Editing Ex parte Merryman (section)

==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 remand the prisoner to custody, release him on [[bail]], or release him outright. Article&nbsp;I, Section&nbsp;9 of the [[United States Constitution]], which mostly consists of limitations upon the power of Congress, includes the Suspension Clause:

<blockquote>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.</blockquote>

In April 1861, when combat erupted in the Civil War, President [[Abraham Lincoln]] called for the states to provide [[militia]] troops to the Federal government to suppress the rebellion. Troops traveling to [[Washington, D.C.|Washington]] passed through [[Baltimore, Maryland]]. Baltimore mobs objecting to a war with the seceding states [[Baltimore riot of 1861|attacked some of the troop transports]] on April&nbsp;19. It seemed possible that Maryland would attempt to block the passage of troops, cutting off Washington, and impeding a war against the South.

On April&nbsp;29, the Maryland legislature voted 53&ndash;13 against secession,<ref name="Mitchell, p.87">Mitchell, p.87</ref><ref>{{cite web |url=http://ehistory.osu.edu/uscw/features/articles/articleview.cfm?aid%3D34 |title=States Which Seceded |website=eHistory |series=Civil War Articles|publisher=Ohio State University|access-date=16 October 2014 |url-status=dead |archive-url=https://web.archive.org/web/20141006084544/http://ehistory.osu.edu/uscw/features/articles/articleview.cfm?aid=34 |archive-date=6 October 2014 }}</ref> but it also voted not to reopen rail links with the North. It requested that Lincoln remove the growing numbers of federal troops from Maryland.<ref name="Arrest">{{cite web |url=http://teachingamericanhistorymd.net/000001/000000/000017/html/t17.html |title=Teaching American History in Maryland – Documents for the Classroom: ''Arrest of the Maryland Legislature, 1861''|publisher=Maryland State Archives |year=2005 |access-date=6 February 2008 |archive-url=https://web.archive.org/web/20080111110628/http://teachingamericanhistorymd.net/000001/000000/000017/html/t17.html |archive-date=11 January 2008 |url-status=dead }}</ref> At this time the legislature appeared to want to avoid involvement in a war with its southern neighbors.<ref name="Arrest"/> Fearful that the transport of more Union troops through the city and state would provoke more rioting, and possibly in an attempt to enact secession by extralegal means, [[George William Brown (mayor)|Mayor George Brown]] of Baltimore and [[Thomas Holliday Hicks|Governor Thomas Hicks]] of Maryland asked that no more troops cross Maryland, but Lincoln refused.<ref>{{cite book
|author=Simon, James F.
|title=Lincoln and Chief Justice Taney: Slavery, Secession, and the President's War Powers
|publisher=Simon & Schuster
|location=New York
|year=2007
|pages=185
|isbn=978-0-7432-5033-7
|quote=He reminded them that Union soldiers were neither birds who could fly over Maryland nor moles who could burrow underground ... 'Go home and tell your people that if they do not attack us, we will not attack them; but if they do attack us, we will return it, and that severely.'
}}</ref> For the next few weeks, troops were transported to Washington via [[Annapolis]], avoiding Baltimore. Also on April&nbsp;19, Lincoln asked [[United States Attorney General|Attorney General]] [[Edward Bates]] for an opinion on the suspension of the writ of ''[[habeas corpus]]''.

The threat to the capital was serious, and Lincoln eventually responded by delegating limited authority to the Army to suspend habeas corpus in Maryland. On April 27, 1861, he told General [[Winfield Scott]] (commanding general 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.<ref name=merryman148>{{cite court |litigants=Ex parte Merryman |vol=17 |reporter=F. Cas. |opinion=144 |pinpoint=148 |court=C.C.D. Md. |date=1861 |url=http://en.wikisource.org/wiki/Ex_parte_Merryman |quote=}}</ref>

[[File:John Merryman by Meredith Janvier.jpg|thumb|John Merryman. Oil on canvas attributed to Meredith Janvier, c. 1910–1920]]
Following the Maryland legislature's April&nbsp;29 directive that Maryland not be used as a passage for troops attacking the South, Governor Hicks allegedly ordered the state militia to demolish several state railroad bridges (at [[Bush River (Maryland)|Bush River]] and [[Gunpowder River]]). Militia Lieutenant [[John Merryman]] was arrested on May&nbsp;25 by order of Brigadier General [[William High Keim]] of the [[United States Volunteers]], for his role in destroying the bridges. Merryman was charged with treason and being a commissioned lieutenant in an organization intending armed hostility toward the government.<ref name=merryman146>{{cite court |litigants=Ex parte Merryman |vol=17 |reporter=F. Cas. |opinion=144 |pinpoint=146 |court=C.C.D. Md. |date=1861 |url=http://en.wikisource.org/wiki/Ex_parte_Merryman |quote=}}</ref><ref>Tucker, Spencer C. ''American Civil War: The Definitive Encyclopedia'', 2013. [https://books.google.com/books?id=9dvYAQAAQBAJ&pg=PA1269 p.&nbsp;1269]</ref><ref>{{cite book
|author=Paludan, Phillip S.
|title=The Presidency of Abraham Lincoln
|publisher=University Press of Kansas
|location=Lawrence
|year=1994
|page=[https://archive.org/details/presidencyofabra00palu/page/75 75]
|isbn=0-7006-0671-8
|url=https://archive.org/details/presidencyofabra00palu/page/75
}}
</ref>

