History of the Federal Judiciary

History of the Federal Judiciary

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Historical Documents

Newspaper Coverage

New-York Daily Tribune, May 30, 1861. “Martial Law—Habeas Corpus” (excerpt)
Let us not be afraid of a military despotism. Of all the tyrannies that afflict mankind, that of the Judiciary is the most insidious, the most intolerable, the most dangerous. The times are perilous. Treason is abroad. Rebels are in arms against the State. A powerful force, commanded by learned and patriotic men, versed both in civil and martial law, is in the field to subdue them. We advise the three Judges of the Supreme Court who have not turned traitors to the Government, and the one or two whose position is not yet clearly defined, to attend to their appropriate duties in the Courts, and leave the task of overthrowing this formidable conspiracy against Liberty and Law to the military and naval forces of the United States.

We beg leave also to remind Mr. Chief Justice Taney that the only man who heartily defended him against the many severe attacks made upon him in the Senate Chamber, because of his decision in the Dred Scott case, was Judah P. Benjamin of Louisiana, now the Attorney-General of the so-called Confederate States. He is a traitor, deserving the scaffold for his crime. We trust that gratitude to his Senatorial champion will not lead the venerable jurist to exhibit too much sympathy with his fellow-citizens of Maryland who are plotting to betray that State into the hands of the Confederate rebels below the Potomac.

New York World, June 7, 1861. “Taney vs. Taney” (excerpt)
The elaborate opinion put on record and published to the world by Chief Justice Taney, in the Merryman case, was so obviously intended as a grave inculpation of the President of the United States, and is so utterly wanting in any expressions of sympathy, either with him in the grave emergency in which he is called to act or with the cause of the Union which he is striving to uphold, that, even if all the legal
dicta the chief justice propounds were conceded to be correct, no patriotic mind could approve of the too evident design to weaken and undermine the confidence of the country in the President. In the midst of a rebellion which threatens the very existence of the government, its highest judicial officer volunteers the weight of his influence and of the influence of his high position in favor of the rebels. Volunteers, we say, because a strict interpretation of his duty required him to do no more than to award the writ when applied for. The attachment against Gen. Cadwalader for contempt of court, and the publication of a document intended to prove that the President is striking at the very foundation of public liberty, can be regarded, under the circumstances, as nothing better than a gratuitous manifestation of hostility to the government and sympathy with the rebels.

Baltimore American and Commercial Advertiser, June 4, 1861. “The Habeas Corpus Case” (excerpt)
We regret that nothing has as yet been done towards the trial or release of Mr. Merryman. Of course it is impossible for those not in the secrets of the Government to know what reason there can be for postponing action in the case, but one thing is evident—that with the courts of the land in full operation, no delay would seem fair to the citizen which cuts him off from a speedy trial. Besides all this, it is eminently proper that a Government which is fighting to maintain the integrity of the Constitution should interpose no arbitrary action to suspend or interfere with rights plainly guaranteed under it, if it would have the support and countenance of its citizens.

New York Weekly Journal of Commerce, June 6, 1861. “Habeas Corpus” (excerpt)
The importance of the writ was never more manifest than at this moment, when the executive Department of the Government of the United States, in the attempt to suppress a rebellion, is tempted to take upon itself the exercise of judicial functions. The grand object of the writ is, to prevent the exercise of judicial authority by injudicious men; to guarantee the citizen that no military force shall hold him in duress unless by due process of law.

The remark of one of the New York papers that the writ was “originally intended to secure the liberty of loyal men,” and that “it would be a gross perversion of its powers to employ it as the protecting shield of rebels,” is a specimen of the very tyranny which the writ of
habeas corpus is designed to overcome. The writ was originally and always intended as a defence of the subject against the tyranny of the government; and nowhere is such defence more needed than under a government like our own. . . . It is marvellous that within the past two weeks the leading Administration papers have been filled with endeavors to justify the most illegal and unconstitutional proceedings, forgetting that they thus more than justify the entire course of the Southern rebellion!


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