History of the Federal Judiciary

History of the Federal Judiciary

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Historical Documents

Edward Ingersoll, Personal Liberty and Martial Law: A Review of Some Pamphlets of the Day (excerpt)

Edward Ingersoll was born to a prominent Philadelphia family, and he studied for the law after attending the University of Pennsylvania. In 1849, he published a treatise on the History and Law of the Writ of Habeas Corpus. Ingersoll sympathized with the Confederacy and was so critical of the Union war effort that he was arrested for a public speech, but then won release on a writ of habeas corpus. This pamphlet was a direct response to those of Horace Binney and other writers who defended the President’s authority to suspend the privilege of the writ of habeas corpus. For Ingersoll, the assertion of executive authority to suspend the writ and impose martial law threatened the survival of constitutional government. He warned that “the question, whether the executive or the legislative department of the government, is to judge of ‘the requirements of the public safety in case of rebellion or invasion,’ amounts in its elements to the question of despotism or free representative government.” Here he describes the long-established consensus that suspension was the prerogative of the legislature.

[Document Source:
Union Pamphlets of the Civil War, 1861–1865. Ed., Frank Friedel. 2 vols. (Cambridge, MA.: Harvard University Press, 1967): 1: 281–82.]

The Federal Constitution of 1787 has, during more than seventy years, been the subject of very extended and elaborate consideration. This more or less in all and every part of it. Many books have been written in elucidation and explanation of its every clause and section. This particular Habeas Corpus clause has been over and again at the hands of judges, legislators and text writers, a frequent subject of thought and comment. It came up broadly for the consideration of the nation and its legislators, in the year 1807, when the question of action under its provisions was practically before the public. Thus during the seventy years of the existence of this fundamental law of our Government, this particular subject has been before a free, talking, writing, thinking people, and has been, as history shows, during that time freely and much discussed, written and talked about. It was always, and by everybody, considered a matter of vast and vital importance; perhaps of vaster and more vital importance than any one other matter of our fundamental law. During this long period of time, and this frequent handling of the matter, there has been no whisper of difference of opinion or views upon this point. All have been agreed that the power to suspend the privilege of the writ of Habeas Corpus was a legislative power. It has been so asserted and assumed by authors, legislators and judges, and upon occasions innumerable. No dissent has ever been given, no doubt has ever been expressed. This popular right, as claimed, was supposed to have a great historical root. It has not been created by Americans in 1787; but had always, in their books of history, been claimed by them as of great ancestral foundation and descent.


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