History of the Federal Judiciary

History of the Federal Judiciary

  Ex parte Merryman and Debates on Civil Liberties During the Civil War
A Short Narrative


In the early weeks of the Civil War, a brief proceeding in a federal court in Maryland revealed to the public an inherent conflict between the protection of civil liberties guaranteed by the Constitution and the efforts to preserve the union of states threatened by internal rebellion. At issue was a writ of habeas corpus, which is literally translated from Latin as “you have the body” and serves as a citizen’s most important protection against unlawful imprisonment. The writ requires an official to bring a prisoner before a civil court and to justify the arrest and detainment of that citizen. The writ had been recognized in English law at least since the early fourteenth century, and since the seventeenth century the writ had been one of the essential guarantees of personal liberty in England and subsequently in the United States. President Abraham Lincoln’s limited authorization of military arrests and the suspension of citizens’ privilege of the writ of habeas corpus prompted the first of many public debates on the restriction of civil liberties in the face of attempts to sabotage the federal defense of the Union. The Chief Justice’s provocative challenge of the President heightened public interest in the habeas corpus petition of an imprisoned Maryland resident at the same time that it demonstrated how quickly a civil war could disrupt the normal course of constitutional government.

Threat of secession

In the escalating secession crisis following the inauguration of President Lincoln on March 4, 1861, the security of the nation’s capital and probably the fate of the United States depended on holding Maryland in the Union. After Virginia voted to secede on April 17, federal troops and supplies could only reach the capital through Maryland. But sympathy for the Confederacy and even support for secession ran high in Maryland. When a Massachusetts regiment passed through Baltimore on the way to Washington on April 19, a mob attacked the Northern troops, and the ensuing riot left the first dead of the Civil War. Fearful that more federal troops would provoke new violence, Maryland Governor Thomas Hicks authorized the destruction of railroad bridges connecting Baltimore to Northern states. At the same time, secessionist vigilantes destroyed telegraph lines and severed critical communications with Washington. The capital city filled with rumors of Robert E. Lee’s imminent invasion of Maryland.

When Governor Hicks called a special session of the state legislature and a secession vote appeared likely, Lincoln instructed Winfield Scott, the commanding general of the Army, to counter any effort to arm Maryland citizens against the federal government. Lincoln endorsed the use of “the most prompt, and efficient means,” including “the bombardment of their cities—and in the extremest necessity, the suspension of the writ of habeas corpus.” Two days later, Lincoln explicitly authorized Scott to suspend habeas corpus anywhere along troop transportation routes between Philadelphia and Washington. Although the Constitution authorized suspension of the privilege of habeas corpus during a rebellion or invasion, no federal authority had done so since the final days of the War of 1812 when General Andrew Jackson declared martial law in New Orleans.

The arrest of Merryman

At 2:00 a.m. on May 25, 1861, federal troops entered the country house of John Merryman and “aroused” the prominent Baltimore County planter from his bed. The troops took Merryman into custody and transported him to Fort McHenry, near Baltimore. There Merryman was detained under the order of the fort’s commanding officer, General George Cadwalader. Merryman was arrested on orders of another U.S. Army general from Pennsylvania on suspicion that Merryman was an officer in a “secession company” that possessed federal arms and intended to use them against the government. The arresting officers testified that the prisoner had “uttered and advanced secession doctrines.”

Within hours of his detention, Merryman contacted lawyers who drafted a petition for a writ of habeas corpus that would order his release on the grounds that no warrant authorized his arrest and that no legal process held him in custody. The petition was addressed to Chief Justice Roger Taney, who also sat as a judge on the U.S. Circuit Court for Maryland, and delivered to him at his home in Washington, D.C. Taney quickly left the capital to convene a Sunday court session in Baltimore and to consider the petition.

