Ex parte Merryman and Debates on 

Civil Liberties During the Civil War

by

Bruce A. Ragsdale

Director, Federal Judicial History Offi ce, 

Federal Judicial Center

Prepared for inclusion in the project

Federal Trials and Great Debates in United States History

Federal Judicial Center

Federal Judicial History Offi ce

2007

This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory mission to “conduct, coordinate, and encourage programs relating to the history of 

the judicial branch of the United States government.” The views expressed are those of the 

author and not necessarily those of the Federal Judicial Center.
The author thanks Jonathan W. White for assistance in the research for this unit. 
Ex parte Merryman and Debates on Civil Liberties During the Civil War

iii

Contents

Ex parte Merryman: A Short Narrative, 1

Introduction, 1

Threat of secession, 1

The arrest of Merryman, 2

Chief Justice Taney in court, 2

The military resists, 3

Limited orders of the court, 3

Taney’s opinion, 4

Lincoln on habeas corpus, 5

The attorney general’s opinion, 6

Suspensions of habeas corpus, 7

Military arrests and popular protests, 7

The fate of Merryman, 8

Conclusion, 9

The Federal Courts and Their Jurisdiction, 10

U.S. Circuit Court for the District of Maryland, 10

U.S. District Court for the District of Maryland, 10

Circuit court or Supreme Court? 11

The Judicial Process: A Chronology, 12

Legal Questions Before the Court, 14

Did the President have authority to suspend the privilege of the writ of habeas 

corpus? 14

Could the military detain an individual on charges of violating U.S. law? 14

What jurisdiction did the federal courts have over a petition for a writ of habeas corpus 

from an individual detained by the military? 15

What did the federal courts decide in related cases? 16

In re McDonald, U.S. District Court for the Eastern District of Missouri, 16

Ex parte Vallandigham, U.S. Circuit Court for the Southern District of Ohio, 17

Ex parte Milligan, Supreme Court of the United States, 19

Ex parte McCardle, Supreme Court of the United States, 20

Legal Arguments in Court, 22

Lawyer for John Merryman, 22

The Lincoln administration, 22

Biographies, 23

Abraham Lincoln, 23

George Cadwalader, 24

William Fell Giles, 26

John Merryman, 26

Roger Brooke Taney, 28
Ex parte Merryman and Debates on Civil Liberties During the Civil War

iv

Media Coverage and Public Debates, 30

Historical Documents, 32

Petition for a writ of habeas corpus, John Merryman, 32

Ex parte Merryman, opinion of Chief Justice Roger Taney, 33 

Lincoln’s orders on habeas corpus, 36

Roger Taney to Franklin Pierce, 37

President Abraham Lincoln, message to Congress in special session, 37

Opinion of Attorney General Edward Bates, 39

Horace Binney, The Privilege of the Writ of Habeas Corpus Under the Constitution, 40

Edward Ingersoll, Personal Liberty and Martial Law: A Review of Some Pamphlets of the 

Day, 42

Abraham Lincoln to Erastus Corning and others, 43

Constitutional and statutory authorities, 44

Newspaper Coverage, 47

New-York Daily Tribune, May 30, 1861. “Martial Law – Habeas Corpus,” 47 

New York World, June 7, 1861. “Taney vs. Taney,” 47 

Baltimore American and Commercial Advertiser, June 4, 1861. “The Habeas Corpus 

Case,” 48 

New York Weekly Journal of Commerce, June 6, 1861. “Habeas Corpus,” 48 

Popular Culture, 49

“John Merryman” song sheet, 49

“Maryland, My Maryland,” 50

Lincoln as Don Quixote, 52

Bibliography, 53
Ex parte Merryman and Debates on Civil Liberties During the Civil War

1

Ex parte Merryman: A Short Narrative

Introduction

In the early weeks of the Civil War, a brief proceeding in a federal court in Maryland 

revealed to the public an inherent confl ict 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 offi cial 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 fi rst 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 fi rst 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 fi lled 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 Winfi eld Scott, the commanding gen-
Ex parte Merryman and Debates on Civil Liberties During the Civil War

2

eral of the Army, to counter any effort to arm Maryland citizens against the federal 

government. Lincoln endorsed the use of “the most prompt, and effi cient 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 fi nal 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 

offi cer, General George Cadwalader. Merryman was arrested on orders of another 

U.S. Army general from Pennsylvania on suspicion that Merryman was an offi cer in 

a “secession company” that possessed federal arms and intended to use them against 

the government. The arresting offi cers testifi ed 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-fouryear-old Chief Justice was by 1861 so closely linked with the sectional confl ict 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 
Ex parte Merryman and Debates on Civil Liberties During the Civil War

3

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 profi le 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 offi cers 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 offi cer 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 offi cer arrested a person not subject to the rules and articles 

of war, that offi cer 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 fi le 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
Ex parte Merryman and Debates on Civil Liberties During the Civil War

4

proceedings to President Lincoln. “It will then remain for that high offi cer, . . .” 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 defl ected 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 fi ling 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 offi cers from carrying out their responsibilities, but the action of 

the military offi cers had “thrust aside the judicial authorities . . . and substituted a 

military government in its place.” Taney carefully laid out the steps by which a military offi cer, 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 offi cer 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 offi cers. 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.
Ex parte Merryman and Debates on Civil Liberties During the Civil War

5

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

6

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 offi ce would be to allow the government 

to be overthrown as a result of an overly cautious regard for a single law. 

 Lincoln was confi dent 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 justifi ed 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.
Ex parte Merryman and Debates on Civil Liberties During the Civil War

7

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 offi cer 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 offi cers 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 defi ned cases, including those arising from the increasingly common judicial 

challenges to the draft. In July of 1864, the President’s last proclamation regarding 

habeas reaffi rmed 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 offi cers, 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, 
Ex parte Merryman and Debates on Civil Liberties During the Civil War

8

or violations of commercial blockades, but high-profi le 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 offi cers 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 confi ned 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 unjustifi ed 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 
Ex parte Merryman and Debates on Civil Liberties During the Civil War

9

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.

Conclusion

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 fi nd 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.”
Ex parte Merryman and Debates on Civil Liberties During the Civil War

10

The Federal Courts and Their Jurisdiction

U.S. Circuit Court for the District of Maryland

The circuit courts of the federal judiciary were established by the Judiciary Act of 

1789 and served as the most important trial courts in the federal system for most 

of the nineteenth century. They had jurisdiction over federal crimes, over suits between citizens of different states (known as diversity jurisdiction), and over most 

cases in which the federal government was a party. They also had jurisdiction over 

some appeals from the U.S. district courts. Except for a brief period in 1801–1802, 

the circuit courts before 1869 did not have their own judges. Supreme Court justices 

were assigned to regional circuits composed of several states and served with the local 

district judges on the circuit courts in the judicial districts of those states. The circuit 

courts were abolished by Congress in 1911.

 The Judiciary Act of 1789 granted the district and circuit courts and the Supreme 

Court authority to issue writs of habeas corpus in response to petitions from individuals detained under federal authority or committed to trial in a federal court. As 

the justice assigned to the Fourth Circuit, which in 1861 encompassed Maryland, 

Delaware, and Virginia, Chief Justice Roger Taney was authorized to preside over a 

habeas proceeding in the U.S. Circuit Court for Maryland.

U.S. District Court for the District of Maryland

The district courts were established by the Judiciary Act of 1789 and had jurisdiction over admiralty cases, lesser crimes, and smaller suits. An act of 1842 granted the 

district courts jurisdiction to try all non-capital criminal cases, and an act of 1846 

allowed grand juries in the district courts to present indictments for any crime within 

the jurisdiction of circuit as well as district courts. The latter act also required district 

courts to remit to the next session of the U.S. circuit court all indictments for capital 

offenses, including treason. A grand jury in the U.S. District Court for Maryland 

brought two indictments for treason against John Merryman, and district Judge 

William Giles remitted both indictments to the circuit court for trial. Merryman was 

never tried on the treason charges brought against him in 1861 and 1863. 
Ex parte Merryman and Debates on Civil Liberties During the Civil War

11

Circuit court or Supreme Court?

Chief Justice Taney suggested he was acting as a Supreme Court justice “in chambers,” 

meaning outside a regular session of the Court, and several historians have concluded 

that Ex parte Merryman was a Supreme Court case. As he would in other circuit court 

sessions, Taney initially sat on the bench with the district judge for Maryland, William 

Giles, but on the day he announced his opinion, Taney explained that he was acting 

“in his capacity as Chief Justice” and that Giles had appeared only to offer his counsel. Taney, according to a friend, also crossed out the reference to himself as a circuit 

judge in the petition from Merryman’s lawyers. In an order to the clerk of the circuit 

court, Taney initially wrote that his opinion and the records of the proceedings were 

to be fi led with the Supreme Court, but he deleted the reference to the high court and 

replaced it with the circuit court. Taney appears to have represented himself as Chief 

Justice to the extent that he could without asserting the authority of the Supreme 

Court, which he knew would have had no jurisdiction in the case.

 A Supreme Court decision of 1807 had asserted that the Supreme Court had 

authority to issue a writ of habeas corpus only to petitioners who were held under 

an order of a lower federal court. In Ex parte Bollman, Chief Justice John Marshall 

had declared that the issuance of a writ of habeas corpus was not part of the original 

jurisdiction of the Court defi ned by the Constitution and, as he had already established in Marbury v. Madison, that Congress could not expand the Supreme Court’s 

original jurisdiction. According to this decision, the Supreme Court would have no 

jurisdiction over the petition of John Merryman, who was detained by the military 

rather than a federal court. A later account by a confi dante of Taney indicated that 

the Chief Justice acknowledged the full Supreme Court had no jurisdiction over the 

Merryman case, but that Taney believed the Judiciary Act of 1789 gave individual 

Supreme Court justices authority to issue writs of habeas corpus to any petitioner 

held by a federal authority. (No court had so decided.)

 Taney realized that his jurisdictional authority in Ex parte Merryman was irrelevant, since he was exercising no judicial power apart from the orders to fi le the records 

of the proceedings and to send a copy to President Lincoln. The opinion without 

a decision was more of a political challenge to the President than a constitutional 

standoff between two branches of government, and Taney used his prominence as 

Chief Justice in hopes of inciting further public criticism of Lincoln’s unprecedented 

assumption of war powers.
Ex parte Merryman and Debates on Civil Liberties During the Civil War

12

The Judicial Process: A Chronology

May 25, 1861

John Merryman was arrested by federal troops at his home in Baltimore County. 

He was detained by General George Cadwalader at Fort McHenry, near Baltimore. 

Merryman’s lawyers presented Chief Justice Roger Taney with a petition for a writ 

of habeas corpus.

May 26, 1861

Taney, sitting in the U.S. circuit courtroom in Baltimore, issued the writ. The marshal 

for the District of Maryland presented General Cadwalader the writ, demanding the 

appearance of the general and Merryman before the circuit court. Cadwalader refused 

to appear and sent the court a letter asking for a delay until he received instructions 

from President Lincoln.

May 27, 1861

Taney refused to delay and issued a writ of attachment for contempt against Cadwalader. A guard at Fort McHenry refused to admit the marshal or to deliver the 

attachment to Cadwalader.

May 28, 1861

Taney issued an oral opinion stating that Merryman was entitled to be freed because 

the President did not have authority to suspend habeas corpus and the military was 

obligated to turn over to civil authorities any person it arrested if the person was not 

subject to articles of war, but Taney issued no order to release Merryman.

June 1, 1861

Taney presented a written opinion in Ex parte Merryman. 

July 10, 1861

Merryman was indicted in the U.S. District Court for Maryland on charges of treason.
Ex parte Merryman and Debates on Civil Liberties During the Civil War

13

July 13, 1861

Judge William Giles remitted the Merryman case to the U.S. Circuit Court for Maryland.

