Justice Taney on Lincoln's Suspension of Habeas Corpus

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privilege of the Writ of Habeas Corpus shall not be suspended, unless
when in Cases of Rebellion or Invasion the public Safety may require
it” (U.S. Constitution, Art. I, Sec. 9).

writ of habeas corpus is a judicial mandate to a prison official
ordering that an inmate be brought to the court so it can be determined
whether or not that person is imprisoned lawfully and whether or
not he should be released from custody. A habeas corpus petition
is a petition filed with a court by a person who objects to
his own or another’s imprisonment.

origins of what Chief Justice Salmon P. Chase called “the most important
human right in the Constitution … the best and only sufficient
defense of personal freedom,” go back to the Magna Carta: “No freemen
shall be taken or imprisoned or disseised [seized] or exiled or
in any way destroyed, nor will we go upon him nor send upon him,
except by the lawful judgment of his peers or by the law of the
land” (Magna Carta, sec. 39). The English Petition of Right (1628)
and Habeas Corpus Act (1679), as well as our own Constitution and
The Judiciary Act of 1789 (which established the detailed organization
of the federal judiciary), all mention this “fundamental instrument
for safeguarding individual freedom against arbitrary and lawless
state action” (Justice Abe Fortas).

a follow up to Adams
and DiLorenzo
regarding Lincoln’s warrant to arrest the Chief Justice of
the U.S. Supreme Court, Roger B. Taney, it is interesting to see
what Taney himself said in the Ex
parte Merryman
decision about Lincoln’s suspension of habeas corpus, which Lincoln
had authorized on April 27, 1861.

parte Merryman (literally “from one side,” and therefore meaning
“on behalf of Merryman”) is the case of Lt. John Merryman, of the
Baltimore County Horse Guards, who was imprisoned on May 25, 1861,
in, of all places, Baltimore’s Fort McHenry, on order of Union General
Winfield Scott. Union troops had just occupied the city and began
arresting suspected secessionists.

was within the judicial circuit of Supreme Court Chief Justice Roger
B. Taney. The Judiciary Act of 1789 required that the justices of
the Supreme Court also serve as judges of the circuit courts (originally
three), which performed both trial and appellate functions. It was
not until The Judiciary Act of 1869 that a separate circuit court
judiciary (by then nine circuits) was established.

attorney immediately sought a writ of habeas corpus because Merryman
“has been imprisoned without any due process of color of law whatsoever,
and that none such is pretended by those who are thus detaining
him.” Taney, the author of the Dred Scott decision, issued the writ,
but General George Cadwalader, the commanding officer at Fort McHenry,
refused to comply, citing Lincoln’s order.

Taney first presents the facts of the case:

The application
in this case for a writ of habeas corpus is made to me under the
14th section of the judiciary act of 1789 [1 Stat. 81], which
renders effectual for the citizen the constitutional privilege
of the writ of habeas corpus. That act gives to the courts of
the United States, as well as to each justice of the supreme court,
and to every district judge, power to grant writs of habeas corpus
for the purpose of an inquiry into the cause of commitment. The
petition was presented to me, at Washington, under the impression
that I would order the prisoner to be brought before me there,
but as he was confined in Fort McHenry, in the city of Baltimore,
which is in my circuit, I resolved to hear it in the latter city,
as obedience to the writ, under such circumstances, would not
withdraw General Cadwalader, who had him in charge, from the limits
of his military command.

The petition
presents the following case: The petitioner resides in Maryland,
in Baltimore county; while peaceably in his own house, with his
family, it was at two o’clock on the morning of the 25th of May
1861, entered by an armed force, professing to act under military
orders; he was then compelled to rise from his bed, taken into
custody, and conveyed to Fort McHenry, where he is imprisoned
by the commanding officer, without warrant from any lawful authority.

The commander
of the fort, General George Cadwalader, by whom he is detained
in confinement, in his return to the writ, does not deny any of
the facts alleged in the petition. He states that the prisoner
was arrested by order of General Keim, of Pennsylvania, and conducted
as aforesaid to Fort McHenry, by his order, and placed in his
(General Cadwalader’s) custody, to be there detained by him as
a prisoner.

