Editing Ex parte Merryman (section)

==Aftermath==
===Indictment of Merryman===
On July 10, by which time Congress was able to reconvene for a special session, Merryman was indicted for treason by a grand jury in Baltimore for the U.S. District Court for the District of Maryland. The indictment alleged that in cooperation with 500 armed men Merryman had "most wickedly, maliciously, and traitorously" waged war on the United States. He was charged with destroying six railroad bridges and the telegraph lines along the tracks, all with the intent to impede the passage of troops and obstruct vital military communications. Thirteen witnesses to the actions were listed. Seven other men were indicted along with Merryman. On July&nbsp;13, he was released pending trial upon the posting $20,000 bail.<ref>McGinty (2011) pp.&nbsp;154-155</ref>

The case never came to trial. Since treason was a capital offense, it had to be tried in the circuit court. For Maryland-related alleged crimes, this meant that Taney and District Judge William F. Giles would both hear the case, as they were the only two federal judges for the United States Circuit Court for the District of Maryland. Taney consistently refused to schedule hearings for any of those charged, claiming that he believed they would not receive a fair trial in Maryland during wartime conditions. He also discouraged Judge Giles from hearing the case by himself and resisted efforts to have another Justice replace him (part of his delay was blamed on poor health). As the refusal continued into 1864, Taney wrote to Justice Samuel Nelson that "I will not place the judicial power in this humiliating position nor consent to degrade and disgrace it, and if the district attorney presses the prosecutions I shall refuse to take them up."<ref>McGinty (2011) pp.&nbsp;156–158</ref> [[Salmon P. Chase]], nominated by President Lincoln and succeeding Taney as Chief Justice and circuit judge for Maryland, also delayed hearing ''Merryman'' and other similar Maryland treason cases.

===Congressional response===
After reconvening in July, Congress failed to pass a bill favored by Lincoln to explicitly approve his ''habeas corpus'' suspensions and to authorize the administration to continue them.<ref>George Clarke Sellery, [https://books.google.com/books?id=rQfnAAAAMAAJ&pg=PA11 "Lincoln's suspension of ''habeas corpus'' as viewed by Congress"] (Ph.D. Dissertation, University of Wisconsin—Madison, 1907), pp. 11–26.</ref> The administration would continue the arrests, regardless, with a new wave of arrests beginning in Maryland in September 1861.  However, in the summer of 1861, Congress did adopt more general retroactive language rendering Lincoln's previous actions during the spring "in all respects legalized".<ref name=McGinty />

In March 1862 [[Henry May (Maryland)|U.S. Congressman Henry May (D-Maryland)]], who had been imprisoned in the new wave of arrests and held without charges from September&nbsp;1861 to December&nbsp;1861, introduced a bill requiring the federal government either to indict by grand jury or release all other "political prisoners" still held without ''habeas corpus''.<ref name="p. 106">White, Jonathan. ''Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman'', LSU Press, 2011. [https://books.google.com/books?id=pNKB7PjdBl8C&pg=PT106 p. 106]</ref> May's bill passed the House in summer 1862, and its position would later be included in the [[Habeas Corpus Suspension Act 1863]], which would require actual indictments for suspected traitors.<ref name="p. 107">White, [https://books.google.com/books?id=pNKB7PjdBl8C&pg=PT107 p.&nbsp;107]</ref>

Several months later, faced with opposition to his calling up of the militia, Lincoln again suspended ''habeas corpus'' in the entire country and made anyone charged with interfering with the draft, discouraging enlistments, or aiding the Confederacy subject to [[martial law]].<ref>[[wikisource:Proclamation 94|Proclamation&nbsp;94]].</ref> In the interim, the controversy continued with several calls made for prosecution of those who acted under Lincoln's suspension of ''habeas corpus''. Former [[United States Secretary of War|Secretary of War]] [[Simon Cameron]] had even been arrested in connection with a suit for [[vi et armis|trespass ''vi et armis'']], assault and battery, and false imprisonment.<ref name=sellery3>Sellery, pp.&nbsp;34–51.</ref>

