The Body of John Merryman: Abraham Lincoln and the Suspension of Habeas Corpus 9780674063259

Citation preview

T H E B O DY O F J O HN M E RRY M A N A B R A H A M L I N CO L N A N D T H E S U S P E N S I O N O F H A B E A S CO R P U S

THE BODY OF JOHN MERRYMAN

A BR A H A M L INCOL N A ND T HE SUSPENSION OF H A BE A S CORPUS

Brian McGinty

H A RVA R D U N I V E R S I T Y P R E S S

Cambridge, Massachusetts London, England 2011

Copyright © 2011 by the President and Fellows of Harvard College All rights reserved Printed in the United States of America Library of Congress Cataloging-in-Publication Data McGinty, Brian. The body of John Merryman : Abraham Lincoln and the suspension of habeas corpus / Brian McGinty. p. cm. Includes bibliographical references and index. ISBN 978- 0- 674- 06155-2 (alk. paper) 1. Merryman, John, 1824–1881—Trials, litigation, etc. 2. United States. Supreme Court. 3. War and emergency powers— United States. 4. Habeas corpus—United States. I. Title. KF223.M48M38 2011 347.73'5–dc22 2011012149

CONTENTS

Introduction

1

1. The Challenge

10

2. Confl icted Ground

33

3. The Squire of Hayfields

56

4. The Writ and the Suspension 5. All the Laws but One 6. Weighing In 7. The Courts

117 134

8. A Gentleman Still 9. The Great Tribunal Notes

199

Bibliography Index

243

95

229

150 172

72

“The 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.” United States Constitution Article I, Section 9, clause 2

“I can see no ground whatever for supposing that the president, in any emergency, or in any state of things, can authorize the suspension of the privileges [sic] of the writ of habeas corpus, or the arrest of a citizen, except in aid of the judicial power.” Roger Brooke Taney Ex Parte Merryman, 1861

“Is there, in all republics, this inherent, and fatal weakness?” “Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?” Abraham Lincoln Message to Congress in Special Session, July 4, 1861

INTRODUCTION

On May 28, 1861, the chief justice of the United States Supreme Court issued a bold and provocative challenge to the president of the United States. Sitting in the courtroom of the U.S. Circuit Court in Baltimore, the eighty-four-year-old Roger Brooke Taney ruled that Abraham Lincoln had violated his constitutional duty to “take care that the laws be faithfully executed” by suspending the privilege of the writ of habeas corpus along the military line between Washington and Philadelphia.1 Taney had issued a writ of habeas corpus ordering the military commander of Fort McHenry to “have the body of John Merryman” in his courtroom. Merryman was a prominent Marylander of pro-Southern sympathies who, accused of disloyal words and acts, had been arrested and confi ned in McHenry. The commander of the fort had declined to produce him in court, citing the president’s order of suspension as his justification. Taney promptly issued a writ of attachment, citing the commander for contempt of court, and announcing that the president had no power under the Constitution to suspend habeas corpus, and no power to arrest or detain any “person not subject to the rules and articles of war.” It was “very clear,” Taney announced from his Baltimore bench, that John Merryman was “entitled to be set at liberty and discharged immediately from imprisonment.”2 Chief Justice Taney’s order in Ex parte Merryman, and the long written opinion he soon issued explaining it, aroused excited responses all over the country. Never before had a judicial

2

The Body of John Merryman

officer—much less the presiding justice of the highest court in the United States—taken so strong and so vehement a stand against executive authority. The great Civil War that was, in the four years following, to result in more than six hundred thousand deaths, cause the loss of hundreds of millions of dollars worth of property, and alter the character of the American Union in ways that were then unforeseen, was in its infancy. Laying down his challenge to Lincoln at the commencement of the hostilities, Taney arrayed his judicial authority to decide legal cases against the president’s executive power to combat the massive insurrection then raging in the country. Taney’s decision in Ex parte Merryman, like his 1857 decision in Dred Scott v. Sandford,3 was an aggressive assertion of judicial supremacy. In Merryman, the chief justice stated that the president’s powers as commander in chief were to be exercised in “subordination to judicial authority,” following rules laid down in court decisions.4 A century and a half later, the challenge issued by Taney— and the response given to it by Lincoln— remain one of the most critical but poorly understood chapters in American history.5 A less resolute president than Lincoln might have been cowed by Taney’s decision. His predecessor in the White House, James Buchanan, had “cheerfully” submitted to Taney’s grab for judicial power in Dred Scott,6 relieved at the thought that the judiciary would decide the future of slavery in the United States, and disinclined to offer any resistance to it. Buchanan was a sophisticated attorney who had twice declined to be appointed to the Supreme Court,7 while Lincoln was a country lawyer from the western frontier. But Buchanan was irresolute and wavering— a member of the class of Northern politicians called doughfaces because their “principles” were pliable and they often sided with the slaveholding interests of the South. Lincoln, in contrast, was a man of strong convictions and even stronger instincts. Endowed with a rigorously logical mind and

Introduction

3

keen powers of analysis and judgment, he was convinced that Taney’s decisions in Dred Scott and Ex parte Merryman were both egregiously wrong, and he was determined to do what he could to see to it that they did not ultimately prevail. Ex parte Merryman was a dramatic confrontation between two of the three branches of the United States government. The principal actors in the confrontation were both men of exceptional intelligence and resolve. Taney was accustomed to working his will with citations of precedent and cool expressions of judicial authority. He was an educated man who knew the law and knew it well, for it had been his profession for more than sixty years; and he had the ability to express himself in ways that conveyed confidence and assurance. Lincoln knew the law well, too, though his approach to it was different from Taney’s. Though best known for arguing common cases before unsophisticated juries in Illinois’s Eighth Judicial Circuit, he had also argued hundreds of cases in the Supreme Court of Illinois, where sophisticated legal analysis and research in judicial precedents were necessary to carry the day. He had also argued one case in the U.S. Supreme Court before Roger Taney himself. He lost that case when Taney disregarded a controlling precedent to rule against his client.8 But he learned a valuable lesson from his experience there. Supreme Court decisions are not etched in stone. Courts overrule themselves from time to time, or are themselves overruled by the elected branches of the government. In some cases, they are also overruled by public opinion, by the “people of the United States” who established the Constitution and are, in the fi nal analysis, responsible for its continued vigor and life.9 Lincoln believed strongly in the rule of law—he had, as a young man, said that “reverence for the laws” should become “the political religion of the nation.”10 But as he confronted the reality of the Dred Scott decision— a decision that offended his

4

The Body of John Merryman

concept of constitutionality and contradicted his reading of American history—he developed a sophisticated sense of the deference that democratic institutions owe to judicial decisions. He believed that decisions of the Supreme Court of the United States were entitled to great respect. But he did not believe that government policy “upon vital questions, affecting the whole people,” could be fi xed by Supreme Court decisions the instant they were made in ordinary litigation between private parties.”11 A judgment rendered by the Supreme Court was, in Lincoln’s view, binding for all respects in the case decided. It was the law of the case. But the opinion that explained the judgment was merely a statement of the reasons for the decision. The opinion was entitled to deference (or lack of deference) by the coordinate branches of government only in accordance with its own virtues, or lack of virtues. Lincoln did not believe that Taney’s decision in Ex parte Merryman controlled his actions as president of the United States. If Taney derived his power from the judicial article of the Constitution, Lincoln derived his power from the executive article of the same founding document. If judges were empowered to sit in review of decisions of the executive and legislative branches of the government, and strike some of them down as “unconstitutional and void,” presidents were also entitled to sit in review of decisions of the judicial branch, and proclaim some of them uncontrolling. Lincoln believed that he had power under Article II of the Constitution to defend the Union against the military threat posed by the Southern rebellion. He wielded the executive power of the nation. He, not Roger Taney, was “commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual ser vice of the United States.”12 When he became president, he took a constitutionally prescribed oath to “preserve, protect, and defend the Constitution of the United States.”13 It charged him

Introduction

5

with a duty and, by parallel logic, gave him the power to discharge that duty.14 Lincoln declined to submit to Taney’s Ex parte Merryman opinion, not just because it challenged his suspension of habeas corpus, but because he believed that the Constitution forbade him to submit. His duty was “to preserve, protect, and defend the Constitution,” not to follow judicial dictates, and if there was a conflict between his duty and the judicial dictates, he would follow his duty. And he would do so by his own lights and according to his own considered sense of what the Constitution required of him.15 Lincoln’s decision to suspend habeas corpus was not made in isolation. It was part of an overall strategy to resist the Southern rebellion. It was a military, not a judicial, measure. Like his proclamations summoning the militia to Washington and blockading Southern ports, its purpose was to combat the rebellion. He ordered the suspension of habeas corpus pursuant to what he called the “war power,” and believed the suspension was as necessary to the war effort as his orders sending troops into battle. He was not discharging the functions of a police force but exercising the power of the commander in chief to use the military power of the nation to win the war. The Civil War was, of course, a great military struggle—the greatest, perhaps, in the history of the world up to that date— with massive armies assembled in the field and modern armaments employed to infl ict devastating destruction on the opposing forces. But it was at the same time a great legal struggle.16 At its heart, it was an epic contest between two great theories of constitutional law, one holding that the United States was a league of sovereign states who retained the right at any time and for any reason to sever the legal ties that bound them to the other states and to go their own way, and the other holding that the United States was a nation bound firmly together by a “supreme law”

6

The Body of John Merryman

expressed in the founding document.17 Other important issues were also put in contest, of course: the legal status of AfricanAmericans, the continued existence of the institution of chattel slavery, laws authorizing conscription, income taxation, legal tender, confiscation of rebel property, the blockade of Southern ports, and the Emancipation Proclamation.18 The suspension of habeas corpus was also a critical issue. All of these issues were fought over in the four years that the great war continued. But it was the central issue of secession or Union—the character of the United States as an indissoluble nation or a collection of independent states—that loomed over all the others, infused them with their character, and marked them as elements in a great national drama. It is easy for Americans in the twenty-fi rst century to forget the uncertainties that clouded the horizon at the beginning of the Civil War. We now know that Lincoln prevailed in his struggle to preserve the Union. We know that, after agonizing fits and starts, he was able to find generals and amass armies that commanded the field. We know that he was able to break the chains that held millions of African-Americans in bondage with the stroke of his executive pen (backed up by the Thirteenth Amendment to the Constitution, which he supported with exceptional vigor in the last months of his life).19 We know that the “new birth of freedom” that he described at Gettysburg was ultimately realized. But Americans did not know these things in the dark and frightening days of April and May 1861, when Roger Taney issued his Merryman challenge. They did not know then that the Confederate States of America would ultimately founder, that Lee would surrender to Grant, that Jefferson Davis would be sent fleeing from his executive mansion in Richmond, that the Constitution of the United States would survive into a distant future with renewed vigor and relevance, while that of the Confederate States would become a tragic footnote to an even more tragic

Introduction

7

chapter in human history. Roger Taney and John Merryman both sympathized with the Southern rebellion. The disloyal acts that led to Merryman’s detention at Fort McHenry, and the writ of habeas corpus that Roger Taney issued in an effort to free Merryman from that detention, were part of the welling surge for Southern independence. Neither Lincoln nor Taney could have known at the time of the Merryman case what the ultimate outcome of the war would be, or what judgments history would pronounce on their efforts. Each knew, however, that his efforts would have some effect on the outcome. Taney’s written opinion in Ex parte Merryman, printed in newspapers all over the country, circulated in specially printed pamphlets, celebrated in the South and pro-Southern border regions, and angrily condemned in the North, had the initial effect of encouraging the Southern rebellion. It gave hope to men like John Merryman that Lincoln’s efforts to suppress the rebellion would fail and that men and women of prosecessionist sympathies in border states like Maryland would win supporters to their cause. Merryman frankly hoped that Maryland would join its sister states south of the Potomac in rebellion. Taney was more guarded in expressing his sentiments—he was, after all, a high officer of the very government the secessionists were at war with—but in his private correspondence he gave voice to sympathies not much different from Merryman’s. And to anyone willing to read between the lines of his Merryman opinion, the same message could have been detected. Taney’s principal biographer, Carl Brent Swisher, wrote that the chief justice’s Merryman opinion “had the impact of a military victory for the South.”20 And the victory came at a critical moment, hard on the heels of the federal surrender of Fort Sumter and only a few weeks before the Union rout at First Bull Run.21 That the victory did not carry the South to ultimate independence is due in large measure to the answers Lincoln provided to Taney’s Merryman

8

The Body of John Merryman

arguments. He responded, first, in a lengthy special message delivered to Congress on July 4, 1861.22 He solicited the opinions of his attorney general, Edward Bates, and of Maryland’s former U.S. senator Reverdy Johnson, one of the foremost constitutional lawyers of the time.23 And dozens of other scholars joined the fray with their own learned opinions, some vigorously disputing Taney’s pronouncement, others agreeing with it. But Taney and Merryman learned that victory can be fleeting. The chief justice’s Merryman decision, proclaimed by him as an individual justice (acting “in chambers”) and not in behalf of the full Supreme Court, 24 was not followed up with any Supreme Court decision echoing the confident views he had expressed. If the chief justice was certain that Lincoln’s conduct of the war defied the Constitution, other Supreme Court justices were not so sure. Lincoln’s administration prevailed in some critically important cases heard by the full Court (Ex parte Vallandigham 25 and the Prize Cases 26 notable among them), while the precise question that Taney decided in Merryman— can the president lawfully suspend the writ of habeas corpus in times of rebellion or invasion when the “public safety” requires it—was never presented to the full Court. As a consequence, it was never authoritatively decided whether the chief justice or the president was right on the core question. In the words of historian Harold Hyman, the division of informed judgment on Taney’s opinion “led only to the Scottish verdict, not proved.”27 But Lincoln continued throughout the war to suspend habeas corpus; to employ the tool of suspension to support the military in its struggle for victory. While the war was fought, the old chief justice’s Merryman opinion was quietly shelved—to be resurrected perhaps at another, calmer time, when cooler heads could reexamine its arguments and reweigh his judgments. In the pages that follow, I describe the epic confrontation between Taney and Lincoln that was memorialized in Ex parte

Introduction

9

Merryman. It is a story with a rich cast of characters: Chief Justice Roger Taney; gentleman farmer John Merryman; Governor Thomas Hicks of Maryland; Mayor George Brown of Baltimore; United States Attorney General Edward Bates; Secretary of State William Seward; Generals Winfield Scott and George Cadwalader; appellate lawyer and former U.S. senator Reverdy Johnson; constitutional scholars Joel Parker and Horace Binney; and a host of others. Not surprisingly, however, the central character is Abraham Lincoln. He was the president of the United States during the confl ict; the commander in chief of the armed forces; but also the “lawyer in chief” for a sophisticated constitutional argument that ultimately prevailed when Grant accepted Lee’s surrender at Appomattox. The confrontation was a legal battle of enormous importance to the war, to the nation, and ultimately to the world, for foreign peoples and nations all watched anxiously for its outcome.28 Though framed in legal terms, the confrontation resonated beyond the purely legal issues stated in Taney’s opinion. It affected the conduct of the war itself; and if it did not determine the outcome, it helped to bring it about. The legal battle was fought partly in Taney’s Baltimore courtroom, partly in Lincoln’s White House office, partly in the halls of Congress. But the fi nal decision was not made in any of those places. It was rendered in the court of public opinion where, after the guns of war fi nally fell silent, the suspension was sustained and the Union was saved.

1 THE CHALLENGE

A crowd began forming on Monday morning along St. Paul Street in front of Baltimore’s Masonic Hall. The United States district and circuit courts had occupied rooms in the building since 1823, and Roger Brooke Taney had held court there for much of his twenty-five years as chief justice of the United States Supreme Court and U.S. circuit judge for the Fourth Circuit. The Masonic Hall was a handsome, two-story pile of bricks and stone with a columned entryway surmounted by a Roman arch and a small forecourt enclosed by an iron fence. At a few minutes before eleven, Taney approached the building, walking beside his seventeen-year-old grandson and namesake, Roger B. Taney Campbell.1 The chief justice was a tall but almost cadaverously thin man, with a shock of unruly hair that hung low at his collar and tumbled over his forehead, a pinched mouth, and a back bent low by the weight of his eighty-four years. But he was as determined now as he had ever been in his long judicial career. The crowd parted for him and his grandson as they approached the entrance of the Masonic Hall and disappeared inside the building. Word had spread through Baltimore that morning that Taney was about to issue an important ruling, and the federal courtroom was fi lled with local officials, members of the bar, and ordinary citizens as he made his way toward the bench at the head of the room.

The Challenge

11

It was Monday, May 27, 1861. Taney was accustomed to auspicious judicial events and appreciated their drama. Since his elevation to the Supreme Court in 1836 he had presided over some of the most notable (and controversial) cases in the young nation’s history. His famous (or, by many estimates, infamous) decision in Dred Scott v. Sandford, announced in Washington in 1857, had been the most memorable, but others had also attracted wide interest, and he had never recoiled from attention. Less than three months before his Baltimore appearance, he had participated in another great ceremony, the March 4 inauguration of Abraham Lincoln as sixteenth president of the United States. Despite his political differences with Lincoln (they were many and sharp), Taney had comported himself with his usual dignity as he administered the oath of office to the new executive. Now he was about to issue a ruling that would shake the foundations of his official relationship with that executive. Taking his seat on the bench, Taney signaled that he was ready to proceed, and the clerk called the case of Ex parte Merryman. On Sunday afternoon, Taney had signed a writ of habeas corpus ordering the commander at Fort McHenry, the U.S. Army installation at the entrance to Baltimore’s Inner Harbor, to bring John Merryman before him in the circuit court at eleven o’clock on Monday morning, then and there to show why Merryman was imprisoned in the fort. Brevet Major General George Cadwalader, commander at Fort McHenry, had sent his aide, Colonel R. M. Lee, to the Masonic Hall to appear before Taney. Lee was accompanied by the United States district attorney, William Meade Addison, while Baltimore attorneys George M. Gill and George H. Williams were on hand to represent Merryman. The U.S. district judge in Baltimore, William F. Giles, was present but remained silent. Resplendent in a red sash and carrying a

12

The Body of John Merryman

ceremonial sword, Lee had brought a letter from Cadwalader advising Taney why he had not brought Merryman to court that morning.2 The letter was couched in respectful yet defiant terms. Lee now proceeded to read it to the judge. Cadwalader’s letter said that Merryman had been arrested and confi ned in Fort McHenry for “various acts of treason,” for having in his possession “arms belonging to the United States,” and for “avowing his purpose of armed hostility against the government.” Cadwalader was “duly authorized by the President of the United States, in such cases to suspend the writ of Habeas Corpus for the Public Safety.” The letter asked Taney to postpone further action in the case until the general could receive instructions from the president, at which time Taney would “hear further from him.” Having fi nished reading, Lee handed the letter to the clerk. The chief justice was not impressed. “Have you brought with you the body of John Merryman?” he asked Colonel Lee. “I have no instructions except to deliver this response to the Court,” Lee answered. “The commanding officer declines to obey the writ?” Taney continued. “After the communication I have made,” Lee said, “my duties and powers are ended.” “General Cadwalader was by that writ commanded to produce the body of Mr. Merryman before me this morning,” Taney said, “that the case might be heard, and the petitioner be either remanded to his custody or set at liberty if held on insufficient grounds. But he has acted in disobedience to that high writ, and I direct that an attachment be at once issued against him, returnable before me here at 12 o’clock tomorrow.” As Lee withdrew, Taney penned a memorandum that he handed to Thomas Spicer, the clerk of the court:

The Challenge

13

Ordered, That an attachment forthwith issue against General George Cadwalader for a contempt in refusing to produce the body of John Merryman according to the command of the writ of habeas corpus returnable and returned before me today, and that said attachment be returned before me at 12 o’clock tomorrow, at the room of the Circuit Court. R. B. Taney. Monday, May 27, 1861.

The courtroom erupted in what one of the spectators called “a sensation.”3 Undeterred by the excitement, Taney rapped his gavel to signify that the court was adjourned, and the spectators began to fi le out of the room. Telegraph wires buzzed with reports from the Baltimore courtroom of Chief Justice Taney, and newspapers across the country were soon emblazoned with the story. The old jurist had directly challenged the president of the United States with a judicial order, laying down a challenge more direct and defiant than any ever seen in the history of the republic. It was a sharp and determined challenge that would be remembered long after the guns of the awful war then wracking the nation fell silent, for the constitutional issues it raised were troubling, and they had no clear or simple answers. More than a century and a half later, the issues would still vex lawyers, judges, constitutional scholars, and historians of the Civil War. Roger Brooke Taney and Abraham Lincoln were unlikely antagonists in one of the greatest constitutional confrontations of American history. Both were lawyers, and both had spent the greater part of their professional careers in courtrooms, though Lincoln’s time had mostly been spent in the county courts of Illinois, where he argued before country judges and juries, while much of Taney’s career had been spent on the bench of the nation’s highest tribunal, listening to some of the most talented

14

The Body of John Merryman

and skillful appellate advocates in the nation. Both had also spent significant time in politics, Taney as a Maryland state senator and, later, a member of President Andrew Jackson’s cabinet (he served “Old Hickory” as both attorney general and secretary of the treasury), while Lincoln had cut his political teeth in the rough-and-tumble politics of the Illinois legislature and as a onetime Whig congressman from his adopted state. Both Taney and Lincoln had been born in slave states, Taney in the tobacco country of Maryland’s Calvert Peninsula, where his aristocratic father owned a plantation worked by slaves, and Lincoln in the backwoods of Kentucky’s Hardin County, where his illiterate father struggled to eke a living out of a small tract of dense woodland. Because Taney was not the oldest son in his family, he did not inherit his father’s tobacco plantation and had to make his own living. After a good education at Pennsylvania’s Dickinson College, he embarked on a career as a lawyer, practicing first in the western Maryland town of Frederick and later in Maryland’s largest city, Baltimore.4 Lincoln had moved with his family from Kentucky into Indiana, where he spent his boyhood years on a farm only a little more hospitable than the one he had known in Kentucky, and then moved on to Illinois. He never liked the farming life, however, and yearned from early years to make a name for himself in some other business or profession. With only the barest rudiments of a formal education, he settled on a career in law after he moved into the central Illinois town of Springfield in the 1830s. At about the same time that he began to study law in earnest, he began to test his feet in the waters of Illinois politics. Taney grew up in a comfortable relationship with slavery, which had been an inseparable part of plantation life in Maryland for a century and a half. He owned slaves when he was a young man but freed some of them after he became a lawyer,

The Challenge

15

more as a gesture of kindness to individuals than out of any philosophical objections to the “peculiar institution.” Lincoln imbibed a hatred for slavery early in his life and nurtured it as he grew older.5 Though Taney was originally a member of the Federalist Party in Maryland, he drank deep of the Democratic opinions of Andrew Jackson in the middle of the 1820s, and he maintained his Democratic allegiance to the end of his life.6 Lincoln had rejected the wave of Jacksonian fervor that swept over Illinois in the 1830s, preferring to align himself with Henry Clay’s Whigs and, after that party foundered in the early 1850s, with the new Republican Party.7 Both Taney and Lincoln were lawyers through and through, with sure instincts for identifying the critical issues of the cases they considered and the ability to marshal and analyze oftentimes confl icting evidence. Taney had the advantage of a superior education and youthful association with some of the most distinguished lawyers of the early nineteenth century (Baltimore and the Maryland state capital at Annapolis were home to some of the most celebrated courtroom advocates of those years). Lincoln made up for his almost nonex istent schooling with voracious reading. As a lawyer, as attorney general of the United States, and finally as chief justice of the Supreme Court, Taney formed some very clear and definite views about the United States Constitution, the proper functions of the states and the federal government in the constitutional system, and the role that the courts (particularly the federal courts) should play in that system. His views touched on all of the most contentious constitutional issues of the time: the power of Congress to regulate commerce “among the several states,”8 the ability of the states and the federal government to deal with slaves who escaped from their masters and became fugitives in the free states of the North and Northwest;9 and the scope of the Necessary and Proper