May 6, 1863

On motion of the U.S. attorney for Maryland, all pending indictments for treason 

were quashed.

July 28, 1863

Merryman was indicted again in the U.S. District Court for Maryland. Judge William 

Giles remitted the indictment to the U.S. Circuit Court for Maryland.

April 23, 1867

U.S. Attorney Andrew Ridgely entered a nolle prosequi in United States v. Merryman, 

thus ending prosecution of the treason case.
Ex parte Merryman and Debates on Civil Liberties During the Civil War

14

Legal Questions Before the Court

Did the President have authority to suspend the privilege 

of the writ of habeas corpus?

Chief Justice Taney said that the President did not have the authority to suspend 

the privilege of the writ of habeas corpus and that the Constitution reserved that 

authority for the Congress. 

 Taney based his opinion in Ex parte Merryman on the Constitution, the tradition of habeas corpus in English law, and a decision of the Supreme Court. The 

Constitution’s only reference to habeas corpus appeared in Article I, Section 9, which 

enumerated powers that the Congress was prohibited from exercising. Although 

that clause of the Constitution did not specify which branch of government had the 

limited authority to suspend the privilege of the writ of habeas corpus in times of 

crisis, Taney, like most earlier commentators, assumed that placement of the clause 

in Article I indicated that the power to suspend was limited to the Congress. Taney’s 

review of English law demonstrated that the monarch had long been prohibited 

from suspending the privilege of habeas and that English legal authorities agreed 

that suspension was the prerogative of the Parliament. Taney cited a Supreme Court 

decision of 1807, in which Chief Justice John Marshall had written that the Congress 

alone had the authority to suspend the privilege to the writ, and Justice Joseph Story’s 

famous Commentaries, which said only the Congress could determine if a rebellion 

or invasion justifi ed suspension.

 In the opening of his opinion, Taney expressed “some surprise” at reports that 

Lincoln claimed the authority to suspend the writ, “for I had supposed it to be one 

of those points of constitutional law upon which there was no difference of opinion, 

and that it was admitted on all hands, that the privilege of the writ could not be 

suspended, except by act of Congress.”

Could the military detain an individual on charges of 

violating U.S. law?

Chief Justice Taney said that a military offi cer had no authority to arrest an individual 

for a criminal offense. If a member of the military suspected an individual of violating 

a U.S. law, he had an obligation to inform the U.S. attorney, who would determine if 

the matter should be brought before a district judge or a commissioner authorized 

to issue an arrest warrant.
Ex parte Merryman and Debates on Civil Liberties During the Civil War

15

 Taney offered some of his strongest language to condemn the actions of the military offi cers who ordered and carried out the arrest of Merryman. They had “by force 

of arms, thrust aside the judicial authorities and offi cers to whom the constitution has 

confi ded the power and duty of interpreting and administering the laws, and substituted a military government in its place.” The arrest and detainment of Merryman, 

according to Taney, had violated essential rights guaranteed by the Constitution’s Bill 

of Rights. Merryman had been seized without a warrant and with no presentation 

of evidence, in violation of the Fourth Amendment; he had been detained without 

any hearing or other due process of law, in violation of the Fifth Amendment; and 

he was now held at a “strongly garrisoned fort,” with no prospect of a speedy trial 

in a court of justice, in violation of the Sixth Amendment. If the military had this 

authority to decide what constituted a crime and what constituted suffi cient evidence 

to imprison someone, “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 offi cer in whose military district he may be found.”

 Taney also asserted that the military offi cers had no reasonable expectation that 

the civil authorities would be unable to enforce the law, since no one in Maryland 

had heretofore resisted the process of any federal court or judicial offi cer. The district judge, the commissioner, the district attorney, and the marshal for the District 

of Maryland all lived within a few miles of Merryman, and would have been easily 

accessible to a military authority who suspected treasonous activity.

What jurisdiction did the federal courts have over a 

petition for a writ of habeas corpus from an individual 

detained by the military?

Section 14 of the Judiciary Act of 1789 authorized federal courts as well as individual 

district judges and Supreme Court justices to issue writs of habeas corpus to inquire 

into the reasons for a commitment, or imprisonment, under the order of a federal 

court or other federal authority. Although most habeas writs issued by the federal 

courts related to criminal proceedings, some federal courts had issued writs of habeas 

corpus to individuals held by the military, such as in New Orleans in the closing days 

of martial law imposed during the War of 1812. A Supreme Court decision of 1807 

limited the Supreme Court’s habeas jurisdiction to appeals of lower federal court 

orders and thus excluded military prisoners from submitting petitions directly to 

the high Court. 

 Although Chief Justice Taney acknowledged that the Supreme Court did not 

have jurisdiction to issue a writ of habeas corpus to an individual held in custody 

by the military, he reportedly believed that individual justices, sitting “in chambers” 

(outside a regular court session), did have such authority. In the Merryman proceed-
Ex parte Merryman and Debates on Civil Liberties During the Civil War

16

ings, however, Taney was intentionally vague about whether he has acting as Chief 

Justice in chambers or as the circuit justice for the U.S. Circuit Court for Maryland. 

In 1867, Chief Justice Salmon Chase denied a habeas petition from a military prisoner 

whose attorney cited Taney’s personal belief in a justice’s authority to grant the writ 

in chambers. Although the decision was unpublished, Chase privately told a senator 

that he had denied the petition because justices sitting on their own had the authority 

to grant habeas writs only to petitioners from their assigned circuits.

What did the federal courts decide in related cases?

In re McDonald, U.S. District Court for the Eastern District of Missouri, 

1861 (16 Federal Cases 17)

Just days before the arrest of Merryman, another Army general in another border 

state refused to appear in a federal court in answer to a writ of habeas corpus. Like 

Taney, the federal judge in the Eastern District of Missouri declined to enforce the 

writ but offered a strongly argued defense of the judiciary’s authority to enforce 

constitutional rights even in the midst of a civil war.

 Emmett McDonald served as a captain in a Missouri militia company that in the 

spring of 1861 gathered arms at a camp named for the state’s secessionist governor 

and prepared to attack the U.S. arsenal in nearby St. Louis. On May 10, federal forces 

took control of the militia’s camp, seized the arms, and forced the militia members 

to march to St. Louis. Gathering crowds taunted the federal forces and sang cheers 

to Jefferson Davis and the Confederacy. Fighting broke out, leaving several dead and 

numerous civilians wounded. The militia members were released on the condition 

that they pledge not to take up arms against the Union, but McDonald refused and 

remained in the custody of the U.S. forces. McDonald then petitioned the U.S. District 

Court for the Eastern District of Missouri for a writ of habeas corpus, which was 

granted by Judge Samuel Treat and delivered to General William Harney, who had 

just assumed command of the Army’s Department of the West. By the time Harney 

received the writ, he had transferred McDonald to the custody of troops in Illinois, 

outside the court’s jurisdiction.

 General Harney did not appear in court and sent a letter explaining that McDonald was not in his custody. Harney informed Treat that the existing crisis in Missouri 

compelled him to observe a “higher law,” even if it appeared he was violating the 

forms of law. Although Lincoln’s authorization of the suspension of habeas corpus 

did not extend to Missouri, Harney believed that the President’s order to disperse 

“all armed rebels hostile to the United States” justifi ed his predecessor’s raid on the 

militia camp and the detention of McDonald. The general added that if McDonald 

had been in his custody, he would have taken no action to release a prisoner who had 

been a member of the offending militia.
Ex parte Merryman and Debates on Civil Liberties During the Civil War

17

 Judge Treat had no options for enforcing the writ, but he fi led in the district court 

a lengthy opinion that established the jurisdiction of his court over habeas petitions 

from persons detained by the military. Treat’s exhaustive survey of habeas decisions 

in the federal courts and English precedents led him to conclude that Section 14 of 

the Judiciary Act of 1789 granted federal courts the authority to issue writs of habeas 

corpus to prisoners detained by any federal authority, not just those arrested by formal judicial process. The judge emphasized that the protections of the Bill of Rights 

were most likely to be ignored by authorities outside the courts, where the established 

procedure demanded some public explanation of an arrest and commitment. If the 

courts were denied jurisdiction over habeas writs from those held by the military or 

other federal authorities outside the judiciary, then citizens would be “powerless when 

arbitrary will, assuming to act in the name of the United States, chooses to trample 

upon every constitutional guarantee for the protection of individual liberty.”

 When Congress reconvened in early July, Representative Francis Preston Blair of 

Missouri introduced a bill to consolidate Missouri as a single judicial district and thus 

eliminate Treat’s judgeship. The bill passed the House within a few weeks but failed 

in the Senate, and Treat continued to serve as a federal judge until his retirement in 

1887. Emmett McDonald eventually fought for the Confederacy and was killed in 

action in 1864.

Ex parte Vallandigham, U.S. Circuit Court for the Southern District of 

Ohio, 1863 (28 Federal Cases 874)

In the denial of a writ of habeas corpus for a prominent politician imprisoned by 

the military, a federal judge from Ohio offered military offi cers enormous discretion in the suppression of public sympathy for the Confederacy or of criticism of 

the President’s war strategy.

 Representative Clement Vallandigham of Ohio was one of Lincoln’s fi ercest critics in the Congress during the fi rst years of the Civil War. As a nationally known and 

charismatic “Copperhead,” Vallandigham used his seat in the House of Representatives to challenge the President’s leadership and to condemn the abolitionists, whom 

he blamed for the war. Vallandigham lost reelection to a fourth term in Congress 

and returned to Ohio, where he planned to run for governor. In May 1863, before a 

large crowd in Mount Vernon, Ohio, Vallandigham attacked General Orders No. 38, 

in which General Ambrose Burnside of the Department of the Ohio had recently 

declared martial law and made it a crime to express any public sympathy with the 

Southern rebels. Burnside ordered Vallandigham’s arrest and trial by a military commission on charges of giving aid and comfort to Confederate forces and attempting 

to weaken public support for the government. The commission found Vallandigham 

guilty and sentenced him to imprisonment for the duration of the war.
Ex parte Merryman and Debates on Civil Liberties During the Civil War

18

 Vallandigham petitioned the U.S. Circuit Court for the Southern District of Ohio 

for a writ of habeas corpus. After soliciting arguments from Burnside and his counsel 

as well as from the lawyers for Vallandigham, Judge Humphrey Leavitt denied the writ. 

An earlier decision by the same court had established that a habeas writ would not 

be granted if the judges were confi dent that no subsequent order of the court would 

result in the release of the prisoner. Leavitt was convinced that the Army would not 

obey an order in this case, but he also offered a substantive and potentially far-reaching 

argument for denying the writ of habeas corpus. Vallandigham’s lawyers had argued 

that an individual who was not in military service, and therefore not subject to the 

rules of war, could not be arrested by the military or tried before a military commission. Judge Leavitt acknowledged that by the strict standards of the Constitution, 

the arrest violated civil liberties protected by the Bill of Rights, but Leavitt said that 

“the court cannot shut its eyes to the grave fact that war exists.” With the republic 

in peril, a judge needed to interpret the Constitution so as to serve the larger goal 

of saving the nation from “hopeless ruin.” Leavitt also deferred to the judgment of 

military offi cers who were charged with carrying out the President’s orders to preserve 

and defend the Union. In time of war, it was impossible for a judge to know all that 

the President and his generals needed to do to preserve the Union. Leavitt cited the 

recent Emancipation Proclamation as an example of the expansive powers justifi ed 

by military necessity. The legality of an arrest ultimately “depended on the necessity 

for making it.”

 After the denial of the habeas writ, Vallandigham’s lawyers petitioned the Supreme 

Court for a writ of certiorari to review his trial by the commission. The Supreme 

Court, citing a lack of jurisdiction over appeals from a military tribunal, denied the 

writ.

