Legal Questions Before the Court
Did the President have authority to suspend the privilege of the writ of habeas corpus?
Chief Justice Taney said that the President did not have the authority to suspend the privilege of the writ of habeas corpus and that the Constitution reserved that authority for the Congress.
Taney based his opinion in Ex parte Merryman on the Constitution, the tradition of habeas corpus in English law, and a decision of the Supreme Court. The Constitution’s only reference to habeas corpus appeared in Article I, Section 9, which enumerated powers that the Congress was prohibited from exercising. Although that clause of the Constitution did not specify which branch of government had the limited authority to suspend the privilege of the writ of habeas corpus in times of crisis, Taney, like most earlier commentators, assumed that placement of the clause in Article I indicated that the power to suspend was limited to the Congress. Taney’s review of English law demonstrated that the monarch had long been prohibited from suspending the privilege of habeas and that English legal authorities agreed that suspension was the prerogative of the Parliament. Taney cited a Supreme Court decision of 1807, in which Chief Justice John Marshall had written that the Congress alone had the authority to suspend the privilege to the writ, and Justice Joseph Story’s famous Commentaries, which said only the Congress could determine if a rebellion or invasion justified suspension.
In the opening of his opinion, Taney expressed “some surprise” at reports that Lincoln claimed the authority to suspend the writ, “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.”
Could the military detain an individual on charges of violating U.S. law?
Chief Justice Taney said that a military officer had no authority to arrest an individual for a criminal offense. If a member of the military suspected an individual of violating a U.S. law, he had an obligation to inform the U.S. attorney, who would determine if the matter should be brought before a district judge or a commissioner authorized to issue an arrest warrant. Taney offered some of his strongest language to condemn the actions of the military officers who ordered and carried out the arrest of Merryman. They had “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.” The arrest and detainment of Merryman, according to Taney, had violated essential rights guaranteed by the Constitution’s Bill of Rights. Merryman had been seized without a warrant and with no presentation of evidence, in violation of the Fourth Amendment; he had been detained without any hearing or other due process of law, in violation of the Fifth Amendment; and he was now held at a “strongly garrisoned fort,” with no prospect of a speedy trial in a court of justice, in violation of the Sixth Amendment. If the military had this authority to decide what constituted a crime and what constituted sufficient evidence to imprison someone, “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 be found.”
Taney also asserted that the military officers had no reasonable expectation that the civil authorities would be unable to enforce the law, since no one in Maryland had heretofore resisted the process of any federal court or judicial officer. The district judge, the commissioner, the district attorney, and the marshal for the District of Maryland all lived within a few miles of Merryman, and would have been easily accessible to a military authority who suspected treasonous activity.
What jurisdiction did the federal courts have over a petition for a writ of habeas corpus from an individual detained by the military?
Section 14 of the Judiciary Act of 1789 authorized federal courts as well as individual district judges and Supreme Court justices to issue writs of habeas corpus to inquire into the reasons for a commitment, or imprisonment, under the order of a federal court or other federal authority. Although most habeas writs issued by the federal courts related to criminal proceedings, some federal courts had issued writs of habeas corpus to individuals held by the military, such as in New Orleans in the closing days of martial law imposed during the War of 1812. A Supreme Court decision of 1807 limited the Supreme Court’s habeas jurisdiction to appeals of lower federal court orders and thus excluded military prisoners from submitting petitions directly to the high Court. Although Chief Justice Taney acknowledged that the Supreme Court did not have jurisdiction to issue a writ of habeas corpus to an individual held in custody by the military, he reportedly believed that individual justices, sitting “in chambers” (outside a regular court session), did have such authority. In the Merryman proceedings, however, Taney was intentionally vague about whether he has acting as Chief Justice in chambers or as the circuit justice for the U.S. Circuit Court for Maryland. In 1867, Chief Justice Salmon Chase denied a habeas petition from a military prisoner whose attorney cited Taney’s personal belief in a justice’s authority to grant the writ in chambers. Although the decision was unpublished, Chase privately told a senator that he had denied the petition because justices sitting on their own had the authority to grant habeas writs only to petitioners from their assigned circuits.