16

The Body of John Merryman

Clause, under which Taney’s great predecessor as chief justice, John Marshall, had in 1819 upheld Congress’s power to charter a Bank of the United States.10 Taney’s views, of course, touched in many ways on the volatile issues raised by chattel slavery in the tobacco- and cottonproducing states of the South. In the late years of his career, his critics assailed him as an apologist for slavery. His defenders countered by arguing that he was “personally” opposed to slavery but constrained by the Constitution to protect it from Northern assaults. The truth of Taney’s own views about slavery was probably somewhere between these two extremes. Early in his career, while trying a case in Maryland, he had described slavery as an “evil” and a “blot on our national character.” It was 1818, and he was representing a Methodist minister from Pennsylvania who had given an antislavery sermon in Maryland and been indicted for attempting to incite slaves to insurrection. Taney defended his client’s sermon on free speech grounds and told the jury that slavery “must be gradually wiped away.”11 But he was not expressing strong philosophical convictions when he made these statements, merely presenting the strongest arguments he could muster in his client’s behalf. Just a few years later, as Jackson’s attorney general, Taney expressed strongly racist views about African-Americans, arguing that “the African race in the United States even when free, are everywhere a degraded class,” that “the privileges they are allowed to enjoy, are accorded to them as a matter of kindness and benevolence rather than of right,” and that they were “the only class of persons who can be held as mere property, as slaves.”12 The year was 1832, and Taney was expressing views very similar to those he advanced in his controversial Dred Scott decision twenty-five years later. He expressed similarly racist views about both blacks and American Indians when, in 1840, in his capacity as chief justice of the United States, he was presiding in the circuit court in Maryland

The Challenge

17

over a murder trial and took the opportunity to explain why the law of Maryland prohibited both blacks and Indians from testifying in court. The status of African-Americans as slaves had given them deep resentments against their white masters, Taney explained, and those resentments could prove “dangerous to the white population” if they were permitted to testify against whites. Both blacks and Indians were excluded from testifying against each other, he said, because of their “barbarous and brutal ignorance” and their “crude and monstrous superstitions,” which made it impossible for them to appreciate “the obligation of an oath, as felt and appreciated in a Christian community.” 13 At least by the early 1840s, Taney’s views on the great constitutional issues had become fi xed, and as he continued to decide cases of broad national concern he did so with an air of assurance and confidence. He announced his decisions in what some of his critics called an “infernal apostolic manner.” Opponents said he reminded them of the pope, speaking “ex cathedra, infallibly.”14 (The chief justice was a devout Roman Catholic and, as such, religiously distinct from most of his fellow Americans in the first half of the nineteenth century). “Apostolic” or not, Taney couched his opinions in emphatic words and phrases. He said that his propositions were “too plain for argument” and that he was interpreting the Constitution “according to its true intent and meaning” and “in a manner not to be mistaken.”15 Taney’s most memorable decision was, of course, 1857’s Dred Scott v. Sandford. There were nine separate opinions in that emotionally charged case (seven supporting the Court’s decision and two dissenting from it), but Taney’s long discourse on the issues it raised was widely (if not accurately) regarded as the official opinion of the Court. The narrow question presented was whether the St. Louis–based African-American called Dred Scott was legally entitled to bring suit in a federal court to establish the fact that he had been emancipated when his master took

18

The Body of John Merryman

him to the state of Illinois, and later the territory of Wisconsin, in both of which places slavery was prohibited by law. Scott’s attorneys argued that he had become a free man when his master took him to live on “free soil.” This argument was supported by the principle announced in the English case of Somerset v. Stewart, decided in 1772, in which Lord Chief Justice Mansfield ruled that the status of a slave was “so odious, that nothing can be suffered to support it, but positive law.”16 In Illinois and Wisconsin there was no “positive law” to support slavery, so there could be no slaves. But Scott had returned from Illinois and Wisconsin to the slave state of Missouri, where there was such a law. There he fi led suit to establish his status as a free man, fi rst in state court and later in federal court. The case dragged on for years, with some decisions favoring Scott and others disfavoring him. Eventually his attorneys fi led suit in the U.S. Circuit Court in St. Louis, claiming jurisdiction under the Diversity Clause of the U.S. Constitution, which gives federal courts jurisdiction to hear and decide cases between “citizens of different states.”17 Scott’s attorneys alleged that he was a citizen of Missouri and that the man who claimed ownership of him (John Sanford [sic]) was a citizen of New York. Thus, they said, Scott was entitled to maintain his suit. The U.S. Supreme Court could have disposed of the claim by simply affi rming the last decision of the Missouri Supreme Court, which held that, under Missouri law, Scott was still a slave despite his residence on free soil. But Taney was not content to let the case rest on that narrow ground. He elected instead to publish a broad and far-reaching opinion that he thought would settle the vexing question of slavery in the United States for once and for all. First, he ruled that Dred Scott could not maintain his federal suit because he was an African-American and, under the Constitution, persons of African ancestry were not included in the “people of the United States.” They had never been covered by

The Challenge

19

the Declaration of Independence’s soaring assertion that “all men are created equal,” he said. When the Declaration was signed and the Constitution was adopted, they were “considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority.” Africans were deemed “so far inferior that they had no rights which the white man was bound to respect.”18 As an African-American, Dred Scott could not be a citizen of Missouri, Taney said, and he could not bring suit under the Diversity Clause against a citizen of New York. But Taney went on. He claimed that the Missouri Compromise, passed by Congress in 1820 to admit Missouri as a slave state and Maine as a free state and to prescribe where and under what conditions slavery would be allowed to spread into the western territories, was unconstitutional. That famous act of Congress, the product of difficult negotiations between the free and slave states, had permitted slavery to be established south of 36° 30", the southern boundary line of Missouri, but not north of that line. Taney said that Congress had no power to legislate for U.S. territories, despite the Constitution’s Territories Clause, which gives Congress power to “make all needful rules and regulations respecting the territory or other property belonging to the United States.”19 In a surprisingly narrow reading of that clause, Taney said that it applied only to territory that belonged to the United States at the time of the adoption of the Constitution in 1787. Thus it applied only to the old Northwest Territory, which by 1857 had all been subdivided into states. He admitted that Congress had power to admit new states into the Union and, by implication, the further power to organize governments for territories before they were admitted as states. But congressional exclusion of slavery from the territories went well beyond this narrow grant of congressional power and amounted to a form of colonial rule, with Congress making laws for residents

20

The Body of John Merryman

and depriving the residents of the right to make their own. Further, the right of slaveholders to own slaves was a property right protected from interference by the Fifth Amendment, which provides, among other things, that no person shall be “deprived of life, liberty, or property, without due process of law.”20 A law that stripped a slaveholder of his slaves merely because he took them into another state or territory, where the law purported to prohibit slavery, constituted a deprivation of property “without due process of law.”21 This, Taney asserted, the Constitution did not permit. It took Taney more than two hours to read his opinion in the Supreme Court, and when the written version was fi nished it ran to an astonishing 23,000 words.22 But it was not so much the length as the substance of the opinion that inflamed passions all over the country. Dred Scott was only the second case in the history of the United States in which the Supreme Court declared an act of Congress unconstitutional (the first was the famous case of Marbury v. Madison, decided by John Marshall in 1803).23 More importantly, however, it was the first time a substantively important federal law had been struck down (Marbury had invalidated a relatively minor procedural statute). Southern opinion was, as expected, favorable to Taney’s pronouncement. In Virginia, the Richmond Enquirer proclaimed it a victory of “reason and right, justice and truth,” over “passion and prejudice, ignorance and envy.”24 In South Carolina, the Charleston Mercury said that the decision had caused Southerners to unite in a “chorus of congratulation” because it showed “that in its most extreme demand the South contends only for its rights under the Constitution.”25 Opinion in the North was divided between supporters and detractors. The New York Journal of Commerce expressed support for the “wisdom, justice and constitutionality of the decision,”26 while in Pennsylvania the Pittsburgh Post said that the principles enunciated in the case had been “approved,

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affi rmed and established beyond recall.”27 But the New York Times expressed the alarming view that the decision would sow “the seed of discontent and contest and disaster” throughout the country.28 And Horace Greeley’s New York Tribune dismissed it as “entitled to just so much moral weight as would be the judgment of a majority of those congregated in any Washington bar-room.”29 Lincoln was slow to react to the Dred Scott decision. He had kept his distance from politics after his term in Congress ended in March 1849, choosing to devote his full energies to his law practice. It was a busy practice, and an increasingly profitable one. In addition to a full schedule of jury trials on Illinois’s Eighth Judicial Circuit, he tried cases in the federal courts in Chicago, and he devoted a good part of his time to arguing appeals in the Illinois Supreme Court. The Illinois high tribunal held court in the State Capitol near his Springfield office, and his power as an effective appellate advocate was gaining notice all over the state. In his almost twenty-five years as a practicing attorney, Lincoln took part in several thousand cases. Most were trials, but more than four hundred were appeals, which demanded long hours of careful preparation, studying precedents and crafting sometimes complex legal arguments.30 He also participated in several cases that were appealed to the United States Supreme Court. About twenty of his cases reached the high court in Washington, but he did not personally appear in all of them.31 In some, he represented litigants only at the trial or intermediate appellate levels. In the 1850 case of Moore v. Brown,32 for example, he fi led the record in the Supreme Court but did not participate in the appellate argument. In Forsyth v. Reynolds,33 decided in 1853, he fi led a brief but did not argue the case. His fullest participation in a Supreme Court decision came in the case of Lewis v. Lewis, which he personally argued before Chief Justice Taney and the associate justices on March 7 and 8, 1849, immediately after the

22

The Body of John Merryman

adjournment of the Thirtieth Congress. The case turned on the interpretation of the Illinois statute of limitations governing suits for breach of a covenant in the sale of real property.34 It was a technical question, but important for the parties and the law of Illinois. Lincoln argued that the sixteen-year statute of limitations began to run when the cause of action arose in 1819 and that the suit in Lewis v. Lewis was barred when it was commenced in 1843. His opponent argued that, because of an amendment to the statute, it did not begin to run until 1837. The controlling precedent seemed to be the Supreme Court’s 1839 decision in Ross v. Duval,35 which favored Lincoln’s position. But Chief Justice Taney and his associates decided otherwise, ruling that 1837 was the applicable date.36 It was a difficult loss for Lincoln, but one that taught him a valuable lesson: No matter how clear or definite a decision of the Supreme Court may seem to be, the Court is not bound in all cases to follow it. Later decisions may differ from earlier decisions and sometimes completely overrule them. Lincoln’s political instincts were aroused when, in 1854, Congress passed the controversial Kansas-Nebraska Act.37 This established a system of “popular sovereignty” in the federal territories, under which the settlers were authorized to hold elections and decide for themselves whether they wanted to have slavery in their midst or ban it. Illinois’s Democratic U.S. senator Stephen A. Douglas was the author and chief proponent of the Kansas-Nebraska Act, which he believed would defuse sectional tensions over the expansion of slavery while at the same time enhancing his own presidential ambitions. Popular sovereignty was a superficially attractive solution to the growing North-South dispute, for it seemed to relegate the slavery issue to the democratic process. But it disregarded the fact that Americans of African ancestry would be wholly excluded from the elections that would decide their fate. And, after Taney’s decision in Dred Scott was announced, it became apparent to many politicians that

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popular sovereignty could not survive the sweeping strictures of his decision. If, as Taney proclaimed, Congress had no power to exclude slavery from the territories, how could it authorize settlers in the territories to exclude it? A “nonexistent” power can hardly be delegated. And if, as Taney further proclaimed, the right to own slaves was constitutionally protected throughout the United States, how could Congress authorize settlers to exclude slavery from federal territory? Lincoln was not persuaded by Douglas’s popular sovereignty, for he believed that it evaded the moral dimensions of the slavery dispute. If slavery was wrong, as Lincoln believed, how could it be right to authorize settlers to establish it in the territories? Popular sovereignty, in his view, was “a mere deceitful pretense for the benefit of slavery.”38 Lincoln was no more persuaded by Taney’s Dred Scott decision. His regard for the law was, of course, very high, as was his respect for decisions of the United States Supreme Court. But over the course of his legal career he had developed some sophisticated views about the degree of deference owing to disputed or controversial Supreme Court decisions. He expounded on those views in the summer of 1857, when he delivered a long speech in his home town of Springfield, Illinois. Good lawyer that he was, he addressed the legal questions raised by Dred Scott head on. “Judicial decisions have two uses,” he said, “—first, to absolutely determine the case decided, and secondly, to indicate to the public how other similar cases will be decided when they arise. For the latter use, they are called ‘precedents’ and ‘authorities.’ ” He said that he believed “in obedience to, and respect for the judicial department of government.” He thought that “its decisions on Constitutional questions, when fully settled, should control, not only the particular case decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution as provided in that instrument.” He disagreed strongly with the Dred Scott decision on its merits—he believed it was

24

The Body of John Merryman

“erroneous”—but he offered “no resistance” to it. He would not attempt to interfere with the legal relations between Dred Scott and his master as laid down in Taney’s decision. But the broad policy applications of the decision were another matter. “We know the court that made it, has often over-ruled its own decisions,” he said, “and we shall do what we can to have it to over-rule this.” He continued: Judicial decisions are of greater or less authority as precedents, according to circumstances. That this should be so, accords both with common sense, and the customary understanding of the legal profession. If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affi rmed and re-affi rmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent. But when, as it is true we fi nd it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country.39

Lincoln continued to express his judicial views after he became the Republican candidate to replace Douglas in the Senate in 1858. In a speech in Chicago in July 1858, he denied Douglas’s charge that he was “resisting” the Dred Scott decision. “I do not resist it,” Lincoln said. “If I wanted to take Dred Scott from his master, I would be interfering with property. . . . But I am doing no such thing as that, but all that I am doing is

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refusing to obey it as a political rule. If I were in Congress, and a vote should come up on a question whether slavery should be prohibited in a new territory, in spite of that Dred Scott decision, I would vote that it should.” He continued: What are the uses of decisions of courts? . . . First— they decide upon the question before the court. They decide in this case that Dred Scott is a slave. Nobody resists that. Not only that, but they say to everybody else, that persons standing just as Dred Scott stands is [sic] as he is. That is, they say that when a question comes up upon another person it will be so decided again, unless the court decides in another way, unless the court overrules its decision. Well, we mean to do what we can to have the court decide the other way. That is one thing we mean to try to do.40

Lincoln was still explaining his views on Supreme Court decisions when he delivered his inaugural address as president. Roger Taney had come to the inaugural ceremony on a blustery day in early March to administer the oath of office to Lincoln. Nothing in the Constitution required the chief justice of the Supreme Court to administer the presidential oath, but custom and tradition dating back to John Adams had delegated that responsibility to the nation’s highest jurist, and Taney was a reliable respecter of tradition. In fact, Taney had more experience administering oaths to presidents than any other man in the nation’s history. Before Lincoln’s election, he administered the oath of office to six presidents (his first was Martin Van Buren in 1837), and Lincoln would be his seventh. Before the oath was administered, however, Taney and the large crowd of spectators gathered at the Capitol’s East Portico were obliged to listen to the incoming executive’s inaugural address (before William McKinley became president in 1897 it was the custom for the president to speak before, not after, he took his oath).

26

The Body of John Merryman

In his carefully prepared address, Lincoln acknowledged the dark clouds of secession that were then gathering on the nation’s horizon (seven Southern states had already adopted ordinances of secession) and expressed the fervent wish that those clouds might be cleared. He stated his conviction that “in legal contemplation, the Union is perpetual” and that “no State, upon its own mere motion, can lawfully get out of the Union.” He said that “resolves and ordinances to that effect” were “legally void” and that acts of violence against the authority of the United States were “insurrectionary or revolutionary, according to circumstances.” He assured his listeners that he intended to do nothing that would imperil Southern property, peace, or security, but that he intended to see that the laws of the Union were carried out. He then proceeded to reiterate his views as to the deference that should be given to Supreme Court decisions: I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case, upon the parties to a suit, as to the object of that suit, while they are also entitled to very high respect and consideration, in all parallel cases, by all other departments of the government. . . . At the same time the candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fi xed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having, to that extent practically resigned their government, into the hands of that eminent tribunal.41

Lincoln’s words showed that he intended to be a lawyerly president, to bring his considerable legal knowledge and experience to bear on the great issues then facing the nation. But he was more than just a good lawyer. He was simultaneously a

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canny politician, a statesman (in purpose if not yet in actual achievement), and a forceful and evocative rhetorician. As he closed his fi rst address to the nation he had just been elected to lead, he used his considerable powers of eloquence to assure the nation that, if cool and calm heads prevailed, the disaster then threatening to tear the nation to pieces could be avoided. He addressed words directly to those who were then in the process (or threatening to join the process) of secession: In your hands, my dissatisfied fellow-countrymen, and not in mine, is the momentous issue of civil war. The Government will not assail you. You can have no confl ict without being yourselves the aggressors. You have no oath registered in heaven to destroy the Government, while I shall have the most solemn one to “preserve, protect, and defend it.”42

A New York Times reporter wrote that, during the thirty minutes that Lincoln spoke, Taney “did not remove his eyes from Mr. Lincoln during the entire delivery.”43 After Lincoln’s last words had been uttered, the chief justice rose from his chair and stepped toward the president, holding out a Bible. He then asked Lincoln to repeat the oath that was prescribed in the Constitution for the incoming executive: I, Abraham Lincoln, do solemnly swear that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.44

Taney was the fi rst man to shake the new president’s hand, an act that was not constitutionally mandated but comported with long tradition and official courtesy. No such courtesy prevailed when, less than three months later, Taney made his way back into the courtroom of the United States Circuit Court in Baltimore’s Masonic Hall for a

28

The Body of John Merryman

second session in the case of Ex parte Merryman. It was Tuesday, May 28, the day he had specified for a return on the writ of attachment issued against General George Cadwalader of Fort McHenry. A huge crowd, estimated by some as large as two thousand, had formed on St. Paul Street on the morning of the hearing, and the federal courtroom was jammed. Taney entered the chamber a few moments after twelve o’clock and took his seat on the bench. Rumors were rampant that General Cadwalader had evaded the attachment the chief justice had issued the previous day, and the spectators wondered how the chief justice would respond. Taney began the proceeding by announcing that Judge Giles was absent. The U.S. district judge for Maryland had been present the previous day because Taney had requested his presence and wanted “the aid of his counsel.” But since Taney was acting in his capacity as chief justice of the United States, Giles did not believe it was necessary for him to be present on this second day, and he had an important church meeting that he had committed to attend. Taney said that, under these circumstances, he had “not deemed it proper to trespass” on Giles’s time. The chief justice then asked for Marshal Washington Bonifant’s return to the attachment issued the previous day. The marshal delivered his written return to the clerk, who in turn presented it to the judge. Taney looked at the document and then asked the clerk to read it. It said that the marshal had gone to Fort McHenry that morning for the purpose of serving the attachment. At the outer gate, he identified himself by sending in his card. After a while, a messenger returned with the word that there was no answer to the card. He was thus unable to serve the writ. But Taney had been informed (or at least suspected) that Marshal Bonifant had not personally gone to Fort McHenry and had instead sent a deputy in his place:

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“Marshal, who went down to the fort to serve this writ?” the chief justice asked. “Mr. Vance, my deputy,” Bonifant answered. Taney now turned to Vance, who was present in the courtroom. “Mr. Vance,” he asked, “was there no other reply to your messenger than that set forth in the return, and were you not admitted into the fort?” “No, sir,” Vance replied, “the messenger replied that there was no answer to my card, and I was unable to pass the outer gate.” Taney paused briefly, then continued: So far as my duty goes, under the Constitution of the United States, I feel that duty to be to impose all the penalty of the law in such a case, but my views in this regard are entirely overcome by the non-appearance of the offender, and it is therefore not necessary for me to act as I otherwise should.45

The chief justice then read from a written memorandum he had prepared: I ordered the attachment of yesterday because upon the face of the return the detention of the prisoner was unlawful upon two grounds: 1st. The President, under the Constitution and laws of the United States, cannot suspend the privilege of the writ of habeas corpus, nor authorize any military officer to do so. 2nd. A military officer has no right to arrest and detain a person not subject to the rules and articles of war, for an offense against the laws of the United States, except in aid of the judicial authority and subject to its control; and if the party is arrested by the military, it is the duty of the officer to deliver him over immediately to the civil authority, to be dealt with according to law.

30

The Body of John Merryman I forbore yesterday to state the provisions of the Constitution of the United States which make these principles the fundamental law of the Union, because an oral statement might be misunderstood in some positions of it, and I shall therefore put my opinion in writing, and fi le it in the office of the clerk of this court, in the course of this week.

