General Cadwallader’s brother was a federal district court judge. In a critique of the Merryman litigation, Judge Cadwallader took the position that Chief Justice Taney should have ruled that the Army’s detaining John Merryman was lawful because Merryman was a prisoner of war.
I do not think much of Judge Cadwallader’s position. Merryman was not in the armed forces of any state or nation at war against the United States. Merryman’s petition made no such factual claim. General Cadwallader’s response to Merryman’s petition does not say Merryman was in a foreign army or in a military unit subject to military law or the law of land warfare. So it was the criminal law or nothing.
Judge Cadwallader’s view amounted to judicial activism—he was asking Taney to take judicial notice of a wider set of facts (and potential defenses) relating to hostilities that were not in the record, not in the applicant’s petition, and that General Cadwallader would not plead in his response—most likely at the instruction of his home government and the Army’s law officers. Why? If Merryman was in a foreign army, then the implication was that the Union and its army were invaders. If Merryman was in a foreign army, then the implication was that he was not a criminal, and that he could only be held under the laws of war until hostilities end—and then not punished. These were important policy decisions for the Army’s law officers and the Attorney General, the cabinet, and ultimately, for the President—not for General Cadwallader, who was a military district commander in a loyal state on the eve of general hostilities.
I think when most members of state militias are caught breaking civilian law and destroying property (as Merryman was accused of), they are charged as civilians with a civilian crime. In such circumstances, they are entitled to the full set of rights and judicial processes guaranteed to civilians by the Constitution and the Bill of Rights. But then, even the fact that Merryman was in the Maryland militia, was not in the record. Neither the applicant nor Cadwallader were willing to bring that fact to Taney’s attention (which, I expect, the court had already known).
When I first started studying this case, I thought Merryman was a traitor who was caught doing wrong. But having studied it, my sense is that he was agnostic about the war (and about his state’s participation in the war), and he thought he was following lawful orders from the civilian authorities when he burned bridges. These were bridges he had an indirect property interest in, and so, he was acting somewhat selflessly against his personal interests. He was a man in the wrong place at the wrong time doing the wrong thing. As Rumpole would say: “an unfortunate constellation of facts.” Still, he never should have been detained or indicted. (He was never actually tried, much less convicted in a proper judicial proceeding.) If Merryman was guilty of a crime, and I say if, there were many, many more who were much more guilty and who had done, who were ready to do, and who would go on to do much worse. If he was disloyal, and I say if, there were many, many more who were much more disloyal and who had done, who were ready to do, and who would go on to do much worse.
The problem was once the Army had seized John Merryman, the civilian government could not back down without risking its ability to compel obedience. At that juncture, if the Union government had given in, it would appear that all traitors enjoyed a free ride, like a get-out-of-jail-free card, and Northern morale and faith in the new President would have collapsed. Merryman, like Vallandigham, was an unfortunate talking point for Confederate disobedience—but it was all unnecessary. If the U.S. government was going to detain people and do so absent due process and absent congressional suspension, then there were many, better candidates for the Army to seize. Such persons would have made better test cases and would have put those opposing the lawful government in the position of defending actual traitors who were actually dangerous. Merryman was not the place to draw a line in the sand.
Seth Barrett Tillman, Was John Merryman a Prisoner of War?, New Reform Club (May 18, 2020, 7:41 AM), <https://reformclub.blogspot.com/2020/05/was-john-merryman-prisoner-of-war.html>;