In another Maryland habeas corpus case, just prior to ''Merryman'', Judge [[William Fell Giles]] of the [[United States District Court for the District of Maryland]] issued a writ of ''habeas corpus'', which was ignored by the commander of [[Fort McHenry]], Major [[William W. Morris]].<ref>[[Benson John Lossing]] (1866/1997), ''Pictorial Field Book of the Civil War'', reprint, Baltimore: Johns Hopkins, Vol. I, Chap. XVIII, "The Capital Secured – Maryland Secessionists Subdued – Contributions by the People", pp.&nbsp;449–450 [italics in reprint].</ref>

Rather than approaching Judge Giles, Merryman's lawyers went to Washington, D.C., and asked Chief Justice Taney to issue a writ of ''habeas corpus''. Taney promptly issued the writ on Merryman's behalf on May 26, 1861; Taney ordered General [[George Cadwalader]], the commander of the military district including [[Fort McHenry]], where Merryman was being held, to bring Merryman before Taney the next day. Taney's order directed Cadwalader only to produce Merryman at court, not to release him. During that era, [[Supreme Court of the United States|Supreme Court]] Justices sat as [[United States Circuit Court|circuit court]] judges, as well. It is unclear if Taney was acting in his role as a circuit judge for the United States Circuit Court for the District of Maryland, or making use of special authority to hear ''habeas'' matters permitted to all federal judges, including the Chief Justice, under Section 14 of the Judiciary Act of 1789.

Taney stated that he held court on this matter in Maryland, rather than Washington, D.C., in order to permit Gen. Cadwalader to answer the writ in Baltimore rather than the capital, and so not to have to leave the limits of his military command.<ref name=merryman147>{{cite court |litigants=Ex parte Merryman |vol=17 |reporter=F. Cas. |opinion=144 |pinpoint=147 |court=C.C.D. Md. |date=1861 |url=http://en.wikisource.org/wiki/Ex_parte_Merryman |quote=}}</ref>

Cadwalader, although a lawyer, had less than one day to draft a response and defense for his conduct and that of the Army. Cadwalader responded to Taney's order on May 27 by sending a colonel to explain that the Army had suspended the writ of ''habeas corpus'' under presidential authority. Cadwalader also provided a letter explaining the circumstances of Merryman's arrest, including that Merryman was arrested by Keim's subordinates for treason, and for being illegally in possession of U.S. arms, and for advocating "armed hostility against the Government". The letter declared that the public safety was still threatened and that any errors "should be on the side of safety to the country". Because of the serious nature of the charges and complexity of the issues, Cadwalader requested an extension to reply in order to get further instructions from the President.

Taney refused the request,<ref>McGinty (2011) pp.&nbsp;85–86</ref> and instead held Cadwalader in [[contempt of court]] for refusing to produce Merryman.<ref>Dirck, Brian. [https://books.google.com/books?id=03Q07sB4m_MC&pg=PA79 ''Lincoln and the Constitution''], p. 79 (Southern Illinois University Press, 2012).</ref><ref>McGinty, Brian. [https://books.google.com/books?id=JLKxY_kgpn0C&pg=PA13 ''The Body of John Merryman''], p. 13 (Harvard University Press 2011).</ref> Accordingly, Taney issued a [[writ of attachment]] for Cadwalader, ordering a [[United States Marshals Service|U.S. Marshal]] to seize Cadwalader and bring him before the court the following day.

Cadwalader had been sent instructions on May 28, 1861, from Army headquarters explicitly acknowledging issuance of the writ by Taney, and ordering Cadwalader, under the President's authority, to keep holding Merryman in custody.<ref>[https://books.google.com/books?id=y9QtAAAAIAAJ&pg=PA576 ''The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies''], p.&nbsp;576 (U.S. Government Printing Office 1894).</ref><ref>Silver, David. [https://books.google.com/books?id=mWrghfBQUV0C&pg=PA29 ''Lincoln's Supreme Court''], p. 29 (University of Illinois Press, 1956).</ref> On that same day, the Executive Branch – namely, a U.S. Marshal – attempted to execute Taney's writ of attachment, but the marshal was refused entry into the fort.<ref name=merryman147 /> There is no concrete documentation that Cadwalader had received those instructions prior to the Marshal being refused entrance at Fort McHenry. Because the Marshal was unable to serve the attachment, the citation for contempt was never adjudicated. At the end of the ''Merryman'' litigation, it became a nullity, as do all civil contempt orders at the termination of litigation.