Having read his memorandum, the chief justice proceeded to address the courtroom: In relation to the present, it is proper to say that of course the marshal has legally the power to summon the posse comitatus to seize and bring into court the party named in the attachment; but it is apparent he will be resisted in the discharge of that duty by a force notoriously superior to the posse, and, this being the case, such a proceeding can result in no good, and is useless. I will not, therefore, require the marshal to perform this duty. If, however, General Cadwalader were before me, I should impose on him the punishment which it is my province to infl ict—that of fi ne and imprisonment. I shall merely say, to-day, that I shall reduce to writing the reasons under which I have acted, and which have led me to the conclusions expressed in my opinion, and shall direct the clerk to forward them with these proceedings to the President, so that he may discharge his constitutional duty “to take care that the laws are faithfully executed.”46

As the chief justice concluded his remarks, he rapped his gavel to adjourn the proceeding, and the spectators began to speak excitedly. “Thank God for such a man,” one cried out. “God grant that he may live many years to protect us,” said another.47 Frederick Bernal, the British consul in Baltimore, had been present during the hearing and approached the chief justice as he came down from the bench. Bernal had been sending regu-

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lar dispatches on events in Baltimore to Lord Russell, the British foreign secretary, for the British government had a strong interest in the developing confl ict in the United States and feared anything that might interrupt the flow of southern cotton to England’s econom ical ly important textile mills. Bernal was introduced to Taney and, as he promptly reported to Russell, he “could not forbear telling him (privately,) how it had gratified me to hear him asserting principles so dear to all Englishmen.” Taney made “a very feeling reply,” Bernal wrote. He said that “he had been brought up to study & revere, the English Common Law and that pained as he was to be so obliged, at such a moment, he would not shrink from asserting its glorious principles, which were likewise those of the Constitution of the United States.” Bernal made it clear to Lord Russell that he shared the chief justice’s sentiments. “At any other time such a trampling on the Constitution on the part of the President would have raised a tempest of indignation throughout the land,” the consul wrote, “but so demoralized is public sentiment, and so blinded by political passion are the masses, that the northern papers have either passed by this momentous question with a contemptuous silence, or have noticed it merely to load Chief Justice Taney, at other times an object to them of pride, and admiration, with every epithet of abuse, down to counseling (vide the New York Tribune) the President to arrest him. It was not so in other days . . .” 48 Baltimore’s mayor, George William Brown, was another spectator who spoke to Taney at the end of the hearing. Brown was a well-respected Baltimore attorney who shared many of the chief justice’s legal and political views. In later years he would remember the Merryman case as one of the most memorable events of the Civil War and recall that Taney was “greatly venerated in Baltimore, where he had formerly lived.” Brown thanked

32

The Body of John Merryman

the chief justice for his actions in Baltimore, and for his ruling upholding the writ of habeas corpus. “Mr. Brown,” Taney answered, “I am an old man, a very old man, but perhaps I was preserved for this occasion.” “Sir,” Brown answered appreciatively, “I thank God that you were.”49

2 CONFLICTED GROUND

Chief Justice Taney was aware of the unrest that prevailed in Maryland at the time of his May 28 decision, though in his oral statement in open court— and in the written opinion he was now preparing—he did not hint at it. In the five weeks preceding his ruling in the Merryman case, Baltimore and the territory surrounding it had been the scene of violence not equaled since the British sailed up Chesapeake Bay and laid siege to Fort McHenry in 1814. The successful defense of McHenry had inspired Francis Scott Key, “at dawn’s early light” on September 14, 1814, to pen the first verse of the song he called “The StarSpangled Banner.” Key was one of Roger Taney’s best friends, a fellow lawyer who also happened to be his brother-in-law (Taney and Key’s sister Anne were married in 1806), so the judge took pride in the song that was eventually immortalized as the National Anthem.1 But the patriotic fervor that inspired Key to celebrate “the land of the free and the home of the brave” in 1814 was notably absent from Taney’s Merryman pronouncement in 1861. If the chief justice felt any emotional attachment to the national flag that was hauled down all over Baltimore in April and May of 1861, or outrage at the prosecessionist mobs that ranged freely through the city’s streets and into the adjoining hills and valleys, he concealed it effectively. Since his inauguration on March 4, Lincoln had been preoccupied with the plight of Fort Sumter in the harbor of Charleston, South Carolina. Representatives of the governor

34

The Body of John Merryman

of South Carolina had visited President Buchanan in the White House at the end of December, demanding the immediate surrender of the federal installation, which South Carolinians regarded as a violation of their newly proclaimed independence. Lincoln regarded secession as a legal nullity and was convinced that he had the right to hold and defend all of the federal properties in the seceding states. What’s more, he believed that his constitutional duty to “take care that the laws be faithfully executed” required him to do all in his power to accomplish that goal.2 But he was not sure what the military realities of the situation allowed. Confederate batteries had been trained on Fort Sumter for weeks, eagerly awaiting orders to begin a bombardment that would reduce it to rubble. And the supplies that the fort’s garrison needed to continue its occupation were quickly running out. At the end of March, Lincoln ordered that a sea expedition be readied to resupply Fort Sumter. But before the ships could reach Charleston, Confederates began their bombardment. From April 12 until April 13, the Union soldiers in Sumter bravely returned the fi re of the shore batteries, but they were badly outnumbered and outgunned, and after thirty-three hours they lowered their flag.3 News of the surrender of Sumter spread quickly through the country. There was widespread exultation in the South, which regarded the event as a glorious victory for the cause of Southern independence, while Northern reaction ranged from dismay to outrage. All Americans agreed that relations between the North and the South had reached the point of no return—that the civil war so long threatened and feared but (up until then) successfully avoided with last-minute compromises and concessions had fi nally begun. Sentiment in Baltimore was confl icted. Residents of the city realized that armed confl ict would be necessary to resolve the long-festering differences between the sections,

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but they did not agree on the role that Marylanders should play in the confl ict. Baltimore was something of an anomaly in antebellum America, for its commercial life was much like that of New York, Philadelphia, and Boston, but its cultural ties were strongly Southern.4 In 1860 the city had a population of 212,418, making it the fourth most populous in the nation (only New York, Philadelphia, and Brooklyn were larger). It was one of the country’s key railroad hubs, a manufacturing center of growing importance, and a busy port whose Inner Harbor was crowded with ships from around the world. But it was also the marketing center of  an agricultural region that depended heavily on AfricanAmerican labor. Maryland was a slave state in 1860, with strong ties to the plantation culture of Virginia. Slaves constituted 12.7 percent of its population (87,189 out of a total of 687,049), but there was an almost equal number of free blacks (83,942).5 Pro-Unionist sentiment was strong in Maryland, but so was antiabolitionist feeling, so that a large percentage of the population urged the state to maintain its traditional ties to the national government but simultaneously argued that it should not give in to the antislavery demands of “Black Republicans” in the North. In 1860 Governor Thomas H. Hicks publicly stated that Maryland was “unquestionably identified with the Southern States in feeling, and by the institutions and habits which prevail among us. But she is also conservative, and above all things devoted to the Union.”6 In the same year the state legislature passed a resolution stating that Maryland intended to “cling to the Union as long as its great principles could be preserved” but that if the Union was dissolved, the state would “cast her lot with her sister States of the South.”7 Maryland’s Southern feeling became more pronounced after Northern abolitionist John Brown led a raid on the Virginia

36

The Body of John Merryman

town of Harpers Ferry in October 1859.8 Marching at the head of a “provisional army” of twenty-one men (including five blacks), Brown invaded the United States armory and arsenal in Harpers Ferry, took hostages, and announced that he had come to “free the slaves.” It did not take long for militiamen (many from neighboring Maryland) and a contingent of U.S. marines under Army Colonel Robert E. Lee to surround Brown and his men in the fire-engine house in the arsenal. Captured and taken to nearby Charles Town, Brown and six of his men were convicted and hanged.9 Brown’s raid outraged Southerners, who saw it as evidence of more and more intrusive abolitionist interference in the domestic affairs of the slaveholding states. But the courage and eloquence Brown exhibited at his trial, reported in daily newspapers throughout the nation and later celebrated by such writers as Ralph Waldo Emerson, Henry David Thoreau, and Herman Melville, convinced many Northerners that he was a man of substance and principle, not a mere thug or cutthroat, and that his plea for the abolition of slavery could not be lightly disregarded.10 Brown soon became the hero—the martyr saint— of a movement. In Maryland, Brown’s raid and his subsequent trial raised fears: would similar raids be launched from the North against slaveholding farms and plantations in Maryland? And many Marylanders were embarrassed by the fact that Brown had launched his raid on Harpers Ferry from a farmhouse just over the Potomac in Maryland. He had used Maryland soil to attack slavery.11 Defenders of slavery in Maryland grew increasingly incensed at this attack from the North— and increasingly determined to make sure there would be no more “John Brown raids.” Some Marylanders, almost in panic, proposed a law that would reenslave or banish all of the state’s free blacks.12 Maryland’s population was divided in its ethnic composition as well as its political sympathies. Patricians who could trace their families’ roots to the days of Lord Baltimore (some even

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earlier) occupied positions of privilege and prestige, but in Baltimore a substantial population of African-Americans (about 12 percent of the total) and an even larger population of immigrants (about 25 percent) shared space with them in the crowded blocks that lined the harbor and spilled over into the shabby edges of the city. Baltimore’s immigrants were mostly of Irish and German extraction. Some were businessmen or self-employed craftsmen and mechanics. Most, however, were laborers who were employed in private homes, shops, or factories. By 1860, Baltimore was one of the most industrialized cities of the country, with a manufacturing workforce that ranked first in the South and sixth in the nation.13 Baltimore was home to some of the most heroic public architecture in the United States (its soaring marble monument to George Washington was the nation’s fi rst public memorial to the great hero), and many Americans called it “The Monumental City.” But the city’s immigrant population composed a restless, quarreling subclass that often resorted to public violence. Periodic riots beset the city from the 1830s on, giving Baltimore its second and less flattering designation as “Mob City.”14 In the presidential election of 1860, Lincoln received only 2,294 votes in Maryland out of a statewide total of 92,502. (He received no votes in the Deep South, where his name was not even on the ballot.) But he received enough votes in the North to give him a comfortable majority in the electoral college (180 out of a total of 303) and to assure his election.15 The election results were received with “gloomy silence” all over Maryland.16 In southern Charles County, the voters in Beantown (all white property owners) passed a resolution requesting that anyone who had voted for Lincoln leave the county by January 1.17 In Baltimore, the state’s leading newspaper could not see that any good would come of the election and declared gloomily: “As we cannot offer to the readers of The Sun one word of congratulation

38

The Body of John Merryman

on so inauspicious a result, we are disposed to do no more than announce the fact this morning, and await the developments that may ensue.”18 Lincoln’s popular support in Maryland sank even further the following February, when he made a controversial passage through Baltimore on his way to Washington for his inauguration. He had originally planned to meet a welcoming crowd at Baltimore’s Calvert Street Station, deliver a speech, and then travel by carriage to the Washington Station, where another train would take him to the nation’s capital.19 But Allan Pinkerton, a Chicago-based private detective employed by the Philadelphia, Wilmington, and Baltimore Railroad to investigate sabotage threats against the trains, found evidence of a plot to assassinate Lincoln when he met the crowd in Baltimore. When Pinkerton’s information was confirmed by several other reliable sources, Lincoln reluctantly agreed to avoid the Baltimore crowd and pass unnoticed through the Maryland city in the middle of the night of February 23–24. He knew his critics would portray him as a coward for heeding Pinkerton’s warning, but he believed reports of the plot were credible (in fact, they were).20 In Baltimore, however, his critics ridiculed him. Mayor Brown called the assassination plot an “absurd story” and later charged that Lincoln’s “midnight ride” through Baltimore “helped to feed the flame of excitement which, in the stirring events of that time, was already burning too high all over the land.”21 The Sun declared of Lincoln: “We do not believe the Presidency can ever be more degraded by any of his successors than it has by him, even before his inauguration.”22 The president-elect was distressed by the Baltimore incident, but he did not let it interfere with the important work he had to do in Washington. He had a cabinet to assemble, an inaugural speech to fi nalize (the fi rst draft was written before he left Illinois), and important men to confer with. Among the dignitar-

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ies he met after arriving in the capital were Chief Justice Taney and the associate justices of the Supreme Court, who received him in their Capitol reception room on February 25.23 The meeting was a courtesy call dictated by decorum and tradition, but it gave Lincoln and the judges an opportunity to see each other in the flesh, to form preliminary opinions of each other, and to reflect (if silently) on the constitutional issues they would be likely to confront in the ensuing four years.24 Lincoln spent the Sunday following the fall of Fort Sumter in the White House, conferring with his cabinet, members of Congress, state officials, and military advisers. His old rival from Illinois, Senator Stephen A. Douglas, came to give him his recommendations (Douglas was a fi rm Unionist), as did Pennsylvania’s Governor Andrew Curtin (also a Unionist) and the almost seventy-five-year-old general in chief of the Army, Winfield Scott, who considered it his duty to serve the Union despite the fact that he was a native Virginian.25 The regular army in 1861 included only sixteen thousand men, most of whom were posted on the Western frontier to guard settlers from Indian attacks.26 Washington itself had only six companies of regular troops, fifteen of volunteers, and a small band of marines at the Naval Yard. Recognizing the city’s vulnerability, Lincoln wanted to summon volunteers from the state militias to report to the capital. His advisers concurred in this proposal, although they differed on the numbers that would be needed. The question of calling a special session of Congress was also considered. Lincoln was not certain that Washington would be safe for senators and representatives if Confederates should mount an early attack, and some seats in the House of Representatives were still vacant— awaiting the outcome of elections in the late spring. He also feared that if Congress came immediately to the capital it might initiate some ill-considered action that would endanger the Union— offering inappropriate concessions to the slaveholding

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interests, perhaps, or passing some measure that would offend the border states of Missouri, Kentucky, Maryland, and Delaware, whose continuing loyalty Lincoln believed essential to the preservation of the Union. In the end, he decided to summon Congress to a special session beginning on July 4 and to issue a call for seventy-five thousand state militiamen. In a formal proclamation issued on Monday, April 15, he recited that “the laws of the United States have been for some time past, and now are opposed, and the execution thereof obstructed, in the States of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana and Texas, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the Marshals by law.” He called for seventy-five thousand militiamen “in order to suppress said combinations, and to cause the laws to be duly executed.” He said that “the details, for this object, will be immediately communicated to the State authorities through the War Department” (Pennsylvania’s Simon Cameron headed up that department). He also called for both houses of Congress “to assemble at their respective chambers, at 12 o’clock, noon, on Thursday, the fourth day of July, next, then and there to consider and determine such measures, as, in their wisdom, the public safety, and interest may seem to demand.”27 He noted his constitutional power to call special sessions of Congress.28 He did not refer to his statutory power to call up the militia, though that was clearly stated in the Militia Act of 1795.29 Lincoln’s proclamation appealed “to all loyal citizens to favor, facilitate and aid this effort to maintain the honor, the integrity, and the existence of our National Union, and the perpetuity of popular government; and to redress wrongs already long endured.” It went on to speculate “that the first ser vice assigned to the forces hereby called forth will probably be to re-possess the forts, places, and property which have been seized from the

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Union.” The president ameliorated the harshness of this declaration by assuring the public that “in every event, the utmost care will be observed, consistently with the objects aforesaid, to avoid any devastation, any destruction of, or interference with, property, or any disturbance of peaceful citizens in any part of the country.”30 Response to Lincoln’s proclamation divided along predictably geographical lines. Northerners enthusiastically supported assembling a credible military force in Washington. Pro-Union rallies were held in Boston and New York. In Wisconsin, United States Senator James R. Doolittle said that if “an Angel from Heaven had issued a proclamation it could hardly have received a heartier response than the proclamation of the President.”31 From New York Vice President Hannibal Hamlin reported that the people were “all ready to a man in the loyal States to rush to the support of the Govt.”32 But a different mood prevailed in the South. Virginia had been agonizing for weeks over the question of seceding or remaining with the Union but now quickly decided to join the Confederacy. On April 17 a Virginia convention adopted an ordinance of secession. Arkansas followed suit on May 6, Tennessee on May 7, and North Carolina on May 20. As Lincoln biographer Michael Burlingame has observed, the president showed “questionable judgment” when he stated in his proclamation that the militias would probably be used to “re-possess the forts, places, and property which have been seized from the Union.” This gave border states reason to believe that the Northern troops would not be used for defense but would be sent South on aggressive missions. In Baltimore, the pro-Unionist former congressman and secretary of the Navy, John Pendleton Kennedy, said that Lincoln had committed a “wicked blunder” in making that statement, for half the adult males in Maryland would gladly have joined in the defense of Washington but never would have consented to invade the South.33

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In Baltimore, Southern sympathizers expressed “great indignation at the idea of troops being raised in one state to subjugate another.” William Wilkins Glenn, a pro-Southern lawyer in Baltimore, attended a secret meeting of men whose extreme views he did not fully support and confided to his diary that the object of the meeting “was evidently to organize an armed resistance to the passage of troops through Maryland.”34 One young man walked down a Baltimore street wearing a Southern cockade on his hat and was greeted with hisses, groans, and demands from pro-Union men that he take it off. Secession flags appeared on Southern ships in the harbor. One attempt to fly a large secession flag near Fort McHenry was thwarted, but another succeeded when a Confederate flag was raised downtown and given a hundred gun salute.35 Mayor Brown wrote that “strife was in the air” and that “it was difficult for the police to keep the peace.”36 On April 18 a Baltimore and Ohio train carry ing two companies of unarmed U.S. artillery and four of Pennsylvania militia left Harrisburg bound for Washington. The railroad led through the Maryland town of Havre de Grace, where a large American flag was flying the pro-Union message: “By the Eternal, the Union must and shall be preserved.”37 Word of the Northern troops’ approach had been received in Baltimore, where a large crowd of demonstrators was waiting at the train station. The demonstrators did not bother the regulars, but they subjected the volunteers to a torrent of taunts and insults so extreme that the police chief, Marshal George Kane, intervened to avoid violence.38 When the troops arrived in Washington, Lincoln and Secretary of War Cameron went to the Capitol to greet them. The president shook the hand of each soldier and said, “I did not come here to make a speech. The time for speech-making has gone by, and the time for action is at hand.”39 Back in Baltimore, Mayor Brown was distressed. He wrote Lincoln that Baltimoreans

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were “exasperated to the highest degree by the passage of troops, and the citizens are universally decided in the opinion that no man should be ordered to come. . . . I therefore hope and trust and most earnestly request that no more troops be permitted or ordered by the Government to pass through the City.” 40 Brown had recently been elected mayor on a reform ticket, and his views were thought to be pro-Union and antislavery. But he sympathized with the pro-Southern, proslavery feelings expressed by Baltimore’s elites. Years later, he remembered that the city was torn by “divided sympathies” in 1861 but that its Southern supporters sincerely believed that they had suffered grievous wrongs at the hands of their Northern brethren. He likened secession to a man’s defense of his “castle” and wrote that “where constitutional rights of a people are in jeopardy, a kindred right of self-defense belongs to them. Although revolutionary in character, it is not the less a right.” 41 Late on April 18, meetings were convened in Baltimore in which citizens expressed their determination not to permit any more federal troops to pass through the city.42 After Secretary Cameron advised Governor Hicks that “unlawful combinations of citizens of Maryland” were impeding the transit of United States troops on their way to defend Washington, Hicks and Mayor Brown issued proclamations asking the citizens to “preserve peace and maintain inviolate the honor and integrity of Maryland.” Congressional elections would soon be coming up, and they reminded Marylanders that when they went to the polls they would have a chance “to express their devotion to the Union, or their desire to see it broken up.”43 On April 19 Lincoln proclaimed a blockade of the ports in South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas (the states then in secession).44 News of the blockade, coupled with Virginia’s secession from the Union, added to the intensity of feelings in Maryland.45

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On the same day that Lincoln announced his blockade, a train carry ing a regiment of militia volunteers from Massachusetts crossed over the border between Maryland and Pennsylvania heading south toward Baltimore. The Sixth Massachusetts Regiment had begun its journey in Lowell, Massachusetts, three days earlier. As the volunteers proceeded through Boston, New York, New Jersey, and Pennsylvania they were greeted by cheering crowds.46 Somewhere in the Keystone State, they were joined by an unarmed regiment of Pennsylvania militiamen, raising the total number of the traveling force to about seventeen hundred men. The train that bore them south consisted of a locomotive engine and thirty-five cars. After they left Philadelphia, the Northern troops received word that their passage through Baltimore would be “resisted.” Their commanding officer advised them to load their muskets for self-defense but not to pay any attention to the demonstrators, even if bricks or stones were hurled at them. “Do not fi re into any promiscuous crowds,” he told them, “but select any man who you may see aiming at you, and be sure you drop him.”47 The thirty-five-car train arrived at Baltimore’s President Street Station at about noon on the morning of Friday, April 19.48 It was the eighty-sixth anniversary of the famous Battle of Lexington, fought just east of Boston on April 19, 1775. The Northern militiamen and the residents of Baltimore were all aware of the auspicious anniversary, though they viewed it in different ways. The Northerners thought that they were reprising the roles of the patriots of that historic day, fighting for the cause of American freedom, while the crowd who waited for them imagined that they were resisting “tyranny”—not the tyranny of a colonial power far across the ocean but of a federal government in nearby Washington. A Baltimore ordinance enacted in 1831 (probably to protect the jobs of teamsters) prohibited locomotive engines from traveling from the President

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Street Station to the Camden Station, so it was decided to detach each car from the locomotive and hitch it to a team of horses that would pull it along the tracks to Camden Street. The route led four blocks north on President Street, then westward along Pratt Street for eleven blocks to Howard Street, thence south one block to the Camden Street Station. The total distance was something over a mile. Pratt was one of the busiest thoroughfares in Baltimore, lined on its north side with tall buildings and stores but open on the south to the city’s wharves and Inner Harbor.49 The fi rst cars that left the President Street station were met by crowds along the way who jeered, hissed, and taunted the soldiers inside. But cars containing seven companies of the regiment were able to make it safely to Camden Street. Later cars were not so fortunate, for the crowd that taunted them (now swelled to a mob of some ten thousand men) poured sand on the tracks, dragged anchors from nearby wharves and laid them across the rails, and hurled cobblestones at the cars. One car was physically attacked and thrown off its tracks. When the cars could no longer proceed, the troops got out and started to march along the street. Missiles rained down on them. The soldiers increased their steps to double-quick time, which gave the mob the idea that they were afraid to fi re or had no ammunition. Some men in the mob began to fi re pistol shots at the soldiers, quickly killing one. An officer gave an order to “Fire,” and several demonstrators fell to the ground.50 Mayor Brown was summoned. He took up a position with one of the militia captains and marched at his side. The mayor’s presence seemed to subdue the crowd, but only temporarily. “Very soon the attack was resumed with great violence,” Brown later recalled. “Rioters rushed at the soldiers and attempted to snatch their muskets, and at least on two occasions succeeded. With one of these muskets a soldier was killed. Men fell on both sides.”51

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The remaining cars were now entirely blocked, so the drivers moved the horses to the other ends of the cars and tried to pull them back toward President Street. More than two hundred militiamen were forced out of the cars, while the mob waved Confederate flags and cheered for Jefferson Davis. Stones rained down on the soldiers, seriously injuring two of them. When the soldiers reached the Pratt Street Bridge, they found it had been blocked by joists and scantling laid over the roadway, and they had to pick their way through the obstacles.52 A part of the mob left Pratt Street for the corner of Baltimore and Calvert Streets, where a state armory occupied one of the upper floors of a tall building. Finding the doors closed and locked, the men knocked them down and rushed upstairs toward a room where nine hundred Springfield rifles were stored. They were met by a small contingent of pro-Union Maryland Guard who blocked their entrance to the armory. A violent scuffle ensued, after which the mob members retreated into the street and fled back toward Pratt Street.53 Marshal Kane was on the scene with squads of policemen. He ordered the mob to pull back and threatened to shoot if it did not. The threat had the desired effect, permitting the troops to regroup, resume their march toward Camden Street, and board trains bound for Washington. But the unarmed Pennsylvania militiamen and the band that accompanied the Massachusetts force were still at the President Street station, unable to proceed. They were being pelted by rocks when Marshal Kane appeared. He persuaded the attackers to relent and made an agreement with the railroad officials to send the remaining troops back to Pennsylvania.54 In all, the riot had continued for more than an hour. Sixteen men (four militiamen and twelve Baltimoreans) were dead, while an additional thirty-six soldiers and an undetermined number of civilians suffered serious injuries.55

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The departure of the militiamen did not dampen the excitement in Baltimore. Noisy crowds prowled the streets all through the afternoon and evening, shouting support for the Confederates and indignation at the Northern “invasion” of their city. Men gathered in groups on street corners, vowing to take action against any more militiamen that attempted to pass through Baltimore. Late in the afternoon, Mayor Brown and Governor Hicks addressed a large crowd in Baltimore’s Monument Square. When the mayor said that there was no right to secede from the Union, he heard “groans and shouts of disapproval.” Hicks agreed with the mayor but said he would not comply with Lincoln’s request for militiamen from Maryland. He would “bow in submission to the people.” “I am a Marylander,” he said. “I love my State and I love the Union, but I will suffer my right arm to be torn from my body before I will raise it to strike a sister State.”56 Mayor Brown sent a delegation of Baltimoreans to Washington with a letter to Lincoln asking that “no more troops be permitted or ordered by the Government to pass through the city.”57 When no reply was immediately received, he determined on a bold course of action. Governor Hicks was spending the night in the mayor’s house. The mayor went into the sleeping governor’s bedroom, awoke him, and asked him to approve a plan to send some Baltimore policemen and Maryland Guards north of the city to burn railroad bridges. Brown later insisted that Hicks agreed to the plan, but Hicks denied that he had done so.58 The policemen and guards followed the tracks of the Philadelphia, Wilmington and Baltimore Railroad northeast of the city. About fi fteen miles brought them to a long bridge that spanned the estuary of the Gunpowder River. They set fi re to the structure and then continued north. Another five miles or so brought them to the bridge over the Bush River, where they

