The Hard Truth

Journal of Political News & Constitutionalism

Meet John Merryman, Victim of Martial Law in the USA

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By Brian K. Lutes

It is THE HARD TRUTH that most Americans have never heard of John Merryman, victim of martial law in the USA. But what happened to him means a great deal to all of us as it could happen again very soon.

John Merryman, a civilian, citizen of these United States of America, was a resident of Baltimore, MD. On May 25, 1861 he was in his home, asleep in his bed with his wife. His children were asleep in the next room. It was 2 A.M. when his home was forcibly entered by soldiers of the United States Army without any kind of warrant whatsoever. He was drug from his bed and taken against his will, basically kidnapped, to a United States Military installation, Fort McHenry, where he was imprisoned by the Fort’s Commanding Officer, George Cadwalader.

Merryman was not presented with a warrant of arrest of any kind. He was not accused of any crime in any court of law. He was not presented with any specific facts of what it is he had done causing his arrest. He was not presented with the names or statements of any witnesses who saw him do whatever it is he had done. He was simply arrested and imprisoned by the United States Army.

Merryman’s wife contacted an attorney on behalf of her husband and explained what had happened the night before. Mrs. Merryman did not know where her husband had been taken or even the names of those who had taken him. All she knew was that they were soldiers.

The attorney contacted local political officials, local law enforcement authorities, and even the Federal Marshal’s office in an effort to learn where Merryman had been taken, but everyone claimed ignorance. Finally through the attorney’s personal connections to a Congressman he learned that Merryman had been taken to Fort McHenry.

The attorney traveled to the Fort where the Commanding Officer confirmed that Merryman was there, but he would not permit the attorney to meet with Merryman nor would he provide any warrant or information as to what criminal offense Merryman was alleged to have committed.

The attorney then filed an application for a “Writ of Habeas Corpus”  to the Chief Justice of the Supreme Court of the United States, Roger B. Taney, under the 14th Section of the Judiciary Act of 1789. The Act allowed for each individual Justice of the Supreme Court the power to grant “Writs of Habeas Corpus” for the purpose of an inquiry into the cause of a citizen’s imprisonment.

The “Writ of Habeas Corpus”  is commonly known as “The Great Writ”  and is considered to be one of the most basic tools of free people because it affords anyone that is taken hold of by government agents to question the legality of their arrest (see 488 F.2d 218, 221). Habeas Corpus, which means “you have the body” in Latin, was one of the biggest issues for our Founding Fathers in their decision to part form England and they described the citizens right to the “The Great Writ” as the determining factor as to whether individuals were citizens in a free country or subjects whose freedom could be taken at the whim of their rulers without just, legal cause.

The great Legal Scholar Justice Joseph Story, in his “Commentaries on the Constitution of the United States“, (see 3 Story’s Com. on the Constitution, Section 1336) had this to say about the Writ of Habeas Corpus: it is “A very just and wholesome restraint, which cuts down at a blow a fruitful means of oppression, capable of being abused in bad times to the worst of purposes”. In other words it is the thing that prevents a tyrannical dictatorship in which anyone can be arrested and locked up at the whim of those in power.

Upon receiving the application for the Writ of Habeas Corpus for Merryman, Justice Taney sent an inquiry to General Cadwalader, the Commanding Officer at Fort McHenry, to learn the reason(s) for Merryman’s confinement and instructed him to produce any warrant issued for his arrest and any and all charges facing Merryman as well as his (Cadwalader’s) authority to arrest a civilian who is in no way tied to the military.

In his return to Justice Taney, General Cadwalader could not specify any act committed by Merryman that constituted any offense against the laws of the United States or that any witness had given oath describing criminal conduct by Merryman, but that Merryman was arrested upon “General charges of treason and rebellion”  without specifying proof and without giving the names of witnesses or specifying the acts which Merryman supposedly committed  causing his arrest. Furthermore, Cadwalader stated Merryman was arrested by the authority of the President of the United States, Abraham Lincoln, and that “The President had suspended the Writ of Habeas Corpus”  and as such he (Cadwalader) was not bound by, nor would he obey, instructions of the Court.

