Editing Ex parte Merryman (section)

==Decision==
On May&nbsp;28, Taney stated from the bench that the President can neither suspend ''habeas corpus'' nor authorize a military officer to do it, and that military officers cannot arrest a person not subject to the rules and articles of war, except as ordered by the courts. Taney noted that, while the marshal had the right to call up the ''[[posse comitatus (common law)|posse comitatus]]'' to assist him in seizing General Cadwalader and in bringing him before the court, it was probably unwise for the marshal to do so, as the civilian and military authorities might collide and violence ensue, and thus Taney would not punish the marshal for failing in his task. He then promised a more lengthy, written ruling within the week and ordered that it be sent to President Lincoln, "in order that he might perform his constitutional duty, to enforce the laws, by securing obedience to the process of the United States".<ref name=merryman148 />

Critics of Taney believe that he was a partisan Democrat and an opponent of Lincoln and that his politics influenced his decision in ''Merryman.'' This criticism may have support in the fact that the Taney Court should have dismissed the [[Dred Scott v. Sandford|''Dred Scott'']] case after finding "that the Court had no jurisdiction over Dred Scott's case because he was not a citizen" but instead choose to rule that the [[Missouri Compromise]] was unconstitutional despite that issue not being before the Court. In ''Merryman'', Taney's decision to deny General Cadwalader time to consult the president and dispatch a [[US Marshal]] to arrest him during a Civil War and bring him before his court demonstrated partisan corruption on Taney's part. On the other hand, partisan Democrat or not, Taney's ''Merryman'' opinion was arguably a simple application of well-established law and consulting the president was irrelevant for General Cadwalader because Lincoln didn't have jurisdiction. Lincoln was also critical of Taney because of his ruling in the ''Dred Scott'' case. The case became historic because not only did President Lincoln refuse to comply with Taney's ruling, [[Executive privilege|which does have precedent]], but he directly violated it by continuing the suspension without congressional approval. It has never been squarely determined whether the president has any independent authority to suspend ''habeas corpus'', or whether Lincoln's intentionally violating Taney's ruling without legal consequence stands as a precedent.

Taney filed his written opinion on June 1, 1861, with the United States Circuit Court for the District of Maryland. In it, he argued at length against Lincoln for granting himself easily abused powers. Taney's opinion was based in large part on the fact that the Suspension Clause is located in Article I, Section 9 of the Constitution, and "This article is devoted to the Legislative Department of the United States, and has not the slightest reference to the Executive Department".<ref>Schwartz, Bernard.  ''A Commentary on the Constitution of the United States'', p. 250 (MacMillan, 1963).</ref>  Taney also asserted that the President was not authorized to suspend ''habeas corpus'' because only Parliament, not the King, had such powers under English law. Referring to other provisions in the Bill of Rights, Taney wrote:

{{blockquote|These great and fundamental laws, which Congress itself could not suspend, have been disregarded and suspended, like the writ of ''habeas corpus'', by a military order, supported by force of arms. Such is the case now before me, and I can only say that if the authority which the Constitution has confided to the judiciary department and judicial officers, may thus, upon any pretext or under any circumstances, be usurped by the military power, at its discretion, the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found.<ref name=merryman152>{{cite court |litigants=Ex parte Merryman |vol=17 |reporter=F. Cas. |opinion=144 |pinpoint=152 |court=C.C.D. Md. |date=1861 |url=http://en.wikisource.org/wiki/Ex_parte_Merryman |quote=}}</ref>}}

Taney noted in a footnote to the above passage that the [[United States Declaration of Independence]] listed making the military power independent of and superior to the civil power as one justification for dissolving political allegiance.<ref>{{cite court |litigants=Ex parte Merryman |vol=17 |reporter=F. Cas. |opinion=144 |pinpoint=152n3 |court=C.C.D. Md. |date=1861 |url=http://en.wikisource.org/wiki/Ex_parte_Merryman |quote=}}</ref> The Declaration of Independence states, "He has affected to render the Military independent of and superior to the Civil power."<ref>{{cite web|last=Jefferson|first=Thomas|title=IN CONGRESS, July 4, 1776. The unanimous Declaration of the thirteen united States of America|url=https://www.archives.gov/exhibits/charters/declaration_transcript.html|work=National Archives|publisher=The National Archives and Records Administration|access-date=22 March 2012}}</ref> Taney's opinion quoted an earlier opinion by Chief Justice [[John Marshall]] in the case of ''[[Ex parte Bollman]]'':<ref>''Ex parte Bollman'', 8 U.S. 75 (1807).</ref>

{{blockquote|If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the Legislature to say so. That question depends on political considerations, on which the Legislature is to decide. Until the legislative will be expressed, this court can only see its duty, and must obey the laws.}}

Taney's final order in ''Merryman'' never actually ordered Cadwalader (the actual defendant), the Army, Lincoln or his administration, or anyone else to release John Merryman.