When Merryman was arrested, his lawyer filed for a writ of habeas corpus. President Lincoln authorized his military Commanding General to suspend the writ of habeas corpus. When a habeas corpus was served on a commanding officer, it required him to produce the prisoner before a justice of the supreme court, to examine the legality of the imprisonment.
In the contentious election of , Republican Abraham Lincoln was elected President without receiving a single electoral vote from a Southern state. During his inaugural address, Lincoln assured the remaining slave states, which had not yet seceded, that he would not disturb their institutionalized slavery.
His promises, however, would not be effective. Accordingly, no power in England short of that of Parliament, can suspend or authorize the suspension of the writ of habeas corpus. I quote again from Blackstone 1 Comm. It is the Parliament only or legislative power that, whenever it sees proper, can authorize the Crown, by suspending the habeas corpus for a short and limited time, to imprison suspected persons without giving any reason for so doing.
But I am not left to form my judgment upon this great question from analogies between the English Government and our own, or the commentaries of English jurists, or the decisions of English courts, although upon this subject they are entitled to the highest respect, and are justly regarded and received as authoritative by our courts of justice. Justice Story, not only one of the most eminent jurists of the age, but for a long time one of the brightest ornaments of the Supreme Court of the United States, and also the clear and authoritative decision of that Court itself, given more than half a century since, and conclusively establishing the principles I have above stated.
Justice Story, speaking in his Commentaries, of the habeas corpus clause in the Constitution, says:. It is obvious that cases of a peculiar emergency may arise, which may justify, nay, even require, the temporary suspension of any right to the writ.
But as it has frequently happened in foreign countries, and even in England, that the writ has, upon various pretexts and occasions, been suspended, whereby persons apprehended upon suspicion have suffered a long imprisonment, sometimes from design, and sometimes because they were forgotten, the right to suspend it is expressly confined to cases of rebellion or invasion, where the public safety may require it. A very just and wholesome restraint, which cuts down at a blow a fruitful means of oppression, capable of being abused in bad times to the worst of purposes.
Hitherto no suspension of the writ has ever been authorized by Congress since the establishment of the Constitution. It would seem, as the power is given to Congress to suspend the writ of habeas corpus in cases of rebellion or invasion, that the right to judge whether the exigency had arisen must exclusively belong to that body.
And Chief Justice Marshall, in delivering the opinion of the Supreme Court in the case ex parte Bollman and Swartwout, uses this decisive language, in 4 Cranch, Under the impression of this obligation they give to all the courts the power of awarding writs of habeas corpus.
That question depends on political considerations, on which the Legislature is to decide. Until the legislative will be expressed, this court can only see its duty, and must obey the laws. But the documents before me show that the military authority in this case has gone far beyond the mere suspension of the privilege of the writ of habeas corpus.
It has, by force of arms, thrust aside the judicial authorities and officers to whom the Constitution has confided the power and duty of interpreting and administering the laws, and substituted a military government in its place, to be administered and executed by military officers.
For at the time these proceedings were had against John Merryman, the District Judge of Maryland—the commissioner appointed under the act of Congress—the District Attorney and the Marshal, all resided in the city of Baltimore, a few miles only from the home of the prisoner.
Up to that time there had never been the slightest resistance or obstruction to the process of any Court or judicial officer of the United States in Maryland, except by the military authority.
And if a military officer, or any other person, had reason to believe that the prisoner had committed any offence against the laws of the United States, it was his duty to give information of the fact and the evidence to support it to the District Attorney, and it would then have become the duty of that officer to bring the matter before the District Judge or Commissioner, and if there was sufficient legal evidence to justify his arrest, the Judge or Commissioner would have issued his warrant to the Marshal to arrest him, and, upon the hearing of the party, would have held him to bail, or committed him for trial, according to the character of the offense as it appeared in the testimony, or would have discharged him immediately if there was not sufficient evidence to support the accusation.
There was no danger of any obstruction or resistance to the action of the civil authorities, and therefore no reason whatever for the interposition of the military. And 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 having 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.
And 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.
In such a case my duty was too plain to be mistaken. I have exercised all the power which the Constitution and laws confer on me, but that power has been resisted by a force too strong for me to overcome.
It is possible that the officer who has incurred this grave responsibility may have misunderstood his instructions, and exceeded the authority intended to be given him. I shall, therefore, order all the proceedings in this case, with my opinion, to be filed and recorded in the Circuit Court of the United States for the District of Maryland, and direct the clerk to transmit a copy, under seal, to the President of the United States.
Civil War and Reconstruction. Letter to Williamson Durley. The Right to Criticize American Institutions. Letter to C. Change of Opinion Announced. Letter to Owen Lovejoy. Fragment: On Slavery. Fragment: Notes for Speeches. Letter to Salmon Portland Chase. Letter to George Ashmun. Letter to Alexander H. Farewell Speech Address to the New Jersey Senate. Letter to Reverdy Johnson. Letter to O. State of the Union Letter to James A. Proclamation of Thanksgiving.
Letter to the Senate and House of Representatives. Letter to Horace Greeley. Reply to Emancipation Memorial Presented by Chicag Meditation on the Divine Will. Reply to Mrs. Eliza P. Letter to the Editor of the Atlanta Southern Confe The Negroes and the Poor.
The Election and the War. Speech to the State Legislature of Mississippi. On the War and Its Conduct. Letter to Governor Andrew Johnson. In Support of a Tax-in-Kind. Why Should a Colored Man Enlist? Response to a Serenade. Letter to James C. Letter to Frederick Steele. Letter to Governor Michael Hahn. Address at a Sanitary Fair. Letter to George B. Ide, James R. Doolittle, and A Horace Greeley to Abraham Lincoln. Proclamation of Thanksgiving and Prayer. Letter to Mrs.
Letter to James M. Calhoun, et al. Letter to Henry W. Last Words. But the rationale for the suspension, as well as the significance of the suspension itself, caused the most profound constitutional conflict in American history. As such, habeas corpus prevents executive or legislative authorities from apprehending and incarcerating individuals merely on political whim, without charges or without judicial hearings.
In Anglo-American jurisprudence, habeas corpus was as old and probably older than Magna Carta. Nevertheless, habeas corpus has always had its limits. Any third party may petition the courts for a writ, but no court is compelled to issue it.
Nor does the issue of a writ necessarily guarantee that the party for whom it is issued will be set free — only that their detention will be reviewed by a court. Moreover, the Constitution describes habeas in the passive — it shall not be suspended, unless — and fails to specify by whom the suspending may be done.
With the outbreak of the American Civil War in April, , habeas corpus at once became an issue, as anti-government mobs in the streets of Baltimore attacked Massachusetts and Pennsylvania militia passing through the city, en route to the defense of Washington, D. C, and sabotaged railroad and telegraph communications.
The civil authorities in Baltimore were unable or unwilling to arrest rioters, and it was unclear whether local judges or juries would have convicted them even if arrests had taken place.
In order to protect communication between Washington and the rest of the country, President Lincoln announced the suspension of the writ along the corridor from Washington to Philadelphia on April 27 th , and authorized the U.
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