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encountered a party of five “volunteers” from Baltimore. “They had ridden on horseback by night to the river,” Brown recalled, “and had then gone by boat to the bridge for the purpose of burning it, and in fact they stayed at the bridge and continued the work of burning until the afternoon.”59 The next morning, Saturday, April 20, Brown received a letter from Lincoln reporting that he had conferred with General Scott, who said that the Northern volunteers should be marched “around Baltimore and not through it.” Lincoln hoped this would prevent “a collision of the people of Baltimore with the troops.” Not content to rely on the president’s assurances, Brown and the Baltimore police began to assemble a force of more than fifteen thousand men “for the defense of the city.”60 The mayor later admitted that this move created the impression that “Baltimore had taken her stand decisively with the South,” and that “outward expressions of Southern feeling were very emphatic.”61 The United States flag was taken down at key locations in the city and replaced with either “States’ Rights” banners or the Confederate flag. The pro-Union Baltimore American reported that “the war spirit raged throughout the city and among all classes . . . with an ardor which seemed to gather fresh force each hour.”62 The Baltimore police offered to station Maryland state militiamen on the road leading to Fort McHenry to protect the facility from attack, and Marshal Kane excitedly sent word that troops should be sent to Baltimore from western Maryland and Virginia.63 On Sunday, April 21, Lincoln sent a message asking Mayor Brown and Governor Hicks to come to Washington to discuss the situation in Maryland. Hicks had already left the city, so Brown went alone with three of his aides. They met the president, General Scott, and his cabinet in the White House, where Lincoln assured them that he would try to move the Federal troops around Baltimore rather than through it. He said his sole purpose was to protect Washington, not to attack Mary-

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land or any of the Southern states. If he could not bring the troops up the Potomac (a doubtful proposition, since the entrance to Chesapeake Bay was in secessionist Virginia), he would have to bring them through Maryland “or abandon the capital.” The District of Columbia was, after all, surrounded on all four sides by Maryland and Virginia. Brown left the White House but, at the Washington train station, he received a report from the president of the Baltimore and Ohio Railroad that a trainload of Federal troops had appeared at Cockeysville, about fifteen miles north of Baltimore. Its southward progress had been halted by a burnt-out bridge. Alarmed by the news, the mayor returned to the White House, where Lincoln again summoned Scott and his cabinet for a conference. The president assured Brown he had no idea that more Federal troops were on their way to Baltimore and immediately prepared a dispatch ordering the troops at Cockeysville to turn back to Harrisburg.64 Simon Cameron commented that he had information that bridges north of Baltimore had been “disabled” so Federal troops could not pass over them. Brown admitted this fact but said it had been done “by authority” and “not as an act of hostility toward the General Government.” He said that Marylanders were “deeply attached to the Union,” but they regarded Lincoln’s call for seventy-five thousand Northern troops “as an act of war on the South, and a violation of its constitutional rights.” He said it was “not surprising that a high-spirited people, holding such opinions, should resent the passage of Northern troops through their city for such a purpose.”65 Lincoln denied that his call for seventy-five thousand troops had been motivated by hostile intentions toward either Maryland or the South and said that his only purpose “was to defend the capital, which was in danger of being bombarded from the heights across the Potomac.”66 The next contingent of Northern volunteers to appear in Maryland was the Eighth Massachusetts Regiment under the

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command of Major General Benjamin Butler. Knowing that passage through Baltimore was virtually impossible, Butler’s train stopped at the head of Chesapeake Bay, where he loaded his troops onto a steamboat headed for Annapolis. Governor Hicks sent both Butler and Lincoln notes advising them that the troops should not be landed. Hicks asked the president to send no more troops through Maryland, and he made the startling suggestion that the British minister in Washington should be asked to mediate the differences between the North and the South. Lincoln realized that such a proposition would have amounted to virtual recognition of the Confederacy and did not reply to it. Butler’s troops landed without opposition in Annapolis and proceeded to Washington by train. Some sections of the track had been torn up by Southern supporters, but they were quickly repaired, and by April 25 Butler and the Eighth Massachusetts arrived safely in the national capital.67 On Monday, April 22, a delegation of prominent Baltimoreans appeared in the White House with a demand that Lincoln forbid Northern troops from passing not only through Baltimore but also through Maryland. They asked him to restore peace to the land by recognizing the Confederacy. Lincoln was angry. “You, gentlemen, come here to me and ask for peace on any terms, and yet have no word of condemnation for those who are making war on us. You express great horror of bloodshed, and yet would not lay a straw in the way of those who are organizing in Virginia and elsewhere to capture this city. The rebels attack Fort Sumter, and your citizens attack troops sent to the defense of the Government, and the lives and property in Washington, and yet you would have me break my oath and surrender the Government without a blow. There is no Washington in that—no Jackson in that—no manhood nor honor in that.” (Lincoln’s reference to Andrew Jackson showed that he saw more than a little virtue in the bold, sure actions of the

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Democratic president he had so resolutely opposed when he was a young Whig in Illinois.)68 The president assured the Baltimoreans that he had “no desire to invade the South; but I must have troops to defend this Capital. Geographically it lies surrounded by the soil of Maryland; and mathematically the necessity exists that they should come over her territory. Our men are not moles, and can’t dig under the earth; they are not birds, and can’t fly through the air.”69 When the Baltimoreans suggested that there would be armed resistance in the city, Lincoln replied: “I will lay Baltimore in ashes.” When the Baltimoreans replied that seventy-five thousand people in Maryland would resist Federal troops in their midst, the president said grimly that he presumed there was “room enough on her soil to bury” seventy-five thousand men.70 On April 22, Governor Hicks called a special session of the Maryland General Assembly to meet in Annapolis on April 26. Two days later, “in consequence of the extraordinary state of affairs,” he changed the meeting place to Frederick. Lincoln and his advisers were concerned about the governor’s call because they knew that the state legislators could commence the proceedings necessary for secession— and, in view of the proConfederate feelings among the people, they might well do so. Lincoln’s treasury secretary, Salmon P. Chase, said that such action would be disastrous. “It will give a color of law and regularity to rebellion,” Chase told the president, “and thereby triple its strength.” The secretary thought Lincoln should order Scott to take action. “A word to the brave old commanding general will do the work of prevention,” Chase said. “You, alone can give the word. . . .”71 General Butler sent the president a message asking for authority “to bag the whole nest of traitorous Maryland Legislators and bring them in triumph” to Washington. But Lincoln wanted to “observe every comity with a recusant State.”72 He wrote Scott, advising him that the Maryland legislature was

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about to convene and that it “not improbably” would “take action to arm the people of that State against the United States.” The president had been asked “whether it would not be justifiable, upon the ground of necessary defence [sic],” for Scott, as general in chief of the U.S. Army, “to arrest, or disperse the members of that body.” But Lincoln did not think that course of action would be either “justifiable” or “efficient for the desired object.” The legislators had “a clearly legal right to assemble; and, we can not know in advance, that their action will not be lawful, and peaceful. And if we wait until they shall have acted, their arrest, or dispersion, will not lessen the effect of their action.” He explained that it was impossible to “permanently prevent their action. If we arrest them, we can not long hold them as prisoners; and when liberated, they will immediately re-assemble, and take their action. And, precisely the same if we simply disperse them. They will immediately reassemble in some other place.” Lincoln continued: 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 efficient 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.73

This letter was Lincoln’s fi rst mention of habeas corpus, and of the possibility that he might suspend it. It was significant on several levels: First, it revealed that, as early as April 25, the president was contemplating the possibility of a suspension. Second, it showed that the tumult in Maryland was what prompted him to think of suspension. Without the civil unrest that affl icted the state, without the pro-Confederate violence exhibited in Baltimore and along the railroads leading north from the city, and the possibility that the unrest and violence might provoke Maryland’s

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secession, he would not have considered it (at least not this early in the war). Third, it revealed that he contemplated the possibility of a suspension as an act of military necessity. If there was to be a suspension, it would be ordered on military grounds and carried out by military authorities. Finally, it revealed that he would resort to suspension only in exceptional circumstances. He would “bombard” Maryland’s cities if such action was militarily “necessary.” He would suspend the writ of habeas corpus only in “the extremest necessity.” The day after Lincoln’s letter to Scott, the Maryland legislature convened in Frederick. One of its fi rst actions was to receive James M. Mason, who had recently left his position as United States senator from Virginia. Mason had come to Frederick to propose a treaty of alliance between Virginia and Maryland.74 The legislators did not accept Mason’s proposition. Instead they passed resolutions stating that they had no constitutional authority to take any action leading to secession. But they also called for recognition of the Confederacy, protested the war then enveloping the nation as “unjust and unconstitutional,” and insisted that Maryland would not take any part in its prosecution. They added that it was then “inexpedient” to call a secessionist convention or take any immediate measures for arming the state militia.75 But they left the door open to future action along those lines, if and when conditions seemed right. News of the confl ict in Maryland quickly spread all over the country. On April 23 a young Marylander named James Ryder Randall, then teaching at a college in Louisiana, read a newspaper account of the April 19 fighting in Baltimore. He learned that one of his friends, a young lawyer named Francis X. Ward, had been wounded in the Pratt Street riot. Outraged at the Northern “invasion” of his native city, Randall began to compose a poem to express his feelings. Quickly completed, Randall’s nine-stanza “Maryland, My Maryland” was published on

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April 26 in the same newspaper in which he had read of the riot.76 Later reprinted all over the South, and eventually set to the tune of a traditional German Christmas carol (“Tannenbaum, O Tannenbaum”), “Maryland, My Maryland” soon became a popular Southern war anthem. It began with defiant words: The despot’s heel is on thy shore, Maryland! His torch is at thy temple door, Maryland! Avenge the patriotic gore That flecked the streets of Baltimore, And be the battle queen of yore, Maryland! My Maryland!

It concluded with a slur against defenders of the Union and a prediction of eventual vindication for suffering Marylanders: I hear the distant thunder-hum, Maryland! The Old Line’s bugle, fi fe, and drum, Maryland! She is not dead, nor deaf, nor dumbHuzza! she spurns the Northern scum! She breathes! she burns! she’ll come! she’ll come! Maryland! My Maryland!77

Randall’s poem became a favorite of Confederate soldiers and, despite its reference to “Northern scum” (or perhaps because of it), as late as 1939 it was still so popular in Maryland that the General Assembly proclaimed it the official state song.78 If Southern sympathizers in Maryland were inspired by Randall’s lyric, Union soldiers were not. On May 13 General Butler marched his troops into Baltimore, where they took possession of Federal Hill, an elevation between the city and Fort McHenry.

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Baltimoreans protested his actions, but resistance seemed futile, for the troops came well armed, and their biggest guns were pointed into the heart of the city. Young Marylanders who sympathized with the Confederacy now headed south into Virginia (Francis X. Ward was one of them). They were eager to take up arms in behalf of their Southern brothers but determined never to raise their swords against their native state. Maryland was confl icted ground, and its young men— aching to demonstrate their valor in the great war that was now beginning—were confl icted about their futures. They were eager to fight, but fi lled with questions about when and where and how they should do so. The weeks and months ahead would supply their answers.

3 THE SQUIRE OF HAYFIELDS

John Merryman was a man of some note in Maryland even before Chief Justice Taney elevated him to national fame in late May 1861. He was a substantial landowner, a gentleman farmer, a businessman, a politician, and the scion of one of the state’s oldest and most distinguished families. Colonial archives record the presence of Merrymans in Maryland as early as the middle of the seventeenth century. The family came originally from Herefordshire in England and settled, fi rst along the James River in Virginia, and a few years later along the Patapsco River in Maryland. They began to acquire land in Maryland as early as 1682, and by the early years of the nineteenth century owned more than a thousand acres at a place called Hereford, along the banks of the Gunpowder River, about twenty miles north of Baltimore. John Merryman was born at Hereford in 1824, the fi rst son of Nicholas Rogers Merryman and his wife, Ann Maria Gott. Merryman’s grandfather (also named John Merryman) was remembered in Maryland histories “as one of the most prominent citizens of his day.” He helped to defend Baltimore against British “oppression” in the 1770s, helped to secure Baltimore’s support for a general congress of the American colonies, was a member of a group that persuaded the Maryland Assembly to incorporate Baltimore as a city in 1797, and served as president of the second branch of the fi rst city council. One nineteenth-

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century historian wrote that “no family has a more direct inheritance in the history and progress of Baltimore, than the Merrymans.”1 Though born to privilege on a large country estate, John Merryman left home for the fi rst time when he was only fi fteen years old. In 1839 his father sent him to Baltimore to work in a hardware store (more, it may be presumed, to teach him business principles than to earn money). His mother’s uncle was a prominent Baltimorean who had business interests in the West Indies and, impressed by the young man, sent him to Puerto Rico to work in one of his “counting houses.” Merryman was called back to Maryland in 1841 to assume the management of several farms near Hereford. Here he mastered the principles of stock raising that, in years to come, would give him a reputation as an expert breeder of Hereford cattle.2 Merryman was married in 1844 to Ann Louisa Gittings, heir to another of Maryland’s old landowning families, and with her he began to raise a family that eventually included eleven children.3 In 1847, when he was twenty-three, he and his wife inherited Hayfields, a large farm located in the Worthington Valley a few miles south of Hereford. Hayfields had been the property of their mutual relative, Colonel Nicholas Merryman Bosley (Ann Louisa’s granduncle and John’s uncle by marriage).4 It included more than five hundred acres of the best land in Maryland, with a mineral-rich soil that produced prodigious crops of the hay for which the farm was named. In 1824 the Maryland State Agricultural Society named it the “best cultivated farm” in the state. In honor of the designation, the Marquis de Lafayette, then visiting Maryland, presented Colonel Bosley with a silver tankard that became one of his most treasured possessions.5 Hayfields was as handsome as it was productive. The main farmhouse was a large structure built of rough-hewn marble quarried on the property

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(the same marble used to construct the Washington Monument in Baltimore). An article in the American Farmer described it as a “substantial, well built, roomy mansion house, fit for a prince to live in, without any attempt at show.”6 It rose above a hillside slope to a height of three stories and looked serenely across the valley, the grassy pastures, and the barns, stables, sheds, carriage houses, green house, orangery, spring house, gas house, and slave quarters that comprised the farm’s outbuildings.7 After his move to Colonel Bosley’s farm, John Merryman became known as “John Merryman of Hayfields,” and he signed his name that way.8 A historian of the time noted that “he was recognized at once by the leading citizens and farmers of that locality as a valuable accession” and took his place among the Carrolls, the Bosleys, the Ridgelys, the Worthingtons, and other wealthy families of the area.9 He became a member of the local militia, serving from 1847 as third lieutenant of the Baltimore County Troop.10 He worshipped at Sherwood Parish, the Protestant Episcopal church in nearby Cockeysville, where he served on the board of vestrymen and held office as treasurer and register. And he turned his considerable professional energies to the improvement of Hayfields and the cattle raised on it. He attended a meeting of the New York State Fair in 1856, where he purchased a yearling Hereford bull and heifer. From New York, he went as far as Massachusetts, Canada, and even England seeking out prize Hereford bulls and cows, which he brought back to his farm.11 Herefords were then classified as dual purpose cattle, raised not only for their beef but also for their milk and butter.12 Merryman’s stock was registered in the English Hereford Herd Book, signifying its superior bloodlines and breeding, and scions were supplied to breeders in other counties and states.13 Merryman was also active in the Maryland State Agricultural Society, a statewide orga nization that combined an interest in

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agricultural reform with the ambience of an exclusive club. In 1852 he became vice president of the Society for Baltimore County and in 1857 its president.14 (Baltimore County was a large area surrounding Baltimore City on the north, east, and west, but politically separated from it in 1851.) In 1858 he joined with other members of the Society to establish the Maryland Agricultural College, and he served on its fi rst board of trustees.15 Formed to educate the sons of Maryland farmers in the best agricultural practices of the day, the college later became the University of Maryland at College Park.16 Merryman’s political career began with a run for the state legislature in 1855. He had been raised a Whig but became a Democrat to express his opposition to the American Party (or Know-Nothings) who dominated Maryland politics in the 1850s (Governor Thomas Hicks was a Know-Nothing). Like most other Democrats, Merryman lost his 1855 campaign. Two years later, however, he announced his candidacy for the Baltimore County Commission and was victorious. The large margin of his popu lar vote persuaded his fellow commissioners to elect him president of the board.17 Hayfields needed a labor force to keep it running smoothly. The hay had to be mowed, gathered, stacked or baled, and stored, and, when sold to neighboring farmers or merchants in Baltimore (as it often was), it had to be transported in wagons. This was the kind of work that untrained slaves were traditionally expected to perform. Personal servants were also needed in the big house on the hill to attend to the needs of the family. Handling the prize Hereford cattle in the pastures and corrals required more skill and was often done by white laborers. Slavery was an inescapable part of Maryland life in the years leading up to the Civil War, though the actual number of slaves was declining slightly. Plantations on the Eastern Shore depended most

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heavily on slave labor. North of Baltimore, the demand was more modest, but it had not disappeared. In 1860 there were 3,200 slaves in Baltimore County.18 Slave schedules for the United States Census (prepared only in 1850 and 1860) reveal that there were seven slaves at Hayfields in 1850 and that they ranged in age from sixteen to fi fty. By 1860 the number had declined to five, ranging in age from seventeen to sixty-five. The labor force was supplemented in both years by white laborers, mostly immigrants from Ireland. In 1850, for example, there were seven laborers from Ireland (the number for 1860 is not available).19 Attitudes about slavery varied in Baltimore County, as they did in the rest of Maryland. Some men were stout defenders of the institution, arguing not only that masters had a legal right to buy and sell slaves but that it was morally justified for them to do so. Some entertained doubts about the long-term future of slavery as an institution, though they insisted that any precipitate action to end it would be unwise. Some felt that slavery was a moral offense but that it had been practiced so long and over so wide a geographical area that efforts to abolish it would have to be cautious and gradual. Many believed that slaves who were freed should be required to leave Maryland, to go to some state where slavery did not exist (Pennsylvania or Ohio, for example) or be transported across the Atlantic to their ancestral homes in Africa. In 1817 the American Colonization Society had been formed in Baltimore for the avowed purpose of returning freed blacks to Africa. (Roger Taney’s brother-in-law Francis Scott Key had been one of the founders of the Colonization Society.)20 Its efforts, although not notably successful, were responsible in part for the gradual decline of the number of slaves in Maryland. The available evidence is insufficient to tell us exactly what John Merryman believed about slavery and its future in Mary-

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land. The fact that he owned slaves at Hayfields, of course, is strong evidence that he did not think it was wrong to do so. It does not indicate, however, whether he thought that slavery would (or should) continue into the indefinite future. He knew, of course, that there were abolitionists, in Maryland as well as in the Northern States, and that they were pressing their campaign to free every man, woman, and child held in slavery in the United States. We know that he opposed that campaign. We know that he was willing (even eager) to fight against the Northerners who espoused it, although we do not know exactly why. He had been born into an affluent, slaveholding class of Maryland farmers who had held slaves for generations. Perhaps all we really need to know is that he did not want his affluence to end. In particular, he did not want it to end because Northerners were coming into Maryland to interfere with the property rights he and his relatives and neighbors and friends had so long enjoyed. After John Brown’s shocking raid on Harpers Ferry, Virginia, in 1859, landowners around Baltimore began to plan for the almost inevitable day when Northerners would come into Maryland “to free the slaves.”21 State law permitted groups of civilians to organize militia companies, petition the state for arms, and elect officers.22 In Baltimore County in the fall of 1859, a group of men who defended slavery at the same time that they proclaimed their loyalty to the Union formed an infantry company called the Towson Guards. With a roster of about fifty men, they elected Charles R. Chew as their captain and held meetings in Towsontown, the county seat a few miles south of Hayfields.23 In January 1861, “States Rights” men in the neighborhood decided to follow the example of the Towson Guards by forming a cavalry company called the Baltimore County Horse Guards. They petitioned the state for arms, adopted a uniform consisting of a blue frock coat with gray buttons, gray pants, and a black

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slouch hat, and held an election for officers. Charles Ridgely was elected captain, while John Merryman, George Carman, and Richard Grason were chosen as lieutenants. With fi fty-three members, the Horse Guards received arms from the state— Whitney Navy revolvers and Ames sabers, with belts, cartridge boxes, and holsters— and they held weekly drills adjoining the court house in Towsontown.24 After they used their revolvers in target practice, the satisfied members pronounced them “true and deadly weapons.”25 Attached to the First Regiment of Cavalry of the Maryland Militia, the Horse Guards met weekly in Towsontown to discuss business, study cavalry tactics, and conduct drills. Their meetings continued until the second week of April, when Maryland and the nation received the news of Fort Sumter’s surrender.26 Lincoln’s call for seventy-five thousand state militiamen, and the violence that erupted when Northern troops tried to pass through Baltimore in response to the call, aroused a storm of secessionist fervor in Maryland. The hostile reception accorded the Pennsylvania troops who arrived in Baltimore on April 18, and the bloody riots that met the Massachusetts and Pennsylvania militiamen when they tried to pass through the city on April 19, attracted crowds to the city. Some were merely curious, but others hoped to influence the course of events. John Merryman was in Baltimore on the afternoon of the riots, meeting with friends and conversing with acquaintances on the streets about the tumult in the city. He was speaking to a small group of men near the Bank of Baltimore when a prominent attorney named Andrew Sterrett Ridgely approached and joined the conversation. Ridgely did not think he had ever witnessed “a wilder state of excitement” than the one that then prevailed in Baltimore. Merryman said he had a “plan” for preventing any more Northern troops from coming to the city. As Ridgely later recalled it, Merryman said that “if twenty men would join him he would go

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and destroy some of the bridges leading to the city.” Ridgely was favorably inclined to anything that would “allay the existing excitement and prevent bloodshed.” But he declined Merryman’s invitation to help him burn bridges because he “did not know to what else it might lead.” A man named Robert McLane joined the group. He thought that Merryman should go to the mayor’s office with his “plan,” for if individuals took any action it should be “on authority” and not on their own responsibility. Ridgely’s brother-in-law Richard Grason then approached. Ridgely did not know that Grason was a member of the Baltimore County Horse Guards, but he did know that Grason lived near Merryman, and he feared that Merryman might ask Grason to help him burn bridges. Ridgely counseled his brother-in-law not to do so because it might “lead to something which you do not anticipate.”27 That night, Mayor Brown issued orders to burn bridges north of Baltimore. By the next morning bridges along the Northern Central and the Philadelphia, Wilmington, and Baltimore roads leading from Pennsylvania into Baltimore had been disabled (if not completely destroyed), and telegraph lines had been severed, effectively cutting Baltimore off from communication to the north.28 Ridgely later gave sworn testimony in which he said, “I think it not at all unlikely, the fi rst suggestion of the burning of the bridges, emanated upon the occasion I have alluded to, by John Merryman.”29 The day after the April 19 riots, the Baltimore County Horse Guards, armed and in uniform, assembled in Towsontown. Lieutenant Merryman had returned from his visit to Baltimore in time to don his uniform and join his fellow militiamen. It was about this time that a curious wagon was hauled into Towsontown from Baltimore. It contained about forty U.S. army rifles, almost enough to supply every one of the Horse Guards.30 The men were glad to receive the rifles, but they quickly realized that they were too long and too heavy to be used by men on

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horseback, so they laid them aside and eventually took them home. It was clear enough that the rifles had come from Baltimore, but who had sent them to Towsontown? Their markings revealed that they had been made in the U.S. Armory and Arsenal at Harpers Ferry and strongly suggested that they might have been stolen from the federal government. Stores had been looted in Baltimore during the riots there, and some armories had been pilfered.31 The Horse Guards now received orders to leave for Baltimore. An “extra” edition of Towsontown’s Baltimore County American was distributed to the crowd that gathered to see them off. “Civil War is in our midst!” the newspaper proclaimed. “We have stood long by the UNION FLAG—we have contended thus far beneath its folds, but now we must coincide with Governor Hicks and Mayor Brown, as well as with the sentiment of the people of the entire state in saying that Northern troops shall not pass unharmed through the state of Maryland for the purpose of subjugating the South.” The American noted that the Baltimore County Horse Guards had been ordered out and that they were responding “manfully.”32 As the men passed by the newspaper’s office, they gave out three cheers for its editor.33 As the Horse Guards departed, spectators saw “States’ Rights” badges pinned to their coats emblazoned with the Great Seal of Maryland and the slogans “Old Maryland Line,” “Don’t Tread On Us,” and “Death Before Dishonor.”34 The Horse Guards left Towsontown late in the afternoon and arrived in Baltimore about eight in the evening. There a reporter for the Baltimore Argus described them as a “stalwart company, well armed and mounted.”35 Acting pursuant to orders from the state militia, they proceeded to the scene of a supposed riot to quell it, but not finding any disturbance there, they were ordered to turn south toward Fort McHenry, to guard against “a

