Featured Article


By Jeff Rombauer
“Habeas corpus (/ˈheɪbiəs ˈkɔːrpəs/; Medieval Latin meaning literally "that you have the body")[1] is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, to bring the prisoner to court, to determine whether the detention is lawful” Wikipedia

During the Civil War one of the earliest legal controversies was President Lincoln’s suspension of the right to habeas corpus in April, 1861 in certain areas of the country. This suspension allowed to military to hold individuals in detention without recourse to legal proceedings. Dating from 12th century English common law, the concept of habeas corpus was incorporated in article I of the U.S. Constitution concerning Congress, which states that “the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety.

The issue of the President’s right to suspend habeas corpus first arose in Baltimore in May 1861 when several individuals were detained by the military. The most famous case involved John Merryman, a “southern” sympathizer who was arrested by troops May 25, 1861. Roger Taney, Chief Justice of the U.S. Supreme Court, was at that time in Baltimore doing Circuit Court duty, was approached by counsel for Merryman for a writ of habeas corpus. Taney issued the writ, but it was ignored by military authorities. After additional court proceedings, also ignored by the local district commander, Taney issued his opinion in Ex Parte Merryman, that the President could not suspend the writ, but only Congress had that authority. Since the administration ignored Taney’s opinion, the issue remained unresolved until 1863 when Congress passed the Habeas Corpus Act of 1863 which allowed the President to suspend the writ during the current rebellion when needed.
For additional reading on this topic the following books are recommended:

Neely, Mark E. Jr. Lincoln and the Democrats: The Politics of Opposition in the Civil War. Cambridge: Cambridge University Press, 2017. Pp. 210

Chapter 4 covers constitutional question between the Republicans and Democrats during the civil war, including the writ of habeas corpus. Neely sees it, not as a partisan issue but as a reaction to Horace Binney’s pamphlet defending the President’s actions.

Neff, Stephen C. Justice in Blue and Gray: A Legal History of the Civil War. Cambridge University Press, 2010, Pp. ix, 350.

Chapter two covers the controversy over habeas corpus.

Randall, J. G. Constitutional Problems under Lincoln. Urbana: The University of Illinois Press, 1951. Pp. xxxi, 596.

Chapters 6 & 7 covers habeas corpus and arbitrary arrests under the Lincoln administration.

Swisher, Carl B. The Oliver Wendell Holmes Devise History of the Supreme Court of the United States: Volume V: The Taney Period 1836-64. New York: Macmillan Publishing Co., Inc. 1974. Pp. xvii, 1041

Chapter 33 provides an excellent overview of the background to Ex Parte Merryman and other similar cases in 1861 as well as the relationship between the Lincoln administration and the judiciary.

White, Jonathan W. Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman. Baton Rouge: Louisiana State University Press, 2011. Pp. xiii, 191.

An excellent monograph on the Merryman case and its impact of in American legal history.