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.

April 23, 1860: The Democratic Convention

On Monday, April 23, 1860, the Democratic National Convention convened at South Carolina Institute Hall in Charleston to choose their nominee for president of the United States.  Some of the delegates hoped the party could unite around an electable moderate -- Senator Stephen A. Douglas of Illinois was the clear favorite -- but slavery, particularly the issue of slavery in the territories, made that impossible.

Douglas was unacceptable to most of the Southern delegates and a small minority, the fire-eating secessionists believed they could get everything they wanted, a new nation, if the party lost the election.

Historian Bruce Catton, in The Coming Storm, says of Douglas that he "was a man about whom no one could be indifferent.  He was either a remorseless scheming politician or a hero defending the eternal truth, the appraisal depending partly on the observer's point of view and partly on what Douglas himself was up to at the moment...Very few men either hated or admired him just a little.  A passionate man himself, he evoked passion in others, in his friends and in his enemies."

Slavery in the territories became the major issue in American politics following the Dred Scott decision.  Chief Justice Roger B. Taney declared in his opinion that Congress did not have the power to prohibit slavery in a territory.  The Fifth Amendment protected persons from being deprived of life, liberty, or property without due process.  Slaves were no different than any other property thus a ban on slavery was unconstitutional.  "And if Congress itself cannot do this—if it is beyond the powers conferred on the Federal Government—it will be admitted, we presume, that it could not authorize a territorial government to exercise them. It could confer no power on any local government, established by its authority, to violate the provisions of the Constitution."

Republicans declared this opinion to be an obiter dictum -- an opinion voiced by a judge that has only incidental bearing on the case in question and is therefore not binding.  They refused to recognize the ruling as a binding precedent and vowed to "reconstitute" the Court after winning the presidency in 1860.

Democrats were overjoyed with the ruling.  Southern Democrats felt vindicated that "Southern opinion upon the subject of Southern slavery...is now the supreme law of the land."  Northern Democrats called Taney's opinion "the funeral sermon of Black Republicanism," but were later discomfited to realize that slave property could never be excluded from a territory.

Douglas, a proponent of popular sovereignty, jumped into the fray with a speech at Springfield, Illinois, in June 1857.  He declared that the right of property in slaves was "a barren and worthless right" if the people of territory did not want it, if it was not "sustained, protected and enforced by appropriate police regulations and local legislation."

Lincoln began speaking of a pro-slavery conspiracy that was trying to "push it forward, till it shall become lawful in all the States," and began trying to paint Douglas as part of the conspiracy.  At Freeport, Illinois, during their senatorial debates in 1858, Lincoln pressed Douglas on the contradiction between Dred Scott and popular sovereignty.  Could the people of a territory exclude slavery if they wished?  From James McPherson's Battle Cry of Freedom...

Folklore history has portrayed this question as the stone that slew Goliath. If Douglas answered No, he alienated Illinois voters and jeopardized his re-election to the Senate.  If he answered Yes, he alienated the South and lost their support for the presidency in 1860.  The problem with this thesis is that Douglas had already confronted the issue many times.  Lincoln knew how he would answer the question:  "He will instantly take ground that slavery can not actually exist in the territories, unless the people desire it, and so give it protective territorial legislation.  If this offends the South he will let it offend them; as at all events he means to hold on to his chances in Illinois...He cares nothing for the South -- he knows he is already dead there" because of his opposition to Lecompton.  Lincoln asked the question anyway; Douglas answered as expected.  His answer became famous in retrospect as the Freeport doctrine.

Lincoln was right.  Douglas was already dead in the South because of Lecompton.  Faced with an estimated two-to-one majority of free-soil settlers, the pro-slavery legislature in Kansas set up a rigged constitutional convention.  Delegates would be elected, but pro-slavery sheriffs were charged with registering voters and pro-slavery county commissioners would choose judges of elections.  Free-soilers refused to participate in this farce.  With only 2200 of 9250 registered voters participating, pro-slavery delegates won all the seats to the constitutional convention at Lecompton.  They sent their pro-slavery constitution and a petition for statehood to Congress without a referendum.

The Lecompton constitution caused such an uproar that the convention had to relent.  They now mandated a referendum on two alternative slavery clauses -- "Constitution with Slavery" or "Constitution with no Slavery."  This seemed fair except that the "no Slavery" clause declared that "the right of property in slaves now in this Territory shall in no manner be interfered with."  It merely prohibited the future importation of slaves.  Douglas became one of the fiercest opponents of the Lecompton scullduggery, forever tarnishing his relationship with Southern Democrats.

In January 1860, the Alabama Democratic convention instructed its delegates to walk out of the national convention if the party refused to adopt a platform pledging a federal slave code for the territories.  Other lower-South conventions soon followed suit.  Jefferson Davis laid the groundwork in a series of resolutions to the Senate.

The showdown came to the platform committee where each state had one vote.  California and Oregon joined the slave states to provide a majority of 17 to 16 for a slave-code plank.  The minority reaffirmed the party's 1856 platform endorsing popular sovereignty and adding a pledge to obey Taney's Supreme Court decision.  This was not good enough for the South.  The whole point of Douglas's own Freeport doctrine was that the Court decision could not enforce itself.  Two days of partisan wrangling ensued with southerners as determined to pass a slave-code plank as Douglas men were to block one.  Finally, the Douglas men prevailed, passing the minority platform 165 to 138.  Free states voted for it 154 to 30.  Slave states voted against it 11 to 108.  Fifty delegates from the lower-South states promptly walked out of the convention.

Douglas's supporters were at first elated with the walk-out.  With so many of the senator's enemies gone, it would be easy to get enough votes from the delegates that remained.  Then Caleb Cushing, the chairman and no friend of Douglas, ruled that whoever was nominated must get the votes of two-thirds of the original delegation, not just those that remained.  202 votes were needed.  For three days and 57 ballots, Douglas never got more than 152 1/2 votes.  James Guthrie of Kentucky, Robert M. T. Hunter of Virginia, Joseph Lane of Oregon, Daniel S. Dickinson of New York, Andrew Johnson of Tennessee and others received votes.  Finally, on May 3, the delegates called it quits and adjourned the convention.  They would reconvene in Baltimore on June 18.

Meanwhile, the Southern delegates who had walked out met, on May 1, in Military Hall and declared themselves the real Democratic convention.  The majority group they had deserted was the "rump convention."  They appointed a chairman, Senator James Bayard of Delaware, and passed a slave-code platform.  Then they sat back to see what the "rump convention" would do.  Most were hoping for Douglas to remove his name from consideration so that a more palatable candidate could be selected.  Barring that, they would choose their own nominee.  When the "rump convention" adjourned, they were at a loss and also adjourned.