Ex parte Merryman

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Not to be confused with Ex parte Milligan.
Photograph of Roger B. Taney
Roger B. Taney, Chief Justice of the United States Supreme Court, issued the ruling in ex parte Merryman.

Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9487), is a well-known U.S. federal court case which arose out of the American Civil War. It was a test of the authority of the President to suspend "the privilege of the writ of habeas corpus" under the Constitution's Suspension Clause.[1] U.S. Supreme Court Chief Justice Roger Taney, sitting as a federal circuit court judge, ruled that the authority to suspend habeas corpus lay with Congress, not the president. President Lincoln ignored the ruling, as did the Army under Lincoln's orders, with the arrest of dissidents, newspaper editors, and elected representatives continuing. The case was rendered moot by Lincoln's order in February 1862 to release almost everyone held as a political prisoner.[2]


When a person is detained by police or other authority, a court can issue a writ of habeas corpus, compelling the detaining authority either to show proper cause for detaining the person (e.g., by filing criminal charges) or to release the detainee. The court can then remand the prisoner to custody, release them on bail, or release them outright. Article I, Section 9 of the United States Constitution, which enumerates limitations on the power of Congress, says, "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."

In April 1861, actual fighting in the Civil War began. President Lincoln called for the states to provide militia troops to the Federal government to suppress the rebellion. Troops traveled to Washington via Baltimore, Maryland. Anti-War mobs attacked some of them on April 19. It seemed possible that Maryland would attempt to block the passage of troops, cutting off Washington from the rest of the Union. On April 29, the Maryland Legislature voted 53–13 against secession,[3][4] but they also voted not to reopen rail links with the North, and they requested that Lincoln remove the growing numbers of federal troops in Maryland.[5] At this time the legislature seems to have wanted to avoid involvement in a war with its southern neighbors.[6] Executing the Maryland legislature's wishes, Mayor Brown of Baltimore and Governor Hicks of Maryland asked that no more troops cross Maryland, but Lincoln refused.[7] However, for the next few weeks, troops were brought to Washington via Annapolis, avoiding Baltimore. Also on April 19, Lincoln asked Attorney General Edward Bates, for an opinion on the suspension of the writ of habeas corpus.

The threat to Washington was serious, and Lincoln eventually responded by declaring martial law in Maryland. On April 27, 1861, he told General Winfield Scott (commander-in-chief of the army) that if there was any resistance on the "military line" from Annapolis to Washington, Scott or "the officer in command at the point" was authorized to suspend habeas corpus if necessary. Within a few days, it was found necessary. The suspension was not announced, and Taney stated he had not been informed of it.[8]

Following the Maryland legislature's April 29 directive that Maryland not be used as a passage for troops attacking the South, Governor Hicks had ordered the state militia to demolish several state railroad bridges (Bush River bridge and Gunpowder River bridge). Merryman, a lieutenant in the Maryland State Militia was arrested on May 25 by order of Brigadier General William High Keim, USV, and charged with treason and being a commissioned lieutenant in an organization intending armed hostility toward the government, for his role in destroying these bridge.[9][10][11] Judge Giles in Baltimore issued a writ of habeas corpus. The fort's commander, Major W. W. Morris, wrote in reply,

"At the date of issuing your writ, and for two weeks previous, the city in which you live, and where your court has been held, was entirely under the control of revolutionary authorities. Within that period United States soldiers, while committing no offense, had been perfidiously attacked and inhumanly murdered in your streets; no punishment had been awarded, and I believe, no arrests had been made for these atrocious crimes; supplies of provisions intended for this garrison had been stopped; the intention to capture this fort had been boldly proclaimed; your most public thoroughfares were daily patrolled by large numbers of troops, armed and clothed, at least in part, with articles stolen from the United States; and the Federal flag, while waving over the Federal offices, was cut down by some person wearing the uniform of a Maryland officer. To add to the foregoing, an assemblage elected in defiance of law, but claiming to be the legislative body of your State, and so recognized by the Executive of Maryland, was debating the Federal compact. If all this be not rebellion, I know not what to call it. I certainly regard it as sufficient legal cause for suspending the privilege of the writ of habeas corpus."

Morris also wrote, "If, in an experience of thirty-three years, you have never before known the writ to be disobeyed, it is only because such a contingency in political affairs as the present has never before arisen."[12]

The case[edit]

Merryman's lawyers appealed to Taney to issue the writ. Taney promptly issued a writ of habeas corpus for Merryman demanding that General George Cadwalader, the commander of Fort McHenry, where Merryman was being held, bring Merryman before him the next day. At this time, Supreme Court Justices sat as circuit court judges, as well. Taney decided to issue the writ while sitting as the circuit court judge for the District of Maryland rather than as Chief Justice of the Supreme Court. His reason, he states, was that it would permit Gen. Cadwalader to answer the writ in Baltimore rather than Washington, D.C., and so not have to leave the limits of his military command.[13]

Cadwalader responded to Taney's order by sending a colonel to explain that he had suspended the writ of habeas corpus in Merryman's case. Taney reacted by issuing a writ of attachment for Cadwalader, which ordered a U.S. Marshal to seize him and bring him before the court the following day. The marshal was refused entry into the fort.[13]

