“THE VERY FIRST AMERICAN JUDICIAL DECISION CONDEMNING ARBITRARY MILITARY POWER AND UPHOLDING INDIVIDUAL LIBERTY”

TANEY, Roger B. The Merryman Habeas Corpus Case, Baltimore. The Proceedings in Full, and Opinion of Chief Justice Taney. Jackson, Mississippi: J.L. Power, 1861. Octavo, stitched as issued, original yellow paper wrappers; pp. 16. Housed in a custom cloth portfolio. $5800.

Rare first edition of this Confederate pamphlet reporting the procedural posture and Chief Justice Taney’s opinion in the most important war powers case of the Civil War. In original wrappers.

“The very first American judicial decision condemning arbitrary military power and upholding individual liberty” (Steamer, 94). “John Merryman was a pro-Confederate Maryland political leader, who was arrested under authority of Lincoln’s suspension of habeas corpus in May 1861 for participating in the destruction of railroad bridges. He petitioned Chief Justice Taney, presiding judge of the circuit court at Baltimore, for a writ of habeas corpus. Taney issued the writ, but the military commander to whom it was addressed refused to produce Merryman. The chief justice then issued a writ of attachment ordering the military commander to be apprehended. He was again rebuffed. Holding a session at chambers as chief justice of the U.S. Supreme Court (rather than presiding over a session of the circuit court), Taney on 28 May 1861 declared Merryman entitled to his freedom. In an unusual move, he filed an opinion condemning Merryman’s arrest as an arbitrary and illegal denial of civil liberty. Taney stated that military detention of civilians like Merryman was unconstitutional because only Congress had authority to suspend the writ of habeas corpus. He based this conclusion on the fact that the provision authorizing suspension of the writ appears in Article I of the Constitution, dealing with the powers of the legislative branch In a broader constitutional analysis, Taney described the president as a mere administrative officer charged with faithful enforcement of the laws. According to the chief justice, this amounted to a constitutional duty not to execute the laws on the president’s own authority or initiative, but rather to act in support of the judicial authority by executing the laws ‘as they are expounded and adjudged by the co-ordinate branch of the government, to which that duty is assigned by the Constitution.’ Taney sent a copy of his opinion to Lincoln, who in his 4 July 1861 message to Congress justified his action suspending the writ of habeas corpus on the basis of his constitutional oath to take care that the laws be faithfully executed. The president reasoned further that the Constitution did not expressly state who can order suspension of the writ and that the framers did not intend that in an emergency no actions should be taken to protect the public safety by suspending habeas corpus until Congress could be assembled” (Hall, 153). “Lincoln exercised this power before as well as after congressional authorization in March 1863. Under these suspensions of the writ, Union officials arrested and detained without trial at least 15,000 civilians during the war, mostly in the border states” (ANB). This case and its outcome clearly displayed, arguably for the first time, that the executive and legislative branches were capable of shifting the balance of powers to override the judicial branch in times of war, helping to create the climate of judicial permissiveness that later allowed for cases like Korematsu. Parrish & Willingham 5609.

Embrowning to text, not affecting legibility; only minor soiling to wrappers. An exceptionally good copy of a rare legal landmark.