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Scalia on Merryman
Andrew Hyman

In 1861, President Lincoln purported to suspend habeas corpus along rail lines in Maryland that were used for Union troop movements.  Congress was not in session at the time.  The constitutionality of the suspension was denied by Chief Justice Taney (“at chambers”) in Ex parte Merryman.  143 years later, Justice Scalia discussed this matter in his Hamdi v. Rumsfeld dissent:

Our Federal Constitution contains a provision explicitly permitting suspension, but limiting the situations in which it may be invoked: “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.” Art. I, §9, cl. 2. Although this provision does not state that suspension must be effected by, or authorized by, a legislative act, it has been so understood, consistent with English practice and the Clause’s placement in Article I. See Ex parte Bollman, 4 Cranch 75, 101 (1807); Ex parte Merryman, 17 F. Cas. 144, 151–152 (CD Md. 1861) (Taney, C. J., rejecting Lincoln’s unauthorized suspension); 3 Story §1336, at 208–209.

Lincoln may have had other ways to accomplish similar goals, without suspending the writ, as Justice Scalia described:

Where the commitment was for felony or high treason, the [Habeas Corpus Act of 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.

So, Lincoln might have been able to keep Merryman and his cohorts on ice until Congress returned.  But, Taney almost certainly would have tried to release them on bail immediately, perhaps claiming that the details of the 1679 Act were not binding, or that Merryman would probably never be brought to trial (in fact Merryman was never tried).

Another option that Lincoln likely considered was to designate Merryman and his cohorts as prisoners of war, so they could be kept in military confinement.  That option was advocated by, for example, U.S. District Judge John Cadwallader, who was the brother of an Army General deeply involved in the Merryman case.  But there were drawbacks to that approach too.  Not everyone who commits treason is engaged in warfare, and vice versa.  Moreover, the eminent English jurist Lord Mansfield wrote to another British official in August of 1776 that in this gray area the choice may well belong to the prisoner (“it is their own doing”) to either seek a writ of habeas corpus and risk being tried criminally, or instead choose POW status.

Justice Scalia focused attention on two factors: “English practice and the Clause’s placement in Article I.”  Regarding the latter, Taney erroneously opined in Merryman that Article I, Section 9 of the Constitution “has not the slightest reference to the executive department,” and everyone now agrees that neither that section’s Appropriations Clause nor its Foreign Emoluments Clause limits only Congress.  Moreover, the draft Suspension Clause initially mentioned the federal “legislature,” but that was deliberately removed.  So, the best argument against what Lincoln did is that it allegedly conflicted with English practice.  According to the legal historian Sidney George Fisher:

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.

So, old English practice does support a limited presidential power to suspend the privilege of the writ of habeas corpus without prior congressional authorization, but the president puts himself in peril if Congress does not subsequently consent to it.  Another issue is whether Congress waited too long to give its retroactive consent to Lincoln’s actions with regard to Merryman, and congressional action later in 1861 was probably good enough.  In the interim, Lincoln had power to do what he did, and Taney erred.