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threatened confrontation between the citizens and the Federal troops stationed at the fort.”36 When they reached the road leading to the fort, they found an ample military force was present and returned to the city.37 The Baltimore County Horse Guards returned the following morning to Towsontown. Soon the Stars and Stripes that flew over the Odd Fellows Hall in the center of the town was hauled down and replaced by the Maryland state flag.38 Both the Horse Guards and the Towson Guards were deputized by the Baltimore County sheriff to patrol the nearby roads and arrest persons showing a “disposition to riot.”39 While the Towson Guards took up positions around Towsontown, the Horse Guards were sent north to Cockeysville, where a train carrying 2,500 volunteers from Pennsylvania had been halted by a burned bridge over the Western Run.40 As the Horse Guards rode north, they spoke defiantly of their mission—they “were going to defend their State and drive the Pennsylvania troops from the Maryland soil.” 41 When they reached Cockeysville, they found that the Pennsylvanians— officially the First Pennsylvania Regiment of Infantry— had camped on the nearby farm of Peter Cockey. The Pennsylvanians had no uniforms, no shelter, and practically no food. Several had become sick, and two were near death or had already died.42 Because Merryman knew the country around Cockeysville so well, he established an observation post at Hayfields from which reports could be sent to Towsontown and, from there, forwarded to Baltimore.43 When a couple of the Pennsylvanian troops were found on the road walking south toward Baltimore, the Horse Guards stopped and questioned them. One man could not give a “good account of himself,” so he was taken to Merryman at Hayfields, where he was put under arrest and taken to the local jail.44 The Pennsylvania regiment remained in their camp at Peter Cockey’s farm for two days. During that time, they watched Merryman and the Baltimore County Horse

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Guards and observed the weapons they were carrying. They probably noticed the Harpers Ferry rifles that had been sent to Towsontown by wagon and heard Merryman and other Guards express pro-Southern (and probably even prosecessionist) opinions. Eventually a U.S. Army officer arrived with a dispatch from General Scott ordering the Pennsylvanians to reverse their course, leave Cockeysville, and return to Harrisburg.45 Merryman was on the scene when the Pennsylvanian troops were at Cockeysville. He offered to slaughter some of his cattle to feed them, but they declined the gesture (perhaps out of pride). When the trains containing the Pennsylvania regiment moved north, the Horse Guards were under orders from Major General George H. Steuart of the Maryland Volunteers to follow them and send reports back to Baltimore. Steuart had just resigned his commission as captain in the U.S. Army and accepted his new commission in the Maryland force. Though a West Pointer, he was a Southern sympathizer who would soon forsake Maryland for ser vice with the Confederacy.46 Steuart wanted to know if any of the Pennsylvanians were left behind when the trains headed north. He also wanted the Horse Guards to “destroy all the bridges at intervals of one or two miles between Cockeysville and the state line.” He added, “You are on no account to commit or permit any hostile act against the retreating troops, but if you fi nd that they are entrenching themselves or marching back toward Baltimore you will do nothing but inform me.”47 The work of following the departing trains was assigned to Lieutenant Merryman, Sergeant Charles Cockey, and about seven other members of the Horse Guards.48 Command duties were divided between Merryman and Cockey, although Merryman was clearly in charge. If Merryman’s offer to share some of his beef cattle with the Pennsylvanian regiment seemed gener-

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ous, it masked the real contempt he felt for the Northerners. He later said that the troops who retreated to Harrisburg “were so badly scared that several of them fell dead when they heard that the Baltimoreans were coming.” 49 On Tuesday morning, April 23, two men who lived near a bridge over the Gunpowder River north of Cockeysville heard Merryman order his men to burn the structure and cut down nearby telegraph poles. When the men tried to leave the scene, Merryman impressed them in his work. Insisting that he had authority to act, Merryman personally put the bridge to the torch.50 At another bridge, Merryman ordered his men to cut the telegraph lines, then ordered some bystanders to overturn a water cask kept at the bridge to protect it against fire. When the bystanders hesitated, Merryman drew his sword, his men drew their pistols, and the bystanders complied with his orders. Camphene was poured on the bridge and the structure was set afire.51 Merryman seemed to enjoy his work, which was performed in broad daylight and where witnesses could clearly see what he was doing. Perhaps he believed his orders from Steuart gave him adequate cover. He was, after all, in slave country, and slaveholders along the way could be expected to shield him from any opponents he might encounter. If not, he and his men could always use their swords and pistols to make their points. Barking orders, repeatedly citing his “authority,” Merryman proclaimed his intention to stop Northern troops from invading Maryland. “God damn them,” he shouted at one place. “We’ll stop them from coming down here and stealing our slaves.”52 How many bridges did Merryman and his men destroy? There is good evidence that at least six spans were set on fi re, but there may have been more. Local residents may have put out some of the flames after Merryman’s men left the scene, but at least one of the bridges was so badly damaged that it completely

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collapsed. When their work was done, Merryman, Cockey, and the other Horse Guards returned to their homes. Civil war was now raging, in Maryland and in the nation. Federal volunteers were streaming south in answer to President Lincoln’s call. Some were coming by boats over Chesapeake Bay. Others were making it through on trains, for bridges in some parts of Maryland were still passable, and U.S. forces were working quickly to repair those that had been damaged. Union men protested the destruction of the railroad bridges because it interfered with the passage of Northern troops to Washington, endangering the capital and increasing the risk that Maryland might join the Confederacy. Owners of the railroads protested the destruction because it violated their rights as private property owners. On April 23, J. Edgar Thomson, president of the Pennsylvania Railroad, wrote Secretary of War Cameron that the destruction seemed to have been “a mere spite action” and was designed to convince federal officials that “those loyal to the Government in Maryland are in a vast minority.” After Washington was secured, Thomson said that “the Government should at once turn on Baltimore and place it under martial law and require that it should pay all damages to the railroads it has destroyed and to their business.”53 After the First Pennsylvania Regiment left Cockeysville and crossed the Mason-Dixon Line into their home state, they intended to move through Harrisburg and Philadelphia to the head of Chesapeake Bay and thence make their way south toward Washington. Instead they were sent to Camp Scott near York, where they remained for several weeks. The Pennsylvanians were under the overall command of Major General William Keim of the Second Division of Pennsylvania Volunteers, who had been mustered into U.S. ser vice. General Keim’s orders were to secure the Northern Central Railroad leading

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south into Maryland. On May 21 he directed Colonel Samuel Yohe of the First Regiment to “seize the arms” of a company of men in the Cockeysville area and “arrest the captain if in arms against the Government.” Keim’s order suggests that he knew of the arms held by the men around Cockeysville but did not yet know that they had burned some bridges.54 Yohe forwarded these orders to Captain Charles Adam Heckman of Company D, instructing him: You will be cautious in your movements and be well satisfied that the captain or any of them are spreading secession sentiments and using their influence in favor of the Southern Confederacy. By all means get the arms. Do not make it known until you are ready and be sure that you accomplish your purposes. If you think you need any assistance you can call upon Company E, at Cockeysville. If you arrest the captain take him to General Cadwalader’s department. Do not be precipitate. Act coolly and deliberately but determinedly.55

Major General George Cadwalader was the U.S. Army commander in Maryland. A native of Philadelphia, he was a graduate of the University of Pennsylvania and a lawyer by profession. His brother was John Cadwalader, U.S. district judge in Philadelphia. In addition to many years at the Philadelphia bar, General Cadwalader’s career included a distinguished record of service in the Pennsylvania militia and with the U.S. Army in the Mexican War. He was brevetted major general in 1847 for gallant conduct at Chapultepec. Pennsylvania’s Governor Andrew Curtin appointed him major general of volunteers in April 1861. Mustered into federal ser vice, he took up his command in Maryland early in May.56 Captain Heckman delegated the responsibility of carry ing out Yohe’s order to the regimental adjutant, James Miltimore,

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and Lieutenant William H. Abel of Company D. Acting on reports received from Pennsylvania troops who had camped on Peter Cockey’s farm in April (and perhaps on later reports received from Cockeysville), Miltimore and Abel went to Cockeysville. From there they proceeded to Hayfields, looking for the arms and the men who had possession of them as specified in Keim’s and Yohe’s orders. They reached the Merryman farm about two o’clock in the morning on May 25, entered the house, and surprised Merryman while he was still in bed. They immediately began to question him. The precise terms of the questions asked and the answers given were not recorded. In a report fi led later, however, Miltimore and Abel certified that Merryman “acknowledged” that he was lieutenant of the Baltimore County Horse Guard. And they arrested him “as fi rst lieutenant of a secession company who have in their possession arms belonging to the United States Government for the purpose of using the same against the Government.” Their report added that it could be “proven” that Merryman had been “drilling with his company” and that he had “uttered and advanced secession doctrines.”57 Miltimore and Abel transported Merryman to Baltimore and Fort McHenry. As overall U.S. Army commander in Maryland, George Cadwalader was also the commander of McHenry, so Merryman was now in the custody of the Pennsylvania general. Cadwalader was at the fort when Merryman arrived there. He received his prisoner with due regard to his military duties and some concern for his instincts as a lawyer. He obtained a written statement from the arresting officers of the circumstances under which they arrested Merryman. But he also directed them to furnish more specific charges against the prisoner, the names of the witnesses who would testify against him, and the nature of their testimony, for he knew he would need all of this in case the arrest was subject to legal challenge.58

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Merryman’s fi rst night within the historic fort cannot have been comforting. He was surrounded on all sides by thick stone walls and a garrison of U.S. Army troops. And above him flew the “Star-Spangled Banner” celebrated by Francis Scott Key in 1814. Merryman wanted out, and he had friends in Baltimore who were willing to help him get out.

4 THE WRIT AND THE SUSPENSION

Within a few hours after Merryman was brought to Fort McHenry, the doors of the fort were opened and three men who had urgent business with the prisoner were admitted. One was later identified in court papers as Merryman’s brother-inlaw, though his name was not noted (Maryland’s wealthy old families were typically large and there were many brothers- and sisters-in-law).1 The two others were lawyers with connections to Baltimore’s power establishment. George M. Gill was fi ftyeight years old and noted as one of Baltimore’s most prominent courtroom advocates when he answered the call to Fort McHenry. Born in the city in 1803, educated at St. Mary’s College, his background included ser vice on the Baltimore City Council and as counselor (attorney) for the city. More interestingly, he had been one of a small party of prominent Baltimoreans who accompanied Mayor Brown and Governor Hicks to Monument Square when they addressed the angry crowd there on April 19.2 The second attorney was George H. Williams, a forty-two-year-old Baltimorean described in a contemporary history of the city as “a thorough lawyer and master of his profession in its every detail and department.” Born in 1818, Williams was a Harvard graduate with ties to the political movers and shakers of Baltimore. On his mother’s side, he was descended from a family whose Maryland roots predated Lord Baltimore’s charter. He was also related to John Merryman through the prestigious Gittings family.3

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It did not take long for the two attorneys to listen to Merryman’s story and determine that they should prepare a petition for a writ of habeas corpus in his behalf. The writ of habeas corpus was in 1861, as it is now, a bulwark of the Anglo-American legal system. As developed in the common law of England, it was a special judicial proceeding that enabled a person deprived of his or her liberty to obtain a prompt judicial determination as to the legality of the deprivation. It protected innocent persons against arbitrary and illegal detention and thus constituted a formidable barrier against abuse of governmental power. After a petition for a writ of habeas corpus was fi led, the court issued a writ (or order) commanding the custodian of the detained person to “have the body” (habeas corpus) of the detained person in court, where the reasons for the detention could be examined. If the custodian could not justify the detention, the person was entitled to be set at liberty. Reflecting the centuries-old respect, almost reverence, in which it was held by lawyers and judges, the writ of habeas corpus had been regarded in England, in the British colonies of North America, and in the United States as the Great Writ of Liberty.4 As prepared by Williams and Gill, Merryman’s petition was directed 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” (this language would later be altered, as explained below). It began by stating that Merryman was at home “in his own domicile” at about two o’clock in the morning when he was “aroused from his bed by an armed force pretending to act under military orders.” He was taken to Fort McHenry and imprisoned there “without any process or color of law” and “in violation of the constitution and laws of the United States.” He had been informed that some order purporting to come from “one General Keim of Pennsylvania” (whom he did not know) was the sole

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ground on which he was being held. Keim’s order directed the arrest of “the captain of some company in Baltimore county,” but Merryman stated that he was not and never had been the “captain” of such a company. He was being detained at McHenry by General Cadwalader, “professing to act in the premises under or by color of the authority of the United States.” The petition concluded with a request that Taney issue a writ of habeas corpus commanding Cadwalader to produce Merryman before him [Taney], “with the cause, if any, for his arrest and detention,” to the end that he be “discharged and restored to liberty.” The petition was signed by Merryman on Saturday, May 25, and supported by an affidavit made on the same date by George H. Williams. The affidavit was signed and sworn to before John Hanan, the U.S. commissioner in Baltimore, on “the Holy Evangely of Almighty God.” The following day, Sunday, May 26, Williams returned to Commissioner Hanan to make a second affidavit, this stating that he had gone that day to Fort McHenry and obtained an interview with General Cadwalader. He had identified himself as Merryman’s counsel and demanded that he be permitted to see and make copies of the “written papers” under which Merryman was held prisoner. Cadwalader had refused the request.5 Williams and Gill knew, of course, that Roger Taney occupied two positions within the federal judicial system. He was chief justice of the Supreme Court and, in that capacity, ranked as the nation’s highest judicial officer. But he also served as circuit judge for the Fourth Judicial Circuit, which included Maryland, Delaware, and Virginia. As chief justice, it was his duty to preside over the Supreme Court during its annual sessions in Washington, which began on the fi rst Monday of each December and continued until the Court fi nished its work the following spring. As chief justice, he and his colleagues heard appeals that raised issues of national importance. In his capacity as circuit judge, he presided over trials in conjunction with the

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U.S. district judge for the district in which the trial took place. His circuit court duties (often called circuit riding) were performed while the Supreme Court was not in session. Some of the Supreme Court justices had physically demanding circuit-riding duties. They had to travel thousands of miles away from their homes, using often-primitive modes of transportation and seeking shelter in rude frontier inns.6 Taney was more fortunate, for his circuit duties were usually performed in Baltimore (less frequently in Dover and New Castle, Delaware), and Baltimore was less than forty miles from the Supreme Court’s chambers in Washington. While in Baltimore, Taney presided in conjunction with the U.S. district judge for the District of Maryland, William F. Giles. Giles was a fifty-four-year-old Marylander who had practiced law in Baltimore, won election to the Maryland General Assembly and the U.S. House of Representatives, and commenced his duties as district judge in 1853. Like Taney, Giles was a Democrat. Unlike the chief justice, however, he had been active in the State Colonization Society for many years (Taney had spent a short time as vice president of a local chapter of a colonization society).7 In that capacity, Giles had worked assiduously to remove free blacks from Maryland to new homes in Liberia.8 The jurisdiction of the federal courts is governed by the Constitution and federal statutes. The power of Congress to make rules for the appellate jurisdiction of the Supreme Court is set forth in Article III, Section 2, of the Constitution, which provides: In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

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As used in this provision, “original jurisdiction” refers to the court’s power to hear and decide matters before any other court has decided them. (A court that has “trial jurisdiction” is generally understood to have “original jurisdiction” over the subject matter and parties to the trial.) “Appellate jurisdiction” refers to the court’s power to review the decisions of other (or lower) courts and, when necessary, revise them.9 As a member of the U.S. Supreme Court, Taney routinely exercised appellate jurisdiction. As a circuit judge, he exercised original jurisdiction, principally by presiding over trials. But he could also hear and decide on petitions for writs, including writs of habeas corpus. After Merryman’s petition had been drafted and signed, and George Williams’s two affidavits had been sworn to, the papers were gathered together and taken from Baltimore to Washington, where Taney then made his home. The old judge had not profited from his many years of public ser vice and lived with an unmarried and semi-invalid daughter in a rented row house on Indiana Avenue, not far from the Capitol. He stayed at home most of the time, partly because his advanced years made it difficult for him to travel, partly because the government did not provide private chambers for the Supreme Court justices. Like his colleagues, Taney kept a small library of law books at home and had a quiet space in which he could read, study, and write. Though his hands were old and weak, and his scrawly handwriting was almost illegible, he was still fond of writing. The available evidence does not reveal whether Merryman’s petition and supporting affidavits were brought to Washington by one of his attorneys or by a messenger. In either case, they arrived at Taney’s Washington home in the afternoon of Sunday, May 26, in time for the judge to review them and make a  small (but significant) change in the petition. As originally worded, the petition had been addressed to Taney in his dual capacities as Supreme Court justice and circuit court judge.

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Before Taney acted on the petition, however, he took up his pen and crossed out part of the opening words.10 The salutation now read: To the Hon.orable 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.11

If either (or both) of Merryman’s attorneys brought the papers to Washington, they could, of course, have explained them to Taney, emphasized their importance, and urged Taney to respond swiftly. Even if they did not, however, it seems likely that Taney would have sensed the significance of the case. He may well have been personally acquainted with Merryman (the New York Times asserted that the men were friends).12 Even if he was not, he probably remembered that Merryman’s father had attended the same college that he attended (Dickinson) and at around the same time.13 And, as an old Baltimore resident, Taney very likely realized that Merryman was a prominent member of an old Maryland family and, as such, entitled to the Court’s attention in what was obviously an hour of need. Taney then wrote out the writ that Merryman had requested: In the matter of the petition of John Merryman, for a writ of habeas corpus: Ordered, this 26th day of May,

A.D.

1861, that

the writ of habeas corpus issue in this case, as prayed, and that the same be directed to General George Cadwalader, and be issued in the usual form, by Thomas Spicer, clerk of the circuit court of the United States in and for the district of Maryland, and that the said writ of habeas corpus be returnable at eleven o’clock on Monday, the 27th of May 1861, at the circuit court room, in the Masonic Hall in the city of Baltimore, before me, chief justice of the supreme court of [the] United States. R. B. Taney.14

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Taney later left a short but revealing explanation of the circumstances under which he issued the writ. He said that the petition was presented to him in Washington “under the impression that I would order the prisoner to be brought before me there.” Since Merryman was confined in Fort McHenry, however, Taney resolved to hear the petition in Baltimore. Fort McHenry was, after all, in Baltimore; Baltimore was in his Fourth Circuit; and, by requiring Cadwalader to appear before him in Baltimore instead of in Washington, he would not be requiring the general to leave “the limits of his military command.”15 Nor, he might have added, would he be requiring him to bring Merryman to Washington. It was, in other words, for Cadwalader’s convenience that Taney summoned him to Baltimore rather than Washington. Why did Gill and Williams bring Merryman’s petition to Roger Taney? The attorneys could have brought it to Judge Giles in Baltimore, for the district judge had jurisdiction to hear petitions for habeas corpus and ample legal power to grant them.16 In fact, Giles had already acted on at least one petition for habeas corpus related to Fort McHenry. On May 2 the parents of John George Mullen, a soldier at the fort, had petitioned Giles for a writ of habeas corpus alleging that their son was under eighteen years of age, that he had enlisted in the U.S. Army without their consent, and that he was thus entitled to be discharged from Army custody. The writ was served on W. W. Morris, an army major then commanding McHenry. When he read the writ, Morris returned it to the marshal who brought it to him, saying “that he would see the Court and the Marshal damned before delivering up one of his men.”17 Morris refused to appear in answer to the writ, prompting Giles to order an attachment against him. Morris sent Giles a respectful but defiant letter in which he denounced the violence in Baltimore and argued that, in the hands of an “unfriendly power,” the writ of habeas corpus could be

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used to “depopulate” Fort McHenry and put it at the mercy of a “Baltimore Mob.” Because there was so much antimilitary hostility in Baltimore, the major did not feel it was safe for him to appear publicly. “I think it your duty,” he told the judge, “to sustain the federal military and to strengthen their hands instead of endeavoring to strike them down.”18 Giles replied by saying that the power to “suspend” habeas corpus was “a power which in my opinion belongs to Congress alone” (but Morris had not claimed that habeas had been “suspended”). It was the first time in his thirty-three years at the bar that Giles had seen a writ of habeas corpus defied. But, bowing to the inevitable, he declined to pursue further enforcement against the major and sent the papers in the case to William Meade Addison, the U.S. district attorney in Baltimore, who in turn forwarded them to U.S. Attorney General Edward Bates in Washington.19 Although there is little direct evidence on the question, the circumstances strongly suggest that Gill and Williams brought Merryman’s petition to Taney because they believed he would give them a sympathetic hearing and because they had good reason to expect that, when he made his decision, it would be favorable to their client. Even before he issued his famous Dred Scott decision in 1857, it was widely known that Taney’s political sympathies lay with the South. Merryman’s attorneys certainly understood the power and prestige that attached to the office of chief justice. Just as certainly, they understood that any decision Taney made would attract notice, not just in Baltimore but also in Washington and in fact all over the country. But the attorneys had addressed Merryman’s petition to Taney both as chief justice and as circuit judge. Why then did Taney make a point of accepting the petition in his capacity as chief justice? If he had elected to act as circuit judge in Baltimore, he would have exercised the same jurisdiction as Judge

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Giles. But the same reasons that prompted the attorneys to come to Taney in the fi rst place seem to explain why he decided to respond as chief justice. He knew full well that a decision made by the highest judicial officer in the United States would command more attention than that of a circuit judge. If Judge Giles could not compel the army to produce a man in court, perhaps Chief Justice Taney could. Taney, of course, was aware of the limits the Constitution imposed on the Supreme Court’s jurisdiction. He knew that, by restricting the high court’s original jurisdiction to “cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party,” the Constitution’s Article III, Section 2, had forbidden the full Court to entertain petitions for writs in cases like Merryman’s. Merryman’s petition was clearly an original, not an appellate, proceeding, but it did not affect an ambassador, public minister, or consul, and it was not a case in which a state was a party. In the celebrated case of Marbury v. Madison, decided in 1803, Chief Justice John Marshall held that Congress cannot expand the Supreme Court’s original jurisdiction beyond that specified in the Constitution. In Marbury (the cornerstone of the constitutional doctrine of judicial review), the Supreme Court declared unconstitutional and void a provision of Section 13 of the Judiciary Act of 1789 that purported to give the Supreme Court jurisdiction to hear and grant writs in original matters.20 But the same result did not apply when petitions were addressed to Supreme Court justices acting as individuals, for Article III, Section 2, did not apply to individual justices, and Section 14 of the act clearly provided that “either of the justices of the supreme court . . . shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment.”21 When they were “riding circuit,” traveling all over the country, individual justices had to exercise original jurisdiction in many different matters, including

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petitions for writs of habeas corpus. Traditionally, however, Supreme Court justices acted in their individual capacities only when the full Supreme Court was not in session.22 In 1861 the full Supreme Court had adjourned for the year on March 14, so when Merryman’s petition was presented to Taney on May 26 he was free to act as an individual justice, to hear the petition, and to decide whether to grant or deny it. And in the opinion he ultimately wrote in the case, he explicitly stated that he was doing just that, acting under the authority granted him by Section 14 of the Judiciary Act of 1789.23 It was not difficult for Taney to travel from his Washington home to Baltimore to hear Merryman’s habeas corpus petition. The distance was not great and, thanks to federal troops, the trains between the two cities were now running regularly. Perhaps more importantly, the old judge had a home away from home on Baltimore’s Franklin Street, where his daughter Anne lived with her husband, an attorney named James Mason Campbell.24 It was a short distance from the Campbell home to the Masonic Hall, and the trip there was made easy by the assistance of Taney’s grandson. In the opinion he wrote at the end of Ex parte Merryman, Taney said that, when he went to court on May 27, he had not expected to hear the claim that habeas corpus had been “suspended.” No formal notice of suspension had been given to the courts, by proclamation or otherwise. There he learned (apparently for the fi rst time) that President Lincoln “not only claims the right to suspend the writ of habeas corpus at his discretion, but to delegate that discretionary power to a military officer, and to leave it to him to determine whether he will or will not obey judicial process that may be served on him.” Taney said that he heard that claim “with some surprise, 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,

