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Dr. MurrayAP U.S. History

Civil Liberties, Lincoln, and the Civil War

Habeas corpus and the Merryman case

The origins of habeas corpus lie in the English common law. Under the common law, a prisonerhad the right to ask a judge to issue a writ commanding the authorities detaining him to bring him

before the court and to explain to the court the reasons for detaining him. The writ of habeascorpus is mentioned in Article I, Section , of the U.S. !onstitution, where limitations are placedon !ongress"s power to suspend #the pri$ilege of writ of habeas corpus .% It is not mentioned inthe &ill of 'ights, but most commentators ha$e assumed that Article I"s limitations impl( theexistence of the right. In an( case, the first !ongress passed a statute )The *abeas !orpus Act of+ - that explicitl( protected it, so that assumption has ne$er been tested.

Amidst rising concern that pro/!onfederate rioting in &altimore//together with the intentionaldestruction of bridges throughout 0ar(land//could 1uickl( lead to the isolation of 2ashington,3.!., 4incoln, on April 5 th, +-6+, ga$e 2infield Scott, the !ommanding 7eneral of the Arm(,the authorit( to suspend habeas corpus an(where in the area between 8hiladelphia and thenation"s capital.

9ohn 0err(man, a 0ar(land legislator, was arrested b( the U.S. Arm( on 0a( 5: th, +-6+, andimprisoned in ;ort 0c*enr(, on the grounds that he had participated in the burning of railroad

bridges around &altimore, soon after the &altimore riot of April + th. 0err(man immediatel( hadhis law(er petition the circuit court judge )who happened to be !hief 9ustice Tane( of the U.S.Supreme !ourt to issue a writ of habeas corpus to the militar( authorities holding 0err(man.Tane( complied, and when the militar( authorities refused to produce 0err(man in court, citingthe president"s suspension of habeas corpus , Tane( issued an opinion den(ing 4incoln"sauthorit( to suspend the right. Tane( argued + that onl( !ongress could suspend the writ, and 5that if the ci$il courts were open and operating, ci$ilians could not be detained, charged, or tried

b( militar( authorities.

The militar( continued to hold 0err(man until the summer of +-6+, when he was indicted forconspirac( to commit treason and freed on bail. *e was ne$er brought to trial< in effect, Tane(refused to allow the case to mo$e forward. ;or its part, the 4incoln administration ne$erappealed Tane("s circuit court ruling to the Supreme !ourt, in part because it was not at allconfident that the pro/southern Supreme !ourt would rule in its fa$or. *owe$er, in his 9ul( = th message to !ongress, 4incoln defended his decision to suspend the writ of habeas corpus > #Areall the laws, but one, to go unexecuted, and the go$ernment itself to go to pieces, lest that one be$iolated?%

In 9anuar( +-65, 4incoln released most of the political prisoners rounded up in the anxious weeksafter the capture of ;ort Sumter. &ut in September of the same (ear, he issued a proclamationstating that persons #discouraging $olunteer enlistments, resisting militia drafts, or guilt( of an(dislo(al practice affording aid and comfort to rebels% would be subject to #martial law and liableto trial and punishment b( courts/martial or militar( commission.% @ot onl( did this, in effect,impose a nationwide suspension of the writ of habeas corpus < it also subjected the accused to trial

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8/13/2019 Civil Liberties, Lincoln, the Civil War (2)

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