Chief Justice Taney in court

Chief Justice Taney’s appearance in Baltimore immediately heightened the drama of the likely contest between the federal courts and the military. The eighty-four-year-old Chief Justice was by 1861 so closely linked with the sectional conflict that drove the nation into Civil War that few could view him as impartial. Taney, a native Marylander, had sat on the Supreme Court as Chief Justice since 1836, but he was now most closely associated with a single decision that had divided the nation. In
Dred Scott v. Sandford in 1857, Taney had declared that legislation prohibiting slavery from western territories was unconstitutional and that African Americans, whether free or slave, had no standing as citizens under the Constitution. The decision regarding territories made political compromise of the sectional crisis nearly impossible, while the disfranchisement of all African Americans convinced many in the North that the “Slave Power” controlled the federal government. As many in Maryland knew, Taney had privately sympathized with the Southern states in the spring of 1861. He appeared deliberately to raise the profile of the Merryman case with suggestions that he was acting in his capacity as Chief Justice rather than as a judge on the circuit court of Maryland and with his announcement, with no apparent evidence, that he might well be imprisoned in Fort McHenry himself for carrying out his judicial duties.

The military resists

On the day following Merryman’s arrest, Taney issued the writ of habeas corpus and ordered General Cadwalader to appear in the circuit courtroom with Merryman and to explain his reasons for holding the prisoner in custody. Cadwalader refused to appear, explaining in a letter delivered to Taney on May 27 that Merryman stood charged with treason and “armed hostility against the Government,” and that President Lincoln had authorized military officers to suspend the writ of habeas corpus when required by the public safety. Merryman, Cadwalader alleged, had announced his “readiness to co-operate with those engaged in the present rebellion against the Government of the United States” and was an officer in a local militia that possessed federal arms. The general requested a delay in any proceedings in the case until he received instructions from Lincoln. Taney, to no one’s surprise, refused to delay the case and issued a writ of attachment requiring General Cadwalader to answer charges of contempt for refusing to bring Merryman before the court. When the deputy federal marshal went to the gate of Fort McHenry with Taney’s writ, a guard barred his entrance and replied that no one was present to accept the document.

News of Cadwalader’s second rebuff of the court spread throughout Baltimore, and on the morning of May 28 a large crowd gathered outside the Masonic Hall where the circuit court would meet. Taney left the nearby house where he was staying, and, aided by his grandson, he slowly made his was through the crowd. Then, before a courtroom “packed to its utmost capacity,” Taney announced that the President had no constitutional or statutory authority to suspend the writ of habeas corpus and that when any military officer arrested a person not subject to the rules and articles of war, that officer had a duty to deliver the prisoner to a civil authority. It was “very clear” to Taney that Merryman was entitled to immediate release from imprisonment. Fearing that his oral opinion would be subject to misunderstanding, Taney promised to file a written opinion with the circuit court within a week.

Limited orders of the court

In the courtroom announcement and in the written opinion, Taney took the extraordinary step of ordering the clerk of court to send a transcript of the
Merryman proceedings to President Lincoln. “It will then remain for that high officer, . . .” concluded Taney, “to determine what measures he will take to cause the civil process of the United States to be respected and enforced.” The provocative challenge to the President deflected attention from the court’s own lack of action.

Taney issued no order to secure the release of John Merryman or to enforce the writs of the court. Taney announced to the court that he would not hold the marshal responsible for enforcing the writ of attachment or arresting General Cadwalader because “it has become so notorious that the military power is superior to the judicial.” In his written opinion, Taney claimed to “have exercised all the power which the constitution and laws confer upon me, but that power has been resisted by a force too strong for me to overcome.” The only formal orders of the court were those related to the filing of the records and the delivery of a copy to the President. As the written opinion made clear, Taney embraced the opportunity to chastise the President but avoided any order he could not enforce.