In response, Taney ruled that the president can neither suspend habeas corpus nor authorize a military officer to do it, and that military officers cannot arrest people except as ordered by the courts. He noted that, while the marshal had the right to call up the posse comitatus to assist him in seizing Gen. Cadwalader and bringing him before the court, it was probably unwise for him to do so and thus that he would not punish the marshal for failing in his task. He then promised a more lengthy, written ruling within the week and ordered that it be sent to President Lincoln, "in order that he might perform his constitutional duty, to enforce the laws, by securing obedience to the process of the United States."[8]

Taney was politically a partisan Democrat and an opponent of Lincoln. In his written opinion, he raged at length against Lincoln for granting himself easily abused powers. Taney asserted that the president was not authorized to suspend habeas corpus, observing that none of the Kings of England exercised such power.

"These great and fundamental laws, which congress itself could not suspend, have been disregarded and suspended, like the writ of habeas corpus, by a military order, supported by force of arms. Such is the case now before me, and I can only say that if the authority which the constitution has confided to the judiciary department and judicial officers, may thus, upon any pretext or under any circumstances, 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."[14]

Taney noted in a footnote to the above passage that the United States Declaration of Independence listed making the military power independent of and superior to the civil power as one justification for dissolving political allegiance.[15] The Declaration of Independence states, "He has affected to render the Military independent of and superior to the Civil power." [16]


The rest of the Supreme Court had nothing to do with Merryman, and the other two justices from the South, John Catron and James Moore Wayne, acted as Unionists; for instance, Catron's charge to a Saint Louis grand jury, saying that armed resistance to the federal government was treason, was quoted in the New York Tribune of July 14, 1861.[17] On circuit, Catron closely cooperated with military authorities.[18]

Lincoln disregarded the ruling. Lincoln also got an opinion supporting his suspension from his Attorney General Bates. It formed the basis for Lincoln's July 4 speech to Congress, in which he rhetorically asked, "Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?"

After reconvening, Congress failed to pass a bill favored by Lincoln to sanction his habeas corpus suspensions,[19] and several more district and circuit court rulings affirmed Taney's opinion.[20]

In September Lincoln further disregarded the ruling, arresting a sitting U.S. Congressman from Maryland from the opposing party, along with one third of the Maryland General Assembly and expanding the zone within which the writ was suspended.[21] When Lincoln's dismissal of Chief Justice Taney's ruling was criticized in a September editorial by a prominent Baltimore newspaper editor (Frank Key Howard, Francis Scott Key's grandson), he was himself arrested by federal troops without charge or trial. Ironically, federal troops imprisoned the newspaper editor in Fort McHenry, which, as he noted, was the same fort where the Star Spangled Banner had been waving "o'er the land of the free" in his grandfather's song.[22] In 1863 Howard wrote about his experience as a political prisoner at Fort McHenry in the book Fourteen Months in the American Bastille;[23] two of the publishers selling the book were then arrested.[24]

Lincoln rendered much of the controversy moot on February 14, 1862, when he issued an order releasing almost all political prisoners on parole.[2] In response to opposition to conscription, however, Lincoln again suspended habeas corpus six months later, this time throughout the entire country.[25] The passage of the Habeas Corpus Suspension Act in March 1863 ended the controversy, at least temporarily, by authorizing the suspension of habeas corpus upon Congress's authority rather than on the president's authority.

The Merryman decision is still among the best-known Civil War-era court cases and it is one of Taney's most famous opinions, alongside the Dred Scott case. Its legal argument holding that Congress alone may suspend the writ is noted for reiterating the opinion of John Marshall and the court in Ex parte Bollman and was recently restated by the Supreme Court in Hamdi v. Rumsfeld.