What did the federal courts decide in related cases?
In re McDonald, U.S. District Court for the Eastern District of Missouri, 1861 (16 Federal Cases 17)
Just days before the arrest of Merryman, another Army general in another border state refused to appear in a federal court in answer to a writ of habeas corpus. Like Taney, the federal judge in the Eastern District of Missouri declined to enforce the writ but offered a strongly argued defense of the judiciary’s authority to enforce constitutional rights even in the midst of a civil war.
Emmett McDonald served as a captain in a Missouri militia company that in the spring of 1861 gathered arms at a camp named for the state’s secessionist governor and prepared to attack the U.S. arsenal in nearby St. Louis. On May 10, federal forces took control of the militia’s camp, seized the arms, and forced the militia members to march to St. Louis. Gathering crowds taunted the federal forces and sang cheers to Jefferson Davis and the Confederacy. Fighting broke out, leaving several dead and numerous civilians wounded. The militia members were released on the condition that they pledge not to take up arms against the Union, but McDonald refused and remained in the custody of the U.S. forces. McDonald then petitioned the U.S. District Court for the Eastern District of Missouri for a writ of habeas corpus, which was granted by Judge Samuel Treat and delivered to General William Harney, who had just assumed command of the Army’s Department of the West. By the time Harney received the writ, he had transferred McDonald to the custody of troops in Illinois, outside the court’s jurisdiction.
General Harney did not appear in court and sent a letter explaining that McDonald was not in his custody. Harney informed Treat that the existing crisis in Missouri compelled him to observe a “higher law,” even if it appeared he was violating the forms of law. Although Lincoln’s authorization of the suspension of habeas corpus did not extend to Missouri, Harney believed that the President’s order to disperse “all armed rebels hostile to the United States” justified his predecessor’s raid on the militia camp and the detention of McDonald. The general added that if McDonald had been in his custody, he would have taken no action to release a prisoner who had been a member of the offending militia.
Judge Treat had no options for enforcing the writ, but he filed in the district court a lengthy opinion that established the jurisdiction of his court over habeas petitions from persons detained by the military. Treat’s exhaustive survey of habeas decisions in the federal courts and English precedents led him to conclude that Section 14 of the Judiciary Act of 1789 granted federal courts the authority to issue writs of habeas corpus to prisoners detained by any federal authority, not just those arrested by formal judicial process. The judge emphasized that the protections of the Bill of Rights were most likely to be ignored by authorities outside the courts, where the established procedure demanded some public explanation of an arrest and commitment. If the courts were denied jurisdiction over habeas writs from those held by the military or other federal authorities outside the judiciary, then citizens would be “powerless when arbitrary will, assuming to act in the name of the United States, chooses to trample upon every constitutional guarantee for the protection of individual liberty.”
When Congress reconvened in early July, Representative Francis Preston Blair of Missouri introduced a bill to consolidate Missouri as a single judicial district and thus eliminate Treat’s judgeship. The bill passed the House within a few weeks but failed in the Senate, and Treat continued to serve as a federal judge until his retirement in 1887. Emmett McDonald eventually fought for the Confederacy and was killed in action in 1864.
Ex parte Vallandigham, U.S. Circuit Court for the Southern District of Ohio, 1863 (28 Federal Cases 874)
In the denial of a writ of habeas corpus for a prominent politician imprisoned by the military, a federal judge from Ohio offered military officers enormous discretion in the suppression of public sympathy for the Confederacy or of criticism of the President’s war strategy. Representative Clement Vallandigham of Ohio was one of Lincoln’s fiercest critics in the Congress during the first years of the Civil War. As a nationally known and charismatic “Copperhead,” Vallandigham used his seat in the House of Representatives to challenge the President’s leadership and to condemn the abolitionists, whom he blamed for the war. Vallandigham lost reelection to a fourth term in Congress and returned to Ohio, where he planned to run for governor. In May 1863, before a large crowd in Mount Vernon, Ohio, Vallandigham attacked General Orders No. 38, in which General Ambrose Burnside of the Department of the Ohio had recently declared martial law and made it a crime to express any public sympathy with the Southern rebels. Burnside ordered Vallandigham’s arrest and trial by a military commission on charges of giving aid and comfort to Confederate forces and attempting to weaken public support for the government. The commission found Vallandigham guilty and sentenced him to imprisonment for the duration of the war.