 Lincoln and his cabinet had no advance notice of Burnside’s general order or of 

his decision to arrest Vallandigham. Secretary of War Edwin Stanton feared that the 

circuit justice might grant the writ of habeas corpus, and he prepared for Lincoln 

an order suspending habeas corpus in this case. Lincoln declined to issue the order. 

Following Vallandigham’s conviction and the denial of his habeas petition, Lincoln 

commuted the prison sentence and ordered General Burnside to send Vallandigham 

to a Confederate general in Tennessee. Vallandigham soon left the Confederate states 

and went to Canada, from where he monitored his unsuccessful campaign for governor of Ohio. He returned to the United States in 1864 and campaigned against 

Lincoln’s reelection.
Ex parte Merryman and Debates on Civil Liberties During the Civil War

19

Ex parte Milligan, Supreme Court of the United States, 1866 (71 U.S. 

Reports 2)

Lambdin Milligan of Indiana was suspected to be a member of a secret society, the 

Order of American Knights, that allegedly conspired to seize arms at a U.S. arsenal 

and to free Confederate prisoners of war. He was arrested by Army offi cers in October 1864 and tried by a military commission on charges of conspiracy against the 

government, aiding the rebels, inciting insurrection, disloyal practices, and violating the laws of war. The commission found Milligan and two collaborators guilty 

and sentenced them to death by hanging. Lincoln delayed the execution, but after 

Lincoln’s assassination, President Andrew Johnson ordered the military to proceed 

with the punishment. Nine days before the scheduled execution, lawyers for Milligan 

petitioned the U.S. Circuit Court for Indiana for a writ of habeas corpus. The petition 

stated that the Habeas Corpus Act of 1863 provided that Milligan, who had never 

served in the military, should either have been brought before a civilian court to be 

tried or been released from custody.

 The judges of the circuit court, Justice David Davis and Judge David McDonald, 

differed on the questions of the issuance of a habeas writ, the release of Milligan from 

custody, and the jurisdiction of the military commission. As provided for by law, the 

judges certifi ed their split and sent the case to the Supreme Court. All nine justices 

voted to overturn the verdict of the military commission, but they disagreed about 

the grounds of their decision.

 Justice Davis wrote for the majority in an opinion based on constitutional rights. 

The end of “the late wicked Rebellion” offered the opportunity for a more reasoned 

consideration of the questions presented by the case, and Davis thought that “no 

graver question was ever considered by this Court.” One of the clearest provisions 

of the Constitution was “infringed when Milligan was tried by a court not ordained 

and established by the Congress, and not composed of judges appointed during good 

behavior.” The arrest and trial of Milligan violated the protection against search and 

seizure without a warrant, the guarantee of a jury in a criminal trial, and the requirement for a grand jury indictment in a charge carrying the death penalty. Davis went 

beyond these questions of constitutional protections in criminal procedure to disallow 

the establishment of military commissions in areas where the civilian courts continued to operate without interruption. “Martial law can never exist where the courts 

are open, and in the proper and unobstructed exercise of their jurisdiction.” Davis 

also held that martial law could be imposed only in areas that are in rebellion or in 

which an invasion has already occurred, and that the threat of an invasion was never 

suffi cient to justify martial law. The safety of the country had not required martial 

law in Indiana, where the federal courts were capable of trying anyone accused of 

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

20

 Chief Justice Salmon Chase wrote a concurring opinion for the minority of four 

justices and based his decision solely on the statutory authority provided by the Habeas Corpus Act of 1863. As Davis had also held, Chase wrote that the wartime statute 

granted military authorities the power to arrest without being held answerable to a 

writ of habeas corpus, but this expansive power was limited by the act’s requirement 

that the military report to the federal courts the names of all individuals arrested and 

that following the end of the next grand jury meeting, all prisoners not indicted could 

petition the federal judge for release. The military commission in Indiana had met 

neither of those requirements. The four-justice minority asserted that the Congress 

had the authority to establish the military commission that was held in Indiana.

 Although the Milligan decision would be celebrated as a landmark case in civil 

liberties, it initially faced enormous criticism, particularly from Republicans who 

feared that it would undermine the use of military commissions to enforce equal 

rights for freed slaves and Unionists in the South. Radical Republicans, like Thaddeus 

Stevens of Pennsylvania, linked the Milligan decision with Dred Scott, and feared that 

the Supreme Court would once again come to the defense of the white South.

Ex parte McCardle, Supreme Court of the United States, 1869 (74 U.S. 

Reports 506)

William McCardle was arrested by offi cers of the military government of Mississippi 

established under the Reconstruction Act of 1867, and he was tried by a military 

commission on charges of publishing libelous articles in his newspaper. McCardle’s 

attorney petitioned the U.S. Circuit Court for Mississippi for a writ of habeas corpus, 

and on the return argued that by the terms of Ex parte Milligan, McCardle could not 

be tried by a military court in a state with a functioning civil federal court. Judge 

Robert Hill of the circuit court denied McCardle’s release and returned him to the 

custody of the military government. Under the terms of the Habeas Corpus Act of 

1867, McCardle appealed Hill’s circuit court decision to the Supreme Court, and the 

case was argued over four days in early March 1868. The 1867 act gave the federal 

courts jurisdiction to grant habeas writs to individuals held by state as well as federal 

authorities, and it provided a right of appeal to the Supreme Court from any habeas 

decision in the U.S. circuit courts.

 Congress, fearing that the Supreme Court might declare unconstitutional the 

Reconstruction Act of 1867, in late March and before the Court announced a decision, 

repealed the 1867 provision for habeas appeals to the Supreme Court. Chief Justice 

Salmon Chase, citing the Congress’s constitutional authority to defi ne the Supreme 

Court’s appellate jurisdiction, declared in a unanimous opinion that the 1868 repeal 

act denied the Court any jurisdiction in the case, and the Supreme Court dismissed 

McCardle’s appeal.
Ex parte Merryman and Debates on Civil Liberties During the Civil War

21

 Chase noted at the close of his opinion that the Supreme Court retained the habeas jurisdiction granted by the Judiciary Act of 1789. In 1869, the Supreme Court 

relied on that jurisdiction in the case of Edward Yerger, who was tried for murder by 

a military commission in Mississippi. Yerger had petitioned the U.S. Circuit Court 

for the District of Mississippi for a writ of habeas corpus, and, after a hearing, that 

court remanded Yerger to military custody. Yerger’s attorneys then petitioned a Supreme Court justice to issue a writ of habeas corpus. The Supreme Court ruled that 

the appellate jurisdiction defi ned by the Judiciary Act of 1789 gave it the authority 

to issue a writ to Yerger because he remained in custody as a result of a decision of 

a U.S. circuit court. 
Ex parte Merryman and Debates on Civil Liberties During the Civil War

22

Legal Arguments in Court

Lawyer for John Merryman

In the petition signed by John Merryman and addressed to Chief Justice Roger Taney, 

attorney George Williams argued that the arrest without a warrant violated Merryman’s constitutional rights. Merryman had been arrested and detained without any 

legal authority from a court, a magistrate, or other civil offi cer, and was thus entitled 

to be “discharged and restored to liberty.” The petition also denied that Merryman 

was an offi cer of the local militia, as alleged by the arresting military offi cer. 

 George Williams interviewed John Merryman within hours of his arrest and 

confi nement at Fort McHenry. Merryman signed the petition, but General George 

Cadwalader, the commanding offi cer of the fort, refused to allow Williams to examine any documents related to the detention of Merryman. The petition stands as the 

only documentation of the lawyer’s argument in favor of the writ since no formal 

arguments were presented before the court. 

The Lincoln administration

No lawyers appeared before Chief Justice Taney to defend the military’s arrest and 

detention of John Merryman. General George Cadwalader, whom Taney ordered to 

appear with Merryman, dispatched his aide, Colonel Lee, to read the general’s letter to 

Taney explaining that Merryman was held on charges of treason and support for the 

armed rebellion against the government. Cadwalader added that he was authorized by 

the President to suspend the writ of habeas corpus when public safety so required. 

 Although no representative of the Lincoln administration appeared in a court to 

defend the suspension of the privilege of habeas corpus, Lincoln prepared his own 

explanation for the Congress when it convened on July 4, 1861, and his attorney 

general, Edward Bates, subsequently presented a more detailed justifi cation. Lincoln 

also argued that the constitutional authority to suspend the privilege of habeas corpus could be exercised by the President in the event of an insurrection or invasion, 

when the severity of the crisis required action before Congress could be called back 

into session. Although Lincoln denied that he had violated any law, he asserted that 

his constitutional oath to preserve the Union took precedence over the observation 

of a single law protecting habeas corpus. 
Ex parte Merryman and Debates on Civil Liberties During the Civil War

23

Biographies

Abraham Lincoln (1809–1865)

By the time of his inauguration on March 4, 

1861, President Abraham Lincoln faced an unprecedented threat to the constitutional union 

of states. Seven states had seceded and formed a 

separate Confederate government, determined 

to control federal property within its borders. 

Lincoln’s decision to provision and defend Fort 

Sumter in South Carolina prompted an attack 

from Confederate forces and led to the secession 

of four more states. As he prepared the nation 

for war, Lincoln confronted the threat of disloyal 

citizens in states that remained in the Union. 

Nowhere was that threat greater than in the border states of Missouri, Kentucky, and, especially, 

Maryland, with its strategic location surrounding 

the northern side of the nation’s capital, which 

already faced a Confederate Virginia across the 

Potomac. 

 Lincoln’s initial authorization of the suspension of habeas corpus was part of his strategy to 

secure Maryland for the Union. Lincoln rejected 

the military’s advice to arrest Maryland legislators before they convened to consider secession, but he authorized the commanding general of the Army to take the 

necessary measures to counteract any armed threat from Maryland, including “the 

bombardment of their cities—and in the extremest necessity, the suspension of the 

writ of habeas corpus.” Although the state assembly did not vote to secede, the mob 

attacks on federal troops in Baltimore and the sabotage of railroad and communication lines convinced Lincoln to authorize explicitly the suspension of habeas corpus 

along the route traveled by federal troops on their way from Philadelphia to Washington. Under this authority, Army offi cers arrested and detained John Merryman. 

 Lincoln never directly responded to Chief Justice Taney’s challenge to “respect” 

and “enforce” the civil process of the courts, but in several public messages, Lincoln 

explained that in the midst of a rebellion, defending the viability of a constitutional 

government based on the consent of the governed was a more important presidential responsibility than scrupulously observing specifi c protections of civil liberties. 

President Abraham Lincoln

Photograph by Alexander Gardner. 

Courtesy of Prints and 

Photographs Division, Library of 

Congress [LC-USZX62-13016].
Ex parte Merryman and Debates on Civil Liberties During the Civil War

24

Lincoln insisted that the Constitution, as refl ected in its provision for suspension of 

habeas during invasions or insurrections, authorized different kinds of governmental power during a rebellion than it would permit in times of peace and domestic 

security. Lincoln would authorize the suspension of habeas corpus in eight orders 

during the Civil War, at one point extending the suspension over the entire nation. 

Lincoln also authorized military trials for civilians and some restrictions on freedom 

of speech and the press.

 At the opening of Congress in July 1861, Lincoln said the rebellion of Southern 

states presented the question: “Must a government, of necessity be too strong for the 

liberties of its own people, or too weak to maintain its own existence?” Throughout 

the Civil War, Lincoln sought to discern which limits on liberties were necessary to 

maintain the Union, without which he believed the Constitution would be meaningless. His resistance to the initial suspension of habeas, his call for caution in “arbitrary” military arrests, and his frequent rebuke of what he considered the excesses of 

his military commanders indicated Lincoln’s continual struggle to balance citizens’ 

liberty and the government’s strength in the midst of a Civil War that the framers 

could never have anticipated. Lincoln’s willingness to restrict or ignore civil liberties 

exposed him to intense criticism, even from many Northern supporters. Those who 

opposed the war effort were often scathing in their attacks on a man they saw as a 

proto-dictator. But however much Lincoln stretched the boundaries of executive 

authority, it was seldom without refl ection on history and constitutional law.

