Wednesday, May 25, 2011

May 26, 1861 (Saturday): Habeas Corpus Denied

John Merryman (NPS)

                                    HEADQUARTERS DEPARTMENT OF ANNAPOLIS
                                                                                    Fort McHenry, May 26, 1861.
Hon. Roger B. Taney,
            Chief Justice of the Supreme Court of the United States,
                                                                                    Baltimore, Md.
   SIR: The undersigned to whom the annexed writ of this date signed by Thomas Spicer, clerk of the Supreme court of the United States, is directed most respectfully states that the arrest of Mr. John Merryman in the said writ named was not made with his knowledge or by his order or direction but was made by Col. Samuel Yohe, acting under orders of Maj. Gen. William H. Keim, both of said officers being in the military service of the United States but not within the limits of his command.  The prisoner was brought to this post on the 25th instant by Adjt. James Miltimore and Lieut. William B. Abel by order of Colonel Yohe, and is charged with various acts of treason and with being publicly associated with and holding a commission as lieutenant in a company having in their possession arms belonging to the United States and avowing his purpose of armed hostility against the Government.  He is also informed that it can be clearly established that the prisoner has made open and unreserved declarations of his association with this organized force; as being in avowed hostility to the Government and in readiness to co-operate with those engaged in the present rebellion against the Government of the United States.
    He has further to inform you that he is duly authorized by the President of the United States in such cases to suspend the writ of habeas corpus for the public safety.  This is a high and delicate trust and it has been enjoined upon him that it should be executed with judgment and discretion but he is nevertheless also instructed that in times of civil strife errors if any should be on the side of safety to the country.  He most respectfully submits for your consideration that those who should co-operate in the present trying and painful position in which our country is placed should not by reason of any unnecessary want of confidence in each other increase our embarrassments.  He therefore respectfully requests that you will postpone further action upon this case until he can receive instructions from the President of the United States when you shall hear further from him.
    I have the honor to be, with high respect, your obedient servant,
                                                                        GEO. CADWALADER,
                                                Brevet Major-General, U. S. Army, Commanding

Sometimes lost in discussions of Lincoln’s suspension of habeas corpus is that the suspension did not first occur in the fullness of the war, but in May of 1861 covering  the line of Philadelphia to Baltimore.  The administration had entreated with the governor of Maryland and reached understandings limiting the movement of troops through the state on the way to the front.  These understandings were violated, and the governor ordered bridges leading to Baltimore to be burned to prevent continued passage of Union troops through the city.  Merryman, a state militia officer, participated in the firing of bridges and was arrested at home at 2 a.m. on May 25th and was brought to Fort McHenry.  Merryman’s attorneys sought a writ of habeas corpus, which was granted by Taney.  After consultation with the President, Cadwalader (a lawyer before the war) chose to ignore the writ, even though he was found in contempt of the Court.  Merryman was held without trial, never charged, and denied an attorney.  Within the next month, 350 persons had been arrested under similar circumstances and not charged.  Taney considered Lincoln’s actions to be a breach of his obligations as President.

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