Vallandigham petitioned the U.S. Circuit Court for the Southern District of Ohio for a writ of habeas corpus. After soliciting arguments from Burnside and his counsel as well as from the lawyers for Vallandigham, Judge Humphrey Leavitt denied the writ. An earlier decision by the same court had established that a habeas writ would not be granted if the judges were confident that no subsequent order of the court would result in the release of the prisoner. Leavitt was convinced that the Army would not obey an order in this case, but he also offered a substantive and potentially far-reaching argument for denying the writ of habeas corpus. Vallandigham’s lawyers had argued that an individual who was not in military service, and therefore not subject to the rules of war, could not be arrested by the military or tried before a military commission. Judge Leavitt acknowledged that by the strict standards of the Constitution, the arrest violated civil liberties protected by the Bill of Rights, but Leavitt said that “the court cannot shut its eyes to the grave fact that war exists.” With the republic in peril, a judge needed to interpret the Constitution so as to serve the larger goal of saving the nation from “hopeless ruin.” Leavitt also deferred to the judgment of military officers who were charged with carrying out the President’s orders to preserve and defend the Union. In time of war, it was impossible for a judge to know all that the President and his generals needed to do to preserve the Union. Leavitt cited the recent Emancipation Proclamation as an example of the expansive powers justified by military necessity. The legality of an arrest ultimately “depended on the necessity for making it.”
After the denial of the habeas writ, Vallandigham’s lawyers petitioned the Supreme Court for a writ of certiorari to review his trial by the commission. The Supreme Court, citing a lack of jurisdiction over appeals from a military tribunal, denied the writ. Lincoln and his cabinet had no advance notice of Burnside’s general order or of his decision to arrest Vallandigham. Secretary of War Edwin Stanton feared that the circuit justice might grant the writ of habeas corpus, and he prepared for Lincoln an order suspending habeas corpus in this case. Lincoln declined to issue the order. Following Vallandigham’s conviction and the denial of his habeas petition, Lincoln commuted the prison sentence and ordered General Burnside to send Vallandigham to a Confederate general in Tennessee. Vallandigham soon left the Confederate states and went to Canada, from where he monitored his unsuccessful campaign for governor of Ohio. He returned to the United States in 1864 and campaigned against Lincoln’s reelection.
Ex parte Milligan, Supreme Court of the United States, 1866 (71 U.S. Reports 2)
Lambdin Milligan of Indiana was suspected to be a member of a secret society, the Order of American Knights, that allegedly conspired to seize arms at a U.S. arsenal and to free Confederate prisoners of war. He was arrested by Army officers in October 1864 and tried by a military commission on charges of conspiracy against the government, aiding the rebels, inciting insurrection, disloyal practices, and violating the laws of war. The commission found Milligan and two collaborators guilty and sentenced them to death by hanging. Lincoln delayed the execution, but after Lincoln’s assassination, President Andrew Johnson ordered the military to proceed with the punishment. Nine days before the scheduled execution, lawyers for Milligan petitioned the U.S. Circuit Court for Indiana for a writ of habeas corpus. The petition stated that the Habeas Corpus Act of 1863 provided that Milligan, who had never served in the military, should either have been brought before a civilian court to be tried or been released from custody.
The judges of the circuit court, Justice David Davis and Judge David McDonald, differed on the questions of the issuance of a habeas writ, the release of Milligan from custody, and the jurisdiction of the military commission. As provided for by law, the judges certified their split and sent the case to the Supreme Court. All nine justices voted to overturn the verdict of the military commission, but they disagreed about the grounds of their decision.