 As revealed in the July 4, 1861, message to Congress and the 1863 letter to Erastus 

Corning and other critics in Albany, New York, Lincoln’s defense of wartime restrictions on civil liberties elicited some of his most powerful writing and some of his 

most original thinking about the Constitution and the bonds of Union. His almost 

mystical notion of the Constitution as the embodiment of the founding generation’s 

trust in popular government guided and restrained his own policy toward civil liberties, even as that policy inevitably denied justice to innocent individuals and failed 

to establish clear legal guidelines for civil liberties in times of national crisis. 

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 

offi ce of the commanding general reminded Cadwalader that this authorization to 
Ex parte Merryman and Debates on Civil Liberties During the Civil War

25

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.

Brigadier General George Cadwalader

Mezzotint by John Sartain. 

Courtesy of Prints and Photographs 

Division, Library of Congress 

[LC-USZ62-92080].
Ex parte Merryman and Debates on Civil Liberties During the Civil War

26

William Fell Giles (1807–1879)

District judge, U.S. District Court for the District of Maryland

U.S. District Court Judge William Fell Giles regularly sat with Chief Justice Roger 

Taney in their joint capacity as judges on the U.S. Circuit Court for Maryland. Giles 

was at Taney’s side in the courtroom at the beginning of the proceedings in Ex parte 

Merryman, but before Taney announced his opinion on May 28, 1861, Taney explained 

that Giles would not be in court that day. Taney had requested the counsel of Giles 

at the earlier session, but he asserted that he issued the writ of attachment against 

General Cadwalader by himself in his capacity as Chief Justice of the United States. 

Giles therefore did not need to be in court to hear the return on the writ, and Taney 

added that he did not want to prevent Giles from attending “an important church 

meeting” that Tuesday morning. Giles was also absent from the special circuit court 

session of June 3, 1861, when Taney ordered the record of the Merryman proceedings 

to be fi led with the court and a copy to be sent to President Lincoln.

 Giles presided in the U.S. district court in July 1861 when a grand jury presented 

an indictment of John Merryman on charges of treason and in July 1863 when Merryman was indicted again following the dismissal of the original charges. Giles remitted both indictments to the U.S. circuit court, which had exclusive jurisdiction over 

the trial of capital crimes. Although Giles would be present at the regular sessions of 

the circuit court during the remainder of the Civil War, Merryman never faced trial 

because of Taney’s several postponements and repeated illnesses. 

 Giles was born in Harford County, Maryland, and read law before he entered 

practice in Baltimore. He served as a member of the Maryland House of Delegates 

from 1838 to 1840, and he defeated noted author John Pendleton Kennedy to win 

election as a Democrat for the U.S. House of Representatives. Giles served one term 

in Congress from 1845 to 1847 and returned to private practice. He was also a longtime offi cer in the American Colonization Society, which supported the emigration 

of free African Americans to Liberia. In 1853, President Franklin Pierce offered Giles 

a recess appointment as judge of the U.S. District Court for Maryland, and the Senate 

confi rmed his nomination in January 1854. Giles served as a federal judge until his 

death in Baltimore. 

John Merryman (1824–1881)

John Merryman was born in Baltimore County to an old landed Maryland family. As 

a young man, he worked briefl y in a counting house in Puerto Rico, but spent most 

of his adult life managing his estate and farm lands. In 1843, he settled at Hayfi elds 

Estate, near Cockeysville, Maryland. He was best known in Maryland as an active 

member of the Maryland State Agricultural Society, of which he was president from 

1857 to 1861. Following the Civil War, he engaged in the fertilizer business as well 
Ex parte Merryman and Debates on Civil Liberties During the Civil War

27

as agriculture and stock breeding. He again was elected president of a reorganized 

agricultural society in 1877, and he won a medal at the Centennial Exposition in 

Philadelphia for his Hereford cattle. Merryman served on the vestry of his church 

and was a long-time delegate to the Episcopal Diocesan convention.

 While following the pursuits of a gentleman farmer in the years before the Civil 

War, Merryman also served as a member of the local militia, the Baltimore County 

Troops, and was fi rst lieutenant in the Baltimore County Horse Guards in 1861. Merryman acknowledged his role in the destruction of railroad lines in Baltimore County 

in the spring of 1861, which was carried out by state militia members on orders of 

Maryland’s Governor Thomas Hicks in an effort to halt troops movements that had 

provoked riots in Baltimore. The federal offi cers who arrested him, and two grand 

juries in the U.S. district court, believed that Merryman’s activities went well beyond 

anything ordered by the governor. Pennsylvania troops camped near Merryman’s 

estate when they found their route to Baltimore obstructed, and Merryman may have 

been among the Maryland militia members who pursued the Pennsylvanians to the 

state border as they withdrew. Offi cers in the arresting party testifi ed that Merryman had been drilling with his company and had advocated secessionist principles. 

Merryman’s indictment for treason in July 1861 alleged that he had burned a bridge 

and attacked troops to prevent them from protecting Washington and that he had 

ordered the destruction of telegraph lines to sever communications with the capital.

 Merryman remained at Fort McHenry until July when he and friends posted bail 

for his release pending trial on the charges of treason. No trial was ever held, and 

following a second indictment in 1863, the U.S. attorney dropped all charges in 1867. 

In June 1861, the Maryland General Assembly passed an act affi rming Merryman’s 

qualifi cation as a second lieutenant in the Baltimore County Horse Guards, and 

declared his acts as an offi cer in the unit to be legal. Seven months later, the General 

Assembly repealed the earlier act.

 Like many others subjected to military arrest and imprisonment, Merryman 

turned to the state courts to sue for damages. In February 1863, in the circuit court 

for Harford County, Maryland, Merryman fi led suit against George Cadwalader for 

unlawful imprisonment and asked for $50,000 in damages. Cadwalader, who then 

resided in Pennsylvania, successfully petitioned to remove the case to the federal 

circuit court. Merryman then failed to pursue the suit, and the U.S. circuit court 

dismissed the case in April 1864.

 In 1864, Merryman named his ninth child, a son who died in infancy, Roger B. 

Taney Merryman. Merryman was elected treasurer of Maryland in 1870, and as a 

member of the Maryland House of Delegates in 1874, he served on the committee 

appointed to receive a statue of Taney presented to the state legislature. When Merryman died in November 1881, the Baltimore Sun obituary made no mention of the 

habeas proceedings or his militia service, but recounted his agricultural interests and 
Ex parte Merryman and Debates on Civil Liberties During the Civil War

28

noted that he was “the kind-hearted gentleman, the good neighbor and the hospitable 

host.”

Roger Brooke Taney (1777–1864)

Chief Justice of the United States and presiding judge in Ex parte Merryman

By the time he received Merryman’s petition 

for a writ of habeas corpus, Chief Justice Roger 

Taney was convinced that President Lincoln 

presented a grave threat to constitutional government. Privately, he warned that the Republicans were abolitionists intent on overturning 

constitutional protections of slavery, and while 

Taney denied a right to secession, he sympathized with the Southern states and preferred 

letting them go to preserving the Union by force. 

His defense of civil liberties and the civilian 

courts in the Merryman opinion was one of his 

fi rst and strongest challenges to Lincoln’s use of 

presidential authority to secure the Union.

 Taney had served on the Supreme Court 

since he was appointed by President Andrew 

Jackson in 1836. For much of that time, the 

Court’s most important cases centered on federal authority over the economy of the expanding 

nation. Taney’s collective decisions established 

widely respected revisions of the more explicitly 

nationalist decisions of his predecessor, John 

Marshall. Taney’s ideas about the dual sovereignty of state and federal governments brought 

to the Supreme Court a Jacksonian caution about concentrated economic authority, 

whether exercised by banks or the federal government.

 Born to an old Maryland family and raised as a Roman Catholic, Taney entered 

public offi ce as a Federalist member of the Maryland legislature in 1799. In the 1820s 

he became an ardent supporter of Andrew Jackson, for whom he served as attorney 

general and secretary of the Treasury in the 1830s. As a key adviser to Jackson during debates on the Bank of the United States, Taney earned many enemies, and the 

Senate rejected his original nomination as an associate justice of the Supreme Court. 

After his confi rmation as Chief Justice in 1836, Taney’s legal knowledge and gracious 

manners won him the personal respect of his colleagues on the bench.

Chief Justice Roger B. Taney

Courtesy of Brady-Handy Photograph 

Collection, Library of Congress, Prints 

and Photographs Division [reproduction number: LC-BH82-402-B].
Ex parte Merryman and Debates on Civil Liberties During the Civil War

29

 Taney’s later years on the Court, and his historical reputation, were tainted by 

his lifelong refusal to accept legal limits on slavery or to recognize rights for free 

African Americans. Taney professed a personal aversion to slavery and provided for 

the gradual manumission of the relatively few slaves he inherited, yet he was deeply 

attached to the culture and politics of the slaveholding South. As attorney general, 

he denied that African Americans had any inherent rights under the Constitution. In 

slavery-related cases before the Supreme Court, Taney voted to protect the institution regardless of the implications for his usual concern for the balance of state and 

federal power.

 His legal defense of slavery found its most extreme statement in the Dred Scott

opinion of 1857. In this case brought by an enslaved man who had been carried into 

states and territories that prohibited slavery, Taney went well beyond the immediate 

questions about Scott’s status to declare unconstitutional all federal laws prohibiting slavery in the territories, to hold that all African Americans, whether enslaved 

or free, had no standing as citizens, and to assert that the federal government was 

constitutionally barred from depriving anyone of slave property. The extremity of 

the opinion enfl amed public opinion in the North and pushed the divided nation 

closer to Civil War.

 The Merryman proceedings refl ected Taney’s determination to challenge the 

Lincoln administration and its strategy to preserve the Union. As circuit judge, Taney 

successfully resisted the prosecution of Merryman and other Marylanders indicted 

for treason. The increasingly isolated and eccentric Chief Justice, anticipating cases 

that never came before the Supreme Court, drafted opinions declaring conscription 

and emancipation unconstitutional. Taney died on October 12, 1864.

 Even in death the old Chief Justice provoked impassioned debate. When the House 

of Representatives in 1865 appropriated funds for a bust of Taney to sit alongside 

those of other Chief Justices in the Supreme Court, Senator Charles Sumner successfully challenged the bill, reminding the Senate that the Dred Scott decision “was 

more thoroughly abominable than anything of the kind in the history of the courts.” 

Congress fi nally approved a commission for Taney’s bust in 1874.
Ex parte Merryman and Debates on Civil Liberties During the Civil War

30

Media Coverage and Public Debates

The drama of Chief Justice Taney confronting an Army general and the President 

of the United States attracted national press attention to the court proceedings in 

Baltimore. The case made public for the fi rst time Lincoln’s authorization to suspend 

the privilege of the writ of habeas corpus in Northern states and became a focus of 

debates on the President’s assumption of wartime executive authority. The court 

proceedings in Baltimore, where federal troops had already fought with pro-Confederate mobs, heightened many northerners’ anxiety about the extent of secessionist 

support within the states that remained within the Union.

