Monday, March 25, 2019


Sometime ago, I read a booklet 'Writ of Habeas Corpus. Exparte Merryman' by Henry Dutton. This is an article that was published in October 1861 issue of 'American Law Registered' now published as 'University of Pennsylvania Law Review'. It raised my interest in the case of John Merryman, who was detained by military authorities during American civil was but was not released despite order in his Habeas corpus petition by Justice Roger Brooke Taney, Chief Justice of US Supreme Court and contempt order. 

This is the only case when the President did not comply with the order of the court despite the fact that military commander was held in contempt. 

The case involved with the interpretation of Article 1 section 9 (2) of the US Constitution to determine, 'Whether president has power to suspend Habeas Corpus or not'. Here is the result of that interest.

It is only once that the US president did not comply with the order of the court. This was during American civil war and the order was in a Habeas Corpus petition. It was allowed by Justice Roger Brooke Taney, Chief Justice of US Supreme Court. He had also held the authorities to be in contempt. The case involved with the question 'Whether president has power to suspend the Habeas Corpus or not'. It is instructive to know the facts of the case, the reasoning of the judge, the reason for not complying it and ultimately what happened in the case. However, before we go into facts of the case, a few words about the reasons for the American civil war.

Slavery & Civil War
Slavery was permitted in British America. After independence, it was abolished in most of the northern states though it continued in the southern states. It was always a contentious issue and flared up by the majority decision (7-2) in Dred Scott v. Sandford, 60 US 393 (1857). The leading opinion of Chief Justice Roger Brooke Taney held that neither the persons imported as slaves, nor their descendants could become free or citizens of US. The court also struck down the Missouri Compromise, a Congress legislation, giving freedom to slaves in certain territories.

Abraham Lincoln won the 16th US presidential election on November 6, 1860 on the plank of stopping extension of slavery; he supported its abolition. This further increased the tension and by the time he took oath on March 4, 1861, seven southern states, favouring slavery, had declared their secession from the Union and formed the Confederate States of America. Later, four more joined them. 

American civil war was fought between Confederate states for secession and the states remaining loyal to US government (the Union). It started on April 12, 1861 with bombardment of Fort Sumter near Charleston, South Carolina by the Confederate States Army. It ended on April 9, 1865 with the surrender of Confederate Commander Lee. Other Confederate generals followed the suit. 

After the war, the thirteenth, fourteenth, and fifteenth amendments to the US Constitution were adopted between 1865 and 1870.  They abolished slavery, gave equal protection as well as citizen and voting rights to everyone without any discrimination: thus, ending the sad chapter in US life.

Suspension of Habeas Corpus During Civil War
The writ of Habeas Corpus has been described as 'a key that unlocks the door to freedom'. It is a writ that commands an authority - to produce the person detained; to show the reasons for detention; and to release the person in absence of any justifiable cause for the detention. Unlike our country, the writ of Habeas Corpus can be suspended in US for public safety in case of rebellion or invasion under Article 1 section 9(2) of the US constitution. However, it is not clear as to who can exercise this power: should it be exercised by the Congress, or the President can exercise it and in case it can be exercised by the President, then can he delegate the power to anyone else?

During the American civil war, there were some states where slavery was legal but they were against secession. Maryland was one of them. In April, 1861, US troops passing through Maryland were attacked by a mob. The Governor called for special session of the legislature to deal with it. Later, a resolution was passed on April 29, 1861, against the secession but it also voted not to reopen rail links with the North and requested the President to remove the federal troops there: it never wanted to fight with the Confederate states. 

The Governor of Maryland allegedly also authorised the destruction of railroad bridges connecting Baltimore to Northern states. Some  secessionist supporters destroyed telegraph lines and severed critical communications with Washington. Considering the prevailing situation, on 27th April 1861, President Lincoln delegated the authority to suspend the writ of Habeas corpus at any place to the Commanding General  Winfield Scott of the Union. 