Taney’s opinion

The written opinion was quickly reprinted by newspapers around the country and by publishers who offered pamphlet versions. In the clear and accessible language that had marked so many of his opinions, Taney offered an eloquent defense of the authority of the federal judiciary and of the right to petition for a writ of habeas corpus. Nothing in the evidence presented to Taney indicated that anyone had prevented court or judicial officers from carrying out their responsibilities, but the action of the military officers had “thrust aside the judicial authorities . . . and substituted a military government in its place.” Taney carefully laid out the steps by which a military officer, suspecting Merryman of illegal activity against the government, should have approached the U.S. attorney for Maryland, who in turn would have presented a judge or other judicial officer with information justifying an arrest warrant. Rather than follow the well-established process of the civil courts, the military orders to arrest and detain Merryman had violated the Fourth Amendment protection against unreasonable search and seizure, the Fifth Amendment guarantee of due legal process before any imprisonment, and the Sixth Amendment right to a speedy trial.

Taney knew of Lincoln’s authorization of the suspension of habeas corpus only through General Cadwalader’s letter to the court, but Taney devoted most of his written opinion to a denial that the President had any authority to suspend the writ, let alone to delegate discretion over the writ to military officers. The Constitution prohibited any suspension of the writ “unless when in Cases of Rebellion or Invasion the public Safety may require it.” Because the Constitution’s only reference to habeas was in Article I, which established the legislative branch, Taney, like most legal commentators and judges before him, concluded that only Congress had the authority to suspend the writ under the prescribed circumstances.

Taney’s review of the history of habeas corpus law in England and the United States demonstrated the long-standing prohibition on suspension of the writ by executive authority. Famed English jurist William Blackstone called it “the happiness of our Constitution” that the writ of habeas corpus could not be suspended by the executive power in Great Britain. If President Lincoln had the authority to suspend the writ, Taney added, then the Constitution “conferred upon him more regal and absolute power over the liberty of the citizen, than the people of England have thought it safe to entrust to the crown.” Supreme Court Justice Joseph Story, in his
Commentaries on the Constitution of 1833, declared that any decision on the need to suspend habeas “most exclusively belongs” to Congress, and Chief Justice John Marshall in an opinion of 1807 said that if the public safety required the suspension of habeas, “it is for the legislature to say so.”

Within the crowded courtroom when Taney delivered his oral opinion “great indignation was expressed against the Administration,” and one prominent attorney, Andrew Ridgely, volunteered to organize a posse comitatus to free Merryman. The mayor of Baltimore approached the bench to offer congratulations to Taney, and former President Franklin Pierce sent the Chief Justice a letter of support. To Northern critics of the Chief Justice, the
Merryman proceedings were further proof that Taney intended “to throw the weight of the judiciary against the United States and in favor of the rebels.” Newspapers supporting President Lincoln reminded readers that the Constitution made no mention of who had authority to suspend habeas corpus and that the framers never anticipated open rebellion of United States citizens. Whatever Taney’s private views on secession and the rights of the Southern states, he rooted his opinion in such well-established law that initial commentaries generally supported the Chief Justice’s interpretation. Judge John Cadwalader of the U.S. district court in Philadelphia, brother of the general detaining Merryman, wrote a private opinion based on an early report of the court proceedings. According to Judge Cadwalader, General Cadwalader should have stated that hostilities existed between the United States and armed enemies of the government and that he was holding Merryman as a prisoner of war. The judge agreed with Taney that only Congress could suspend habeas, and he noted that the general accused Merryman of treason, which could only be prosecuted in civil courts.

Lincoln on habeas corpus

If Lincoln had any response to the opinion delivered directly to him, he left no record of it, but since the outbreak of hostilities the President and his administration had been weighing the legality of suspending habeas. In his message to the special session of Congress on July 4, 1861, Lincoln offered his assurances that the suspension of the privilege of the writ had “purposely been exercised but very sparingly,” and he was sensitive to critics who worried that the chief executive had himself violated one of the laws he was sworn to “faithfully execute.” With one third of the states in open rebellion and other states resisting his execution of the nation’s laws, Lincoln thought it foolhardy to focus on a single law when the temporary and limited suspension of the law protecting habeas might enable him to enforce all other federal laws and thus to preserve the Union. He asked the Congress, “are all the laws,
but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated?” His own reply was that the gravest violation of his oath of office would be to allow the government to be overthrown as a result of an overly cautious regard for a single law.