 The initial press response fell along familiar partisan lines, as Democrats and 

Southern sympathizers seized upon the military arrest as evidence of Lincoln as an 

emerging tyrant. The Crisis of Columbus, Ohio, lamented that “men on mere suspicion of political opponents, are deprived of their liberty.” A New York paper urged a 

defense of the writ of habeas corpus as the most important protection against “the 

exercise of judicial authority by injudicious men.” The Baltimore Sun reported that 

“all know” the power to suspend the writ “left the liberty of the citizen at the mercy 

of the military offi cer.” According to Republican newspapers, Taney’s eagerness to 

confront the administration was further confi rmation of the villainy of the author 

of the Dred Scott decision. The case was proof, according to the New York Times, that 

the Chief Justice “serves the rebel cause.” The Chicago Tribune added that the Chief 

Justice, sworn to uphold the Constitution, “takes sides with traitors who are exerting 

every energy to subvert it.”

 To many others Taney was a hero, and his opinion in Ex parte Merryman was 

quickly republished in pamphlets, including one issued by a New Orleans printer. In 

Maryland, the military arrest of a prominent planter like Merryman galvanized the 

many secessionists in the state and became the stuff of popular legend. A song sheet 

of “John Merryman,” to the tune of “Old Dan Tucker,” celebrated the Marylander 

who “would not stoop to Lincoln’s pander” and linked Merryman with Jefferson 

Davis and other Confederate leaders. The role of federal soldiers in shooting citizens 

during the April riot in Baltimore was refl ected in another popular pro-Southern 

song, “Maryland, My Maryland,” which graphically warned “The despot’s heel is on 

thy shore” and cheered the Marylanders who spurned the “Northern scum.” The 

military arrests publicized by the Merryman coverage fed the popular criticism of 

Lincoln as a tyrant or dictator, disregarding constitutional liberties and assuming 

unprecedented executive powers. In one of the earliest of his numerous anti-Lincoln 

and pro-Confederate prints produced during the Civil War, Adalbert Volck in 1861 

pictured Lincoln insolently resting his feet atop volumes titled “Habeas Corpus,” 

“Law,” and “Constitution.”
Ex parte Merryman and Debates on Civil Liberties During the Civil War

31

Ex parte Merryman also marked the beginning of a more substantive constitutional 

debate on habeas corpus and the proper extent of executive and military authority 

in a civil war. Among the fi rst legal commentaries on Taney’s opinion was that of 

Joel Parker, a Harvard law professor and long-time justice of the New Hampshire 

Superior Court. Relying in part on a Supreme Court decision of Taney regarding 

the suspension of habeas in Rhode Island during the Dorr Rebellion, Parker argued 

that in time of war and within the area of military operations, the courts could not 

demand of a military offi cer any civil duty that confl icted with military duty. The 

Constitution did not authorize any particular branch of government to suspend the 

writ of habeas corpus, according to Parker, but made that suspension incidental to 

the exercise of other powers, such as the power to put down an insurrection or to 

make war. Horace Binney presented a notable defense of the President’s authority to 

suspend the privilege of the writ of habeas corpus. As recognized in practice and in 

laws dating to the 1790s, it was the executive’s responsibility to identify the conditions 

for suspension, such as when a rebellion or invasion prevents the execution of the 

laws and thereby threatens public safety. Binney also contended that the authority to 

suspend was safest in the hands of the President, who was subject to a limited term 

and impeachment. Among critics of the Lincoln administration, Edward Ingersoll 

presented one of the most notable rebuttals of Parker and Binney. Ingersoll, the author 

of a leading treatise on habeas corpus published in 1849, thought all precedent supported the argument that only the legislature had authority to suspend the privilege 

of the writ. It was the “monstrous idea of the hour” that the military had an inherent 

executive power that overrides all law and the process of law. 

 Lincoln’s own commentary on habeas corpus in a public letter addressed to Erastus 

Corning and other Democratic critics in Albany, New York, was probably the most 

widely read, or at least widely known, publication on the topic. Lincoln wrote the 

letter in response to the resolutions of a public meeting that condemned the military 

arrest and trial of Clement Vallandigham, a former member of Congress who had 

publicly denounced the imposition of martial law in Ohio. Lincoln described his 

reluctance to restrict the civil liberties of individuals and the events that convinced 

him that only the executive could protect the public safety by exercising the constitutional provision for suspending the privilege of the writ when faced with “sudden 

and extensive uprisings against the government.” The letter was initially published in 

the New York Tribune, and the Loyal Publication Society distributed 500,000 copies 

of a pamphlet version. 
Ex parte Merryman and Debates on Civil Liberties During the Civil War

32

Historical Documents

Petition for a writ of habeas corpus, John Merryman, 

May 25, 1861

Within hours of his arrest and transfer to Fort McHenry, John Merryman met with 

his brother-in-law and a lawyer, George H. Williams, who drafted a petition for a 

writ of habeas corpus. General Cadwalader denied Williams access to the written 

record of the arrest, so Williams relied on information from Merryman. The petition was addressed to Chief Justice Roger Taney, who also served as a judge of the 

U.S. circuit court in Baltimore. An associate of Taney later asserted that the Chief 

Justice personally crossed out the reference to “judge of the Circuit Court” to indicate that he was acting as Chief Justice in chambers. After Williams met with a commissioner of the circuit court and swore to the truth of the petition, Taney received 

the petition at his home in Washington and quickly traveled to Baltimore for a court 

session on May 26.

 [Document Source: Original case fi les in possession of the U.S. District Court 

for the District of Maryland.]

 

 To the Honorable Roger B. Taney Chief Justice of the Supreme Court of the 

United States and judge of the Circuit Court of the United States in and for the 

District of Maryland

 Th e petition of John Merryman of Baltimore county and State aforesaid respectfully shews that being at home in his own domicil he was about the hour of 2 o’clock 

AM of the 25th May A. D. 1861, aroused from his bed by an armed force pretending to act under military orders from some person to your petitioner unknown. Th at 

he was by said armed force deprived of his liberty by being taken into custody, and 

removed from his said home to Fort McHenry, near to the City of Baltimore and 

in the District aforesaid; and where your petitioner now is in close custody.

 Th at he has been so imprisoned without any process or color of law whatsoever, 

and that none such is pretended by those who are thus detaining him, and that no 

warrant from any Court magistrate or other person having legal authority to issue 

the same exists to justify such arrest; but to the contrary the same, as above is stated, 

hath been done without color of law and in violation of the Constitution and laws 

of the United States and the State of Maryland of which he is a citizen.

 Th at since his arrest he has been informed that some order purporting to come 

from one General Keim of Pennsylvania, this petitioner unknown, directing the arrest of the captain of some Company in Baltimore County of which Company the 
Ex parte Merryman and Debates on Civil Liberties During the Civil War

33

petitioner never was and is not Captain was the pretended ground of his arrest and 

is the sole ground as he believes on which he is now detained.

 Th at the person now so detaining him and holding him at said fort is Brigadier 

General George Cadwalader the military commander of said post professing to act 

in the premises under or by color of the authority of the United States.

 Your petitioner therefore prays that the writ of Habeas Corpus may issue to be 

directed to the said George Cadwalader commanding him to produce your petitioner 

before you, judge as aforesaid with the cause, if any, for his arrest and detention, to 

the end that your petitioner be discharged and restored to liberty, and as in duty.

 John Merryman

 Fort McHenry 25th May 1861. 

Ex parte Merryman, opinion of Chief Justice Roger Taney 

(excerpts)

According to Chief Justice Taney, President Lincoln’s unpublished order to suspend 

habeas corpus was a radical departure from well-established principles of law in 

both the United States and Great Britain. Taney emphasized how the arrest and 

detainment of Merryman foreshadowed the arbitrary rule of a military government, unchecked by any constitutional guarantees of civil liberties. Taney’s narrative of the arrest portrayed Merryman as an innocent citizen, seized in the peace of 

his own home and dragged away in the middle of the night by offi cers with no legal 

authority to detain him.

 Taney’s review of English and American legal traditions put Lincoln at odds with 

the greatest legal minds of both countries. The Chief Justice argued that the powers of the executive were narrowly circumscribed by the Constitution and, in matters related to law enforcement, subordinate to the judiciary. But rather than assist 

the judiciary in the enforcement of laws, the military had swept aside the judicial 

power of the federal government and went beyond the suspension of habeas corpus 

to threaten the civil liberties protected by the Bill of Rights. Taney maintained that 

the force of arms prevented him from carrying out his constitutional duties, and he 

challenged the President to restore constitutional order and due process of law.

 [Document Source: Original case fi les in possession of the U.S. District Court 

for the District of Maryland. Published in Federal Cases.]

 

 As the case comes before me, therefore, I understand that the President not only 

claims the right to suspend the writ of Habeas Corpus himself, at his discretion, but 

to delegate that discretionary power to a military offi cer, and to leave it to him to 

determine whether he will or will not obey Judicial process that may be served upon 

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

34

 No offi cial notice has been given to the courts of justice, or to the public, by 

proclamation or otherwise, that the President claimed this power, and had exercised 

it in the manner stated in the return. And I certainly listened to it with some surprise. 

For I had supposed it to be one of those points of constitutional law upon which 

there was no diff erence of opinion, and that it was admitted on all hands that the 

privilege of the writ could not be suspended, except by act of Congress. . . .

 And the only power therefore which the President possesses, where the “life, 

liberty, or property” of a private citizen is concerned, is the power and duty prescribed 

in the 3rd section of the 2nd Article, which requires “Th at he Shall take care that the 

laws be faithfully executed.” He is not authorized to execute them himself or through 

agents or offi cers civil or military appointed by himself, but he is to take care that 

they be faithfully carried into Execution as they are expounded and adjudged of by 

the Coordinate Branch of the Government to which that duty is assigned by the 

Constitution. It is thus made his duty to come in aid of the judicial authority, if it 

shall be resisted by a force too strong to be overcome without the assistance of the 

Executive arm. But in Exercising this power he acts in subordination to judicial 

authority, assisting it to Execute its process & enforce its judgments. . . .

 But the documents before me show that the military authority, in this case has 

gone far beyond the mere suspension of the privilege of the writ of Habeas Corpus. 

It has, by force of arms, thrust aside the judicial authorities and offi cers to whom 

the Constitution has confi ded the power and duty of interpreting and administering the laws, and substituted a military government in its place, to be administered 

and executed by military offi cers. For at the time these proceedings were had against 

John Merryman, the District Judge of Maryland, the Commissioner appointed under 

the act of Congress; the District Attorney, and the Marshal, all resided in the city 

of Baltimore, a few miles only from the home of the prisoner. Up to that time there 

had never been the slightest resistance or obstruction to the process of any court, or 

judicial offi cer of the United States in Maryland, except by the military authority. 

And if a military offi cer, or any other person, had reason to believe that the prisoner 

had committed any off ence against the laws of the United States, it was his duty 

to give information of the fact, and the evidence to support it, to the District Attorney; and it would then have become the duty of that offi cer to bring the matter 

before the District Judge or Commissioner, and if there was suffi cient legal evidence 

to justify his arrest, the Judge or Commissioner would have issued his warrant to 

the Marshal, to arrest him; and upon the hearing of the case, would have held him 

to bail, or committed him for trial, according to the character of the off ense, as it 

appeared in the testimony, or would have discharged him immediately, if there was 

not suffi cient evidence to support the accusation. Th ere 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. And yet under these circumstances 

a military offi cer, stationed in Pennsylvania, without giving any information to the 
Ex parte Merryman and Debates on Civil Liberties During the Civil War

35

District Attorney, and without any application to the judicial authorities, assumes to 

himself the judicial power, in the District of Maryland, undertakes to decide what 

constitutes the crime of Treason, or rebellion, what evidence (if, indeed, he required 

any) is suffi cient to support the accusation, and justify the commitment, and commits the party, without a hearing even before himself, to close custody in a strongly 

garrisoned Fort, to be there held, it would seem, during the pleasure of those who 

committed him.

