History of the Federal Judiciary

History of the Federal Judiciary

  Ex parte Merryman and Debates on Civil Liberties During the Civil War

George Cadwalader (1806–1879)
Brevet major-general in command of the Department of Annapolis, U.S. Army

As the commanding general at Fort McHenry, where John Merryman was held in custody, General George Cadwalader was the recipient of the writ of habeas corpus ordering him to appear with Merryman before Chief Justice Taney at the U.S. circuit court in Baltimore. Ten days before the arrest of Merryman, Cadwalader received from Army headquarters in Washington the authorization to arrest and detain individuals even if they were demanded by writs of habeas corpus from the federal courts. The office of the commanding general reminded Cadwalader that this authorization to ignore the writ was a “high and delicate trust,” but that he was expected to err on the side of the safety of the country.

Cadwalader was born in Philadelphia in 1806 to a prominent family that included his brother, John, the U.S. district judge in the Eastern District of Pennsylvania from 1858 to 1879. George Cadwalader attended the University of Pennsylvania, read law, and was the long-time director of a Philadelphia insurance company. He also was active in a Philadelphia militia that helped to quell anti-immigrant riots in 1844. Cadwalader served as a brigadier general in the Mexican War. At the outbreak of the Civil War, the governor of Pennsylvania mustered him for service in the U.S. Army, and General Winfield Scott appointed him commander of the critical Department of Annapolis, where secessionists threatened troops on their way to defend Washington, D.C.

After receiving the writ of habeas corpus, Cadwalader declined to appear in court with Merryman, and by letter he informed Chief Justice Taney that he had been authorized to suspend the writ in the case of individuals presenting a threat to public safety. Cadwalader requested a delay in any court proceedings until he received further instructions from President Lincoln. In the meantime, Cadwalader informed his superiors in Washington that he was still waiting for the names of witnesses and the specific charges against Merryman, who had been arrested under orders of officers under the command of another general. When Taney issued an attachment for contempt against Cadwalader for failure to appear in court, the guard at Fort McHenry refused to admit the marshal bearing the writ of attachment, and Cadwalader made no reply to the court. Cadwalader then received from Washington orders to detain anyone implicated in treason and to decline “most respectfully” any related writs of habeas corpus until “the present unhappy difficulties are at an end.”

George Cadwalader served with the Army of West Tennessee in 1862 and was commander of the U.S. Army’s Department of Philadelphia from 1863 to 1865. He then returned to private business in Philadelphia.


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