History of the Federal Judiciary

History of the Federal Judiciary

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Historical Documents

Ex parte Merryman, opinion of Chief Justice Roger Taney (excerpts)

According to Chief Justice Taney, President Lincoln’s unpublished order to suspend habeas corpus was a radical departure from well-established principles of law in both the United States and Great Britain. Taney emphasized how the arrest and detainment of Merryman foreshadowed the arbitrary rule of a military government, unchecked by any constitutional guarantees of civil liberties. Taney’s narrative of the arrest portrayed Merryman as an innocent citizen, seized in the peace of his own home and dragged away in the middle of the night by officers with no legal authority to detain him.

Taney’s review of English and American legal traditions put Lincoln at odds with the greatest legal minds of both countries. The Chief Justice argued that the powers of the executive were narrowly circumscribed by the Constitution and, in matters related to law enforcement, subordinate to the judiciary. But rather than assist the judiciary in the enforcement of laws, the military had swept aside the judicial power of the federal government and went beyond the suspension of habeas corpus to threaten the civil liberties protected by the Bill of Rights. Taney maintained that the force of arms prevented him from carrying out his constitutional duties, and he challenged the President to restore constitutional order and due process of law.

[Document Source: Original case files in possession of the U.S. District Court for the District of Maryland. Published in
Federal Cases.]

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. . . .

And 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 3rd section of the 2nd Article, which requires “That he Shall take care that the laws 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 of 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 & enforce its judgments. . . .

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 case, 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 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.

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 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 fulfilment 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.


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