 Th e Constitution provides, as I have before said, that “no person shall be deprived 

of life, liberty, or property, without due process of law.” It declares that “the right of 

the people to be secure in their persons, houses, papers, and eff ects against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but 

upon probable cause, supported by oath or affi rmation, and particularly describing 

the place to be searched, and the persons or things to be seized.”

 It provides that the party accused shall be entitled to a speedy trial in a court of 

justice. 

 And 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 confi ded to the Judiciary Department and Judicial offi cers, 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 offi cer, in whose Military District 

he may happen to be found.

 In such a case my duty was too plain to be mistaken. I 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. It is possible, that the offi cer, who 

has incurred this grave responsibility, may have misunderstood his instructions, and 

exceeded the authority intended to be given him. I shall, therefore, order all the proceedings in this case, with my opinion, to be fi led, and recorded in the Circuit Court 

of the United States for the District of Maryland, and direct the clerk to transmit a 

copy, under seal, to the President of the United States. It will then remain for that 

high offi cer, in fulfi lment of his constitutional obligation to “take care that the laws 

be faithfully executed,” to determine what measures he will take to cause the civil 

process of the United States to be respected, and enforced. 
Ex parte Merryman and Debates on Civil Liberties During the Civil War

36

Lincoln’s orders on habeas corpus (excerpts)

In hopes of reducing tensions in Maryland in April 1861, Lincoln resisted military 

advice to arrest secessionist Maryland legislators before they met, but on April 25 he 

instructed Winfi eld Scott, the commanding general of the Army, to watch the state 

proceedings carefully and to prepare to counteract any effort to arm Marylanders 

against federal troops. Two days later, as Northern troops traveled through Maryland 

to defend the nation’s capital, Lincoln authorized the military to suspend the writ of 

habeas corpus along a transportation route deliberately chosen to avoid Baltimore 

and the secessionist mobs that had already attacked troops transiting through the 

city. General Cadwalader referred to this order in his explanation of why he would 

not appear with John Merryman before Chief Justice Taney.

 The memorandum of May 17 responded to military arrests in Washington, D.C., 

and refl ected Lincoln’s recurring discomfort with the suspension of habeas, even as 

he defended the need for limiting civil liberties to secure the Union.

 [Documents Source: The Collected Works of Abraham Lincoln, Roy P. Basler, et 

al., eds., 9 vols. (New Brunswick, NJ: Rutgers University Press, 1953), 4: 344, 347, 

372.]

 

Abraham Lincoln to Winfi eld Scott, April 25, 1861

 I therefore conclude that it is only left to the commanding General to watch, and 

await their action, which, if it shall be to arm their people against the United States, 

he is to adopt the most prompt, and effi cient means to counteract, even, if necessary, 

to the bombardment of their cities—and in the extremest necessity, the suspension 

of the writ of habeas corpus.

Abraham Lincoln to Winfi eld Scott, April 27, 1861

 You are engaged in repressing an insurrection against the laws of the United States. 

If at any point on or in the vicinity of the military line, which is now used between 

the City of Philadelphia and the City of Washington, via Perryville, Annapolis City, 

and Annapolis Junction, you fi nd resistance which renders it necessary to suspend 

the writ of Habeas Corpus for the public safety, you, personally or through the offi cer 

in command at the point where the resistance occurs, are authorized to suspend the 

writ.

Memorandum [May 17, 1861]

 Unless the necessity for these arbitrary arrests is manifest, and urgent, I prefer they 

should cease.
Ex parte Merryman and Debates on Civil Liberties During the Civil War

37

Roger Taney to Franklin Pierce, June 12, 1861 (excerpt)

Taney’s challenge to President Lincoln brought words of support from former 

President Franklin Pierce, a New Hampshire Democrat with political ties to the 

slaveholding states. The fragility of the Union in the spring of 1861 is evident in this 

letter in which the sitting Chief Justice of the United States freely acknowledges to 

a former President that he would prefer the secession of the Southern states to any 

military effort to preserve the United States. 

 [Document Source: “Some Papers of Franklin Pierce, 1852–1862,” American 

Historical Review, 10 (January 1905): 368.]

 

 Your cordial approbation of my decision in the case of the Habeas Corpus has 

given me sincere pleasure. In the present state of the public mind infl amed with passion and seeking to accomplish its object by force of arms, I was sensible of the grave 

responsibility which the case of John Merryman cast upon me. But my duty was 

plain—and that duty required me to meet the question directly and fi rmly, without 

evasion—whatever might be the consequences to myself.

 Th e paroxysm of passion into which the country has suddenly been thrown, 

appears to me to amount almost to delirium. I hope that it is too violent to last 

long, and that calmer and more sober thoughts will soon take its place: and that the 

North, as well as the South, will see that a peaceful separation, with free institutions 

in each section, is far better than the union of all the present states under a military 

government, and a reign of terror preceded too by a civil war with all its horrors, and 

which end as it may will prove ruinous to the victors as well as the vanquished. But 

at present I grieve to say passion and hate sweep everything before them.

President Abraham Lincoln, message to Congress in 

special session, July 4, 1861 (excerpt)

On April 15, 1861, in response to the fall of Fort Sumter, Lincoln called for 75,000 

troops to defend the Union and used his constitutional authority to convene a special session of the Congress, to meet on July 4. His message to the Congress, read 

to the members by clerks on July 5, explained the actions he had taken since the 

outbreak of war. In this excerpt, Lincoln answered the critics who had challenged 

the legality of his suspension of the writ of habeas corpus. Lincoln argued that the 

constitutional authority to suspend habeas in cases of rebellion or invasion could be 

executed by the President, since only the executive branch would be able to respond 

in an emergency if Congress was in recess. Even more important to Lincoln was his 

responsibility to preserve the Union, even if that duty required the temporary disregard of a single law protecting habeas.

 Here and throughout the message to Congress, Lincoln’s focus on his obligation 

to preserve the constitutional union of states cast the war as a struggle to ensure the 
Ex parte Merryman and Debates on Civil Liberties During the Civil War

38

very idea of representative government. “It presents to the whole family of man, 

the question, whether a constitutional republic, or a democracy—a government of 

the people, by the same people—can, or cannot, maintain its territorial integrity, 

against its own domestic foes. It presents the question, whether discontented individuals, too few in members to control administration, according to organic law, in 

any case, can always, . . . break up their Government, and thus practically put an 

end to free government upon the earth.” 

 [Document Source: The Collected Works of Abraham Lincoln, Roy P. Basler, et 

al., eds., 9 vols. (New Brunswick, NJ: Rutgers University Press, 1953), 4: 420–44.]

 

 Soon after the fi rst call for militia, it was considered a duty to authorize the 

Commanding General, in proper cases, according to his discretion, to suspend the 

privilege of the writ of habeas corpus; or, in other words, to arrest, and detain, without 

resort to the ordinary processes and forms of law, such individuals as he might deem 

dangerous to the public safety. Th is authority has purposely been exercised but very 

sparingly. Nevertheless, the legality and propriety of what has been done under it, 

are questioned; and the attention of the country has been called to the proposition 

that one who is sworn to “take care that the laws be faithfully executed,” should not 

himself violate them. Of course some consideration was given to the questions of 

power, and propriety, before this matter was acted upon. Th e whole of the laws which 

were required to be faithfully executed, were being resisted, and failing of execution, 

in nearly one-third of the States. Must they be allowed to fi nally fail of execution, 

even had it been perfectly clear, that by the use of the means necessary to their execution, some single law, made in such extreme tenderness of the citizen’s liberty, 

that practically, it relieves more of the guilty, than of the innocent, should, to a very 

limited extent, be violated? To state the question more directly, are all the laws, but 

one, to go unexecuted, and the government itself go to pieces, lest that one be violated? Even in such a case, would not the offi cial oath be broken, if the government 

should be overthrown, when it was believed that disregarding the single law, would 

tend to preserve it? But it was not believed that this question was presented. It was 

not believed that any law was violated. Th e provision of the Constitution that “Th e 

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,” is equivalent to a provision—is 

a provision—that such privilege may be suspended when, in cases of rebellion, or 

invasion, the public safety does require it. It was decided that we have a case of rebellion, and that the public safety does require the qualifi ed suspension of the privilege 

of the writ which was authorized to be made. Now it is insisted that Congress, and 

not the Executive, is vested with this power. But the Constitution itself, is silent as to 

which, or who, is to exercise the power; and as the provision was plainly made for a 

dangerous emergency, it cannot be believed the framers of the instrument intended, 

that in every case, the danger should run its course, until Congress could be called 
Ex parte Merryman and Debates on Civil Liberties During the Civil War

39

together; the very assembling of which might be prevented, as was intended in this 

case, by the rebellion.

Opinion of Attorney General Edward Bates, July 5, 1861 

(excerpts)

On May 30, 1861, three days after Taney offered 

his oral opinion in Ex parte Merryman, President 

Lincoln asked Attorney General Edward Bates to 

consult with former Attorney General Reverdy 

Johnson on the legal authority to suspend the 

writ of habeas corpus. On July 5, Bates reported 

to Lincoln on two questions related to habeas corpus: (1) Did the President have the authority in a 

time of domestic rebellion to arrest and detain individuals known to be working in support of the 

insurgents?; and (2) In the case of such arrests, 

did the President have the authority to refuse to 

obey a writ of habeas corpus? Like Lincoln, Bates 

rooted the authority to arrest and detain rebels 

in the President’s sworn duty to preserve, protect, 

and defend the Constitution. That duty required 

the suppression of domestic insurrections, and 

only the President was able to determine how 

to suppress a rebellion and thereby see that the 

laws of the nation were executed. Bates believed 

the Constitution established a clear separation of 

powers that prevented the judiciary from in any 

way restricting the President’s performance of the 

executive’s constitutional duties. Unlike Taney, who described the executive branch 

as limited in its inherent powers, Bates thought the executive was of all the branches, 

“the most active, and the most constant in action,” whereas the judiciary was “powerless to impose rules of action and of judgment upon the other departments.”

 Bates, of Missouri, had served as that state’s fi rst attorney general in 1821, and 

later served in the U.S. House of Representatives and the Missouri legislature. He 

was a candidate for the Republican presidential nomination in 1860, and like the 

other unsuccessful candidates, he received an invitation from the victorious Lincoln 

to serve in the cabinet. Bates served as attorney general until his retirement in 

December 1864.

 [Document Source: Offi cial Opinions of the Attorneys General of the United 

States. Ed., J. Hubley Ashton. vol. 10. Washington, D.C.: W.H. & O.H. Morrison, 

1868.]

Edward Bates

Courtesy of Prints and Photographs 

Division, Library of Congress 

[LC-B813-1741 B].
Ex parte Merryman and Debates on Civil Liberties During the Civil War

40

 

 It is the plain duty of the President (and his peculiar duty, above and beyond all 

other departments of the government) to preserve the Constitution and execute the 

laws all over the nation; and it is plainly impossible for him to perform this duty 

without putting down rebellion, insurrection, and all unlawful combinations to resist 

the general government. Th e duty to suppress the insurrection being obvious and 

imperative, the two acts of Congress of 1795 and 1807 come to his aid, and furnish 

the physical force which he needs to suppress the insurrection and execute the laws. 

Th ese two acts authorize the President to employ for that purpose, the militia, the 

army, and the navy.

 Th e argument may be briefl y stated, thus: It is the President’s bounden duty to 

put down the insurrection, as (in the language of the act of 1795) the “combinations 

are too powerful to be suppressed by the ordinary course of judicial proceedings, or 

by the powers vested in the marshals.” And this duty is imposed on the President 

for the very reason that the courts and the marshals are too weak to perform it. . . .

 If it be true, as I have assumed, that the President and the judiciary are co-ordinate departments of government, and the one not subordinate to the other, I do 

not understand how it can be legally possible for a judge to issue a command to the 

President to come before him ad subjiciendum – that is, to submit implicitly to his 

judgment, and, in case of disobedience, treat him as a criminal, in contempt of a superior authority, and punish him, as for a misdemeanor, by fi ne and imprisonment. . . . 

