Ex Parte Merryman

John Merryman, a farmer from Cockeysville, Maryland, was suspected of leading a secessionist drill company that had allegedly sabotaged bridges, railroad tracks, and telegraph lines during the April unrest in Maryland. President Abraham Lincoln had suspended the writ of habeas corpus, thereby allowing military personnel to arrest civilians suspected of disloyal activities and hold them without charges indefinitely. Troops of the 1st Pennsylvania stationed near Cockeysville went to Merryman’s house at 2 a.m. on the 25th and hauled him out of bed under arrest. The Federal commander asserted that “the prisoner has been drilling with his company and has uttered and advanced secession doctrines.”

Brigadier General George Cadawalader, commanding the Federal Department of Annapolis, ordered Merryman imprisoned at Fort McHenry in Baltimore Harbor for supposed committing “various acts of treason and with being publicly associated with and holding a commission as lieutenant in a company having in their possession arms belonging to the United States and avowing his purpose of armed hostility against the Government.” Merryman, arrested without a warrant by a force hailing from outside his home state, became a political prisoner.

Merryman’s attorney petitioned the Federal circuit court in Baltimore to grant 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 the court on the 27th to show just cause for his arrest or release him. When a Federal marshal delivered the writ to Fort McHenry on the 27th, Cadwalader refused to accept it. Citing Lincoln’s suspension of habeas corpus, 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 on the matter, stating that Merryman “appears to have been arrested upon general charges of treason and rebellion without proof.” The constitutional clause authorizing the suspension of the writ of habeas corpus, Taney wrote, “is devoted to the legislative department of the United States and has not the slightest reference to the executive department.”

Taney stated that “in language too clear to be misunderstood by any one I can see no ground whatever for supposing that the President in any emergency or in any state of things can authorize the suspension of the privilege of the writ of habeas corpus or arrest a citizen except in aid of the judicial power.” Taney declared that keeping Merryman imprisoned was unconstitutional on two grounds:

  1. Suspending the writ of habeas corpus, as defined in Article I, Section 9 of the U.S. Constitution, could only be done by Congress. “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 ordered “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 left it to Lincoln to fulfill “his constitutional obligation to ‘take care that the laws be faithfully executed’ to determine what measures he will take to cause the civil process of the United States to be respected and enforced.” The chief justice concluded that if civil liberties continued to be disregarded, “the people of the United States are no longer living under a government of laws.”

The marshal, unable to bring General Cadwalader to court, had the authority to “summon out the posse comitatus,” but Taney acknowledged that if he did so, he would be opposed by “a force notoriously superior to the posse.” Had the general been brought before Taney, the chief justice would have imposed on him “the punishment which it is within my province to inflict, that of fine and imprisonment.”

The circuit court held Cadwalader in contempt for refusing to obey the writ, but he was not punished for his refusal, and Merryman remained imprisoned because Taney had no legal power to enforce his ruling. Lincoln briefly contemplated having the chief justice of the United States arrested, but he instead had Attorney General Edward Bates write an opinion to counter Taney’s argument. Bates issued a 26-page legal paper that upheld Lincoln’s decision to suspend the writ of habeas corpus and order Merryman’s incarceration.

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.” Bates did not explain how the act of secession by the southern states assailed the Federal government’s existence.

War fever and a desire to destroy the Confederacy prompted most northerners and Unionists to support Lincoln’s suspension of the writ. To defer to Congress on the matter would have meant to wait until that body convened, but Lincoln had opted not to open an emergency session of Congress until July 4.

Lincoln issued an order to General Cadwalader at Fort McHenry, through 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.

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. This became one of the more prominent examples of the Lincoln administration violating constitutionally guaranteed freedoms in the name of putting down the rebellion.


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