In February 1863, former Maryland Governor Hicks who had requested that Lincoln not transport troops through the state was now a U.S. Senator, and claimed: "I believe that arrests and arrests alone saved the State of Maryland not only from greater degradation than she suffered, but from everlasting destruction. ... I approved them [the arrests] then, and I approve them now; and the only thing for which I condemn the Administration in regard to that matter is that they let some of these men out."<ref>[[Bruce Catton]] (1961), ''The Coming Fury'', 1967 reprint, New York:  Pocket Books, Ch.&nbsp;6, "The Way of Revolution", Sec.&nbsp;2, "Arrests and Arrests Alone", p. 360, {{ISBN|0-671-46989-4}}; ''Congressional Globe'', 37th Congress, Third Session, Part&nbsp;2, pp.&nbsp;1372–1373, 1376 (February 1863).</ref>

The passage of the Habeas Corpus Suspension Act in March 1863 finally ended the controversy, at least temporarily, by authorizing presidential suspension of the writ, but requiring indictment by grand jury (or release) of political prisoners, and by indemnifying federal officials who had arrested citizens in the previous two years. It has been argued that after this act was passed, Lincoln and his administration continued to arrest and hold prisoners without giving such prisoners the procedural protections mandated by the Act. In doing so, Lincoln and his administration relied wholly on presidential power claims.

===Later discussion by courts===
The rest of the U.S. Supreme Court had nothing to do with ''Merryman'', and the other two justices from the South, [[John Catron]] and [[James Moore Wayne]], acted as Unionists. For instance, Catron's charge to a Saint Louis grand jury, saying that armed resistance to the federal government was treason, was quoted in the ''[[New York Tribune]]'' of July 14, 1861.<ref>[[Don E. Fehrenbacher]] (1978/2001), ''The Dred Scott Case:  Its Significance in American Law and Politics'', New York:  Oxford, Chapter&nbsp;23, "In the Stream of History", p.&nbsp;574, and p.&nbsp;715, n.&nbsp;16.</ref> On circuit, Catron closely cooperated with military authorities.<ref>"Catron, John", in ''Webster's American Biographies'' (1979), Springfield, Massachusetts: Merriam-Webster.</ref>

Several district and circuit court rulings followed Taney's opinion.<ref>Rollin C. Hurd, ''A Treatise on the Right of Personal Liberty and on the Writ of Habeas Corpus'', revised with notes by Frank H. Hurd (Albany, 1876), 121n–122n.</ref> However, according to historian [[Harold Hyman]], most northern lawyers accepted Lincoln's view that Taney's opinion in ''Merryman'' was "ultimately reversible by political processes", and Taney's opinion in that case "convinced no other justices and few lower federal judges".<ref>Hyman, Harold.  ''[https://books.google.com/books?id=cY3er3ilgjcC&pg=PA584 The Oxford Companion to the Supreme Court of the United]'', p. 584 (Kermit Hall et al. eds., Oxford U. Press 2005).</ref> However, Taney's ''Merryman'' opinion was adopted by some lower courts, such as the United States District Court for the Southern District of New York and the Supreme Court of Wisconsin. See, e.g., Ex parte McQuillon, 16 F. Cas. 347, 348 (S.D.N.Y. 1861) (No. 8294) (Betts, J.) ("[Judge Betts] would, however, follow out that case [''Merryman''], but would express no opinion whatever, as it would be indecorous on his part to oppose the [C]hief [J]ustice. He would therefore decline taking any action on the writ at all."); In re Kemp, 16 Wis.&nbsp;359, 1863 WL 1066, at *8 (1863) (Dixon, C.J.) ("I deem it advisable, adhering to the precedent set by other courts and judges under like circumstances, and out of respect to the national authorities, to withhold [granting habeas relief] until they shall have had time to consider what steps they should properly take in the case"). Just as Taney chose not to grant John Merryman relief at the termination of litigation, Betts and Dixon also refused to grant the litigants before them, who were situated similar to Merryman, released from imprisonment.

