History of the Federal Judiciary

History of the Federal Judiciary

  Ex parte Merryman and Debates on Civil Liberties During the Civil War
Historical Documents

Constitutional and statutory authorities

The debate on the suspension of the privilege of the writ of habeas corpus centered on the constitutional provision that failed to identify which branch or branches of government had the authority to suspend habeas during the specified crises. The Judiciary Act of 1789, which established the federal court system, identified which judges could issue the writ and in what cases, but it made no reference to the authority to suspend.

At the opening of the special session of Congress in July 1861, Lincoln asked the members to consider what legislation they would consider necessary in light of his recent suspension of the privilege of the writ. Although Congress considered an authorization for the President to suspend the writ, it passed no legislation specifically addressing habeas until the closing day of the third and final session of that Congress. The Habeas Corpus Act of 1863 answered some of the concerns about the suspension of civil liberties by requiring the executive and the military to report all arrests to the U.S. circuit courts and providing for the release of prisoners not indicted in the courts by a certain date. The act also offered protection from legal penalties for the President and military or civilian officers who might be sued for infringing the civil liberties of persons arrested. John Merryman was one of the many arrested and denied the protections of habeas corpus who subsequently in state courts filed suit against the officers who detained them.

U.S. Constitution, Article I, Section 9

The 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.

Judiciary Act of 1789, Section 14

SEC. 14.
And be it further enacted, That all the before-mentioned courts of the United States, shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. And that either of the justices of the supreme court, as well as judges of the district courts, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment.——Provided, That writs of habeas corpus shall in no case extend to prisoners in gaol, unless where they are in custody, under or by colour of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify.

[Document Source: September 24, 1789, U.S. Statutes at Large 1 (1789): 73.]

Habeas Corpus Act of 1863

An Act relating to Habeas Corpus, and regulating Judicial Proceedings in Certain Cases.

Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled, That, during the present rebellion, the President of the United States, whenever, in his judgment, the public safety may require it, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United States, or any part thereof. . . .

Sec. 2.
And be it further enacted, That the Secretary of State and the Secretary of War be, and they are hereby, directed, as soon as may be practicable, to furnish to the judges of the circuit and district courts of the United States and of the District of Columbia a list of the names of all persons, citizens of states in which the administration of the laws has continued unimpaired in the said Federal courts, who are now, or may hereafter be, held as prisoners of the United States, by order or authority of the President of the United States or either of said Secretaries, in any fort, arsenal, or other place, as state or political prisoners, or otherwise than as prisoners of war; the said list to contain the names of all those who reside in the respective jurisdictions of said judges, or who may be deemed by the said Secretaries, or either of them, to have violated any law of the United States in any of said jurisdictions, and also the date of each arrest; . . .

And in all cases where a grand jury, having attended any of said courts having jurisdiction in the premises, after the passage of this act, and after the furnishing of said list, as aforesaid, has terminated its session without finding an indictment or presentment, or other proceeding against any such person, it shall be the duty of the judge of said court forthwith to make an order that any such prisoner desiring a discharge from said imprisonment be brought before him to be discharged; . . .

Provided, however, That no person shall be discharged by virtue of the provisions of this act until after he or she shall have taken an oath of allegiance to the Government of the United States, and to support the Constitution thereof; . . .

[Document Source: March 3, 1863, U.S. Statutes at Large 12 (1863): 755.]


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