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that the privilege of the writ could not be suspended, except by act of Congress.”25 If he did not know that the writ had been “suspended,” however, he may well have anticipated that Cadwalader might not appear in response to the writ; that he might not “have the body of John Merryman” in his court as Taney had commanded. Surely the judge had access to enough information (whether it came from friends or simply from reading the newspapers, which he was fond of doing) to understand the antagonistic positions the military and the civil authorities occupied in Baltimore. He knew that the U.S. Army still had the city under its guns and that there was next to no cooperation between the military officers and the courts. He knew that there was an undercurrent of antigovernment feeling and, among many, a seething resentment of a military presence that amounted almost to an occupation. He may not have known that there had been a formal “suspension” of habeas corpus, but it seems likely that he expected to encounter some opposition in the courtroom—just as Judge Giles had. Old and frail though he was, Taney was up to the challenge. He was quick to meet it head on and to issue a ruling that would shake the nation and, in the process, make legal history. Lincoln’s decision to suspend habeas corpus was not reached lightly. His fi rst written reference to the possibility that he might take such action was, as noted earlier, the letter he sent to Winfield Scott, advising the general in chief not to arrest members of the Maryland legislature before they convened. The president stated in that letter that he would sooner subject Maryland’s cities to “bombardment” than to suspend habeas corpus, and that the writ was to be suspended only in “the extremest necessity.”26 He, of course, solicited the advice of his cabinet members on the question, as he typically did on important issues. He spoke to Attorney General Bates, who asked his

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assistant attorney general, Titian J. Coffey, to look into the applicable law.27 The president also conferred with men outside the government whose opinions he respected. One was Reverdy Johnson, a prominent Baltimore lawyer with a national reputation as a Supreme Court advocate. An old friend of Chief Justice Taney, Johnson had represented Maryland in the United States Senate from 1845 to 1849 and served as U.S. attorney general under President Zachary Taylor in 1849–1850.28 He had also been a member of the Peace Convention that assembled in Washington in February 1861 to attempt to work out a compromise that would avert war between the North and South (the effort was not successful).29 Though a staunch Unionist, Johnson was concerned about rumors circulating in Maryland that Lincoln’s purpose in bringing Northern troops to Washington was to mount an invasion of Virginia. If the rumors were true, Johnson knew that they would raise pro-Southern feelings in his state to a truly dangerous level. He wrote Lincoln a note asking him to state his intentions.30 On April 24 Lincoln replied in a letter marked “confidential,” assuring Johnson that his sole purpose in bringing Northern troops to Washington was to defend the city: “I do say I have no purpose to invade Virginia, with them or any other troops, as I understand the word invasion. But suppose Virginia sends her troops, or admits others through her borders, to assail this capital, am I not to repel them, even to the crossing of the Potomac if I can?” There was fear in Washington that Virginia forces would set up batteries on Arlington Heights (where Robert E. Lee then made his home) and begin firing on Washington. If Virginia did that, Lincoln asked Johnson, “are we to stand still and see it done? In a word, if Virginia strikes us, are we not to strike back, and as effectively as we can? . . . I do not mean to let them invade us without striking back.”31 Johnson replied to Lincoln: “The exigencies which you mention, you ought to meet as you suggest—It is your obvious duty.”32 Around the same

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time, Secretary of State William Seward arranged for Johnson to come to the White House to discuss the possibility of a suspension of habeas corpus.33 After listening to Johnson and others— and consulting with General Scott on the military necessities he faced—Lincoln made his decision. As Lincoln’s biographer James G. Randall later wrote, “few measures of the Lincoln administration were adopted with more reluctance than this suspension of the citizen’s safeguard against arbitrary arrest.”34 Seward later left an interesting recollection of how Lincoln made his decision. There were “two points in the administration . . . upon which all subsequent events hinged,” Seward said. “One was the suspension of the Habeas Corpus act. . . . The Habeas Corpus Act had not been suspended because of Mr. Lincoln’s extreme reluctance at that period to assume such a responsibility. Those to whom he looked for advice, almost to a man, opposed this action.” But Seward went alone to the White House one morning to tell the president “that this step could no longer be delayed.” Lincoln was still reluctant. Seward said, “I told him emphatically that perdition was the sure penalty of further hesitation. He sat for some time in silence, then took up his pen and said, ‘It shall be so.’ ”35 On Saturday, April 27, Lincoln wrote the following letter to General Scott: 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 officer in command at the point where resistance occurs, are authorized to suspend that writ. Abraham Lincoln

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Without Lincoln’s order of suspension, the proceedings in Ex parte Merryman would have focused exclusively on the legal authority of the U.S. Army to confine a civilian at Fort McHenry. The suspension did not entirely remove that important issue from the case. It did, however, add another and even more volatile issue to it. It raised the question of whether the president of the United States has any power under the U.S. Constitution to suspend the writ of habeas corpus. It was an unprecedented question, for no previous president had ever attempted to suspend the writ (at least not while he was serving as president),36 and the issue had never previously been litigated in any court. But then the circumstances that prevailed in the United States in April and May 1861— and particularly in the area around Baltimore—were unprecedented. Taney immediately recognized the gravity of the issue that he was called upon to decide, though he seemed oblivious to the unprecedented circumstances under which he was about to decide it. He seemed to regard it as an easy case for, as he stated in the opinion he later wrote, he thought it was “one of those points of constitutional law upon which there was no difference of opinion.” He regarded it as a proposition that was “admitted on all hands.”37 If Taney learned anything at all from his experience in Ex parte Merryman (a proposition that is hard to judge, for he conducted himself throughout the proceeding as a parent who was lecturing a child, a schoolmaster whose duty required him to correct an errant pupil), it would have been that the president’s suspension power was not a constitutional question “upon which there was no difference of opinion.” In fact, there were many different opinions. One of the very fi rst was voiced, although in an indirect way, by the letter that General Cadwalader submitted to Taney on May 27. In addition to informing Taney that Merryman had been charged with treason, with possessing arms belonging to the United States, and with avowing “armed hostility against the

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Government,” Cadwalader’s letter advised the chief justice that the president had authorized him to suspend the writ of habeas corpus “for the public safety.” He acknowledged that this was “a high and delicate trust,” and said that he had been ordered to execute it “with judgment and discretion.” But he added that “in times of civil strife errors if any should be on the side of safety to the country.” “Those who should co-operate in the present trying and painful position in which our country is placed,” he said, “should not by reason of any unnecessary want of confidence in each other increase our embarrassment.” It was for all these reasons that he requested a postponement that would enable him to receive further instructions from Lincoln.38 Taney refused the request. The written opinion that Taney promised was fi led with the clerk of the circuit court on June 1. In it, Taney began by referring to Section 14 of the Judiciary Act of 1789 and pointing out that it gave “each justice of the supreme court” and “every district judge” the power “to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment.” He reviewed the facts of Merryman’s arrest and confinement as shown in Merryman’s petition and in the scant information he had received from the marshal and General Cadwalader on that subject. He noted that Merryman had been arrested on “general charges of treason and rebellion, without proof, and without giving the names of the witnesses, or specifying the acts which, in the judgment of the military officer, constituted these crimes.” The allegations against Merryman were, he said, “vague and unsupported.” Notwithstanding that, General Cadwalader “refuses to obey the writ of habeas corpus, upon the ground that he is duly authorized by the president to suspend it.”39 Taney referred to the famous case in which men thought to be associated with Aaron Burr’s treasonous conspiracy were arrested in 1807. Thomas Jefferson was then president. Believing

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that a suspension of habeas corpus would make it possible to keep the accused men in prison, Jefferson had asked Congress to suspend the privilege of the writ of habeas corpus. “No one suggested that Mr. Jefferson might exercise the power himself,” Taney said. (In fact, the Senate had then authorized the suspension, but the House of Representatives had failed to follow suit, and habeas corpus was not suspended.) But now he had been advised that Abraham Lincoln claimed the power that Thomas Jefferson did not. Taney said that “a proper respect for the high office he fi lls, requires me to state plainly and fully the grounds of my opinion, in order to show that I have not ventured to question the legality of his act, without a careful and deliberate examination of the whole subject.” 40 He described and quoted from various provisions of the Constitution that, in his judgment, compelled the conclusion that the president had no power to suspend habeas corpus. The only clause of the Constitution that referred in any way to habeas corpus was Article I of the great charter. Section 9 of that article simply provided: “The 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.” Taney continued, “This article is devoted to the legislative department of the United States, and has not the slightest reference to the executive department.” He pointed out that Article I specified the powers that the Constitution gave to Congress; but it also specified the powers the Constitution did not give. “The great importance which the framers of the constitution attached to the privilege of the writ of habeas corpus, to protect the liberty of the citizen, is proved by the fact, that its suspension, except in cases of invasion or rebellion, is fi rst in the list of prohibited powers; and even in these cases the power is denied, and its exercise prohibited, unless the public safety shall require it.” 41

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Taney then reviewed Article II of the Constitution—the article that specifies the powers of the president. “But there is not a word in it that can furnish the slightest ground to justify the exercise of the power” to suspend habeas corpus. The president, it is true, is the “commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual ser vice of the United States.” But Taney pointed out that this power was subject to the congressional power of the purse; the president cannot expend any funds for the military unless they are appropriated by Congress. Further, the president “is not empowered to arrest any one charged with an offence against the United States, and whom he may, from the evidence before him, believe to be guilty; nor can he authorize any officer, civil or military, to exercise this power.” The president’s powers with respect to crime are severely limited by the Fifth Amendment (providing that “no person” shall be “deprived of life, liberty, or property without due process of law”) and the Sixth Amendment (guaranteeing that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed”). The only power the president has over the life, liberty, or property of private citizens is that which requires him to “take care that the laws shall be faithfully executed.” Taney said that this provision did not authorize the president to execute the laws “himself, or through agents or officers, civil or military, appointed by himself.” It merely enjoined on him the duty “to take care that they be faithfully carried into execution, as they are expounded and adjudged by the coordinate branch of the government to which that duty is assigned by the Constitution.” This “coordinate branch” was, in Taney’s estimation, the judicial branch, that is, the courts of the United States (of which he was, of course, the highest officer). “It is thus made his duty to come in aid of the judicial authority,” Taney

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said, “if it shall be resisted by a force too strong to be overcome without the assistance of the executive arm.” But when the president exercises “this power,” Taney said, he must act “in subordination to judicial authority, assisting it to execute its process and enforce its judgments.”42 With these words, Chief Justice Taney made a very broad and sweeping declaration of judicial supremacy. The United States courts, headed up by the Supreme Court of which Roger B. Taney was the presiding officer, decided what the law required. The president was a mere minister of the judicial branch. His duty was to do what the courts said it was his duty to do, and to refrain from doing what it said he could not do. To enforce his argument that the president had no power to suspend the writ of habeas corpus, Taney quoted at some length from Blackstone and Hallam, two eminent authorities on the common law of England, who, he asserted, had demonstrated in their writings that the writ of habeas corpus was a very important part of the English law of liberty; that it had been exercised in England even before the adoption of Magna Carta; and that the English law had for centuries prohibited the Crown from exercising any power over the Great Writ. Since the British colonies in North America had fought a war of independence to expand, and not to diminish, their personal freedoms, Taney thought it inconceivable that the United States Constitution would give the president of the United States powers “which the history of England had proved to be dangerous and oppressive in the hands of the crown; and which the people of England had compelled it to surrender, after a long and obstinate struggle on the part of the English executive to usurp and retain it. . . . No power in England short of that of parliament can suspend or authorize the suspension of the writ of habeas corpus,” the chief justice asserted.43 But Taney did not rest his argument on “analogies between the English government and our own, or the commentaries of

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English jurists, or the English courts.” He could point to good American authorities who had concluded, as he did, that the power to suspend habeas corpus could only be exercised by Congress. One of those authorities was Joseph Story, who had written in his famous Commentaries on the Constitution that, since the habeas corpus clause was in the article specifying the powers of Congress, and since the writ could be suspended only in cases of rebellion or invasion, “it would seem . . . that the right to judge whether the exigency had arisen must exclusively belong to that body.”44 And Chief Justice Marshall, in delivering an opinion arising out of the Aaron Burr treason conspiracy, had written: “If at any time, the public safety should require the suspension of the powers” vested in the act conferring habeas corpus jurisdiction on the courts, “it is for the legislature to say so. That question depends on political considerations, on which the legislature is to decide. Until the legislative will be expressed, this court can only see its duty, and must obey the laws.” 45 Taney quoted Marshall with particular relish, for he had succeeded Marshall as chief justice in 1836, and though his reputation had never risen to the level of that of “The Great Chief Justice,” he had never stopped hoping that it would eventually do so. And so Taney said: “I can add nothing to these clear and emphatic words of my great predecessor.”46 Taney seemed to be particularly offended by the fact that Merryman had been arrested by orders of “a military officer, stationed in Pennsylvania” (General Keim). That general had given no notice to the district attorney in Maryland before ordering the arrest; he had merely assumed “to himself the judicial power in the district of Maryland.” He had undertaken “to decide what constitutes the crime of treason or rebellion; what evidence (if indeed he required any) is sufficient to support the accusation, and justify the commitment,” and had confined the citizen “in a strongly garrisoned fort, to be there held, it would

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seem, during the pleasure of those who committed him.” Merryman had been arrested and confined in violation of “great and fundamental laws.” Taney continued: 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.47

Taney concluded his long opinion (it ran to more than five thousand words) by repeating one of his favorite judicial expressions: “In such a case, my duty was too plain to be mistaken.” Then he proceeded to sum up the legal force that the opinion embodied: “I have exercised all the power which the Constitution and laws confer upon me,” he said, “but that power has been resisted by a force too strong for me to overcome.” He acknowledged “that the officer who has incurred this grave responsibility [Cadwalader] may have misunderstood his instructions, and exceeded the authority intended to be given him.” (Yet Taney had denied Cadwalader’s request for a short postponement so he could receive further instructions from Lincoln— instructions that might have cleared up anything he might have “misunderstood.”) “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.”48 This was, if not surprising, at least remarkable. There was no  order commanding anybody in the chain of military command— Cadwalader, Keim, General in Chief Scott, or even

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Abraham Lincoln himself—to set John Merryman “at liberty.” There was no court order requiring that he be released from Fort McHenry or restored to freedom. He had not, by court order, been “discharged” from the army’s custody.49 Given the thunderous prose of Taney’s opinion, the case had ended with little more than a whimper: the only order that the chief justice made was to the clerk, requiring him to fi le the “proceedings in this case,” together with Taney’s opinion, in the circuit court for the district of Maryland, and to send “a copy, under seal,” to the president. “It will then remain for that high officer,” Taney concluded, 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.”50 Not surprisingly, Taney’s decision in Ex parte Merryman excited comments all over the country. In the North, it was generally viewed with disdain. The New York Times said that it was “melancholy enough to see young men, impelled by the ardor of youth, the impulsiveness of inexperience, and actuated by false ideas of patriotism, plunge into rebellion; but it is a thousand times more melancholy to see an octogenarian turning back from the grave, on the verge of which he was standing, to strike one last though impotent blow at the existence of a Government he has repeatedly sworn to support. This is precisely what ROGER B. TANEY is doing now.”51 Horace Greeley’s New York Tribune said that “no judge whose heart was loyal to the Constitution would have given such aid and comfort to public enemies,” adding, “Of all the tyrannies that affl ict mankind, that of the judiciary is the most insidious, the most intolerable, the most dangerous.”52 In the South, however, and in Baltimore in par ticu lar, the decision was greeted with rejoicing: The Baltimore Sun said that “it is not possible to read the opinion of Chief Justice Taney, in the Merryman case, without an impressive sense of the power of truth,

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and the convincing logic of the constitution and laws. . . . Long after this terrible confl ict shall have been brought to an end; when the fanat icism and commercial aggrandizement it is waged to serve shall have subsided; when the peace of desolation or of prosperity shall brood over the land, the grand, true, cogent, restless influence of this document from the mind of Roger B. Taney will live, at once a vindication of the principles of the republic, and of the fundamental rights of the people, and an overwhelming protest against the action of those who have so rudely assailed them.”53 Ex parte Merryman elevated Chief Justice Taney to a new and unexpected level of Southern celebrity. His decision in Dred Scott had delighted Southerners with its strong (and, in their view, courageous) defense of the constitutional rights of slaveholders. Merryman again showed him to be a champion of Southern interests— a high officer of the national government who could be depended upon to stand by the South in its time of travail. The decision also elevated John Merryman of Hayfields into a newfound fame (or, in the North, infamy). He was a gentleman farmer who was willing to take personal risks to help slaveholders in his own state and farther south defend their rights against Northern “tyranny.” He risked his own freedom to resist the unconstitutional aggression of Lincoln and his “Black Republicans.” Soon Merryman was celebrated, not only in print but also in verse. A five-stanza poem was written to honor the hero of Hayfields and published in a popu lar songsheet. Its (unnamed) author directed that the verse (titled “John Merryman”) be sung to the tune of “Old Dan Tucker,” a minstrel song fi rst made popu lar in the early 1840s. It began: John Merryman, the Marylander, Would not stoop to Lincoln’s pander,

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The Body of John Merryman Firm old patriot, good old soldier, To spurn at vice there is no one bolder. Chorus— Get out of the way Justice Haters No favors asked of Lincoln traitors.54

Taney’s Merryman opinion was printed in the July 1861 issue of the American Law Register and reprinted in newspapers and pamphlets in various parts of the country.55 It was included in a collection of his cases published by his son-in-law James Mason Campbell in 1871.56 In 1895, it was published in a volume of the Federal Cases, a collection of decisions of the United States circuit and district courts.57 It was never printed in the United States Reports, where decisions of the full Supreme Court are preserved for posterity.

Abraham Lincoln. Photograph by Matthew Brady, January 8, 1864. National Archives.

First Blood—The Sixth Massachusetts Regiment fi ghting its way through Baltimore, April 19, 1861. Pro- Southern mobs attacked the militiamen, precipitating a bloody riot that resulted in the deaths of four militiamen and twelve Baltimoreans. Thirty-six soldiers and an undetermined number of civilians were seriously injured. The riot laid the groundwork for Lincoln’s suspension of habeas corpus on April 27, 1861. From Harper’s Weekly, May 4, 1861.

John Merryman. In his capacity as lieutenant in the Baltimore County Horse Guards, the gentleman farmer from Baltimore County took a leading role in burning railroad bridges north of Baltimore so that Northern militiamen could not make it through the city to defend Washington. Merryman was arrested by the military and confi ned in Fort McHenry. He was later indicted for treason but never brought to trial. Carte de visite photograph from the collection of Courtney B. Wilson.

Letterhead for John Merryman of Hayfields. Merryman was a noted breeder of Hereford cattle, Black Hawk horses, Hampshire Down sheep, and Berkshire hogs. This lithographic image shows a group of his prize-winning livestock in the foreground and the sprawling complex of buildings on his Hayfields farm in the background. His Hayfields mansion appears at the right of the letterhead. Library of Congress, Prints & Photographs Division, Historic American Buildings Survey.

The Merryman mansion at Hayfields. Built of rough-hewn marble quarried on the property, the house was described in the American Farmer as a “roomy mansion house, fit for a prince to live in, without any attempt at show.” Here Merryman was arrested at about two o’clock in the morning on May 25, 1861, by order of Major General William Keim of the Second Division of Pennsylvania Volunteers. Photographed around 1975 by G. W. Fielding. Courtesy of Baltimore County Public Library Legacy Web.

Roger Brooke Taney. Holding court in Baltimore on May 28, 1861, the octogenarian chief justice of the United States Supreme Court ruled that President Abraham Lincoln’s suspension of the writ of habeas corpus was unconstitutional. His sensational decision had the impact of a military victory for the South. Brian McGinty Collection.

Masonic Hall on St. Paul Street in Baltimore. In this building on May 28, 1861, Chief Justice Roger Brooke Taney issued his historic ruling in Ex parte Merryman. The Masonic Hall had been home to the United States courts in Baltimore since 1823, and Taney had often presided there in his capacity as U.S. circuit judge for the Fourth Circuit. Courtesy of the Maryland Historical Society, Baltimore.

John Merryman holding a sign marked “Habeas Corpus— Opinion of C. J. Taney, 1861.” Merryman was proud of the central role he played in Chief Justice Taney’s historic decision. Courtesy of the Maryland Historical Society, Baltimore.

John Merryman songsheet. These words proclaiming that “John Merryman, the Marylander, Would not stoop to Lincoln’s pander,” were to be sung to the tune of “Old Dan Tucker,” a minstrel song fi rst made popu lar in the early 1840s. From the collection of Courtney B. Wilson.

The mature John Merryman. After his indictment for treason was dropped, the master of Hayfields became Maryland state treasurer and president of the Maryland and United States Agricultural Societies. As a member of the Maryland House of Delegates, he served on a committee appointed to receive a statue of Chief Justice Taney that had been presented to the legislature. Courtesy of the Maryland Historical Society, Baltimore.

5 ALL THE LAWS BUT ONE

The clerk of the circuit court in Baltimore delivered the papers in Ex parte Merryman to the White House, apparently by mail.1 The New York Herald reported that the president then wrote a personal letter to Taney, but the letter was not made public and no copy of it has survived.2 In their multivolume history of Lincoln published more than thirty years later, the president’s personal secretaries, John Nicolay and John Hay, claimed that “no attention was of course paid to the transmitted papers.”3 If this was the case, however, it must have been due to the press of other business rather than a lack of interest on the president’s part. An experienced lawyer, Lincoln knew how to read judicial opinions, sift through them for their important points, and focus on what he called the “nub,” the point on which the whole case might turn.4 He had in the late 1850s mounted one of the strongest and most sustained public criticisms of Taney’s controversial Dred Scott opinion. His critique of Dred Scott had, in fact, helped to elevate him to national prominence in 1858 and to propel him into the White House two years later. He had looked into the law governing habeas corpus before he issued his suspension order to General Scott, and he had sought advice on the issue, so he would have been interested in what Taney had written. Perhaps he merely delivered the chief justice’s papers to Attorney General Bates and then discussed them with him. At some point, he gave Taney’s arguments serious personal thought.

