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:
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.