Wednesday, May 25, 2011

150 Years Ago: Ex parte Merryman

Washington lies between Virginia and Maryland.  With Virginia now out of the Union, it was critical for President Abraham Lincoln to keep Maryland in the Union by whatever means necessary.  After the 6th Massachusetts Regiment was attacked in the streets of Baltimore and the rail lines to the capitol were cut, Lincoln took drastic measures, including declaring martial law in Baltimore and suspending the writ of habeas corpus.

As a 1st lieutenant in the Baltimore County Horse Guard, John Merryman had participated in the bridge burnings that cut Washington off from the rest of the country.  He was also recruiting men to go south and fight for the Confederacy.  Merryman was arrested on Saturday, May 25, 1861, sparking one of the best-known Civil War-era court cases.

Merryman's lawyers hurried off to the circuit court where they found Supreme Court Chief Justice Roger Taney presiding.  The petition to the court laid out the basic facts:
To the Hon. Roger B. Taney, Chief Justice of the Supreme Court of the United States: The petition of John Merryman, of Baltimore county and state of Maryland, respectfully shows, that being at home, in his own domicile, he was, about the hour of two o'clock a. m., on the 25th day of May, A. D. 1861, aroused from his bed by an armed force pretending to act under military orders from some person to your petitioner unknown. That he was by said armed force, deprived of his liberty, by being taken into custody, and removed from his said home to Fort McHenry, near to the city of Baltimore, and in the district aforesaid, and where your petitioner now is in close custody. That he has been so imprisoned without any process or color of law whatsoever, and that none such is pretended by those who are thus detaining him; and that no warrant from any court, magistrate or other person having legal authority to issue the same exists to justify such arrest; but to the contrary, the same, as above stated, hath been done without color of law and in violation of of constitution and laws of the United States, of which he is a citizen. That since his arrest, he has been informed, that some order, purporting to come from one General Keim, of Pennsylvania, to this petitioner unknown, directing the arrest of the captain of some company in Baltimore county, of which company the petitioner never was and is not captain, was the pretended ground of his arrest, and is the sole ground, as he believes, on which he is now detained. That the person now so detaining him at said fort is Brigadier General George Cadwalader, the military commander of said post, professing to act in the premises under or by color of the authority of the United States. Your petitioner, therefore, prays that the writ of habeas corpus may issue, to be directed to the said George Cadwalader, commanding him to produce your petitioner before you, judge as aforesaid, with the cause, if any, for his arrest and detention, to the end that your petitioner be discharged and restored to liberty, and as in duty, & c. John Merryman. Fort McKenry, 25th May 1861.

On May 26, Taney issued the following order:
In the matter of the petition of John Merryman, for a writ of habeas corpus: Ordered, this 26th day of May, A. D. 1861, that the writ of habeas corpus issue in this case, as prayed, and that the same be directed to General George Cadwalader, and be issued in the usual form, by Thomas Spicer, clerk of the circuit court of the United States in and for the district of Maryland, and that the said writ of habeas corpus be returnable at eleven o'clock, on Monday, the 27th of May 1861, at the circuit court room, in the Masonic Hall, in the city of Baltimore, before me, chief justice of the supreme court of United States. R. B. Taney.

Mr. Spicer issued the writ commanding General Cadwalader to appear before the court at the appointed time "and that you have with you the body of John Merryman, of Baltimore county, and now in your custody, and that you certify and make known the day and cause of the caption and detention of the said John Merryman."

A U.S. marshal was sent to serve the writ.  At the appointed time a military officer, a Colonel Lee, appeared with Cadwalader's return to the writ:
'Headquarters, Department of Annapolis, Fort McHenry, May 26 1861. To the Hon. Roger B. Taney, Chief Justice of the Supreme Court of the United States, Baltimore, Md.Sir: The undersigned, to whom the annexed writ, of this date, signed by Thomas Spicer, clerk of the supreme court of the United States, is directed, most respectfully states, that the arrest of Mr. John Merryman, in the said writ named, was not made with his knowledge, or by his order or direction, but was made by Col. Samuel Yohe, acting under the orders of Major General William H. Keim, both of said officers being in the military service of the United States, but not within the limits of his command. The prisoner was brought to this post on the 20th inst., by Adjutant James Wittimore and Lieut. Wm. H. Abel, by order of Col. Yohe, and is charged with various acts of treason, and with being publicly associated with and holding a commission as lieutenant in a company having in their possession arms belonging to the United States, and avowing his purpose of armed hostility against the government. He is also informed that it can be clearly established, that the prisoner has made often and unreserved declarations of his association with this organized force, as being in avowed hostility to the government, and in readiness to cooperate with those engaged in the present rebellion against the government of the United States. He has further to inform you, that he is duly authorized by the president of the United States, in such cases, to suspend the writ of habeas corpus, for the public safety. This is a high and delicate trust, and it has been enjoined upon him that it should be executed with judgment and discretion, but he is nevertheless also instructed that in times of civil strife, errors, if any, should be on the side of the safety of the country. He most respectfully submits for your consideration, that those who should cooperate in the present trying and painful position in which our country is placed, should not, by any unnecessary want of confidence in each other, increase our embarrassments. He, therefore, respectfully requests that you will postpone further action upon this case, until he can receive instructions from the president of the United States, when you shall hear further from him. I have the honor to be, with high respect, your obedient servant, George Cadwalader, Brevet Major General U. S. A. Commanding.

Taney cited the general for contempt and sent the marshal back to serve an attachment on him, but the marshal was denied entrance to Fort McHenry.  Because "the power refusing obedience was so notoriously superior to any the marshal could command," Taney excused him from doing anything more, then proceeded:
I ordered this attachment yesterday, because, upon the face of the return, the detention of the prisoner was unlawful, upon the grounds: 1. That the president, under the constitution of the United States, cannot suspend the privilege of the writ of habeas corpus, nor authorize a military officer to do it. 2. A military officer has no right to arrest and detain a person not subject to the rules and articles of war, for an offence against the laws of the United States, except in aid of the judicial authority, and subject to its control; and if the party be arrested by the military, it is the duty of the officer to deliver him over immediately to the civil authority, to be dealt with according to law. It is, therefore, very clear that John Merryman, the petitioner, is entitled to be set at liberty and discharged immediately from imprisonment. I forbore yesterday to state orally the provisions of the constitution of the United States, which make those principles the fundamental law of the Union, because an oral statement might be misunderstood in some portions of it, and I shall therefore put my opinion in writing, and file it in the office of the clerk of the circuit court, in the course of this week.

Taney concluded by saying that his opinion, when filed, should be laid before the president "in order that he might perform his constitutional duty, to enforce the laws, by securing obedience to the process of the United States."

Lincoln ignored the ruling, and more arrests followed.  The Baltimore police chief, four police commissioners, and several prominent citizens were arrested by the army for their roles in the April 19 riot.  Later, 31 secessionist member of the Maryland legislature were arrested along with Baltimore mayor George Brown.

John Merryman was released after seven weeks and indicted in the U.S. circuit court, but his case never came to trial because the government knew that he would never be convicted by a Maryland jury.  Taney's opinion that only the legislative branch can suspend the writ of habeas corpus was most recently cited in the case of Hamdi v. Rumsfeld.

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