354 



HABEAS COEPUS. 



siderable Confederate force on the night of 

 Nov. 10th. The Federal force consisted of 250 

 men, belonging to a Western Virginia regi- 

 ment, and a few of Col. Zeigler's Fifth Virgi- 

 nia Volunteers. A plot was contrived between 

 the Confederate force in the vicinity and some 

 of the inhabitants of the town, who were their 

 friends, to capture or destroy the Federal force. 

 Accordingly, the latter were kindly received by 

 these citizens, and invited to their houses on 

 various pretexts. Those not on duty accepted 

 the invitations. Meanwhile a body of Confed- 

 erate cavalry made a dash upon the town. Sig- 



nals were displayed from the houses in which 

 were the Federal soldiers, who were imme- 

 diately attacked and killed. Many of these 

 friends of the Confederate troops seized their 

 arms and aided in the slaughter. Most of those 

 who were killed were the unarmd men. Only 

 50 of the Federal force escaped, the remainder 

 were either killed or taken prisoners. Col. 

 Zeigler, with a Federal force, arrived soon af- 

 ter, and upon learning the facts, ordered the 

 town to be set on fire. Between 15 and 2C of 

 the most valuable stores and dwellings were 

 burned. 



H 



HABEAS COEPUS. This is the title given 

 to a writ issued out of the higher courts of a 

 State, or of the United States, directed to some 

 person who holds, or is supposed to hold in his 

 custody or possession, the body of another per- 

 son, and commanding him to produce the body 

 of such prisoner, with the day and cause of his 

 capture and detention, to do, submit to, and 

 receive whatsoever the Judge or Court award- 

 ing such writ shall consider in that behalf. The 

 privilege of the writ of habeas corpus consists in 

 the advantage or privilege to the prisoner of 

 being brought at once before a competent tri- 

 bunal, and having the cause of his detention in- 

 quired into. If such imprisonment is without 

 sufficient legal cause, he is at once set at liberty. 

 The eloquence and learning of the legal profes- 

 sion have been lavished upon this process, as 

 constituting the great bulwark of individual 

 freedom. During the year, a large number of 

 citizens were arrested and imprisoned by order 

 of the Federal Government, without the usual 

 process of law, and whenever the bodies of 

 these prisoners were demanded under a writ 

 of habeas corpus, the delivery of them was re- 

 fused. It is the province of this volume to 

 state the action of the Government and the 

 principles which it avowed, leaving to techni- 

 cal works the discussions of the questions in- 

 volved. 



The Constitution of the United States pro- 

 vides 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." Which department of the 

 Government has the power to suspend this 

 privilege, is the question at issue. What was 

 done is hereafter stated. 



On the 25th of May, John Merryman, a most 

 respectable citizen of the State of Maryland, 

 was arrested at his residence, at Hayfields, Bal- 

 timore County, and conveyed to Fort McIIenry, 

 near Baltimore, and- imprisoned. On the same 

 day he prepared a petition to the Chief-Justice 

 of the United States, Eoger B. Taney, who re- 

 sides at Baltimore, praying that a writ of habeas 

 corpus might issue, &c. The petition, briefly 

 stating all the details of the arrest, was as fol- 

 lows- 



To the Hon. Eoger B. Taney, Chief-Justice of the Su- 

 preme Court ; 



The petition of John Merryman, of Baltimore County, 

 and State of Maryland, respectfully shows that, being 

 at home in his own domicile, he was, about the hour of 

 two o'clock A. M. on the 25th of May, A. D. 1861, aroused 

 from his bed by an armed force, pretending to act 

 under military orders, from some person tb your pe- 

 titioner unknown : that he was by the said armed force 

 deprived of his liberty by being taken into custody and 

 removed from his said house to Fort McHenry, near 

 to the City of Baltimore, and in the district aforesaid, 

 and where your petitioner now is in close custody. 



That he has been so imprisoned without any process 

 or color of law whatsoever, and that none such is pre- 

 tended by those who are thus detaining him, and that 

 no warrant from any court, magistrate, or other person 

 having legal authority to issue the same exists to jus- 

 tify such arrest, but, to the contrary, the same, as 

 above is stated, hath been done without color of law 

 and in violation of the Constitution and laws of the 

 United States, of which he is a citizen. 



That since his arrest he has been informed that by 

 some order purporting to come from one General 

 Keim, of Pennsylvania, to the petitioner unknown, 

 directing the arrest of the captain of some company in 

 Baltimore County, of which company the petitioner 

 never was and is not captain, was the pretended 

 ground, as he believes, on which he is now detained. 



That the person now so detaining him and holding 

 him at said fort is Brigadier-General George Cadwala- 

 der, military commander of said fort, professing to 

 act in the premises under or by order of the United 

 States. 



The petitioner, therefore, prays that the writ of 

 habeas corpus may issue, to be directed to the said 

 George Cadwalader, commanding him to produce your 

 petitioner before you, Judge as aforesaid, with the 

 cause, if any, for his arrest and detention, to the end 

 that your petitioner be discharged and restored to lib- 

 erty, and as in duty, &c. JOHN MERRYMAN. 



FORT McHENRY, May 25, 1861. 



This was laid before Chief-Justice Taney with 

 the affidavits of the prisoner's counsel, and the 

 following writ was issued on Sunday and served 

 on General Cadwalader: 



THE UNITED STATES OF AMERICA, ) 

 Department of Maryland, to wit. j" 

 To General George Cadwalader, greeting : 



You are hereby commanded to be ana appear before 

 the Hon. Roger B. Taney, Chief- Justice of the Supreme 

 Court of the United States, at the United States Court 

 room, in the Masonic Hall, in the City of Baltimore, on 

 Monday, the 27th day of May, 1881, at 11 o'clock in the 

 morning, and that you have with you the body of John 

 Merryman, of Baltimore County, and now in your cus- 

 tody, and that you certify and' make known the day 

 and cause of the capture and detention of the said 

 John Merryman ; and that you, then and there, do 



