Ex parte Merryman

Ex parte Merryman

"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. Against President Abraham Lincoln's wishes, Chief Justice Roger Taney, sitting as a judge of the United States Circuit Court for the District of Maryland, ruled: "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."


Shortly after the April 12–April 14, 1861 bombardment of Fort Sumter by Confederate forces, President Lincoln called for volunteer troops to reinforce Washington against possible hostilities originating in nearby Virginia. When the Sixth Massachusetts Regiment ("loosely organized and armed abolitionists from Massachusetts" according to Poole) responded to the call and entered Baltimore, Maryland as they transferred between train stations on their way to the capital, a riot broke out. Several civilians and soldiers were killed when shooting began. That same day, Lincoln wrote to Attorney General Edward Bates, requesting an opinion on the suspension of the writ of habeas corpus. Also in response to the riots, Baltimore's Mayor Brown and Maryland Governor Hicks declared that they would allow no more troop transfers to go through their territory, and gathered five hundred thousand dollars "for the defense of the city". (Poole)

Lieutenant John Merryman, an officer in the Maryland cavalry, was part of the escort that ejected Union General Wynkoop and his Pennsylvanian forces from Maryland. He took a lead role in demolishing a bridge, so as to block any further troop movements. This was, nonetheless, probably more due to general dislike for the Union and hesitancy to become involved in the war than actual secessionist sentiment. (Poole)

While reluctant to do so, Lincoln eventually took the advice of his staff and wrote a letter to General Winfield Scott on April 27, 1861. In it, he allowed Scott (or an empowered subordinate) to suspend habeas corpus within the vicinity of the "military line" (Lincoln). This suspension was not announced, and was in fact carefully kept secret at first. By May, however, numerous delegates of the Maryland legislature had been arrested without grounds or even stated charges. Still, the suspension was not explicitly acknowledged. Merryman was at about this time also arrested and imprisoned at Fort McHenry. He swiftly protested this imprisonment and filed a petition for a writ of habeas corpus to release him from arbitrary imprisonment.

The case

Merryman's complaints went to the circuit judge of the area. The justices of the Supreme Court traditionally sat as circuit judges while the Supreme Court was not in session. (This practice, known as "circuit riding", was effectively ended in 1869.) (Hall 145) For this reason, Merryman's complaint was heard by Chief Justice Roger B. Taney. (Poole)

The clash between Taney and the various generals who essentially represented Lincoln is a good example of the conflict between idealism and pragmatism that characterizes much of the debate on this topic. Taney went by the lawbooks (although Taney was also a partisan opponent of Lincoln's Republican administration) and raged against Lincoln and unconstitutionally granting himself easily abused powers. Taney showed that Lincoln's actions were contrary to written law. The real question, which Taney addressed, was whether or not it was practically permissible for a President to take such actions. He argued that it was not, observing that none of the Kings of England exercised such power, and that therefore in this respect Lincoln was proving more monarchical and despotic than any actual English monarch. He closed his argumentation with the following fiery language (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, simply disregarded the ruling. Relying upon an 1880's manuscript from Lincoln's close friend Ward Hill Lamon, some scholars have contended that the President authorized then quickly aborted an arrest warrant against Taney in retaliation for the Merryman ruling. The manuscript and evidence are a relatively new discovery in the historical literature and the story's authenticity is hotly contested and controversial (see the Taney Arrest Warrant controversy).

Lincoln responded to the Merryman decision by asking his Attorney General Edward Bates for an opinion supporting his suspension. He characterized the argument as one that is convincing only to a "true believer." It nevertheless 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 on July 4th Congress rejected a bill favored by Lincoln to sanction his suspensions. Between 1861 and 1863 several additional federal district and circuit court rulings affirmed Taney's opinion. Lincoln nevertheless continued making unauthorized suspensions for another two years until the Habeas Corpus Act of March 3, 1863 formally suspended the writ for him.

The Merryman decision is still among the best known Civil War-era court cases and also 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" (1807) and was recently restated by the Supreme Court in "Hamdi v. Rumsfeld" (2004).


* Hall, Kermit L. (Ed.) (1992). "The Oxford Companion to the Supreme Court of the United States". Oxford University Press.
* Lincoln, Abraham (April 27, 1861). [http://www.civilwarhome.com/Writ.htm 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.
* Poole, Patrick S. (1994). " [http://social.chass.ncsu.edu/middleton/All_Indexes/documents/MerrymanbyPoole.pdf An Examination of Ex Parte Merryman] ".
* Rehnquist, William, Chief Justice (1997). " [http://www.law.indiana.edu/ilj/v72/no4/rehnquis.html Civil Liberty and the Civil War] ".
* Taney, Roger B., Chief Justice (1861). " [http://www.tourolaw.edu/Patch/Merryman/ Ex parte Merryman] ". ( [http://www.civil-liberties.com/pages/suspension.htm 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.]


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