The Conflict between the Chief Justice and the Chief Executive: Ex parte Merryman

Abstract

The Conflict between the Chief Justice and the Chief Executive: Ex parte Merryman ARTHUR T. DOWNEY Rarely does the clash ofideas on the scope ofgovernmental authority get reduced to a direct conflict between leaders ofthe branches ofgovernment. However, early in the Civil War period, the Chief Executive and the ChiefJustice confronted each other in a direct fashion. The stakes were high, because the issues related to the conflict between national security and personal liberty. The Arrest of John Merryman Late on Saturday, May 25, 1861, a petition for a writ ofhabeas corpus was presented to Chief Justice Roger Brooke Taney at his home in Washington by Maryland attorneys George M. Gill and George H. Williams. They explained that they were counsel for John Merryman, and that they had just sworn to the petition in front of the U.S. Commissioner in Balti­ more. Gill and Williams further explained that at two o’clock that same morning, Merryman had been abducted from his bed in his home outside Cockeysville, north of Baltimore, by a detachment of soldiers led by a Lieutenant Abel, stationed at Relay House on the Northern Central Railroad. Merryman had been taken by train to Baltimore and then by hack to Fort McHenrywhere, by nine o’clockthatmorning, he had been locked up. The lawyers explained that they had vis­ ited Merryman at the Fort. The prisoner re­ ported to them that he had been informed that he had been arrested on an order from “one General Keim, ofPennsylvania,” whom he did not know. It was alleged that Merryman was the captain of some militia company of Balti­ more County, but Merryman said he had never heard ofthat company. Finally, the person now detaining Merryman “in close custody” was Brevet Brigadier General George Cadwalader. Merryman had signed his petition in front of his lawyers during their interview at Fort McHenry. All accesstothe prisonerwas denied except for his counsel and his brother-in-law. EX PARTE MERRYMAN 263 George Gill was one of two counsels for John Merryman , the Maryland citizen imprisoned without benefit of habeas corpus in 1861. The lawyers had come to Taney for re­ lief because at that time Supreme Court Jus­ tices also sat as federal circuit court judges, and Taney’s assigned fourth circuit included Maryland. That was fortuitous, since Taney had deep Maryland roots. It was no small irony that Fort McHenry, in which Merryman was imprisoned, had been the setting during the War of 1812 for the Star-Spangled Ban­ ner, based on a poem written by Taney’s late brother-in-law, Francis Scott Key, who had been a prominent Washington lawyer.1 Merryman ’s lawyers assumed that Taney would or­ der that Merryman be brought before him in Washington. John Merryman, age 37, was from a dis­ tinguished Maryland family that had come to Maryland before 1650. He lived on the 560-acre estate called “Hayfields” near Cock­ eysville north of Baltimore. It was a cattle farm that raised timothy hay—hence the name “Hayfields.”2 Merryman was long active in the Maryland militia, having been a third lieu­ tenant ofthe Baltimore County troops in 1847, and by early 1861 he was a first lieutenant of the Baltimore County Horse Guards. Tall and handsome, Merryman was a prominent citizen and president of the Maryland State Agricul­ tural Society. On Sunday, May 26, the day after Mer­ ryman’s lawyers met with Taney in Washing­ ton, the ChiefJustice went to Baltimore, where he could deal more conveniently with the Merryman petition forthe writ, since all thepo­ tential parties were there.3 In particular, Taney recognized that it would be awkward to direct General Cadwalader to leave Fort McHenry and come to Washington—beyond the lim­ its of his military command. One of Merryman ’s lawyers, Williams, presented Taney with a sworn statement explaining that he had gone to Fort McHenry earlier that Sunday and obtained an interview with General Cad­ walader. Williams sought permission to see and copy the papers under which the general was detaining Merryman. Cadwalader replied that he would “neither permit the deponent [Williams], though officially requesting and demanding, as such counsel, to read the said papers, nor to...