Justice Davis wrote for the majority in an opinion based on constitutional rights. The end of “the late wicked Rebellion” offered the opportunity for a more reasoned consideration of the questions presented by the case, and Davis thought that “no graver question was ever considered by this Court.” One of the clearest provisions of the Constitution was “infringed when Milligan was tried by a court not ordained and established by the Congress, and not composed of judges appointed during good behavior.” The arrest and trial of Milligan violated the protection against search and seizure without a warrant, the guarantee of a jury in a criminal trial, and the requirement for a grand jury indictment in a charge carrying the death penalty. Davis went beyond these questions of constitutional protections in criminal procedure to disallow the establishment of military commissions in areas where the civilian courts continued to operate without interruption. “Martial law can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction.” Davis also held that martial law could be imposed only in areas that are in rebellion or in which an invasion has already occurred, and that the threat of an invasion was never sufficient to justify martial law. The safety of the country had not required martial law in Indiana, where the federal courts were capable of trying anyone accused of treason.
Chief Justice Salmon Chase wrote a concurring opinion for the minority of four justices and based his decision solely on the statutory authority provided by the Habeas Corpus Act of 1863. As Davis had also held, Chase wrote that the wartime statute granted military authorities the power to arrest without being held answerable to a writ of habeas corpus, but this expansive power was limited by the act’s requirement that the military report to the federal courts the names of all individuals arrested and that following the end of the next grand jury meeting, all prisoners not indicted could petition the federal judge for release. The military commission in Indiana had met neither of those requirements. The four-justice minority asserted that the Congress had the authority to establish the military commission that was held in Indiana.
Although the Milligan decision would be celebrated as a landmark case in civil liberties, it initially faced enormous criticism, particularly from Republicans who feared that it would undermine the use of military commissions to enforce equal rights for freed slaves and Unionists in the South. Radical Republicans, like Thaddeus Stevens of Pennsylvania, linked the Milligan decision with Dred Scott, and feared that the Supreme Court would once again come to the defense of the white South.
Ex parte McCardle, Supreme Court of the United States, 1869 (74 U.S. Reports 506)
William McCardle was arrested by officers of the military government of Mississippi established under the Reconstruction Act of 1867, and he was tried by a military commission on charges of publishing libelous articles in his newspaper. McCardle’s attorney petitioned the U.S. Circuit Court for Mississippi for a writ of habeas corpus, and on the return argued that by the terms of Ex parte Milligan, McCardle could not be tried by a military court in a state with a functioning civil federal court. Judge Robert Hill of the circuit court denied McCardle’s release and returned him to the custody of the military government. Under the terms of the Habeas Corpus Act of 1867, McCardle appealed Hill’s circuit court decision to the Supreme Court, and the case was argued over four days in early March 1868. The 1867 act gave the federal courts jurisdiction to grant habeas writs to individuals held by state as well as federal authorities, and it provided a right of appeal to the Supreme Court from any habeas decision in the U.S. circuit courts.
Congress, fearing that the Supreme Court might declare unconstitutional the Reconstruction Act of 1867, in late March and before the Court announced a decision, repealed the 1867 provision for habeas appeals to the Supreme Court. Chief Justice Salmon Chase, citing the Congress’s constitutional authority to define the Supreme Court’s appellate jurisdiction, declared in a unanimous opinion that the 1868 repeal act denied the Court any jurisdiction in the case, and the Supreme Court dismissed McCardle’s appeal.
Chase noted at the close of his opinion that the Supreme Court retained the habeas jurisdiction granted by the Judiciary Act of 1789. In 1869, the Supreme Court relied on that jurisdiction in the case of Edward Yerger, who was tried for murder by a military commission in Mississippi. Yerger had petitioned the U.S. Circuit Court for the District of Mississippi for a writ of habeas corpus, and, after a hearing, that court remanded Yerger to military custody. Yerger’s attorneys then petitioned a Supreme Court justice to issue a writ of habeas corpus. The Supreme Court ruled that the appellate jurisdiction defined by the Judiciary Act of 1789 gave it the authority to issue a writ to Yerger because he remained in custody as a result of a decision of a U.S. circuit court.
Ex parte Merryman and Debates on Civil Liberties During the Civil War