Besides, the whole subject-matter is political and not judicial. Th e insurrection itself is 

purely political. Its object is to destroy the political government of this nation and to 

establish another political government upon its ruins. And the President, as the chief 

civil magistrate of the nation, and the most active department in the government, 

is eminently and exclusively political in all his principal functions. As the political 

chief of the nation, the Constitution charges him with its preservation, protection, 

and defence, and requires him to take care that the laws be faithfully executed. . . . 

And the judiciary department has no political powers and claims none, and therefore 

(as well as for other reasons already assigned) no court or judge can take cognizance 

of the political acts of the President, or undertake to revise and reverse his political 

decisions.

Horace Binney, The Privilege of the Writ of Habeas 

Corpus Under the Constitution (excerpt)

Horace Binney’s commentary on habeas corpus was published in several editions 

and became the subject of numerous other pamphlets published during the Civil 

War. Binney originally drafted the commentary in response to a request from Francis 

Lieber, a prominent university professor and strong supporter of Lincoln’s efforts to 
Ex parte Merryman and Debates on Civil Liberties During the Civil War

41

defend the Union. Lieber was disappointed with Edward Bates’s arguments presented to the President and Congress in defense of the President’s authority to suspend 

the privilege of the writ of habeas corpus. Lieber approached Binney in July 1861 

and asked for a rebuttal of Taney’s opinion in Ex parte Merryman. At 81, Horace 

Binney was one of the country’s most respected lawyers. He had established a successful practice in Philadelphia in the early nineteenth century and prepared widely 

used reports on decisions of the Pennsylvania Supreme Court. He spent much of his 

career as a legal adviser to banks and corporations.

 Binney suggested that the constitutional provision regarding habeas broke with 

earlier practice in Great Britain and America by prescribing the limited conditions 

under which the privilege of the writ could be suspended. The British practice led 

many to conclude that the power to suspend still rested alone with the legislature, 

but in Binney’s view, no one, including Taney, had carefully examined this assumption. Since the Constitution only permitted suspension during a rebellion or invasion that threatened the public safety, the power to suspend necessarily fell to the 

branch of government that was best able to determine what was required to restore 

public safety. For Binney, that branch was the executive, which was also as he explains here the “safest depository of the power.”

 [Document Source: Union Pamphlets of the Civil War, 1861–1865. Ed., Frank 

Friedel. 2 vols. (Cambridge, MA.: Harvard University Press, 1967): 1: 231–32.]

 

 Chief Justice Taney’s opinion in Merryman’s case is not an authority. Th is of course 

is said in the judicial sense. But it is not even an argument, in the full sense. He does 

not argue the question from the language of the clause, nor from the history of the 

clause, nor from the principles of the Constitution, except by an elaborate depreciation of the President’s offi ce, even to the extent of making him, as Commander-inChief of the Army called from the States into the service of the United States, no 

more than an assistant to the Marshal’s posse: the deepest plunge of judicial rhetoric. 

Th e opinion, moreover, has a tone, not to say a ring, of disaff ection to the President, 

and to the Northern and Western side of his house, which it is not comfortable to 

suppose in the person who fi lls the central seat of impersonal justice. But this may 

be the apprehensiveness of the reader.

 Th e remarkable features of this opinion, is that for proof of the President’s exclusion from the power, the Chief Justice dwells upon the President’s brief term of 

offi ce – his responsibility, by impeachment for malfeasance in offi ce – the power of 

Congress to withhold appropriations for the Army, of which he is Commander-inChief, and to disband it if the President uses it for improper purposes – his limited 

power of appointment – his limited treaty-making power – his inability to appoint 

even inferior offi cers, unless he is authorized by Congress to do so. Chief Justice 

Taney has elaborately stated all this, without appearing to perceive, that these very 

considerations may have, and certainly ought to have, induced the Convention to 
Ex parte Merryman and Debates on Civil Liberties During the Civil War

42

devolve upon the President, exclusively, the trust and power of suspending or not 

suspending the privilege in time of rebellion, as he should think the public safety 

required. Th e constitutional limitations of the offi ce make the President the safe and 

the safest depository of such a discretion. Th ere can be little danger of abuse from 

an offi ce of such powers. It was the great power of a King of England, that was the 

operative motive with Parliament for taking the power of suspension from him; and 

they have left it in a body that is of equal power under the Constitution, and apparently on its way to greater.

Edward Ingersoll, Personal Liberty and Martial Law: A 

Review of Some Pamphlets of the Day (excerpt)

Edward Ingersoll was born to a prominent Philadelphia family, and he studied for 

the law after attending the University of Pennsylvania. In 1849, he published a 

treatise on the History and Law of the Writ of Habeas Corpus. Ingersoll sympathized with the Confederacy and was so critical of the Union war effort that he was 

arrested for a public speech, but then won release on a writ of habeas corpus. This 

pamphlet was a direct response to those of Horace Binney and other writers who 

defended the President’s authority to suspend the privilege of the writ of habeas corpus. For Ingersoll, the assertion of executive authority to suspend the writ and impose martial law threatened the survival of constitutional government. He warned 

that “the question, whether the executive or the legislative department of the government, is to judge of ‘the requirements of the public safety in case of rebellion or 

invasion,’ amounts in its elements to the question of despotism or free representative 

government.” Here he describes the long-established consensus that suspension was 

the prerogative of the legislature.

 [Document Source: Union Pamphlets of the Civil War, 1861–1865. Ed., Frank 

Friedel. 2 vols. (Cambridge, MA.: Harvard University Press, 1967): 1: 281–82.]

 

 Th e Federal Constitution of 1787 has, during more than seventy years, been the 

subject of very extended and elaborate consideration. Th is more or less in all and every 

part of it. Many books have been written in elucidation and explanation of its every 

clause and section. Th is particular Habeas Corpus clause has been over and again at 

the hands of judges, legislators and text writers, a frequent subject of thought and 

comment. It came up broadly for the consideration of the nation and its legislators, 

in the year 1807, when the question of action under its provisions was practically 

before the public. Th us during the seventy years of the existence of this fundamental 

law of our Government, this particular subject has been before a free, talking, writing, 

thinking people, and has been, as history shows, during that time freely and much 

discussed, written and talked about. It was always, and by everybody, considered a 
Ex parte Merryman and Debates on Civil Liberties During the Civil War

43

matter of vast and vital importance; perhaps of vaster and more vital importance 

than any one other matter of our fundamental law. During this long period of time, 

and this frequent handling of the matter, there has been no whisper of diff erence of 

opinion or views upon this point. All have been agreed that the power to suspend the 

privilege of the writ of Habeas Corpus was a legislative power. It has been so asserted 

and assumed by authors, legislators and judges, and upon occasions innumerable. No 

dissent has ever been given, no doubt has ever been expressed. Th is popular right, 

as claimed, was supposed to have a great historical root. It has not been created by 

Americans in 1787; but had always, in their books of history, been claimed by them 

as of great ancestral foundation and descent.

Abraham Lincoln to Erastus Corning and others, June 12, 

1863 (excerpts)

One of Lincoln’s most celebrated writings was a response to the resolutions approved by a meeting of Democrats in Albany, New York. The meeting, led by Erastus 

Corning, the president of the New York Central Railroad, criticized Lincoln for his 

infringements on constitutional liberties in general, and the arrest and trial of former Representative Clement Vallandigham in particular. The President said that 

he composed the letter from scattered notes he kept in his desk drawer, and he vetted 

the letter with his cabinet before sending it to Corning and to the New York Tribune 

for publication. The letter was widely reprinted.

 Deep in the midst of a war with no certain outcome, Lincoln emphasized the 

imperative of limiting certain civil liberties to protect the public safety and the federal military. Relying on the limited provision for the suspension of habeas, Lincoln 

asserted that in the face of a rebellion the Constitution permitted various governmental powers that would be impermissible in times of peace and domestic security. 

Here he also argued that supporters of the seceded states deliberately manipulated 

public support for civil liberties in an effort to subvert the defense of the Union.

 The Albany Democrats were unmoved. Their reply to Lincoln referred to his “gigantic and monstrous heresy put forth in your plea for absolute power,” and warned 

“that the American people will never acquiesce in this doctrine.” Thanks to the efforts of the Loyal Publication Society and its free distribution of the letter, Lincoln’s 

reply to Corning became one of his most widely read writings. 

 [Document Source: The Collected Works of Abraham Lincoln. Roy P. Basler, et 

al., eds., 9 vols. (New Brunswick, NJ: Rutgers University Press, 1953), 6: 260–69.]

 

 It undoubtedly was a well pondered reliance with them [the Southern rebels] that 

in their own unrestricted eff ort to destroy Union, constitution, and law, all together, 

the government would, in great degree, be restrained by the same constitution and 

law, from arresting their progress. Th eir sympathizers pervaded all departments of 
Ex parte Merryman and Debates on Civil Liberties During the Civil War

44

the government, and nearly all communities of the people. From this material, under 

cover of “Liberty of speech” “Liberty of the press” and “Habeas corpus” they hoped 

to keep on foot amongst us a most effi cient corps of spies, informers, supplyers, and 

aiders and abettors of their cause in a thousand ways. Th ey knew that in times such 

as they were inaugerating, by the constitution itself, the “Habeas corpus” might be 

suspended; but they also knew they had friends who would make a question as to 

who was to suspend it; meanwhile their spies and others might remain at large to 

help on their cause. Or if, as has happened, the executive should suspend the writ, 

without ruinous waste of time, instances of arresting innocent persons might occur, 

as are always likely to occur in such cases; and then a clamor could be raised in regard 

to this, which might be, at least, of some service to the insurgent cause. It needed no 

very keen perception to discover this part of the enemies’ programme, so soon as by 

open hostilities their machinery was fairly put in motion. Yet, thoroughly imbued 

with a reverence for the guarranteed rights of individuals, I was slow to adopt the 

strong measures, which by degrees I have been forced to regard as being within the 

exceptions of the constitution, and as indispensable to the public Safety. . . .

 If I be wrong on this question of constitutional power, my error lies in believing 

certain proceedings are constitutional when, in cases of rebellion or Invasion, the 

public Safety requires them, which would not be constitutional when, in absence of 

rebellion or invasion, the public Safety does not require them—in other words, that 

the constitution is not in it’s application in all respects the same, in cases of Rebellion or invasion, involving the public Safety, as it is in times of profound peace and 

public security. Th e constitution itself makes the distinction; and I can no more be 

persuaded that the government can constitutionally take no strong measure in time 

of rebellion, because it can be shown that the same could not be lawfully taken in 

time of peace, than I can be persuaded that a particular drug is not good medicine 

for a sick man, because it can be shown to not be good food for a well one. Nor am 

I able to appreciate the danger, apprehended by the meeting, that the American 

people will, by means of military arrests during the rebellion, lose the right of public 

discussion, the liberty of speech and the press, the law of evidence, trial by jury, and 

Habeas corpus, throughout the indefi nite peaceful future which I trust lies before 

them, any more than I am able to believe that a man could contract so strong an 

appetite for emetics during temporary illness, as to persist in feeding upon them 

through the remainder of his healthful life.

Constitutional and statutory authorities

The debate on the suspension of the privilege of the writ of habeas corpus centered 

on the constitutional provision that failed to identify which branch or branches of 

government had the authority to suspend habeas during the specifi ed crises. The 

Judiciary Act of 1789, which established the federal court system, identifi ed which 
Ex parte Merryman and Debates on Civil Liberties During the Civil War

45

judges could issue the writ and in what cases, but it made no reference to the authority to suspend.

