Ex Parte Merryman

May 25, 1861 – Pennsylvania militia seized John Merryman at his Maryland home for suspected secessionist activity. This provoked a controversial legal dispute between the president and the U.S. chief justice.

At 2 a.m., forces led by Samuel Yoke surrounded the Cockeysville home of Merryman, a Baltimore County farmer and leader of a secessionist drill company. Merryman’s company had allegedly sabotaged bridges, railroad tracks, and telegraph lines during the April unrest in Maryland.

The militia hauled Merryman out of bed and took him to Brigadier General George Cadwalader, commanding the Department of Annapolis. Cadwalader ordered Merryman imprisoned at Fort McHenry in Baltimore Harbor. Merryman, arrested by a force outside his home state without either a warrant or official charge against him, became a political prisoner.

Roger B. Taney in 1849 | Image Credit: Wikimedia.org
Roger B. Taney in 1849 | Image Credit: Wikimedia.org

The next day, Merryman’s attorney petitioned the Federal circuit court in Baltimore for a writ of habeas corpus for his client. U.S. Supreme Court Chief Justice Roger B. Taney, a Marylander and the court’s senior judge, granted the writ by ordering General Cadwalader to either deliver Merryman to district court tomorrow to show just cause for his arrest or release him.

When a Federal marshal delivered the writ to Fort McHenry on the 27th, General Cadwalader refused to accept it. Citing President Abraham Lincoln’s suspension of habeas corpus on April 27, Cadwalader declared that he recognized no authority except for that of his commander-in-chief. Upon the marshal’s return, Taney issued a legal opinion:

“I ordered the attachment yesterday, because upon the face of the return the detention of the prisoner was unlawful upon two grounds: 1) The President, under the Constitution and laws of the United States, can not suspend the privilege of the writ of habeas corpus, nor authorize any military officer to do so. 2) A military officer has no right to arrest and detain a person not subject to the rules and articles of war for an offense against the laws of the United States, except in aid of the judicial authority and subject to its control; and, if the party is arrested by the military, it is the duty of the officer to deliver him over immediately to the civil authority, to be dealt with according to law.”

Taney issued his ruling “ex parte” since the administration refused to bring Merryman to court. He asserted that suspending habeas corpus, as defined in Article I, Section 9 of the U.S. Constitution, could only be done by Congress, not the president. Taney also reminded Lincoln of his duty to “take care that the laws be faithfully executed,” and if civil liberties continued to be disregarded, “the people of the United States are no longer living under a government of laws.”

The circuit court held Cadwalader in contempt for refusing to obey the writ, but he was not punished for violating Merryman’s civil liberties, and Merryman remained imprisoned. This was one of many cases in which the Lincoln administration violated the personal freedoms in the name of putting down the rebellion.

The next day, Attorney General Edward Bates issued a 26-page legal opinion on Merryman’s arrest, upholding Lincoln’s decision to suspend the writ of habeas corpus and mandate Merryman’s incarceration at Fort McHenry. Bates asserted that in case of national emergency, the president had the power to suspend the writ as the public safety required.

According to Bates, “in a time like the present, when the very existence of the Nation is assailed, by a great and dangerous insurrection, the President has the lawful discretionary power to arrest and hold in custody, persons known to have criminal intercourse with the insurgents.” However, Bates did not elaborate on how the Confederacy assailed the U.S. other than merely trying to break away. Most northerners agreed with Bates, contending that suspending habeas corpus was an emergency power to be used in times of rebellion, and only the president could act quickly enough to meet the emergency, especially since Congress (at Lincoln’s behest) would not convene until July 4.

Lincoln issued an order to General Cadwalader at Fort McHenry, written by Assistant Adjutant-General E.D. Townsend: “In returns to writs of habeas corpus by whomsoever issued you will most respectfully decline for the time to produce the prisoners, but will say that when the present unhappy difficulties are at an end you will duly respond to the writs in question.” Thus, the administration essentially ignored Taney’s ruling.

Civil liberties continued to be violated, and Merryman remained imprisoned for seven weeks. He was indicted in Federal circuit court, but his case never went to trial because administration officials doubted that a Maryland jury would convict him.



Davis, Jefferson, The Rise and Fall of the Confederate Government: All Volumes (Heraklion Press, Kindle Edition 2013, 1889), Loc 19367-74; Donald, David Herbert, Lincoln (Simon & Schuster, Kindle Edition, 2011), Loc 6271; Fredriksen, John C., Civil War Almanac (New York: Checkmark Books, 2007), p. 33-34; Goodwin, Doris Kearns, Team of Rivals: The Political Genius of Abraham Lincoln (New York: Simon and Schuster, 2005), p. 355; Long, E.B. with Long, Barbara, The Civil War Day by Day (New York: Da Capo Press, Inc., 1971), p. 79; McPherson, James M., Battle Cry of Freedom: The Civil War Era (Oxford History of the United States Book 6, Oxford University Press, Kindle Edition, 1988), p. 287-88; Wert, Jeffry D., Historical Times Illustrated Encyclopedia of the Civil War (New York: Harper & Row, 1986, Patricia L. Faust ed.), p. 529; White, Howard Ray, Bloodstains, An Epic History of the Politics that Produced and Sustained the American Civil War and the Political Reconstruction that Followed (Southernbooks, Kindle Edition, 2012), Q261


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