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Lincoln knew that Taney’s Merryman pronouncement was a problem for his administration. But it was not the only problem he faced in the waning days of May and the first weeks of June 1861. During all that time, he was conferring almost constantly with his cabinet and military advisers, meeting with members of Congress, welcoming state officials into his office, and doing his best to cope with the long parade of office-seekers who came to him seeking appointments. His objectives were to transform the paltry standing army he inherited from James Buchanan into an effective Union fighting force, to defend Washington against possible Confederate attack, and to discourage border states from joining their secessionist brethren in the Southern Confederacy. Maryland and Missouri, where there were strong secessionist as well as Unionist sentiments, were constant worries. But Kentucky occupied more of Lincoln’s thought and efforts than any other state. The president was most concerned about the Blue Grass State because of its key geographical location, its large population (ninth largest among the thirty-four states), and the importance of its agricultural products. His concern for Kentucky was sharpened by the recollection that he was born in the state and had spent his early childhood years there, and by the fact that he had some close friends who lived there. But Kentucky’s political and military importance to the Union cause was what most concerned him. He said that he “wanted God on his side, but he must have Kentucky.”5 While all of this was going on, the president was working on the written message he would deliver to the special session of Congress scheduled to convene in Washington on July 4. He did not rely on speechwriters to set his thoughts to paper. He was an effective writer in his own right—the most effective who ever occupied the office of president. And he worked out his own thoughts, sometimes seeking advice from cabinet members

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or friends, but resolutely hewing to his own message and relying on his almost instinctive ability to express his thoughts in strong and often sinewy phrases. As Lincoln scholar Douglas L. Wilson has put it, writing helped him “crystallize his thinking.”6 Lincoln believed that his July 4 message to Congress (his secretaries were soon calling it his “Message”) would give him a unique opportunity to tell the nation not only how he intended to respond to the rebellion but why the response was necessary. In it, he could enunciate his vision of the United States as a selfgoverning republic that could serve as an example and inspiration to the whole world—if the Southern secessionists were not successful in destroying it. He saw the message, in Wilson’s words, as “a public platform from which to seize the intellectual initiative and defi ne the issues.”7 And, in the course of seizing that initiative, he could also respond to the challenge Taney laid down in Merryman. Lincoln expended a tremendous amount of time and effort in crafting his message to Congress. As he worked on it, it grew from a relatively modest twenty-three pages to forty, and his thinking evolved. In its fi nal version, the message was a wideranging document that described specific problems presented by the secession crisis, addressed constitutional issues raised by Taney’s opinion, and delved deeply into the president’s own political philosophy. Lincoln had already developed the theme that would guide him through the long ordeal of the war: the idea that the Union of the American states was an experiment in popular self-government, and that the war would test whether a self-governing republic was competent to defend itself against disaffected minorities that sought to break it up. The fi ring on Fort Sumter had, Lincoln said, “forced upon the country the distinct issue: ‘Immediate dissolution, or blood.’ ” He continued:

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The Body of John Merryman And this issue embraces more than the fate of these United States. 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 numbers to control administration, according to organic law, in any case, can always, upon the pretences made in this case, or on any other pretences, or arbitrarily, without any pretence, break up their Government, and thus practically put an end to free government upon the earth. It forces us to ask:  “Is there, in all republics, this inherent, and fatal weakness?” “Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?”8

At least five different versions of the July 4 message have survived, making it possible to trace Lincoln’s thought from one draft to another.9 They reveal that he began writing the message in a personal voice. He spoke frequently of “my duty,” “my opinion,” “my judgment”—he said “I think,” “I was sworn,” “I have allowed.” He later decided to make it less personal, to use the passive voice more frequently. It would then seem less like a personal defense of his conduct, and the part of the message that answered Taney’s Merryman opinion would seem less like a personal argument with the chief justice and more like an objective justification of constitutional principle. James G. Randall also believed that the switch from personal to passive voice revealed Lincoln’s “mental struggling at the time the decision was taken.” He did not want it to seem that he had assumed the role of a tyrant, for “the appearance of military dictatorship was a matter of deep concern” to him.10 He was a constitutional officer— the president, the chief executive, the

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commander in chief— and he wanted the public to know that he understood his role. In the section of the message addressing his suspension of habeas corpus, Lincoln fi rst wrote: Soon after the fi rst call for militia, I felt it my duty. . . .

In the fi nal version, this passage read: 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.

In the fi rst version, he had written: At my verbal request, as well as by the general’s own inclination, this authority has been exercised but very sparingly.

The fi nal version read: This authority has purposely been exercised but very sparingly.

The fi rst draft: Nevertheless . . , I have been reminded from a high quarter that one who is sworn to “take care that the laws be faithfully executed” should not himself be one to violate them.

The fi nal version: 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.

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The fi rst draft: Of course, I gave some consideration in the questions of power and propriety before I acted in this matter.

The fi nal version: Of course some consideration was given to the questions of power, and propriety, before this matter was acted upon.

First draft: The whole of the laws which I was sworn to [execute] were being resisted . . .

Final version: The 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.

First draft: Must I have allowed them to finally fail of execution?

Final: 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 official oath be broken, if the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it?

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First: But . . . I was not, in my own judgment, driven to this ground. In my opinion, I violated no law.

Final: But it was not believed that this question was presented. It was not believed that any law was violated. The provision of the Constitution that “The 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.

First: I decided that we have a case of rebellion.

Final: It was decided that we have a case of rebellion, and that the public safety does require the qualified 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 together; the very assembling of which might be prevented, as was intended in this case, by the rebellion.

Lincoln concluded this portion of his message (more than five hundred words in all) by saying that Attorney General Bates would probably present an opinion of “some length” on the

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question. He also invited the national legislature to express its will on the question by noting: “Whether there shall be any legislation upon the subject, and if any, what, is submitted entirely to the better judgment of Congress.”11 Of course, Lincoln’s response to Taney was not a full legal argument on the question of the suspension of habeas corpus— nor did he intend it to be. It was, however, a brilliantly effective riposte to the chief justice’s long legal lecture. It showed that the president had indeed paid attention to his constitutional duty. He had given serious thought to the difficult issues presented by the suspension of habeas corpus before he gave his order to General Scott, and he believed that his order helped, rather than hindered, his effort to “take care that the laws be faithfully executed.” He acknowledged that the legality and propriety of the order had been questioned. But he turned the question back on his questioner by using one of his most effective methods of argumentation: asking a question that itself impels the answer. “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” Douglas Wilson has written of Lincoln’s “remarkable gift for the interrogatory mode of exposition,” his ability to explore “complex issues by asking pointed questions.”12 This question was one of the most pointed that Lincoln ever asked, and it contained one of the most powerful answers: It defies common sense to elevate one law—in this case the law specifying who has the power to suspend habeas corpus (assuming that that law can actually be clearly drawn out of the text of the Constitution)— over all the other laws: the laws that protect a popularly elected government from rebellion and insurrection; the laws that prohibit the bombardment of forts lawfully maintained by that government; the laws that prohibit riots in the streets of American cities; the laws that condemn mob attacks on federal soldiers; the laws that punish the burning of bridges to prevent lawfully constituted troops

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from coming to the defense of the national capital. Unlike Taney, Lincoln looked at the text of the Constitution itself. That text says simply that the “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.” It does not say that only Congress can suspend the privilege of the writ. It does say that the writ can be suspended in “cases of rebellion or invasion” when “the public safety may require it.” Who is to decide when there is a “rebellion or invasion”? Who is to decide when “the public safety may require” a suspension? The Constitution, as Lincoln pointed out, is silent on that question. But since the power of suspension was granted for a “dangerous emergency,” it would make little sense to let the danger “run its course” before Congress could be called together to decide these questions. Some thought that Lincoln was saying that he could suspend habeas corpus because it was “necessary” for him to do so, regardless of what the Constitution says. Some thought that he had adopted a “rule of necessity,” under which the Constitution does not apply, or may be violated, if its strict observance would expose the nation to even greater dangers than the violation. An old Roman aphorism was sometimes quoted to advance this view: inter arma silent leges (in time of war the laws are silent). The New York Times made an argument much like this on May 29, when it wrote that “the majesty of the law must, in all cases, succumb to the necessities of war.”13 But this was not Lincoln’s argument. He did not believe that his order to General Scott violated the Constitution. He did not believe that the Constitution forbade the president to suspend habeas corpus when the country was in the midst of a “rebellion” and the “public safety” required a suspension. To the contrary, he believed that the Constitution authorized his suspension. He asserted that proposition quite defi nitely, but not arrogantly. He had, he said, asked the attorney general to render a more

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complete opinion on the question, and he was ready to submit the question “entirely to the better judgment of Congress.” Congress was, after all, the branch of government that Taney said had the power of suspension. If Congress did not agree with the president’s suspension, it could make its disagreement known, and it should be expected to. But if it did agree . . . While Lincoln was preparing his message to Congress, Attorney General Edward Bates was working on his own habeas corpus opinion. Sixty-seven years old in May 1861, the Virginiaborn Bates had moved to Missouri in 1814 and there embarked on a long and distinguished career as a lawyer, politician, and judge. He had been a circuit attorney, delegate to Missouri’s state constitutional convention in 1820, a member of the Missouri state legislature, a congressman, a United States district attorney, state attorney general, and judge of the St. Louis Land Court.14 Although a fi rm Unionist, he had very cautious views about slavery.15 He acknowledged that the institution was “evil,” and he opposed its extension into the western territories; but he was willing to wait for its “natural demise” in the states where it already existed, and he believed that freed slaves should be colonized, for whites and blacks should not be expected to live together in America.16 He was late to switch his political allegiance from the Whigs to the Republicans, and he did so only because some members of the new party thought he might be a good candidate for their presidential nomination in 1860. Although he lost the nomination to Lincoln, his reputation as a commonsense lawyer and political conservative persuaded the president to invite him to join his cabinet as attorney general. The fact that Missouri was a slave state, and that Lincoln held high hopes that it would not join the states of the Deep South in secession, was an additional reason why Lincoln wanted Bates in his cabinet.

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The Missourian supported Lincoln’s early responses to the fall of Fort Sumter—his militia call and his blockade of Southern ports—though he was less certain about his suspension of habeas corpus. He was an admirer of Chief Justice Taney and reluctant to take a strong position in opposition to him.17 But Lincoln asked Bates to confer with Reverdy Johnson, and Johnson strongly supported the suspension.18 Bates had a new assistant attorney general to help him prepare the opinion Lincoln had asked for. Titian J. Coffey was an old friend and a member of the Pennsylvania bar; and Bates’s own son, Richard, also an attorney, had joined his office in Washington. Together, the three lawyers and the six clerks employed in the attorney general’s office struggled to make some sense of the habeas corpus puzzle. Bates had already solicited Coffey’s views on martial law and the suspension of habeas corpus. Coffey had produced a rough set of notes copied from law books, dictionaries, and an interesting case on habeas corpus decided by Chief Justice Taney in 184919 before concluding that the power to suspend belonged “exclusively” to Congress.20 Coffey cited Joseph Story’s Commentaries on the Constitution as authority for that proposition, but he offered no analysis of his own. Bates consulted a formal opinion delivered by former attorney general Caleb Cushing to Secretary of State William L. Marcy in 1857, also affi rming (without analysis) that the power to suspend belonged to Congress and not the president.21 Bates respected legal authorities and was cautious about departing from them. But he was willing to take a fresh approach to the suspension question and, in doing so, to approach it differently than Coffey, Story, Cushing, or Taney. Bates began by comparing the governmental plan of the United States to the governments of Europe. He pointed out that, in Europe, all governmental power was united in a single institution. In England, for example, it was united in Parliament

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(in England “the Parliament is omnipotent”). In the United States, however, the power of the government was allocated among three separate departments—the legislative (Congress), executive (president), and judicial (the courts). The departments were, in Bates’s words, “co-ordinate and coequal,” and each was “independent” of the others. “We have three of these co-ordinate departments,” Bates wrote. But “if we allow one of the three to determine the extent of its own powers and also the extent of the powers of the other two that one can control the whole Government and has in fact achieved the [whole] sovereignty.”22 Bates noted that the president was required by his oath of office to “take care that the laws be faithfully executed.” All the other officers of the government were required only to swear to “support” the Constitution. The president’s duty required him to put down the insurrection then raging in the country. Further, it gave him discretion to decide how the insurrection should be put down. If the executive abused his discretion, the remedy was to impeach him, not to subject him to the supervision of the courts. Bates examined the words of the Constitution’s habeas corpus clause. He said that it was “vague and indeterminate” and that “very learned persons” had differed about its meaning. In a burst of humility, he confessed that “I am by no means confident that I fully understand it myself.”23 The Constitution clearly recognized a power to suspend, but it did not say who had the power. Bates thought that the president’s power to suspend derived from his duty to “take care that the laws be faithfully executed” and from his authority to decide when the “public safety” required a suspension. He wrote: The power to do these things is in the hand of the President, placed there by the Constitution and the statute law, as a sacred trust, to be used by him in his best discretion, in the performance

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of his great fi rst duty—to preserve, protect and defend the Constitution. And for any breach of that trust he is responsible before the high court of impeachment and before no other human tribunal.24

Bates concluded his opinion with the observation that it was the result of his “best reflections upon the questions propounded” to him by the president. “Such as it is, it is submitted with all possible respect.”25 Reverdy Johnson published his own opinion on habeas corpus in June. It was not an official government document, for he held no position in the Lincoln administration (he was, in fact, a Democrat and had supported Stephen Douglas against Lincoln in the 1860 presidential election). But his views on the habeas question were of interest, in part because he was a friend of Taney, in part because he was a Marylander, and in part because of his considerable reputation as a constitutional lawyer. Johnson had offered to come to the White House and discuss Taney’s opinion on June 17, as soon as he learned that it had been mailed to the president.26 He may already have committed his thoughts to paper by that time, for his long written opinion on the question was published in Washington’s National Intelligencer only three days later.27 It was later reprinted in Frank Moore’s Rebellion Record, a compendium of documents related to the war. To make his respect for Taney clear, Johnson referred in his opinion to “the justly high character of the Chief-Justice of the United States.”28 He held Taney in esteem not just because they were old friends, but also because the chief justice had ruled in his favor in some important cases (Dred Scott was one of them). But his personal regard for Taney seemed to count for little when he began to examine the chief justice’s Merryman opinion, for

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he believed that it reached an incorrect conclusion and did so by misstating the law. Johnson began his opinion by recalling the circumstances under which Lincoln suspended habeas corpus: Several states had renounced their allegiance to the United States. They had taken up arms against the government and announced their intention of waging war against it. “Misguided citizens” in Maryland and elsewhere were engaged in “treason,” he said. Believing that the laws of the United States were being obstructed “by combinations too powerful to be suppressed by the ordinary course of judicial proceedings,” the president authorized the commanding general to disregard the writ of habeas corpus “if in his judgment the public safety demanded it.” “This step was taken with no view to oppress the citizen,” Johnson said, “or to illegally interfere with the ordinary course of civil justice, but solely from a conviction that it was indispensable to the public safety.” Johnson pointed out that habeas corpus was not suspended “generally,” but “merely in certain cases of which the officer in command was, in the first instance, necessarily to judge.” After John Merryman was arrested and delivered into the custody of General Cadwalader, the general refused to obey a writ of habeas corpus issued by the chief justice of the United States. That “high officer” had since filed his opinion announcing that the president could not constitutionally suspend habeas corpus. Johnson’s original impression of the opinion was that it was wrong. He had since studied it more carefully, availing himself “of all the light furnished by the Chief-Justice.” But he had come to the same conclusion: Taney was wrong. Lincoln’s suspension was “perfectly constitutional.”29 Johnson argued that Lincoln ordered the suspension of habeas corpus in fulfi llment of his constitutional duty to “take care that the laws be faithfully executed.” He quoted from the message that Andrew Jackson sent to Congress in 1832 vetoing

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its renewal of the charter of the Bank of the United States. Jackson then argued that he had the right to make his own judgment about the constitutionality of the Bank, even though it had previously been upheld by the Supreme Court (in McCulloch v. Maryland in 1819).30 “The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution,” Jackson had said. “Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges, when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.”31 For Taney, the quotation from Jackson hit close to home, for he had been one of Jackson’s closest advisers at the time of the “bank war.” He had helped Jackson draft his veto message— in fact, he had personally written the language in the message stating Jackson’s right to make an independent assessment of the constitutionality of the Bank.32 Johnson affi rmed the correctness of Jackson’s veto message because it reinforced his argument that the three departments of the federal government were independent. “Each being coordinate and clothed with its respective powers,” Johnson said, “each must judge for itself what those powers are, and act accordingly, not in subordination to, but independently of the others.” The power that the president exercises in time of rebellion and insurrection “is clearly conferred upon him, and on him alone as President. It is made so by the Constitution and laws, and he is therefore the sole judge of its nature and limits.”33

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Johnson paid particular attention to Taney’s argument that Congress, and Congress alone, has the power to suspend habeas corpus. The chief justice had noted that the Constitution’s suspension clause is located in Article I, Section 9. Article I, of course, deals with the powers of Congress, and Section 9 of Article I sets certain limits on those powers. Taney had said that Article I had not “the slightest reference to the Executive department.” But Johnson found Taney’s statement “erroneous in point of fact.” Section 9 did impose some limits on the power of Congress. For example, it provided that “no bill of attainder or ex post facto Law shall be passed.” It also provided that “no capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.” Further, it said that “no preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another.” Only Congress has the power to “pass” laws, “lay” taxes, or “regulate” commerce or revenue—thus these limits can only refer to Congress. But Section 9 also provides that “no money shall be drawn from the treasury but in consequence of appropriations made by law,” and it requires that “a regular statement and account of receipts and expenditures of all public money shall be published from time to time.” These provisions can only refer to the executive department, since only the president (acting, of course, through his agents) has the power to draw money from the treasury, and only the president (again acting through his agents) can be required to make regular statements and accounts of “receipts and expenditures of public money.” Section 9 also provides that “no person holding any office of profit or trust” under the United States may “without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” “Officers of the United States are a part of the

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Executive department,” Johnson said, “and, but for this prohibition, could accept the things here prohibited.” “So far from not having ‘the slightest respect to the Executive department,’ ” Johnson said, this provision refers “directly and exclusively to that department.” Since the suspension clause stated simply that the privilege of the writ of habeas corpus could not be suspended “unless when in cases of rebellion or invasion the public safety may require it,” and since it did not refer either to Congress or to the president, there was no basis for assuming that it referred only to Congress. Johnson pointed out that the powers of Congress are set forth in Article I, Section 8, and that those powers have always been regarded as limited powers. If a power is not “enumerated” in Section 8, Congress does not have the power. Yet Article I, Section 8, does not give Congress any power to suspend habeas corpus. If the founders intended Congress to have the power of suspension, why didn’t they include the power in Section 8? Their failure in Section 8 to give Congress any power over habeas corpus, coupled with their failure in Section 9 to specify that “only Congress” had the power to suspend habeas, spoke volumes. Johnson noted that, when disloyalty swept through Maryland in April and May of 1861, Congress was not in session, and it would not be for some months to come. But the courts (both state and federal) were open and ready to issue writs of habeas corpus. If only Congress had the power to suspend the writ, the army could not effectively deal with rebels and insurrectionists. “The writ might meet the officer at every step of his march,” Johnson said. “It might force him to give up his prisoner, or delay his march, or leave his command, and subject himself to the jurisdiction of the justice by insisting before him on the legality of the capture.” Johnson pointed out that, in times of rebellion or invasion, many constitutional rights had to be

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suspended because of military necessity. Private property sometimes had to be occupied. Private timber had to be cut. It was sometimes necessary to convert private houses into barracks, or pull them down if they obstructed military operations. The right to private property guaranteed by the Fifth Amendment, the right to keep and bear arms guaranteed by the Second Amendment, and the freedom from unreasonable searches and seizures protected by the Fourth Amendment, were all subject to suspension. “Some of these things are now being done,” Johnson said, “and no one, judge or otherwise, has ventured to question their legality. . . . War would not at times be successfully carried on if these guarantees were in operation. The course of the commander-in-chief might be arrested at every foot of his progress.”34 Was the privilege of the writ of habeas corpus more inviolable than all the other constitutionally protected rights? Was it entitled to greater solicitude in the courts? Johnson dwelt at some length on the decision announced by the Supreme Court in the case of Luther v. Borden, decided in 1849. That case arose out of an insurrection against the state government of Rhode Island led in the early 1840s by a man named Thomas Dorr. The state government had responded to “Dorr’s Rebellion” by declaring martial law, suspending the writ of habeas corpus, and asking President John Tyler to give them military assistance. The state authorities argued that the federal power to help them suppress the insurrection derived from Article IV, Section 4, of the U.S. Constitution, which provides that “the United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.” Dorr and his followers claimed that they were the legitimate government of Rhode Island and that martial law should not have been declared against

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them; the writ of habeas corpus should not have been suspended; and the president should not have intervened. Chief Justice Taney delivered the Supreme Court’s opinion, ruling that the controversy aroused by the rebellion was a “political question” and that the courts could not become involved in it. (“Political questions” are ones that courts will not decide because they are in their nature “political” rather than “legal”; thus they are not “justiciable.”)35 [U]nquestionably,” Taney had written, “a State may use its military power to put down an armed insurrection, too strong to be controlled by the civil authority. The power is essential to the existence of every government. . . . It was a state of war; and the established government resorted to the rights and usages of war to maintain itself, and to overcome the unlawful opposition. And in that state of things the officers engaged in its military service might lawfully arrest any one, who, from the information before them, they had reasonable grounds to believe was engaged in the insurrection. . . . Without the power to do this, martial law and the military array of the government would be mere parade, and rather encourage attack than repel it.”36 In the same opinion, Taney had upheld the power of the president to decide whether military power should be used and said that the president’s decision was not subject to judicial review. “If the judicial power extends so far,” the chief justice wrote, “the guarantee sustained in the Constitution of the United States . . . is a guarantee of anarchy and not of order.” Johnson seemed almost to relish turning Taney’s own words against him. He charged that the chief justice had “departed from or forgotten the doctrines” he espoused in Luther v. Borden. Johnson argued that the president’s power to put down an insurrection “is vested in him as commander-in-chief. It is strictly and exclusively a military power.”37 If the power were subject to judicial supervision through the writ of habeas corpus, Johnson said, the president would be “impotent.” Johnson also

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noted that Article I of the Constitution purported to confer on Congress “all legislative powers granted herein,” thus making it clear that Congress’s powers are limited by the specific language of the article. But Article II granted the president “the executive power.” It did not refer to “the executive power granted herein.” Johnson believed that the difference between these two articles was significant. The president’s power was not limited to specific enumerations—it was “general.” Thus, Johnson said, “the only question in the case is, whether the power which the President is exercising is in its nature an executive one.”38 Johnson quickly disposed of Taney’s reference to statements made by John Marshall in Ex parte Bollman and Joseph Story in his Commentaries on the Constitution.39 Marshall’s comment was “a clearly extra-judicial observation,” Johnson said. (Bollman did not raise the issue of who had the power to suspend habeas, for the writ had not then been suspended. Marshall’s comment that only Congress could suspend habeas corpus was obiter dictum: a statement unnecessary to the decision and thus of no precedential value). Johnson characterized Story’s comment as “a mere doubt.” And Jefferson’s conduct in the Burr conspiracy, cited by Taney as authority for the proposition that the president then believed he had no power to suspend habeas corpus and so had asked Congress to do so (Congress failed to act), was no more than “an alleged doubt.”40 Johnson noted that Taney did not refer to Andrew Jackson’s experience in New Orleans. The then-General Jackson had commanded the military forces that defeated the British in the famous Battle of New Orleans in 1815. But during his time in the city, he had declared martial law, suspended the writ of habeas corpus, and jailed prominent public officials, including U.S. District Judge Dominick Augustin Hall, who granted a writ in defiance of his suspension order. After peace was restored, Judge Hall cited Jackson for contempt of court and

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fi ned him a thousand dollars. Jackson paid the fi ne out of his own pocket, but harbored a life-long resentment for the “stain” the incident had put on his character. In 1844, Congress voted to refund the fine, thus vindicating Jackson’s conduct.41 Jackson’s heroic defense of New Orleans propelled him to national prominence, and eventually the White House. His imposition of martial law and suspension of habeas corpus helped to convince many Americans that, in time of danger, military authorities may take extraordinary measures to protect the “public safety.” Taney was well aware of the measures Jackson took at New Orleans. He had referred to them in his decision in Luther v. Borden, where he called them “the justification of one of the great commanders of this country, and of the age, in a transaction so well known at New Orleans.”42 But he ignored Jackson’s New Orleans precedent in his Merryman decision, as he did Jackson’s controversial veto of the Bank bill, for neither of these episodes from the life of Old Hickory did anything to support his Merryman argument. Johnson stated (perhaps on the basis of personal conversations he had with Lincoln) that the president had “no doubt” about the authority he had exercised “and will, it is supposed, continue to exercise.” He thought that Lincoln would be guided by the “general reasoning” in his [Johnson’s] opinion, and also by the example set by Andrew Jackson, “rather than by the authorities relied on by the Chief-Justice.” He ended by stating that the purpose of his opinion had been to satisfy the people of the country that the president was “faithfully serving” them “with all the ability he possesses in this crisis of their Government,” and that Lincoln hoped, when he retired from office, that he would leave them “in the peaceful and happy enjoyment of an unbroken Union, and an undisturbed and faithful execution of the laws.”43 The opinions of Bates and Johnson were undoubtedly helpful to the president’s cause. Both men admired Taney, yet both

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disagreed with him on the critical issue of habeas corpus. Bates’s words resonated with sincerity but little assurance. He had struggled with habeas corpus, and his opinion bore the evidence of his struggle. It probably represented his best effort to answer Roger Taney’s Merryman challenge (at least in the limited time available for him to study it), but it was unfocused and laced with its author’s own lingering doubts. Johnson’s opinion, in contrast, was strong and assertive. It may not have represented the fi nal word on the difficult constitutional questions surrounding habeas corpus, but it brought new arguments to the fore. It directly challenged Taney’s arguments. And it was, at least on its own terms, persuasive. But Johnson’s opinion was the learned discourse of a learned lawyer and, as such, too technical for ordinary readers to readily comprehend. The opinions of Bates and Johnson both demonstrated that Lincoln’s administration took Ex parte Merryman seriously. They provided proof, if any was needed, that neither the president nor his chief legal adviser had casually dismissed the chief justice’s challenge. But Lincoln’s own interrogative argument— “Are all the laws, but one, to go unexecuted, and the government itself go to pieces lest that one be violated?”—was more powerful than either of the other two opinions. Bates’s halting discourse would be largely ignored, and Johnson’s technically challenging brief would quickly fade from memory. But Lincoln’s question would be remembered by history.

