Page:Suspension of Habeas Corpus during the War of the Rebellion.djvu/3

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456
[Vol. III.
POLITICAL SCIENCE QUARTERLY.

of these prisoners, was the first to come up for judicial interpretation. Merryman lived near Baltimore, and appears to have been suspected of being captain of a secession troop, of having assisted in destroying railroads and bridges for the purpose of preventing troops from reaching Washington, and of obstructing the United States mail.[1] By order of General Keim of Pennsylvania he was arrested at night in his own house, and taken to Fort McHenry at that time in command of General George Cadwallader. Taney, who was then Chief Justice of the United States, granted a habeas corpus, but Cadwallader refused to obey it, saying that the privilege had been suspended by the President. On the return of the writ, the Chief Justice filed an opinion denying that the President had any power to suspend habeas corpus and affirming that such power rested with Congress alone. Lincoln continued to arrest and imprison without any regard to this opinion, and indeed was advised by his Attorney-General that he was not bound to notice it.

Thus far Lincoln had suspended the writ merely by orders to his officers to disregard it. On the 24th of September, 1862, he made use of more formal proceedings and suspended it by proclamation. On March 3, 1863, an act of Congress was passed giving the President discretionary power to suspend the writ during the continuance of the rebellion.[2] The writ of

"You are engaged in suppressing an insurrection against the laws of the United States. If at any point on or in the vicinity of any military line which is now or which shall he used between the City of Philadelphia and the City of Washington, you find resistance which renders it necessary to suspend the writ of habeas corpus for the public safety, you personally or through the officer in command, at the point at which resistance occurs, are authorized to suspend the writ.

Abraham Lincoln.

By the President,
Wm. H. Seward, Secretary of State."
Similar orders were afterwards issued for other places.
  1. Merryman was soon discharged. For an account of the charges against him I am indebted to one of his counsel, Mr. George M. Gill of the Baltimore Bar.
  2. 12 U. S. Statutes at Large, 755. By the second section of this act the Secretary of State and the Secretary of War were required to furnish the Federal judges with lists of the prisoners, their residences, places of confinement, and places where their offences were committed. When a grand jury of any of the courts having jurisdic-