A copy of
the warrant or order under which the prisoner was arrested was
demanded by his counsel, and refused: and it is not alleged in
the return, that any specific act, constituting any offence against
the laws of the United States, has been charged against him upon
oath, but he appears to have been arrested upon general charges
of treason and rebellion, without proof, and without giving the
names of the witnesses, or specifying the acts which, in the judgment
of the military officer, constituted these crimes. Having the
prisoner thus in custody upon these vague and unsupported accusations,
he refuses to obey the writ of habeas corpus, upon the ground
that he is duly authorized by the president to suspend it.

The case,
then, is simply this: a military officer, residing in Pennsylvania,
issues an order to arrest a citizen of Maryland, upon vague and
indefinite charges, without any proof, so far as appears; under
this order, his house is entered in the night, he is seized as
a prisoner, and conveyed to Fort McHenry, and there kept in close
confinement; and when a habeas corpus is served on the commanding
officer, requiring him to produce the prisoner before a justice
of the supreme court, in order that he may examine into the legality
of the imprisonment, the answer of the officer, is that he is
authorized by the president to suspend the writ of habeas corpus
at his discretion, and in the exercise of that discretion, suspends
it in this case, and on that ground refuses obedience to the writ.

Taney next explains why only the legislative branch has the power
to suspend the writ, not the executive:

As the case
comes before me, therefore, I understand that the president not
only claims the right to suspend the writ of habeas corpus himself,
at his discretion, but to delegate that discretionary power to
a military officer, and to leave it to him to determine whether
he will or will not obey judicial process that may be served upon
him. No official notice has been given to the courts of justice,
or to the public, by proclamation or otherwise, that the president
claimed this power, and had exercised it in the manner stated
in the return. And I certainly listened to it with some surprise,
for I had supposed it to be one of those points of constitutional
law upon which there was no difference of opinion, and that it
was admitted on all hands, that the privilege of the writ could
not be suspended, except by act of congress.

When the
conspiracy of which Aaron Burr was the head, became so formidable,
and was so extensively ramified, as to justify, in Mr. Jefferson’s
opinion, the suspension of the writ, he claimed, on his part,
no power to suspend it, but communicated his opinion to congress,
with all the proofs in his possession, in order that congress
might exercise its discretion upon the subject, and determine
whether the public safety required it. And in the debate which
took place upon the subject, no one suggested that Mr. Jefferson
might exercise the power himself, if, in his opinion, the public
safety demanded it.

Having, therefore,
regarded the question as too plain and too well settled to be
open to dispute, if the commanding officer had stated that, upon
his own responsibility, and in the exercise of his own discretion,
he refused obedience to the writ, I should have contented myself
with referring to the clause in the constitution, and to the construction
it received from every jurist and statesman of that day, when
the case of Burr was before them. But being thus officially notified
that the privilege of the writ has been suspended, under the orders,
and by the authority of the president, and believing, as I do,
that the president has exercised a power which he does not possess
under the constitution, a proper respect for the high office he
fills, requires me to state plainly and fully the grounds of my
opinion, in order to show that I have not ventured to question
the legality of his act, without a careful and deliberate examination
of the whole subject.

The clause
of the constitution, which authorizes the suspension of the privilege
of the writ of habeas corpus, is in the 9th section of the first
article. This article is devoted to the legislative department
of the United States, and has not the slightest reference to the
executive department. It begins by providing “that all legislative
powers therein granted, shall be vested in a congress of the United
States, which shall consist of a senate and house of representatives.”
And after prescribing the manner in which these two branches of
the legislative department shall be chosen, it proceeds to enumerate
specifically the legislative powers which it thereby grants [and
legislative powers which it expressly prohibits]; and at the conclusion
of this specification, a clause is inserted giving congress “the
power to make all laws which shall be necessary and proper for
carrying into execution the foregoing powers, and all other powers
vested by this constitution in the government of the United States,
or in any department or officer thereof.”

