Ex Parte Merryman - The Case

The Case

Merryman's lawyers appealed to Roger Taney to issue the writ. Taney promptly issued a writ of habeas corpus for Merryman demanding that General George Cadwalader, the commander of Fort McHenry, where Merryman was being held, bring Merryman before him the next day. At this time, Supreme Court Justices sat as circuit court judges, as well. Taney decided to issue the writ while sitting as the circuit court judge for the District of Maryland rather than as Chief Justice of the Supreme Court. His reason, he states, was that it would permit Gen. Cadwalader to answer the writ in Baltimore rather than Washington, D.C., and so not have to leave the limits of his military command.

Cadwalader responded to Taney's order by sending a colonel to explain that he had suspended the writ of habeas corpus in Merryman's case. Taney reacted by issuing a writ of attachment for Cadwalader, which ordered a U.S. Marshal to seize him and bring him before the court the following day. The marshal was refused entry into the fort.

In response, Taney ruled that the president can neither suspend habeas corpus nor authorize a military officer to do it, and that military officers cannot arrest people except as ordered by the courts. He noted that, while the marshal had the right to call up the posse comitatus to assist him in seizing Gen. Cadwalader and bringing him before the court, it was probably unwise for him to do so and thus that he would not punish the marshal for failing in his task. He then promised a more lengthy, written ruling within the week and ordered that it be sent to President Lincoln, "in order that he might perform his constitutional duty, to enforce the laws, by securing obedience to the process of the United States."

Taney was politically a partisan Democrat and an opponent of Lincoln. In his written opinion, he raged at length against Lincoln for granting himself easily abused powers. Taney asserted that the president was not authorized to suspend habeas corpus, observing that none of the Kings of England exercised such power.

"These great and fundamental laws, which congress itself could not suspend, have been disregarded and suspended, like the writ of habeas corpus, by a military order, supported by force of arms. Such is the case now before me, and I can only say that if the authority which the constitution has confided to the judiciary department and judicial officers, may thus, upon any pretext or under any circumstances, be usurped by the military power, at its discretion, the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found."

Taney noted in a footnote to the above passage that the United States Declaration of Independence listed making the military power independent of and superior to the civil power as one justification for dissolving political allegiance. The Declaration of Independence states," He has affected to render the Military independent of and superior to the Civil power."