Ex Parte Merryman - Background

Background

When a person is detained by police or other authority, a court can issue a writ of habeas corpus, compelling the detaining authority either to show proper cause for detaining the person (e.g., by filing criminal charges) or to release the detainee. The court can then remand the prisoner to custody, release them on bail, or release them outright. Article I, Section 9 of the United States Constitution, which enumerates limitations on the power of Congress, says, "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

In April 1861, actual fighting in the Civil War began. President Lincoln called for the states to provide militia troops to the Federal government to suppress the rebellion. Troops traveled to Washington via Baltimore, Maryland. Pro-Confederate mobs attacked some of them on April 19. It seemed possible that these pro-Confederates would seize control of Maryland, cutting off Washington from the rest of the Union. Mayor Brown of Baltimore and Governor Hicks of Maryland asked that no more troops cross Maryland, but Lincoln refused. However, for the next few weeks, troops were brought to Washington via Annapolis, avoiding Baltimore. Also on April 19, Lincoln asked Attorney General Edward Bates, for an opinion on the suspension of the writ of habeas corpus.

The threat to Washington was serious, and Lincoln eventually responded by declaring martial law in Maryland. On April 27, 1861, he told General Winfield Scott (commander-in-chief of the army) that if there was any resistance on the "military line" from Annapolis to Washington, Scott or "the officer in command at the point" was authorized to suspend habeas corpus if necessary. Within a few days, it was found necessary. The suspension was not announced, and Taney claimed to have not been informed of it.

A man alleged to be a soldier in the Maryland State Militia was detained in Fort McHenry, and Judge Giles in Baltimore issued a writ of habeas corpus, but the fort's commander, Major W. W. Morris, wrote in reply, "At the date of issuing your writ, and for two weeks previous, the city in which you live, and where your court has been held, was entirely under the control of revolutionary authorities. Within that period United States soldiers, while committing no offense, had been perfidiously attacked and inhumanly murdered in your streets; no punishment had been awarded, and I believe, no arrests had been made for these atrocious crimes; supplies of provisions intended for this garrison had been stopped; the intention to capture this fort had been boldly proclaimed; your most public thoroughfares were daily patrolled by large numbers of troops, armed and clothed, at least in part, with articles stolen from the United States; and the Federal flag, while waving over the Federal offices, was cut down by some person wearing the uniform of a Maryland officer. To add to the foregoing, an assemblage elected in defiance of law, but claiming to be the legislative body of your State, and so recognized by the Executive of Maryland, was debating the Federal compact. If all this be not rebellion, I know not what to call it. I certainly regard it as sufficient legal cause for suspending the privilege of the writ of habeas corpus." Morris also wrote, "If, in an experience of thirty-three years, you have never before known the writ to be disobeyed, it is only because such a contingency in political affairs as the present has never before arisen."

Among the pro-Confederates in the Maryland militia was Lieutenant John Merryman. He had recruited and trained soldiers for the Confederate Army. After the Baltimore Riot he was involved in cutting telegraph wires and burning railroad bridges. On May 25, Merryman was arrested by order of Brigadier General William High Keim, USV, and charged with treason and being a commissioned lieutenant in an organization intending armed hostility toward the government, namely the Confederate Army.