Arrest of Merryman
John Merryman was a prominent Baltimore planter. He was arrested on 25th May, 1861 at 2:00 am from his residence and was imprisoned at Fort McHenry. He filed a Habeas Corpus petition. On the next day, Chief Justice Taney sitting as a US circuit judge court in Baltimore issued the writ of Habeas Corpus and directed General George Cadwalder, commander of the Fort McHenry to produce Merryman and show cause for his detention. 

The next day, on 27th May 1861, neither the army commander appeared before the court, nor Merryman was produced. However, a letter from his side was filed stating that: Merryman was charged with the various acts of treason; he was Lieutenant of a company with arms with the purpose of hostility against the US government; the writ of Habeas Corpus was suspended; and the case be adjourned so that the instructions from the President may be obtained.

The Chief justice Taney refused to grant any time. He held the commander to be in contempt and issued writ of attachment against him. However, the writ could not be served as the server was not permitted to go inside the fort. 

On 28th May, Justice Taney orally passed the order that: the  Habeas Corpus could only be suspended by the Congress; the President had no power to suspend it; the detention of Merryman was illegal; and the President was requested to take care that the law be executed. The power to suspend Habeas Corpus petition was denied to the President,, essentially on the ground that section 9(2) occurs in Article 1 that deals with the legislative department and has no reference to the executive department, which is dealt under Article 2. 

Later, a written opinion (Ex parte Merryman, 17 F. Cas. 144) was filed on 1st June 1861. In the operative portion, the Judge observed that:
‘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 to 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.’
It is not clear if the opinion of the Justice Taney was ever served on the President or not but neither he ordered the administration to obey it, nor was it ever complied with. At the opening of Congress session in July 1861, the President posed a question,
Lincoln as Don Quixote
by  by Adalbert John Volck
Courtesy National Portrait Gallery, Smithsonian Institution
‘Must a government of necessity be too strong for the liberties of its own people or too weak to maintain its own existence.’ 
He believed that constitution was meaningless without the Union and in order to maintain it, a check was necessary on civil liberties. This led to his criticism even by his supporters.

Ultimately, the Congress passed ‘The Habeas Corpus Suspension Act, 12 Stat. 755 (1863)’. It became law on 3rd March 1863. It empowered the President to suspend Habeas Corpus during American civil war but in cases of detention, some formalities were to be complied with. The political prisoners were also ordered to be released. During the American civil war, the Habeas Corpus was suspended many times for different areas and once even for the entire country however, required formalities were seldom complied with.

Fate – Merryman
In July 1861, Merryman was indicted by a grand jury. It was said that: Merryman had conspired with more than 500 people to levy war against the United States; he had joined with others to destroy six rail-road bridges in an effort to prevent the movement of troops for the defence of Washington DC; and he destroyed a telegraph line in an attempt to disrupt communications and delay the proper defence of the US.

Later, Merryman was released on bail. The trial did not proceed as the presiding judge delayed the hearing of the same. In May 1863, all treason indictments, along with of Merryman, were dismissed but Merryman was again indicted on similar charges in July 1863. After the civil war, the US Attorney for Maryland informed the court in 1867 that he did not wish to proceed with the prosecution and the case was dropped.

Merryman filed a suit for damages for unlawful detention against Commander Cadwalder in February 1863 and asked for $50,000 in damages. The suit was transferred to the federal circuit court. Thereafter, Merryman did not pursue it further and it was dismissed in April 1864. Thus, ended the saga of Merryman.

There is difference of opinion among the American  legal scholars whether the President has power to suspend Habeas Corpus under Article 1 section 9(2) or not. There is no decision endorsing or overruling Justice Taney’s view but the fact that there is a presidential form of Government in the US and in the absence of statutory prohibition, there is no justification to deny the power to the President to suspend the Habeas Corpus. 

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Sometime ago, I read a booklet 'Writ of Habeas Corpus. Exparte Merryman' by Henry Dutton. This is an article that was published in...