 At the opening of the special session of Congress in July 1861, Lincoln asked the 

members to consider what legislation they would consider necessary in light of his 

recent suspension of the privilege of the writ. Although Congress considered an authorization for the President to suspend the writ, it passed no legislation specifi -

cally addressing habeas until the closing day of the third and fi nal session of that 

Congress. The Habeas Corpus Act of 1863 answered some of the concerns about the 

suspension of civil liberties by requiring the executive and the military to report all 

arrests to the U.S. circuit courts and providing for the release of prisoners not indicted in the courts by a certain date. The act also offered protection from legal penalties 

for the President and military or civilian offi cers who might be sued for infringing 

the civil liberties of persons arrested. John Merryman was one of the many arrested 

and denied the protections of habeas corpus who subsequently in state courts fi led 

suit against the offi cers who detained them.

 

U.S. Constitution, Article I, Section 9

 Th e 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.

Judiciary Act of 1789, Section 14

 SEC. 14. And be it further enacted, Th at all the before-mentioned courts of the 

United States, shall have power to issue writs of scire facias, habeas corpus, and all other 

writs not specially provided for by statute, which may be necessary for the exercise 

of their respective jurisdictions, and agreeable to the principles and usages of law. 

And that either of 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.——Provided, Th at writs of habeas corpus shall in no 

case extend to prisoners in gaol, unless where they are in custody, under or by colour 

of the authority of the United States, or are committed for trial before some court 

of the same, or are necessary to be brought into court to testify. 

[Document Source: September 24, 1789, U.S. Statutes at Large 1 (1789): 73.]

Habeas Corpus Act of 1863

 An Act relating to Habeas Corpus, and regulating Judicial Proceedings in Certain 

Cases.

 Be it enacted by the Senate and the House of Representatives of the United States of 

America in Congress assembled, Th at, during the present rebellion, the President of the 

United States, whenever, in his judgment, the public safety may require it, is autho-
Ex parte Merryman and Debates on Civil Liberties During the Civil War

46

rized to suspend the privilege of the writ of habeas corpus in any case throughout 

the United States, or any part thereof. . . .

 Sec. 2. And be it further enacted, Th at the Secretary of State and the Secretary of 

War be, and they are hereby, directed, as soon as may be practicable, to furnish to the 

judges of the circuit and district courts of the United States and of the District of 

Columbia a list of the names of all persons, citizens of states in which the administration of the laws has continued unimpaired in the said Federal courts, who are now, 

or may hereafter be, held as prisoners of the United States, by order or authority of 

the President of the United States or either of said Secretaries, in any fort, arsenal, or 

other place, as state or political prisoners, or otherwise than as prisoners of war; the 

said list to contain the names of all those who reside in the respective jurisdictions 

of said judges, or who may be deemed by the said Secretaries, or either of them, to 

have violated any law of the United States in any of said jurisdictions, and also the 

date of each arrest; . . .

 And in all cases where a grand jury, having attended any of said courts having 

jurisdiction in the premises, after the passage of this act, and after the furnishing 

of said list, as aforesaid, has terminated its session without fi nding an indictment 

or presentment, or other proceeding against any such person, it shall be the duty of 

the judge of said court forthwith to make an order that any such prisoner desiring 

a discharge from said imprisonment be brought before him to be discharged; . . .

 Provided, however, Th at no person shall be discharged by virtue of the provisions 

of this act until after he or she shall have taken an oath of allegiance to the Government of the United States, and to support the Constitution thereof; . . .

 [Document Source: March 3, 1863, U.S. Statutes at Large 12 (1863): 755.]
Ex parte Merryman and Debates on Civil Liberties During the Civil War

47

Newspaper Coverage

New-York Daily Tribune, May 30, 1861. “Martial Law—

Habeas Corpus” (excerpt)

 Let us not be afraid of a military despotism. Of all the tyrannies that affl ict 

mankind, that of the Judiciary is the most insidious, the most intolerable, the most 

dangerous. Th e times are perilous. Treason is abroad. Rebels are in arms against the 

State. A powerful force, commanded by learned and patriotic men, versed both in 

civil and martial law, is in the fi eld to subdue them. We advise the three Judges of 

the Supreme Court who have not turned traitors to the Government, and the one 

or two whose position is not yet clearly defi ned, to attend to their appropriate duties 

in the Courts, and leave the task of overthrowing this formidable conspiracy against 

Liberty and Law to the military and naval forces of the United States.

 We beg leave also to remind Mr. Chief Justice Taney that the only man who 

heartily defended him against the many severe attacks made upon him in the Senate 

Chamber, because of his decision in the Dred Scott case, was Judah P. Benjamin of 

Louisiana, now the Attorney-General of the so-called Confederate States. He is a 

traitor, deserving the scaff old for his crime. We trust that gratitude to his Senatorial 

champion will not lead the venerable jurist to exhibit too much sympathy with his 

fellow-citizens of Maryland who are plotting to betray that State into the hands of 

the Confederate rebels below the Potomac.

New York World, June 7, 1861. “Taney vs. Taney” 

(excerpt)

 Th e elaborate opinion put on record and published to the world by Chief Justice 

Taney, in the Merryman case, was so obviously intended as a grave inculpation of 

the President of the United States, and is so utterly wanting in any expressions of 

sympathy, either with him in the grave emergency in which he is called to act or 

with the cause of the Union which he is striving to uphold, that, even if all the legal 

dicta the chief justice propounds were conceded to be correct, no patriotic mind 

could approve of the too evident design to weaken and undermine the confi dence 

of the country in the President. In the midst of a rebellion which threatens the very 

existence of the government, its highest judicial offi cer volunteers the weight of his 

infl uence and of the infl uence of his high position in favor of the rebels. Volunteers, 

we say, because a strict interpretation of his duty required him to do no more than 

to award the writ when applied for. Th e attachment against Gen. Cadwalader for 
Ex parte Merryman and Debates on Civil Liberties During the Civil War

48

contempt of court, and the publication of a document intended to prove that the 

President is striking at the very foundation of public liberty, can be regarded, under 

the circumstances, as nothing better than a gratuitous manifestation of hostility to 

the government and sympathy with the rebels.

Baltimore American and Commercial Advertiser, June 4, 

1861. “The Habeas Corpus Case” (excerpt)

 We regret that nothing has as yet been done towards the trial or release of Mr. 

Merryman. Of course it is impossible for those not in the secrets of the Government 

to know what reason there can be for postponing action in the case, but one thing 

is evident—that with the courts of the land in full operation, no delay would seem 

fair to the citizen which cuts him off from a speedy trial. 

 Besides all this, it is eminently proper that a Government which is fi ghting to 

maintain the integrity of the Constitution should interpose no arbitrary action to 

suspend or interfere with rights plainly guaranteed under it, if it would have the 

support and countenance of its citizens.

New York Weekly Journal of Commerce, June 6, 1861. 

“Habeas Corpus” (excerpt)

 Th e importance of the writ was never more manifest than at this moment, when 

the executive Department of the Government of the United States, in the attempt 

to suppress a rebellion, is tempted to take upon itself the exercise of judicial functions. Th e grand object of the writ is, to prevent the exercise of judicial authority by 

injudicious men; to guarantee the citizen that no military force shall hold him in 

duress unless by due process of law.

 Th e remark of one of the New York papers that the writ was “originally intended 

to secure the liberty of loyal men,” and that “it would be a gross perversion of its powers to employ it as the protecting shield of rebels,” is a specimen of the very tyranny 

which the writ of habeas corpus is designed to overcome. Th e writ was originally and 

always intended as a defence of the subject against the tyranny of the government; and 

nowhere is such defence more needed than under a government like our own. . . .

 It is marvellous that within the past two weeks the leading Administration papers have been fi lled with endeavors to justify the most illegal and unconstitutional 

proceedings, forgetting that they thus more than justify the entire course of the 

Southern rebellion!
Ex parte Merryman and Debates on Civil Liberties During the Civil War

49

Popular Culture

Popular songs celebrated the Marylanders who resisted federal troops and organized 

support for the Southern cause. A song sheet chronicled the arrest and jailing of John 

Merryman and linked him with leaders of the new Confederate States. The gruesome 

lyrics of “Maryland, My Maryland” were written soon after the Baltimore riots of 

April 19, 1861, when Massachusetts troops traveling to Washington, D.C., fi red on 

a taunting mob. Later in the Civil War, several versions of the song were published 

with Union lyrics, opening, “The Rebel horde is on thy shore.” In 1939, the Maryland 

legislature declared the original version to be the offi cial state song.

“John Merryman” song sheet

Civil War Song Sheets, Series 2, Vol. 1, Rare Book and 

Special Collection Division, Library of Congress.
Ex parte Merryman and Debates on Civil Liberties During the Civil War

50

“Maryland, My Maryland”

Th e despot’s heel is on thy shore, 

Maryland! 

His touch is at thy temple door, 

Maryland! 

Avenge the patriotic gore 

Th at fl ecked the streets of Baltimore, 

And be the battle queen of yore, 

Maryland! My Maryland!

. . .

Th ou wilt not cower in the dust, 

Maryland! 

Th y beaming sword shall never rust, 

Maryland! 

Remember Carroll’s sacred trust, 

Remember Howard’s warlike thrust— 

And all thy slumberers with the just, 

Maryland! My Maryland!

Dear Mother! burst the tyrant’s chain, 

Maryland! 

Virginia should not call in vain; 

Maryland! 

She meets her sisters on the plain— 

“SIC SEMPER,” ‘tis the proud refrain, 

Th at baffl es minions back amain! 

Maryland! 

Arise, in majesty again, 

Maryland! My Maryland!

. . .

Th ou wilt not yield the vandal toll, 

Maryland! 

Th ou wilt not crook to his control, 

Maryland! 

Better the fi re upon the roll, 

Better the blade, the shot, the bowl, 

Th an crucifi xion of the soul, 

Maryland! My Maryland!
Ex parte Merryman and Debates on Civil Liberties During the Civil War

51

I hear the distant thunder-hum, 

Maryland! 

Th e Old Line’s bugle, fi fe and drum, 

Maryland! 

She is not dead, nor deaf, nor dumb— 

Huzza! she spurns the Northern scum! 

She breathes—she burns! she’ll come! she’ll come! 

Maryland! My Maryland!

 [Document Source: “Maryland, My Maryland,” American Song Sheets, 850, 

Rare Book and Special Collections Division, Library of Congress.]
Ex parte Merryman and Debates on Civil Liberties During the Civil War

52

Lincoln as Don Quixote

Etching, 1861, by Adalbert John Volck (1828–1912), from Great American 

Tragedians, Comedians, Clowns and Rope Dancers in Their Favorite Character

Courtesy of National Portrait Gallery, Smithsonian Institution.
Ex parte Merryman and Debates on Civil Liberties During the Civil War

53

Bibliography

David Herbert Donald. Lincoln. New York: Simon and Schuster, 1995.

Mark E. Neely. The Fate of Liberty: Abraham Lincoln and Civil Liberties. New York: 

Oxford University Press, 1991.

J.G. Randall. Constitutional Problems under Lincoln. Rev. ed. Urbana: University of 

Illinois Press, 1951.

William H. Rehnquist. All the Laws but One: Civil Liberties in Wartime. New York: 

Knopf, 1998.

Geoffrey R. Stone. Perilous Times: Free Speech in Wartime. New York: Norton, 2004.

Carl B. Swisher. History of the Supreme Court of the United States: The Taney Period, 

1836–64. New York: Macmillan, 1974.

Case reports

Ex parte Merryman, 17 Federal Cases 141. 

Ex parte McCardle, 74 U.S. Reports 506.

In re McDonald, 16 Federal Cases 17.

Ex parte Milligan, 71 U.S. Reports 2.

Ex parte Vallandigham, 28 Federal Cases 874.
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