in American history.  Public opinion was almost totally on his side, painting Sickles as an outraged husband defending his wife Teresa from a villain who had seduced her.  Sickles engaged a stellar defense team which included Stanton.  The defense team had a problem.  No matter what the public thought as to his motivation, Sickles was manifestly guilty.  Stanton hit upon the idea of raising the novel defense of temporary insanity which had never before been successful in the United States.  This was a true stroke of legal genius.  It allowed the defense to put on endless lurid testimony as to the affair and, in effect, have the dead man tried rather than Sickles.  In his closing argument Stanton portrayed the ever adulterous Sickles as a defender of marriage:

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15 Responses to Edwin M. Stanton and Temporary Insanity

  • And, some believe, he masterminded the plot to assassinate President Lincoln, Vice President Johnson and Secretary of State Seward, which, under of the laws of the day, would have left Stanton as president.

  • Some believe that Paul, without a shred of evidence to support the claim. The line of succession was according to the 1792 act and the successor would have been the President pro tempore of the Senate, followed by the Speaker of the House. This was not changed until the presidential succession act of 1886 which took out the President pro temporare of the Senate and the Speaker of the House with cabinent officers from the date of the creation of the office. First in line was the Secretary of State and then the Secretary of the Treasury and then the Secretary of War. The 1792 act also required that a special election for President be held in December of the year in which someone other than the President or Vice President held the office of President, or, if there were less than two months until December, December of the following year.

    The current act governing succession is the 1947 act:

    1) If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.

    (2) The same rule shall apply in the case of the death, resignation, removal from office, or inability of an individual acting as President under this subsection. (b) If, at the time when under subsection (a) of this section a Speaker is to begin the discharge of the powers and duties of the office of President, there is no Speaker, or the Speaker fails to qualify as Acting President, then the President pro tempore of the Senate shall, upon his resignation as President pro tempore and as Senator, act as President. (c) An individual acting as President under subsection (a) or subsection (b) of this section shall continue to act until the expiration of the then current Presidential term, except that –
    (1) if his discharge of the powers and duties of the office is founded in whole or in part on the failure of both the President-elect and the Vice-President-elect to qualify, then he shall act only until a President or Vice President qualifies; and

    (2) if his discharge of the powers and duties of the office is founded in whole or in part on the inability of the President or Vice President, then he shall act only until the removal of the disability of one of such individuals. (d) (1) If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is no President pro tempore to act as President under subsection (b) of this section, then the officer of the United States who is highest on the following list, and who is not under disability to discharge the powers and duties of the office of President shall act as President: Secretary of State, Secretary of the Treasury, Secretary of Defense, Attorney General, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor, Secretary of Health and Human Services, Secretary of Housing and Urban Development, Secretary of Transportation, Secretary of Energy, Secretary of Education, Secretary of Veterans Affairs, Secretary of Homeland Security. (2) An individual acting as President under this subsection shall continue so to do until the expiration of the then current Presidential term, but not after a qualified and prior-entitled individual is able to act, except that the removal of the disability of an individual higher on the list contained in paragraph (1) of this subsection or the ability to qualify on the part of an individual higher on such list shall not terminate his service.

  • Donald, I’ve always been told that at that time, the succession went: President, Vice President, Secretary of State, Secretary of War.

    Do you have a link handy where I could research that?

    Of course today, as you’ve outlined, the Speaker of the House and then the President pro tempore of the Senate are in line before the Secretary of State.

    (I suspect most people don’t know who the President pro tempore of the Senate is; I had to look it up: It’s Senator Daniel Inouye.)

  • Hmm, Wikipedia seems quite clear in that I am simply wrong. I guess it’s not only science that changes as you get older, but history, too.

  • Presidential succession law Paul is fairly arcane and I only know it as a result of the Stanton conspiracy theory. I read a book exploding the theory years ago and it went into great detail on the Presidential Succession Act of 1792.

  • No Good Deed Ever Goes Unpunished Department:

    Character counts.

    If Sickles had been hanged, the events of 2 July 1863 may have occurred less tragically for the Union Third Corps (rendered hors d’combat through his insubordination) and the First Minnesota, which likely would have been spared of its famous “suicide charge.”

    Anyhow, what’s one murder compared with killing an army corps of men?

    Ergo, I will refrain from repeating Shakespeare’s line on lawyers . . .

  • History. So much to learn of practical value, so much of cultural significance, and then there are ripping yarns that’d make anyone smile.

  • Is Temporary insanity anything like invincible ignorance

  • Birds of a Feather Department:

    Similarly, Thaddeus Stevensmounted a successful insanity defense of a farmhand who used scythe to behead of a fellow worker.

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  • Hey – Any lawyerly or scholarly reaction to the Delling v Idaho case? It looks like the Supreme Court refused to hear a challenge to Idaho’s lack of an insanity plea. The dissenters have written an opinion, but the majority doesn’t do that in a case that they refuse to hear. It’d be interesting to hear both sides of the issue.

  • As a general rule Pinky I am in favor of the states having a broad latitude in regard to their judicial systems. Idaho forces prosecutors to prove that someone knew what they were doing, but they do not have to prove that they knew what they were doing was wrong. That is a fairly traditional view of insanity in criminal prosecutions. It certainly eliminates the type of farcial result as typified in the Sickles case. I can see how it might end up doing injustice to a Defendant who knows that he is killing A, but is convinced, due to insanity, that A is a demon in human form. However too broad an allowance of an insanity plea and we have a killer claiming diminished capacity due to depression which manifested itself in a slovenly appearance and the imbibing of junk food.


    (On weekends I have a built in diminished capacity defense!)

  • On the Constitutional matter, I can see how the Supreme Court might not find the authority to step in. On the matter of abuse, well, thanks to this article, I know that it’s been a problem since day one, and I’m not surprised that every possible loophole has been used over the years to escape justice. How do you read the morality of it, though?

  • Morality and legal procedure Pinky are a tricky mix. The reason for that is that any legal system needs hard and fast rules, otherwise it becomes completely arbitrary, totally dependent upon the whims of judges and juries. It is very hard, read impossible, to craft rules that will do justice in every situation. Often times rules that are implemented to end a manifest abuse of the system, end up producing abuses of their own. Personally I think it is immoral to convict someone who truly was insane at the time of the crime. Additionally I think it is immoral to acquit someone who was obviously not insane, and is attempting to slide through on legal trickery. Such broad statements I am afraid are of little help when trying to craft fair rules of procedure, especially in an area where fakery is so often relied upon as it is in cases raising insanity as a defense.

  • Understood. And I’m not trying to pick a fight here. I just struggle with this question. As Catholics, we should try to make our society as just as possible.

    The twist on it, for me, is the question of capital punishment. I think that the proper Catholic understanding is that capital punishment should be avoided except in cases where the society has no recourse. To me, that would mean situations where it’s not feasible to secure a person. We have supermax facilities to protect the guards and fellow prisoners from the worst of the worst, but Belize may not have something comparable. And there are people who are so dangerous that society doesn’t have a right to expose guards or fellow prisoners to them. If that’s the standard for capital punishment, I can accept it – BUT – how can that standard not be applied to the criminally insane? Haven’t I just set up terms that would require societies to kill those with serious mental illness? I’ve argued myself into a position I don’t find comfortable.

    I’ve been trying to reconcile my instinct and Western history with my understanding of Church teaching, and I know I’m not there yet.