The ''Merryman'' decision is still among the best-known Civil War-era court cases and one of Taney's most famous opinions, alongside the [[Dred Scott v. Sanford|''Dred Scott'' case]]. Its legal argument holding that Congress alone may suspend the writ was restated by Justice [[Antonin Scalia]] in a dissenting opinion, joined by Justice [[John Paul Stevens]], in the case of ''[[Hamdi v. Rumsfeld]]''.<ref name=McGinty>McGinty, Brian. ''Lincoln and the Court'' [https://books.google.com/books?id=tcrkYmIlFOsC&pg=PA84 pp.&nbsp;84], [https://books.google.com/books?id=tcrkYmIlFOsC&pg=PA90 90], [https://books.google.com/books?id=tcrkYmIlFOsC&pg=PA304 304] (Harvard University Press 2009).</ref><ref>[https://caselaw.findlaw.com/us-supreme-court/542/507.html ''Hamdi v. Rumsfeld''], 542 U.S. 507 (2004).</ref>  In that case, Scalia and Stevens also described a time-limited exception to the  ''habeas corpus'' right:

<blockquote>Where the commitment was for felony or high treason, the {{bracket|[[Habeas Corpus Act 1679]]}} did not require immediate release, but instead required the Crown to commence criminal proceedings within a specified time…. [T]he practical effect of this provision was that imprisonment without indictment or trial for felony or high treason under §7 would not exceed approximately three to six months.</blockquote>  The ''Hamdi'' case, though, did not involve any suspension of the writ, much less a suspension by the President while Congress was unavailable, and no U.S. Supreme Court decision has ever squarely endorsed or rejected Taney's opinion in ''Merryman''.<ref name=McGinty />

===Scholarly reactions during the Civil War===
An 1862 essay by [[Horace Binney]] criticized Taney's treatment of the earlier ''Bollman'' opinion by Chief Justice Marshall. According to Binney, "there was nothing before Chief Justice [Marshall] to raise the distinction between Congress and the President" and in any event those lines by Chief Justice Marshall were "altogether" [[obiter dictum|obiter dicta]].<ref>Binney, Horace. [https://books.google.com/books?id=ZnlWudWd2D4C&dq=%22however+altogether+obiter%22&pg=PA34 ''The privilege of the writ of habeas corpus under the Constitution''], Vol. 1, p. 34 (1862).</ref>

[[Sidney George Fisher]] wrote the only full-length book on the Constitution during the Civil War that was published during the war itself.<ref name=Neely>Neely, Mark. ''Lincoln and the Triumph of the Nation: Constitutional Conflict in the American Civil War'', pp. 100-104 (Univ. of North Carolina Press, 2011).</ref> Regarding ''Merryman'', Fisher's treatise looked to practice in the mother country:<ref>Fisher, Sidney George. ''[https://books.google.com/books?id=lb1DAQAAMAAJ&pg=PA211 The Trial of the Constitution]'', p. 211 (1862).</ref>
<blockquote>The Habeas Corpus Act can only be suspended by Parliament; but in the absence of Parliament, or even when Parliament is in session, and the case demanded instant and secret action, the Ministers of the Crown, when the public safety has, in their opinion, required it, have habitually taken the responsibility of suspending the benefits or privilege of the writ. When Parliament meet, they immediately ask for a bill of indemnity, and also for a suspension of the act itself, should the danger continue. The consent of Parliament is therefore required for any invasion of personal liberty, either before or after such invasion, has always been asked since the statute of 31 Charles II, and has always been granted.</blockquote>

Even before Fisher's book came out in 1862, scholars were disputing Taney's assertion that Article I of the Constitution "has not the slightest reference to the Executive Department".  For example, an October 1861 article in the ''[[University of Pennsylvania Law Review]]'' (then called ''The American Law Register'') pointed out that Article I, Section 9 (where the Suspension Clause is located) includes the [[Appropriations Clause]], the [[Appropriations bill (United States)|bills]] of which not being subject to a Presidential absolute [[veto]], nonetheless pertains to the executive branch.<ref>"[https://archive.org/stream/writofhabeascorp00dutt/writofhabeascorp00dutt_djvu.txt Writ of Habeas Corpus]", ''American Law Register'', Vol. IX, pp. 705, 709-710 (October 1861).</ref>

Sidney George Fisher had a son [[Sydney George Fisher]] who compiled a list of 43 pamphlets or the like on the ''habeas corpus'' question that had been published during the Civil War.<ref>Fisher, Sydney. “[https://en.m.wikisource.org/wiki/The_Suspension_of_Habeas_Corpus_during_the_War_of_the_Rebellion The Suspension of Habeas Corpus during the War of the Rebellion]”, ''[[Political Science Quarterly]]'' (1888).</ref>