  1. ^ William H. Rehnquist, All the Laws But One (New York: Knopf, 1998), 27–39.
  2. ^ a b Amnesty to Political or State Prisoners.
  3. ^ Mitchell, p.87
  4. ^ http://ehistory.osu.edu/uscw/features/articles/articleview.cfm?aid=34
  5. ^ "Teaching American History in Maryland – Documents for the Classroom: Arrest of the Maryland Legislature, 1861". Maryland State Archives. 2005. Archived from the original on January 11, 2008. Retrieved February 6, 2008. 
  6. ^ "Teaching American History in Maryland – Documents for the Classroom: Arrest of the Maryland Legislature, 1861". Maryland State Archives. 2005. Archived from the original on January 11, 2008. Retrieved February 6, 2008. 
  7. ^ "He reminded them that Union soldiers were neither birds who could fly over Maryland nor moles who could burrow underground... "Go home and tell your people that if they do not attack us, we will not attack them; but if they do attack us, we will return it, and that severely." Simon, James F. (2007). Lincoln and Chief Justice Taney: Slavery, Secession, and the President's War Powers. New York: Simon & Schuster. p. 185. ISBN 0-7432-5033-8. 
  8. ^ a b Ex parte Merryman, 17 F. Cas. 144, 148 (C.C.D. Md. 1861).
  9. ^ Ex parte Merryman, 17 F. Cas. 144, 146 (C.C.D. Md. 1861).
  10. ^ Spencer C. Tucker. "American Civil War: The Definitive Encyclopedia" 2013 http://books.google.com/books?id=9dvYAQAAQBAJ&pg=PA1269&hl=en&sa=X&ei=rZF2VP6kOuWQigKu9oCQBw&ved=0CB0Q6AEwAA#v=onepage&f=false
  11. ^ Paludan, Phillip S. (1994). The Presidency of Abraham Lincoln. Lawrence: University Press of Kansas. p. 75. ISBN 0-7006-0671-8. 
  12. ^ Benson John Lossing (1866/1997), Pictorial Field Book of the Civil War, reprint, Baltimore: Johns Hopkins, Vol. I, Chap. XVIII, "The Capital Secured—Maryland Secessionists Subdued—Contributions by the People", pp. 449-450, [italics in reprint].
  13. ^ a b Ex parte Merryman, 17 F. Cas. 144, 147 (C.C.D. Md. 1861).
  14. ^ Ex parte Merryman, 17 F. Cas. 144, 152 (C.C.D. Md. 1861).
  15. ^ Ex parte Merryman, 17 F. Cas. 144, 152n3 (C.C.D. Md. 1861).
  16. ^ Jefferson, Thomas. "IN CONGRESS, July 4, 1776. The unanimous Declaration of the thirteen united States of America,". National Archives. The National Archives and Records Administration. Retrieved 22 March 2012. 
  17. ^ Don E. Fehrenbacher (1978/2001), the Dred Scott Case: Its Significance in American Law and Politics, New York: Oxford, Chapter 23, "In the Stream of History", p. 574, and p. 715, n. 16.
  18. ^ "Catron, John", in Webster's American Biographies (1979), Springfield, MA: Merriam-Webster.
  19. ^ George Clarke Sellery, Lincoln's suspension of habeas corpus as viewed by Congress (Ph.D. Dissertation, University of Wisconsin—Madison, 1907), 11–26.
  20. ^ Rollin C. Hurd, A Treatise on the Right of Personal Liberty and on the Writ of Habeas Corpus, revised with notes by Frank H. Hurd (Albany, 1876), 121n–22n.
  21. ^ http://articles.baltimoresun.com/2001-11-27/features/0111270102_1_habeas-fort-mchenry-lincoln-suspension
  22. ^ Howard, F. K. (Frank Key) (1863). Fourteen Months in American Bastiles. London: H.F. Mackintosh. Retrieved 18 August 2014. 
  23. ^ Howard, F. K. (Frank Key) (1863). Fourteen Months in American Bastiles. London: H.F. Mackintosh. Retrieved 18 August 2014. 
  24. ^ http://articles.baltimoresun.com/2001-11-27/features/0111270102_1_habeas-fort-mchenry-lincoln-suspension
  25. ^ Proclamation 94.


  • Brown, George William. Baltimore and the Nineteenth of April 1861 (Baltimore: Johns Hopkins University Press, 1887; reprinted by Johns Hopkins University Press in 2001)
  • Fehrenbacher, Don Edward (1978/2001), The Dred Scott Case: Its Significance in American Law and Politics, New York: Oxford, Pulitzer Prize in History.
  • Howard, F. K. (Frank Key) (1863). Fourteen Months in American Bastiles. London: H.F. Mackintosh. Retrieved 18 August 2014. 
  • Hall, Kermit L. (Ed.) (1992). The Oxford Companion to the Supreme Court of the United States. Oxford University Press.
  • Lincoln, Abraham (April 27, 1861). Letter to Winfield Scott. Cited in (1989) Lincoln: Speeches and Writings 237. New York: Library of America. (This is the letter in which Lincoln suspended habeas corpus.)
  • Paludan, Phillip S. (1994). The Presidency of Abraham Lincoln. Lawrence: University Press of Kansas. ISBN 0-7006-0671-8. 
  • Lossing, Benson John (1866/1997), Pictorial Field Book of the Civil War, reprint, Baltimore: Johns Hopkins.
  • Poole, Patrick S. (1994). An Examination of Ex Parte Merryman.
  • Rehnquist, William H. (1998). All the Laws but One: Civil Liberties in Wartime. New York: William Morrow & Co. ISBN 0-688-05142-1. 
  • Rehnquist, William, Chief Justice (1997). Civil Liberty and the Civil War.
  • Taney, Roger B., Chief Justice (1861). Ex parte Merryman. — Note that while Taney is named as Chief Justice, this was not properly a Supreme Court case. [Not an en banc Supreme Court Case. Taney himself notes in the decision that it was "[b]efore the Chief Justice of the Supreme Court of the United States, at Chambers." In the case itself it's noted that "a writ of habeas corpus was issued by the chief justice of the United States, sitting at chambers" - not as a judge of the Circuit Court. Taney then orders the case to be "filed and recorded in the circuit court of the United States for the district of Maryland". If he was sitting as Circuit judge there would have been no need to order the decision filed in Baltimore.]
  • White, Jonathan W. (2011). Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman. Baton Rouge: LSU Press. p. 224. ISBN 978-0-8071-4346-9. 

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