Judge Cadwalader’s Opinion on the Court Case of Ex Parte Merryman from Judge John Cadwalader papers, Box 264, Folder 2, Civil War

The following is an undated opinion on the case of ex parte Merryman. John Merryman was a citizen of Maryland and officer in the Maryland cavalry who was held without charges in Fort McHenry as a result of President Lincoln’s revocation of habeas corpus in that state. John’s brother, Major General George Cadwalader, was in charge of Fort McHenry at the time of this case.

If the enclosed report is accurate, Gen’ Cadwalader, though apprently correct in his judgement of the position which he should have taken, has committed several errors in the execution of his plan.

In his [return?] to the habeas corpus he should have simply stated that hostilities exist between the United States and certain enemies of their government against whom its military forces are, under the President’s orders, mustered in hostile array, that, as an officer in Command of such a military force, he holds Mr. Merryman as a prisoner of war, and that he is not, at present, authorized either to hand him over the civil authorities, or to discharge him, wherefore his body cannot be brought before the Chief Justice under the writ. The question is not, as Genl C’s return erroneously opines, whether the writ of habeas corpus is, or should be, suspended, but whether the case is a proper one for the enforcement of the mandate of such a writ. Congress alone has the power to suspend the writ when, in cases of rebellion or invasion, the public safety may require such suspension. The return erroneously assumes not only that the President may suspend it, but that he may even confer a discretionary power to do so upon a military suborbinate. There was no occasion to have assumed this untenable position.

That a habeas corpus cannot be obtained by a prisoner of war, or by a person of whom the Government claims the custody as such prisoner appears from the cases . . . [case citations]. If the return had set forth such a detention, in proper language, the Chief Justice might perhaps, accoording to his reasoning in 21Howard 506, have excused not bringing in the body. In Tremaine 304 [364?], is the case of a habeas corpus out of the King’s Bench to the Constable of Chester Castle who returned that the prisoner was in custody under an attachment out of a Court of the County Palatine of Chester, for a cause arising therein, wherefore the body and the cause of capture and detention could not be brought before the King’s Bench. Therefore, if the application of Mr. Merryman had shown that he was in custody as a prisoner of war the Chief Justice might have refused to award the habeas corpus. As this did not thus appear, it was absolutely necessary for him to issue the writ. It therefore became necessary that the return should show that the person in custody was detained as a prisoner of war. This should have been done directly, and not evasively, in the present case, argumentatively.

If the return had only been argumentative, and had shown substantially that he was detained as a prisoner of war, it might have sufficed, or have been amendable. But this misfortune, of this return is that the substantial causes of detention set forth are cognizable peculiarly by the Chief Justice to whom it is addressed, and not by the military or Executive organ of the Government.

The return, in substance, charges the prisoner with treason which, if he was guily of it, is an offence not cognizable by a military captor, or custodian, but by civil tribunals alone. As this return did not justify or excuse the opinion to bring in the body of the prisoner, the Chief Justice of course issued immediately the attachment. This could not have been delayed, as Genl C’s return seems to suggest, from any consideration of policy or other discretionary considertation. Legal process cannot be thus delayed where any question of right, and particularly the right of personal liberty is concerned.

Whether General Cadwalader can amend the return after an [?] has been awarded, without first purging himself of the contempt, is a question for the consideration of his counsel. The question, doubtless, would be considered by the Chief Justice as favorably as the circumstances would permit, because the return is on its face, that of a person unaided by legal knowledge or advice. But any continuance of delay to take such advice might aggravate contempt, as every man is bound to know, or to inform himself of the law, and the excuse of ignorance of it is never allowed.

Whereas a proposal to amend the return would be judicious is, however, questionable. The time and place are most unfavorable for the decision of the difficult points involved in the question when, and how far, a military commander can refuse to surrender a prisoner of war to the civil tribunals or to bring in his body under a Habeas Corpus. The present return, as an admission of the facts stated in it, might contradict an amended return simply describing the party detained as a prisoner of war. Such a prisoner might have been either a deserter from Genl C’s command, or a captive enemy. [original emphasis] Had the return been originally in this form, the questions whether its truth could be contested and whether it was sufficently specific would have been arguable before any process of attachment could have been issued.