The power
of legislation granted by this latter clause is, by its words,
carefully confined to the specific objects before enumerated.
But as this limitation was unavoidably somewhat indefinite, it
was deemed necessary to guard more effectually certain great cardinal
principles, essential to the liberty of the citizen, and to the
rights and equality of the states, by denying to congress, in
express terms, any power of legislation over them. It was apprehended,
it seems, that such legislation might be attempted, under the
pretext that it was necessary and proper to carry into execution
the powers granted; and it was determined, that there should be
no room to doubt, where rights of such vital importance were concerned;
and accordingly, this clause is immediately followed by an enumeration
of certain subjects, to which the powers of legislation shall
not extend. The great importance which the framers of the constitution
attached to the privilege of the writ of habeas corpus, to protect
the liberty of the citizen, is proved by the fact, that its suspension,
except in cases of invasion or rebellion, is first in the list
of prohibited powers; and even in these cases the power is denied,
and its exercise prohibited, unless the public safety shall require

It is the
second article of the constitution that provides for the organization
of the executive department, enumerates the powers conferred on
it, and prescribes its duties. And if the high power over the
liberty of the citizen now claimed, was intended to be conferred
on the president, it would undoubtedly be found in plain words
in this article; but there is not a word in it that can furnish
the slightest ground to justify the exercise of the power.

Even if the
privilege of the writ of habeas corpus were suspended by act of
congress, and a party not subject to the rules and articles of
war were afterwards arrested and imprisoned by regular judicial
process, he could not be detained in prison, or brought to trial
before a military tribunal, for the article in the amendments
to the constitution immediately following the one above referred
to (that is, the sixth article) provides, that “in all criminal
prosecutions, the accused shall enjoy the right to a speedy and
public trial by an impartial jury of the state and district wherein
the crime shall have been committed, which district shall have
been previously ascertained by law; and to be informed of the
nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining
witnesses in his favor; and to have the assistance of counsel
for his defence.”

The only
power, therefore, which the president possesses, where the “life,
liberty or property” of a private citizen is concerned, is
the power and duty prescribed in the third section of the second
article, which requires “that he shall take care that the
laws shall be faithfully executed.” He is not authorized
to execute them himself, or through agents or officers, civil
or military, appointed by himself, but he is to take care that
they be faithfully carried into execution, as they are expounded
and adjudged by the coordinate branch of the government to which
that duty is assigned by the constitution. It is thus made his
duty to come in aid of the judicial authority, if it shall be
resisted by a force too strong to be overcome without the assistance
of the executive arm; but in exercising this power he acts in
subordination to judicial authority, assisting it to execute its
process and enforce its judgments. With such provisions in the
constitution, expressed in language too clear to be misunderstood
by any one, I can see no ground whatever for supposing that the
president, in any emergency, or in any state of things, can authorize
the suspension of the privileges of the writ of habeas corpus,
or the arrest of a citizen, except in aid of the judicial power.
He certainly does not faithfully execute the laws, if he takes
upon himself legislative power, by suspending the writ of habeas
corpus, and the judicial power also, by arresting and imprisoning
a person without due process of law.

Taney then supports his case by referring to not only the U.S. Constitution,
and Joseph Story’s commentary on it, but his predecessor, Chief
Justice John Marshall, as well as Blackstone’s Commentaries, Hallam’s
Constitutional History, the Common Law, the Magna Carta, the Petition
of Right, and the Habeas Corpus Act. His concluding remarks on the
case are as follows:

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; 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 case, would have held him to bail, or committed him for
trial, according to the character of the offence, 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.

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.

In such a
case, my duty was too plain to be mistaken. I have exercised all
the power which the constitution and laws confer upon 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. It will then remain for that high officer,
in fulfillment of his constitutional obligation to “take
care that the laws be faithfully executed,” to determine
what measures he will take to cause the civil process of the United
States to be respected and enforced.

closing words of Justice Taney were on Lincoln’s mind, for when
he defended his actions before Congress in an Independence
Day speech
not two months later, he said: “Soon after
the first call for militia it was considered a duty to authorize
the commanding general in proper cases according to his discretion,
to suspend the privilege of the writ of habeas corpus, or in other
words to arrest and detain, without resort to the ordinary processes
and forms of law, such individuals as he might deem dangerous to
the public safety. This authority has purposely been exercised but
very sparingly. Nevertheless, the legality and propriety of what
has been done under it, are questioned; and the attention of the
country has been called to the proposition that one who is sworn
to ‘take care that the laws be faithfully executed,’ should not
himself violate them.”

Merryman was eventually released and forgotten, as was Lincoln’s destruction
of the Constitution. After the war, the Supreme Court officially
restored habeas corpus in Ex parte Milligan (1866), ruling that trials of civilians by presidentially
created military commissions are unconstitutional.

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