School Improvement in Maryland
Clarifications: Each clarification provides an explanation of an indicator/objective to help teachers better understand the skills and/or concepts.

Standard 1.0 Political Science

Topic C. Protecting Rights and Maintaining Order

Indicator 2. Explain how the United States government protected or failed to protect the rights of individuals and groups

Objective c. Examine the use of Presidential power in Lincoln's suspension of the writ of habeas corpus


A writ of habeas corpus is an order from a judge commanding government officials to explain why a person is being held in custody. If the government cannot justify keeping the individual in custody, then the person must be set free. The writ of habeas corpus is one of the most important limitations on governmental power, because it ensures that no government official can hold someone in prison arbitrarily or indefinitely. Article I, Section 9 of the Constitution, which lists powers denied to Congress, 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 may require it.”

At the onset of hostilities in the Civil War, one of President Abraham Lincoln’s chief priorities was to keep “border” states such as Maryland, Delaware, and Missouri from seceding from the Union. For Lincoln, the potential loss of Maryland in particular was troubling, since it would mean the nation’s capital of Washington, D.C. would be completely surrounded by territory hostile to the interests of the Union. Incidents such as the Pratt Street riots, when Union forces from Massachusetts were assaulted by a secessionist mob in downtown Baltimore, as well as the presence in border states of Confederate sympathizers and antiwar Democrats known as “copperheads,” convinced the President that decisive action was required. On April 27, 1861, Lincoln issued an order that effectively suspended the writ of habeas corpus in all of Maryland and in sections of the border states.

The President’s initial suspension of habeas corpus was challenged in the federal courts by Marylander John Merryman, who had been arrested by the U.S. military and detained at Ft. McHenry on suspicion of serving in a pro-Confederate militia group. Following his arrest, Merryman’s lawyers secured a writ of habeas corpus from a Maryland Circuit Court led by U.S. Chief Justice Roger Taney. But the writ was ignored by military officials, who at first simply refused to report to Taney’s courtroom to justify Merryman’s detention, and who later denied access to Ft. McHenry to U.S. Marshals whom Taney had sent to deliver the writ.

The Ex Parte Merryman case culminated in Chief Justice Taney’s dramatic reading and delivery to the White House of an opinion criticizing the President’s suspension of habeas corpus. In the first place, Taney’s opinion reasons, the power to suspend habeas corpus is mentioned only in Article I of the Constitution, which is entirely devoted to organizing and establishing the powers of the legislative branch. “If the high power over the liberty of citizens now claimed was intended to be conferred on the President,” Taney reasoned, “it would undoubtedly be found in plain words” in Article II, which is devoted to the executive branch. Taney’s opinion also traces the American right to habeas corpus back to British common law, concluding that when Lincoln suspended habeas corpus, he assumed judicial powers over criminal proceedings that were not even enjoyed by the English Crown. Finally, Taney’s opinion provides a stern admonition as to the implications of Lincoln’s actions: “I can only say that if the authority which the Constitution has confided to the judiciary department … 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.”

But Taney’s opinion contained no official order to release Merryman from custody. Instead, it lamented the judiciary’s loss of influence over criminal proceedings as a result of the extraordinary circumstances in which the nation found itself during early days of the Civil War. “I have exercised all the power which the Constitution and laws confer on me,” Taney claimed, “but that power has been resisted by a force too strong for me to overcome.”

Although Lincoln’s initial response was to ignore Taney’s opinion, in an address to Congress on July 4, 1861, the President defended his order to suspend habeas corpus. Since the Constitution does not clearly state which branch of government is responsible for suspending the privilege, Lincoln argued, “it cannot be believed the framers intended … that in every case … danger should run its course, until the Congress can be called together, the very assembling of which might be prevented, as was intended in this case, by the rebellion.” Lincoln also contended that under the circumstances, the suspension of habeas corpus was a reasonable cost the country had to incur for the preservation of the Union: “To state the question more directly, are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?”

In the months following the summer of 1861, Lincoln’s executive branch issued several further habeas corpus suspensions. Then habeas corpus suspensions were fully nationalized by a Presidential Proclamation on September 24, 1862, only days after Lincoln has also used his commander-in-chief powers to issue a preliminary emancipation proclamation. As a result of Lincoln’s suspensions of habeas corpus, during the Civil War more than 13,000 American civilians were held under military arrest and without judicial hearings. In March of 1863, Congress endorsed the President’s actions, authorizing suspensions of habeas corpus “whenever, in his [the President’s] judgment, the public safety may require it.”

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