Ex Parte Merryman (1861) – Guest Essayist: Allen Guelzo
On April 27, 1861, President Abraham Lincoln took one of the most dramatic steps ever taken by an American chief executive, and suspended the privilege of the writ of habeas corpus. He did so, under a provision in Article 1, section 9 of the Constitution: 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. But the rationale for the suspension, as well as the significance of the suspension itself, caused the most profound constitutional conflict in American history.
Habeas corpus means, literally, to “have the body” – it requires government officers to deliver an arrested person to a court of law so that the court may review the justice of that person’s imprisonment. As such, habeas corpus prevents executive or legislative authorities from apprehending and incarcerating individuals merely on political whim, without charges or without judicial hearings. In Anglo-American jurisprudence, habeas corpus was as old (and probably older) than Magna Carta. The great English jurist, Sir William Blackstone, considered habeas corpus as the principal protection any subject enjoyed from “confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten.” The American Founders wrote their provision for habeas corpus directly into the Constitution, and Alexander Hamilton, in The Federalist, lauded “the establishment of the writ of habeas corpus” since “the practice of arbitrary imprisonments, have been, in all ages, the favourite and most formidable instruments of tyranny.” The first legislation adopted by the new federal Congress in 1789 provided that “the justices of the supreme court, as well as judges of the district courts, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment.”
Nevertheless, habeas corpus has always had its limits. Any third party may petition the courts for a writ, but no court is compelled to issue it. Nor does the issue of a writ necessarily guarantee that the party for whom it is issued will be set free – only that their detention will be reviewed by a court. Moreover, the Constitution describes habeas in the passive – it shall not be suspended, unless – and fails to specify by whom the suspending may be done. The suspension clause had originally been part of Article 3, among the functions of the judiciary, but was moved by the Constitutional Convention’s committee on style to Article 1, as if to emphasize that this was a legislative function (a gesture confirmed by Chief Justice John Marshall, in ex parte Bollman in 1807).
With the outbreak of the American Civil War in April, 1861, habeas corpus at once became an issue, as anti-government mobs in the streets of Baltimore attacked Massachusetts and Pennsylvania militia passing through the city, en route to the defense of Washington, D.C, and sabotaged railroad and telegraph communications. The civil authorities in Baltimore were unable or unwilling to arrest rioters, and it was unclear whether local judges or juries would have convicted them even if arrests had taken place. In order to protect communication between Washington and the rest of the country, President Lincoln announced the suspension of the writ along the corridor from Washington to Philadelphia on April 27th, and authorized the U.S. military to begin arresting rioters and saboteurs.
Among those arrested was a Maryland landowner and militia officer, John Merryman, who was taken from his home in Cockeysville on May 25th and imprisoned at Fort McHenry. The next day, Merryman’s brother-in-law and lawyer travelled to Washington to petition Chief Justice Roger B. Taney for a writ of habeas corpus, which Taney, who was unsympathetic to the Lincoln administration, issued. The military commandant of Baltimore, Maj. Gen. George Cadwalader, was summoned to present Merryman in U.S. district court in Baltimore. On May 27th, however, Cadwalader refused Taney’s summons, citing the president’s suspension of the writ. Taney then issued a contempt citation on May 28th, which Cadwalader also ignored. Five days later, Taney released a comment on the case, known as ex parte Merryman.
The technical status of the comment has always been the first issue in ex parte Merryman, since Taney issued it in his co-capacity as a federal circuit judge, but prefaced it as being issued from his U.S. Supreme Court chambers as though it were the product of a full hearing before the Supreme Court. In it, Taney charged that Merryman’s arrest was irregular purely on its face, “upon vague and indefinite charges, without any proof, so far as appears. Under this order his house is entered in the night; he is seized as a prisoner, and conveyed to Fort McHenry, and there kept in close confinement.” But just as serious in Taney’s eyes was Lincoln’s assumption that he, and not Congress alone, had the authority to suspend habeas corpus. “Congress is of necessity the judge of whether the public safety does or does not require it; and its judgment is conclusive.” But even if Lincoln had some sort of authority of suspend the writ, it could only be a military authority for a military necessity, and could not extend to civilians like Merryman: “There was no danger of any obstruction or resistance to the action of the civil authorities, and therefore no reason whatever for the interposition of the military.”
Lincoln might have appealed ex parte Merryman to the full Supreme Court. Instead, he chose to ignore Taney’s comment as having no legal standing, and only replied to Taney in a message he drafted for Congress when it met in special session on July 4, 1861. Lincoln argued that he was obligated by the presidential oath to see that the laws were faithfully executed. If the only means for doing so was a suspension of the writ and the arrest of Merryman, then he would be culpable for not having taken such a step. “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?,” Lincoln asked. “Even in such a case, would not the official oath be broken, if the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it?” Besides, the Constitution’s provision for suspension of the writ, even though it occurs in Article 1, does not actually specify who was to do the suspending – merely that rebellion, invasion or endangerment of “the public Safety may require it.” And certainly, Lincoln observed, the situation in April and May of 1861 provided “a case of rebellion” in which “the public safety does require the qualified suspension of the privilege of the writ.” True, he might have turned to Congress first for an authorization; but Congress was not in session, and the “public Safety” had been sufficiently endangered by the Baltimore riots that Congress might easily have been prevented from meeting at all.
Lincoln was seconded in his response to Taney by Attorney General Edward Bates (on July 5th), by Philadelphia jurist Horace Binney in The Privilege of the Writ of Habeas Corpus under the Constitution (1862) and by Harvard law professor Joel Parker in Habeas Corpus and Martial Law: A Review of the Opinion of Chief Justice Taney, in the case of John Merryman (1862). Congress eventually confirmed Lincoln’s suspension of the writ in the Habeas Corpus Act of March 3, 1863, and Lincoln went on to suspend the writ in several other locales, eventually extending the suspension to the entire country and defending the suspension in his public letter of June 12, 1863, in reply to Erastus Corning. Nevertheless, the suspension of the writ continued to be contested in ex parte Vallandigham (1863) and ex parte Milligan (1866). Merryman was released to civil jurisdiction on July 13, 1861, and attempted unsuccessfully to sue General Cadwalader for wrongful imprisonment in 1864.
Ex parte Merryman (1861) Supreme Court decision:
Allen C. Guelzo is the Henry R. Luce Professor of the Civil War Era and a professor of history at Gettysburg College. Guelzo is the author of Lincoln’s Emancipation Proclamation: The End of Slavery in America.
James A. Dueholm, “Lincoln’s Suspension of the Writ of Habeas Corpus: An Historical and Constitutional Analysis,” Journal of the Abraham Lincoln Association 29 (Summer 2008)
Jonathan W. White, Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman (2011)
James G. Randall, Constitutional Problems Under Lincoln, rev. ed. (1951)