In response to General Cadwalader’sreturn to the Court, Chief Justice Taney issued his opinion in the matter with an official Court Order granting the Writ of Habeas Corpus to Merryman in which he instructed the President and General Cadwalader to release Merryman as his arrest and imprisonment were Unconstitutional & illegal because the President had not only exercised a power he does not possess (suspending the Writ of Habeas Corpus), but that he claims to be able to delegate that power to others.

In his meticulous opinion Justice Taney wrote: “…The clause of the Constitution which authorizes the suspension of the writ of Habeas Corpus is in the 9th section of the first article…which is devoted to the Legislative Department (Congress) and has not the slightest reference to the Executive Department (the President)…And even if the Writ of Habeas Corpus was suspended by Act of Congress, and a party not subject to the Rules and Articles of war was afterwards arrested and imprisoned by regular Judicial Process, he could not be detained in prison or brought to trial before a military tribunal,…for the 6th Article (in the Constitution) provides that ‘In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed,…to be informed of the nature and cause of the accusation; to be confronted with witnesses against him;…to have the assistance of counsel for his defense'”.

” And that the only power the President possesses, where ‘life, liberty or property’ of a private citizen is concerned, is the power and duty prescribed in the 3d Section of the 2d Article, which requires him to take care that the laws be faithfully executed…

No official notice has been given to the Courts of Justice, or to the public, by proclamation or otherwise, that the President claimed this power, and had exercised it in the manner stated in the return. And I certainly listened to it with some surprise, for I had supposed it to be one of those points of Constitutional law upon which there was no difference of opinion, and that it was admitted on all hands that the Writ of HabeasCorpus could not be suspended, except by Act of Congress…But being thus officially notified that the Writ has been suspended under the orders, and by the authority, of the President, and believing, as I do, that the President has exercised a power he does not possess under the Constitution…I can only say, that if the Judicial Department may thus, upon any circumstance 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…I have exercised all the power to which the Constitution and Laws confer upon me and order that all the proceedings in this case, with my opinion to be filed and recorded in the Circuit Court of the United States for the District of Maryland and direct the Clerk to transmit a copy, under seal, to the President of the United States. It will then remain for him, in fulfillment of his Constitutional obligation, to ‘take care that the laws be faithfully executed'”, to release Merryman.

A United States Marshal served the opinion and order of the Court that Merryman be released upon President Lincoln and General Cadwalader. President Lincoln upon being served with a copy of the opinion and order of the Chief Justice of the Supreme Court of the United States issued a “Presidential Warrant of Arrest”for the Chief Justice, but the Marshal refused to serve it.

Why is what happened to Merryman in 1861 important to us today?

There is nothing preventing this from happening today as our Presidents, both Democratic and Republican, have all issued Executive Orders, in which they claim the authority to do just what Lincoln did, declaring that “emergencies” exist that require “extra-constitutional measures” to be dealt with.

However, as Chief Justice Taney pointed out so many years ago, these are powers Presidents do not possess, but that will not stop Bush, McCain, or Obama now, just as it did not stop Lincoln then.

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One Response

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  1. Can Obama yo mama become President? Lawfully, No!
    Legally, No!! This Kenya born Indonesian citizen has
    no more right to the Presidency than does Tony Blair.
    But the banksters may see to it that he does become
    president in order to show their absolute control of
    our country. The aforementioned banksters being the Rothschild/Rockefeller crime syndicate.

    You are right! There is nothing to prevent a Bush, McCain or Obama from unconstitutional arrests or
    incarcerations. Only their morals and respect for the law ( if any they do indeed have). Which frequently
    from their actions and speeches seems a little far
    fetched to this observer.

    Phil Sweet

    October 28, 2008 at 11:26 pm


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