Lincoln was confident that he had not acted illegally, since he believed that the Constitution, though silent on who was authorized to suspend the privilege of the writ in “Cases of Rebellion or Invasion,” granted that power to both Congress and the executive. Surely the framers had not intended that “the danger should run its course, until Congress could be called together,” since the provision for suspension of habeas anticipated use in an emergency. Yet Lincoln clearly considered the legal authority for suspending habeas secondary to his obligation “to preserve, protect, and defend” the Constitution. He left for the Congress to decide if legislation was necessary to justify the suspension of the privilege of the writ of habeas corpus.

The attorney general’s opinion

As Lincoln had indicated to the Congress, Attorney General Edward Bates soon delivered his opinion in support of the President’s authority to suspend the writ of habeas corpus and to arrest individuals involved in insurrection against the government. Bates also interpreted the President’s responsibility to preserve the Constitution and to execute the laws as an obligation to suppress any rebellion or insurrection. That obligation necessarily required the use of military force and the arrest of supporters of an insurrection, either for the purpose of bringing the rebels to trial or to render them incapable of further support of the insurrection. Bates found that the President and those to whom he delegated authority were also justified in refusing to obey a writ of habeas corpus because the federal courts had no jurisdiction over an appeal from an executive action of the President. Only the Congress could suspend the courts’ authority to issue a writ of habeas corpus, admitted Bates, but the President had lawful power to suspend the privilege for persons arrested in connection with open rebellion against the government. Bates acknowledged that the President’s power to arrest and to suspend the privilege of habeas corpus was liable to abuse, as was all power, but the Constitution clearly granted the power to the government and granted Congress the impeachment power to check any abuse by the chief executive.

Suspensions of habeas corpus

By the time Congress convened, Lincoln had suspended the privilege of the writ of habeas corpus in parts of Florida and in matters relating to an individual Army officer who supported the Confederacy, and the President had extended the original order to General Scott to encompass the route of federal troops traveling between New York and Washington. Congress took no direct action related to habeas corpus, but near the close of its session in the summer of 1861 it passed a statute declaring all military-related acts, proclamations, and orders of the President to be legal. The administration continued to arrest citizens and further suspend the writ without formal sanction from Congress. In August 1862, Secretary of War Edwin Stanton suspended the privilege of the writ in cases related to the draft of state militia members, and on September 24, 1862, Lincoln issued a similar proclamation that extended the suspension throughout the nation and applied to anyone resisting or interfering with enlistments and the draft.

In March 1863, Congress authorized the President, for the duration of the Civil War, to suspend the privilege of the writ whenever, “in his judgment, the public safety may require it.” This act directed the secretaries of State and War henceforth to provide federal judges with the names of all individuals arrested under orders of the administration and detained within the judges’ respective districts. It also provided for the release of any arrested individuals who were not indicted at the subsequent meeting of the grand jury in the federal court. The act also offered protections for any military or government officers sued in state or federal courts for arrests made under the authority of the President since the opening of the Civil War. Two more formal suspensions followed the act. On September 15, 1863, Lincoln suspended the writ in broadly defined cases, including those arising from the increasingly common judicial challenges to the draft. In July of 1864, the President’s last proclamation regarding habeas reaffirmed the suspension of the writ in Kentucky, where many citizens “have joined the forces of the insurgents.”

