Ex parte Merryman, 17 F. Cas. 144 (1861), 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". Chief Justice Roger Taney, sitting as a Federal District judge, ruled that the President could not suspend, but President Lincoln ignored the ruling, as did the Army under Lincoln's orders.
When a person is detained by police or other authority, a writ of habeas corpus, issued by a court, compels the detaining authority either to show proper cause for detaining the person (as by filing criminal charges) or to release the person at once.
Article I, Section 9 of the United States Constitution includes this clause:
- 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. Some of these troops traveled to Washington via Baltimore, Maryland. Pro-Confederate mobs attacked some of these troops on April 19. It seemed possible that these pro-Confederates would seize control of Maryland, cutting off Washington from the rest of the (loyal) country. Mayor Brown of Baltimore and Governor Hicks of Maryland asked that no more troops cross Maryland, but Lincoln refused. 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 was in fact carefully kept secret at first.
Among the pro-Confederates in the Maryland militia was Lieutenant John Merryman. He had recruited and trained soldiers for the Confederate army. After the Baltimore Riot he was involved in cutting telegraph wires and burning railroad bridges. On May 25, Merryman was arrested by order of General George Cadwalader, and charged with treason.
Merryman's lawyers appealed to the United States Circuit Court for the District of Maryland. At this time, Supreme Court Justices sat as circuit judges while the Supreme Court was not in session. Merryman's complaint was heard by Chief Justice Taney.
Taney promptly issued a writ of habeas corpus for Merryman. But when he sent a U.S. Marshal to serve the writ, armed soldiers prevented it. Cadwalader asserted that he had been authorized by the President to suspend habeas corpus, and had done so.
Taney then issued this ruling:
- 1. That the president [...] cannot suspend the privilege of the writ of habeas corpus, nor authorize a military officer to do it. 2. That a military officer has no right to arrest and detain a person not subject to the rules and articles of war [...] except in aid of the judicial authority, and subject to its control.
Taney was politically a partisan Democrat and opponent of Lincoln. He raged at length against Lincoln granting himself easily abused powers, asserted that the president was not authorized to suspend habeas corpus, observing that none of the Kings of England exercised such power, writing that Lincoln was acting more monarchical and despotic than any actual English monarch (Merryman):
- 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.
Lincoln, citing Andrew Jackson before him, disregarded the ruling. Lincoln also got an opinion supporting his suspension from 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?" Lincoln subsequently expanded the zone within which the writ was suspended.
After reconvening, Congress rejected a bill favored by Lincoln to sanction his suspensions, and several more district and circuit court rulings affirmed Taney's opinion. Lincoln nevertheless continued habeas suspensions for another two years. The passage by Congress of the Habeas Corpus Act of 1863 suspended the writ and ended the controversy, at least temporarily.
The Merryman decision is still among the best-known Civil War-era court cases, and it is one of Taney's most famous opinions. 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.
Lincoln's alleged secret response
A brief passage in an 1880s manuscript composed by Lincoln's friend and political associate Ward Hill Lamon alludes to a decision to arrest Taney in response to the Merryman ruling, which was never carried through. The allusion is confusing, and Lamon, who is the sole source of this story, is not considered a reliable source.
- "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. pp. 185. ISBN 0-7432-5033-8.
- Paludan, Phillip S. (1994). The Presidency of Abraham Lincoln. Lawrence: University Press of Kansas. pp. 75. ISBN 0-7006-0671-8.
- 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.
- 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. (alternate source) —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.]
- Ex Parte Milligan