Military arrests and popular protests

Military arrests of civilians were initially overseen by the Secretary of State; from February 1862 they were overseen by the Secretary of War. In practice, the decisions to arrest usually fell on military officers, whose widely varying judgments inevitably led to excesses. The number of military arrests clearly exceeded 10,000, and some historians have estimated three times that number. Military arrests peaked during enforcement of the state militia drafts in 1862, and arrests were most frequent in the border states. The majority of individuals arrested under the suspension of habeas corpus were residents of either the border states or of the Confederacy. The overwhelming number of such cases related to military threats, interference with the draft, or violations of commercial blockades, but high-profile arrests of newspaper editors or political critics brought the greatest popular criticism. Lincoln was particularly displeased with arrests related to political speech, unless the arresting officers could establish a clear threat to public safety.

The large number of arrests, continuing through much of the war and extending throughout the Union, soon pushed the
Merryman proceedings from public memory, but the debate on the suspension of the privilege of the writ of habeas corpus and on the associated questions of martial law remained a contentious topic of debate throughout the Civil War. Notable legal writers, like Horace Binney, offered learned defenses of Lincoln’s suspensions, while other prominent lawyers warned of the risks of abusing constitutional rights as part of a strategy of preserving the constitutional Union. Lincoln for the most part confined himself to questions of the military necessity of suspension and was seemingly unconcerned with authorization from the Congress. When the arrests threatened to undermine public support for the war effort, however, Lincoln offered his most extensive defense of military arrests and the restrictions on habeas writs. In the wake of the arrest and trial of Clement Vallandigham for what many considered political speech, the President faced a wave of criticism, much of it from supporters of the Union cause. Lincoln’s widely published letter to Erastus Corning in response to the resolutions of a public meeting in Albany, New York, argued that Confederate sympathizers had manipulated constitutional liberties “to destroy Union, constitution, and law,” and that he had no choice as a President faced with rebellion but to exercise powers that he readily agreed would be unjustified in times of peace and domestic security.

The fate of Merryman

In the weeks following the court proceedings in
Ex parte Merryman, John Merryman remained in military custody at Fort McHenry. He was indicted in July 1861 by a grand jury of the U.S. District Court for Maryland. The indictment alleged that Merryman had conspired with upwards of 500 people to levy war against the United States and that he had joined with others to destroy six railroad bridges in an effort to prevent the movement of troops for the defense of Washington, D.C. He also stood accused of destroying a telegraph line in an attempt to disrupt communications and delay a proper defense of the United States. Judge William F. Giles of the U.S. district court remitted the case to the U.S. Circuit Court for the District of Maryland for trial in November. Merryman was released in the summer of 1861 after he and a group of supporters posted $40,000 bail. Close to 60 other indictments for treason were brought in Maryland federal courts, but none was prosecuted. At the November session of the circuit court, Taney continued all of the treason cases until April, then he was too ill to attend either scheduled session in 1862. The dismissal of all treason indictments in May 1863 was followed by another indictment of Merryman on similar charges in July 1863, but still the case did not go to trial. In 1867, Andrew Ridgely, recently appointed Maryland’s U.S. attorney by President Andrew Johnson, signed an order, called a nolle prosequi, announcing his intention to drop the prosecution of Merryman on treason charges.


The failure to try the treason cases, like Taney’s unwillingness to enforce his
Merryman opinion, revealed the disruptions of the judicial process during the Civil War. In the trial courts, prosecutors could not expect to find impartial juries, especially in border states where most treason indictments were presented, and judges sympathetic to the South found ways to delay trials. When faced with judicial challenges to the President’s restrictions on civil liberties, some judges, like Taney, declined to test the authority of the judiciary against what they recognized as the superior power of the administration and the military. Others, sympathetic to the war goals of Lincoln, deferred to what they expected to be a temporary exercise of broad executive powers. The limits of the judiciary’s ability to enforce decisions and many judges’ recognition, shared with Lincoln, that preservation of the Union required extraordinary executive powers, discouraged the federal courts from resolving many of the constitutional questions raised by restrictions on civil liberties. This judicial record left few clear rules about the protection of those liberties, including the privilege of the writ of habeas corpus, when other crises threatened what the Constitution called “the public safety.”


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