6 WEIGHING IN

Congress met in special session on Thursday, July 4, 1861. It had been eighty days since the president summoned the legislators to Washington, and much had happened in that time. The nation had plunged more deeply into war, and the chief justice of the United States had issued a controversial opinion declaring that the power to suspend habeas corpus was not entrusted by the Constitution to the president—it belonged to Congress, and to Congress alone. Not surprisingly, the chief justice’s opinion was much on the minds of the senators and representatives as they gathered in the Capitol on that auspicious day, the eighty-fifth anniversary of the Declaration of Independence. Senator Henry Wilson of Massachusetts was chairman of the Committee on Military Affairs and the Militia. On the opening day of the session, he gave notice of his intention to introduce six bills relating to military affairs. The following day, July 5, the senators and representatives gathered at two o’clock in the afternoon for the reading of the president’s written message,1 and on July 6 Wilson introduced his bills. The fi rst (which he soon reworked as a joint resolution) was “to approve and confi rm certain acts of the President of the United States, for suppressing insurrection and rebellion.” It began with a recitation of the acts the president had taken since the adjournment of Congress: his call for militiamen to come to Washington, his blockade of Southern ports, and two orders he had given authorizing the

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suspension of habeas corpus (the fi rst on April 27, applying to the military line between Philadelphia and Washington, and the second on May 10, applying to the coastal islands of Florida). And it concluded with a resolution declaring that all of the president’s “acts, proclamations, and orders . . . be, and the same are hereby, approved and declared to be in all respects legal and valid, to the same intent, and with the same effect as if they had been issued and done under the previous express authority and direction of the Congress of the United States.”2 Southerners were notably absent from the Capitol that July, for they had headed south as their states seceded from the Union (Andrew Johnson of Tennessee was the only senator from a seceded state who still occupied his seat in Washington). Republicans dominated the state delegations that were on hand, although there were Northern Democrats among them, some who were supportive of Lincoln’s efforts to suppress the insurrection and others who were aggressively opposed. While the Republicans supported Lincoln’s suspension of habeas corpus, they were not uniformly supportive of Wilson’s proposed resolution. Some objected because they believed that Lincoln’s suspension had been “necessary” but not strictly legal. Some were not sure whether the president’s action could be sustained under his own constitutional authority or needed some delegated authority from Congress. Ohio’s Republican senator John Sherman was one who doubted the constitutionality of Lincoln’s act. “I approve the action of the President,” Sherman said. “I believe the President did right. He did precisely what I would have done if I had been in his place . . . but I cannot here, in my place, under oath, declare that it was strictly legal, and in consonance with the provisions of the Constitution.”3 Republican senator Lyman Trumbull of Illinois approved of the president’s suspension but was unwilling to say “that the Administration

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has unlimited power and can do what it pleases.” Trumbull was willing to “excuse” any illegality in the suspension, but not to go further.4 Democrats like John C. Breckinridge (one of Lincoln’s opponents in the 1860 presidential election but now representing Kentucky in the Senate) were aggressively opposed to any approval of the controversial suspension. Breckinridge denied “that one branch of the government can indemnify any other branch of the government for a violation of the Constitution or laws.”5 As the senators debated the suspension, they turned to other issues raised by the war. But adjournment was rapidly approaching (Congress’s special session lasted only a little more than a month), so Wilson decided to attach a measure dealing with the suspension issue to a larger bill raising the pay of troops. Finally passed on August 6, 1861, this provided: And be it further enacted, That all the acts, proclamations, and orders of the President of the United States, after the fourth of March, eighteen hundred and sixty-one, respecting the army and navy of the United States, and calling out or relating to the militia or volunteers from the States, are hereby approved and in all respects legalized and made valid, to the same intent and with the same effect as if they had been issued and done under the previous express authority and direction of the Congress of the United States.6

This was admittedly a stopgap measure, for it did not address all the thorny issues raised by the suspension of habeas corpus. Because it retroactively “legalized” all of the president’s proclamations and orders relating to the army, navy, and militia, it was broad enough to include his suspension of habeas corpus. But it did not make it clear whether he had the constitutional power to suspend the writ on his own or needed some legal help from Congress to do so. Republicans were wary of any

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measure that could be interpreted as denying the president’s constitutional power, for that would leave him (and the administration) vulnerable to charges that the whole war was illegal and confi rm Confederate allegations that the administration was subjecting the South to a “tyranny.” And the measure did not address future suspensions, if any should become necessary (as most believed they would). When Congress reconvened for its regular session in December, both the House of Representatives and the Senate attempted to address these issues. But efforts to do so bogged down on the par ticular wording of proposed congressional enactments. The arguments became heated and were inevitably interrupted with debates on other even more divisive warrelated issues. Congress continued to debate the suspension issue at intervals through 1862 and into the early months of 1863. It was clear that, if Congress said that the president “is authorized” to suspend habeas corpus, it could be argued that he had his own constitutional authority to do so. If, on the other hand. it said that he “is hereby authorized” to suspend, it could be argued that he had no independent authority and could only derive his power from Congress. Republican congressman Thaddeus Stevens of Pennsylvania proposed a bill that attempted to address this problem directly. Stevens’s bill recited that the United States had been “in an insurrectionary and rebellious condition” since March 4, 1861, and that the “public safety” had required that the privilege of the writ of habeas corpus be suspended. It noted that the president had suspended the writ several times and ordered the arrest and imprisonment of various individuals. It admitted that “there is not entire unanimity of opinion as to which branch of the Government possesses the constitutional power to declare such suspension.” It therefore proposed the following language:

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Be it enacted, &c., That all such suspensions, arrests and imprisonments, by whomsoever made or caused to be made, under the authority of the said President, shall be confi rmed and made valid; and the said President, Secretaries, heads of Departments, and all persons who have been concerned in making said arrests, or in doing or advising any such acts as aforesaid, are hereby indemnified and discharged in respect thereof. . . . And be it further enacted, That during the existence of this rebellion the President shall be, and is hereby, invested with authority to declare the suspension of the privilege of the writ of habeas corpus, at such times, and in such places, and with regard to such persons, as in his judgment the public safety may require.7

The proposed bill was obviously designed not just to authorize future suspensions but also to protect the president and his agents from civil suits (or even criminal prosecutions) that might arise out of his past suspensions. The possibility that the executive who was now struggling to put down a massive rebellion might be held personally liable to arrested persons in any court (state or federal) that might disapprove of his actions was not a cheery prospect for those who supported the Union cause. But Stevens’s proposed bill perpetuated the uncertainty that Congress had previously wrestled with. It said that the president “shall be, and is hereby invested with authority” to suspend habeas corpus. Stevens himself did not doubt that the president had the constitutional power to suspend habeas on his own. He noted that “the Attorney General of the United States, and the Administration have held that the President had, without such a bill, full power.”8 But his bill still used the suspect word “hereby.” Stevens’s proposal passed the House of Representatives but not the Senate. Senator Trumbull attempted to remedy the problem by proposing a bill that provided that the president “is authorized

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to suspend” the writ. The removal of the word “hereby” left the exact meaning of Trumbull’s measure in some uncertainty. Was the president “authorized” by the Constitution or by Congress? Trumbull himself acknowledged that his language was subject to a “double” interpretation, but he still thought it was the best solution to a difficult constitutional question.9 Trumbull’s bill was fi nally passed in the waning hours of the Thirty-seventh Congress. In addition to the “is authorized” phrase, it established procedures that had to be followed whenever habeas was suspended. It required the secretary of war and the secretary of state to give federal judges lists of all prisoners detained by the government without the benefit of habeas corpus; and it provided that, if the grand jury in a federal district terminated its session without bringing criminal charges against any such prisoner, the judges were to order the prisoner’s release on the prisoner’s giving of an oath of allegiance to the United States government.10 This amounted to a congressionally authorized limited suspension of habeas corpus. Federal prisoners could be held without the benefit of the writ, but not indefinitely. If they were not hauled into court to answer criminal charges within the time specified, they would be set at liberty in much the same way that they would be freed under the writ. It was a compromise on two levels: First, it finessed the difficult issue of whether the power to suspend habeas corpus lay with the president or with Congress. Second, it protected federal prisoners from prolonged confinement without any opportunity to obtain their release. In his July 4, 1861, message to Congress, Lincoln had expressed his willingness to submit the habeas corpus question “entirely to the better judgment of Congress.” Congress had now spoken. Trumbull’s bill was finally passed on March 3, 1863. The president signed it into law on the same day.11 Although the act of March 3, 1863, did not resolve the issue of who has the constitutional power to suspend habeas corpus,

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it did clearly put Congress on record as supporting the president’s suspension. Senator Henry Lane of Indiana expressed this point shortly before the fi nal passage of Trumbull’s bill. “Gentlemen speak of the President’s usurpation of authority,” Lane said. “The Constitution authorizes the suspension of the privilege of the writ of habeas corpus, without saying in express terms who shall exercise that authority. The President has done it. It is an accomplished fact and cannot be undone. Suppose we now say that, in our opinion, the authority is given to Congress, can we change his convictions of duty or control his actions? Such a course will only bring about a confl ict of authority between Congress and the President, and weaken the power of both.”12 Vermont’s senator Jacob Collamer echoed Lane when he said, “The executive is just as much clothed with authority, and bound in duty when called on, to give construction to the Constitution in the execution of it as we are, and his decision is just as binding as ours . . . [A]nd it is not common courtesy for one department of this Government to say to another, ‘We say the Constitution means so and so, and we are infallible.’ ”13 Lincoln’s suspension was a fait accompli. It had furthered the effort to save the Union and deserved the support of Congress, regardless of where the power to suspend originated. While Congress was weighing in on the problem of habeas corpus, legal scholars were addressing the difficult constitutional question raised by Chief Justice Taney’s Merryman opinion. Articles and pamphlets were published in the North and the South expressing agreement or disagreement with Taney’s pronouncement, and support for or condemnation of Lincoln’s conduct. With the exception of the opinion Reverdy Johnson published in the National Intelligencer in June 1861, the fi rst important voice to be heard outside the government was that of Joel Parker, Royall Professor of Law at Harvard Law School.

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Parker had been the chief justice of the New Hampshire Supreme Court before he became Joseph Story’s successor in the prestigious Royall chair at Harvard, and his views commanded respect. His article was a critique of Taney’s opinion and an examination of the legal principles the chief justice relied on to reach his conclusions. It was published in the North American Review in October 1861, although it had its origins as a lecture delivered at Harvard as early as June 11, 1861. With revisions, Parker’s fi fty-page article was published as a separate pamphlet in Philadelphia in 1862.14 Parker began his critique by reviewing the circumstances that led up to John Merryman’s arrest and Chief Justice Taney’s decision to issue a writ of habeas corpus in his behalf. They were “circumstances of no ordinary character,” Parker said, for Maryland was in the thick of the sectional confl ict then threatening the national capital.15 He condemned the chief justice for overlooking the fact that war was being waged in Maryland at the time that Merryman was arrested. Parker reviewed the history of the writ of habeas corpus in England and concluded that Taney had misstated it. The Great Writ did not derive from Magna Carta, Parker said—in fact, it was routinely denied in England long after that famous document was signed. More importantly, neither Magna Carta nor the English common law prescribed rules to govern the conduct of a war. Those rules were part of the military law, which is subject to and controlled by civil law in time of peace, but free from its strictures when the military is in the field actively prosecuting a war. It was “sheer nonsense,” Parker said, to argue that a military commander, marching his men to battle, had to halt whenever he received a civil writ from a judge and go to the local courthouse to justify his conduct.16 Taney had argued that the Constitution’s habeas corpus clause authorizes Congress to suspend the writ of habeas cor-

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pus. But this was not the case, Parker said, for the clause simply states that habeas corpus “shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” It was a “grave error” to suppose that “a restraint upon a power was a grant of it.”17 The power to suspend habeas corpus derived, in Parker’s view, from other constitutional provisions and principles. In the case of Congress, it derived from its power to “suppress insurrections and repel invasions.”18 Parker did not expressly state the source of the president’s power, though he thought it had been adequately stated by Attorney General Bates. He argued, however, that general principles of martial law, which came into force whenever and wherever a war was being actively prosecuted, authorized military authorities to refuse to comply with writs of habeas corpus. In fact, it was the positive duty of a military commander to ignore the writ of habeas corpus whenever ordered by a superior officer to do so.19 Parker discussed Taney’s 1849 opinion in Luther v. Borden, in which the chief justice sanctioned the use of military power in defiance of civil authorities when a rebellion was raging in Rhode Island. Taney said then that, if the military were required to obey civil judicial process, their operations would be a “mere parade.”20 Parker argued even more forcibly that if civil judges could summon military commanders to their courts, give them orders relating to their military operations, and enforce those orders with contempt citations, the judicial power could be “quite as effectual to overthrow the government in time of war as the suspension of the habeas corpus, by order of the President, in time of peace, could be to overthrow the liberties of the people.”21 If Taney could order General Cadwalader to leave Fort McHenry and come to his Baltimore court, what was to prevent the Supreme Court justice on circuit duty in Tennessee (Associate Justice John Catron) from requiring a general in St. Louis to

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leave his Missouri command and come to Nashville to answer civil process?22 Parker contrasted military law with martial law. The former, he said, is “law for the government of the military force.”23 The latter is the military rule “which exists in time of war, and is conferred by the laws of war, in relation to persons and things under and within the scope of active military operations.”24 Martial law is not unlimited. It can be exercised only when and where actual war is being conducted. It might be difficult in particular cases to precisely determine its limits, but Parker said there could be no question that “in time of war” a “fort or camp occupied by a military force, for the purposes of the war, is ipso facto, without any special proclamation, under the government of martial law.”25 (This description, of course, fit Fort McHenry to a T.) Parker examined Taney’s theory that the military in Maryland was subject to the civilian control of the courts. He pointed out that when General Butler brought his Massachusetts regiments through Maryland, he found that railway tracks had been torn up around Annapolis, bridges had been burned, and a locomotive had been derailed, all for the purpose of impeding the progress of his troops. Butler put his men to work repairing the tracks, rebuilding the bridges, and setting the locomotive back on the rails. It was Butler’s “military duty,” Parker said, to march his force to Washington “with all possible diligence.” But if his command was subject to the ordinary civil law, judges along the way could summon him into court, charge him with trespassing on private property, and subject him and his men to civil process. “In the meantime the Secessionists of that State would have mustered in force,” Parker said; “those of Virginia and the other rebellious States would have been encouraged thereby to assail Washington on the other side, whereupon it must have fallen into

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the hands of the rebels, and the dismemberment of the Union have been surely accomplished.”26 If, Parker said, anybody believed that a military commander had a duty under martial law to arrest spies and traitors, and a duty under the civil law to appear in Chief Justice Taney’s court to answer for the arrests, “let him contemplate the practical result to which that doctrine leads, and then say which is the greatest evil.”27 As readers of the North American Review were pondering Parker’s critique of Ex parte Merryman, an old Philadelphia lawyer named Horace Binney was preparing his own analysis of the decision. A member of Harvard’s graduating class of 1797, Binney had studied law in the office of Jared Ingersoll (one of the signers of the Constitution), won election to a term in the U.S. House of Representatives, and served five years as attorney general of Pennsylvania, all the while earning a reputation as one of the country’s most eminent appellate attorneys. His most celebrated case was Vidal v. Girard’s Executors, decided by the Supreme Court in 1844.28 In that case, he helped to establish important law relating to charitable bequests and, in the process, beat Daniel Webster, one of the most eminent Supreme Court advocates of the first half of the nineteenth century (John Quincy Adams called Binney’s argument in Girard “most masterly”).29 Binney had been considered for appointment to the Supreme Court when he was a young man. Now eighty-one years old, he was hard at work on a long critique of Taney’s decision in Merryman. His manuscript was completed in December 1861 and published in pamphlet form in Philadelphia around the first of January 1862.30 Like Edward Bates, Reverdy Johnson, and Joel Parker before him, Binney was a strong supporter of Lincoln’s power to suspend habeas corpus, although his legal reasoning was quite different from theirs.

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Binney believed that the president had ample power under the Constitution to suspend habeas corpus, though he did not believe that the power came from martial law or the president’s powers as commander in chief. It came from the text of the document itself. The Constitution’s habeas corpus clause said nothing about who had the power to suspend habeas corpus. Taney had argued that, because the clause was in Article I of the Constitution it applied only to Congress. But Binney pointed out (as Reverdy Johnson had before him) that Section 9 of Article I applied to the president and other officers of the United States as well as to Congress. The common thread of the section was not Congress but restrictions on governmental powers. He reviewed the debates in the Constitutional Convention of 1787, observed how the habeas corpus clause had developed during those debates, and noted that it had been moved from different sections of the draft document before finally coming to rest in Article I, Section 9. (Taney had completely ignored that instructive history.) “The present position of the clause in the Constitution is not of the least importance,” Binney concluded. Since it was the duty of the president to resist insurrections and invasions, and since the president was the only officer of the government in a position to assess when the “public safety” was endangered, Binney believed that the power of suspension lay with the president. Even if Congress were, by statute, to proclaim a general suspension of the writ, it would have to delegate the actual suspension to the executive—for an assessment of the “public safety” necessarily requires executive judgment and executive action. It is not something that lies within the competence of a legislative assembly.31 Binney went to some pain to distinguish suspensions of the writ of habeas corpus from suspensions of the privilege of the writ of habeas corpus. The privilege of the writ is the right of an illegally detained person to be discharged. The writ itself is the

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power of the court to order the custodian of a detained person to appear before it and explain the circumstances of the detention. Binney argued that the Constitution did not contemplate that there would ever be a “general” suspension of the writ throughout the country—that would be “absurd,” he said, for conditions would never justify such a denial of access to all of the courts. It merely contemplated a suspension of the privilege of detained persons to be released when and where there was a rebellion or invasion and when and where the public safety was endangered. Who better to judge when those circumstances had arisen than the executive whose duty it was to resist the rebellion or invasion and protect the public safety? If the president did not have this limited power of suspension—if the president was duty bound to suppress a rebellion or invasion but still required to answer to the process of the civilian courts, “the very arms of the Government might be baffled and its worst enemies escape.”32 The president was “the safest depositary of the power,” Binney insisted, “the only power which can exercise it under real and effective responsibilities to the people.”33 Binney was particularly critical of Chief Justice Taney’s appeal to English constitutional history. The English experience, he argued, was different from the American. First, the United States Constitution operated as a brake on all branches of the federal government. The English constitution did not. “What Parliament declares to be the Constitution of England,” Binney observed, “is the Constitution of England.”34 Second, Binney argued that habeas corpus was regarded in England as a restraint on the untrammeled power of the Crown. The English kings and queens took power as hereditary monarchs. They reigned for life and consistently sought to use their royal prerogatives to add to their power and influence. Not so in the United States. Binney pointed out that the American president is elected to a “short

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term of years.” He can veto an act of Congress that he disapproves of, but two-thirds of both houses can then override his veto. He cannot appoint ambassadors, ministers, consuls, judges, or other officers without the advice and consent of the Senate. He cannot enter into treaties without the concurrence of two-thirds of the senators present. And he is always subject to impeachment for abuse of his power. Third, when the English Parliament suspended habeas corpus it did not directly suspend either the writ or the privilege of the writ—it merely authorized the Crown to suspend it. In the United States, Congress did not have to authorize the president to suspend habeas corpus, for the Constitution did this directly. “We must discard English analogy,” Binney said. “The Constitution of the United States must be judged by itself.”35 Binney reviewed the American “authorities” cited by Taney— John Marshall and Joseph Story. The chief justice’s reference to Marshall’s Bollman comment (that it was “for the legislature” to say when the public safety required a suspension of habeas corpus) was, in Binney’s judgment, “altogether obiter,” as there had been no suspension of habeas corpus in that case and the court had not decided the issue. Story’s remarks to the same effect in his Commentaries on the Constitution were “of even less weight,” for they were the words of a “commentator, and not of a Judge.”36 Horace Binney’s opinion on the questions raised by Ex parte Merryman was as learned and erudite as Taney’s (some thought even more so), but it was neither as sure nor as confident. Taney had said that the question presented by the case was “too plain and too well settled to be open to dispute” and that the governing constitutional provisions were “too clear to be misunderstood by any one.”37 But Binney pointed out that the issue before Taney in Merryman had never before been decided by an American court. It was, in other words, “a question of first impression.”38 There were “difficulties in the question,” Binney

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admitted. The Constitution’s habeas corpus clause was “concise” but not explained “with precision.” Binney was inclined to regard the habeas corpus question as a “political rather than a legal question,” or perhaps “a mixed political and constitutional question.” “No one should be dogmatical, or even confident, in such a matter,” Binney said.39 He admitted that professional opinion in the United States probably inclined in favor of the conclusion that the power to suspend habeas corpus rested with Congress. But there was nothing in the available authorities on the question that was “judicially authoritative.” Binney insisted that Taney’s Merryman opinion was not an authority. It was “not even an argument in the full sense,” he said, for the chief justice did not argue “from the language of the clause, nor from the history of the clause, nor from the principles of the Constitution.” All he did was belittle the president’s office, “even to the extent of making him, as Commander-in-Chief of the Army called from the States into the service of the United States, no more than an assistant to the Marshal’s posse.” This was “the deepest plunge of judicial rhetoric,” Binney said. Beyond that, Binney deplored Taney’s opinion because it had “a tone, not to say a ring, of disaffection to the President, and to the Northern and Western side of his house, which it is not comfortable to suppose in the person who fills the central seat of impersonal justice.”40 In language couched in elegant phrases, was Binney, in effect, questioning Roger Taney’s loyalty to the very government of which he was a high officer? If he was, he was not the only person in the United States in 1861 who was doing so. Binney’s pamphlet inspired many replies. One came from Judge Samuel Smith Nicholas of Kentucky, who published his own pamphlet arguing that, since the Constitution’s habeas corpus clause limits the power of suspension, the power must have been granted in some other part of the document, for it would make no sense to limit a nonexistent power. Nicholas found both

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the power to grant and the power to suspend habeas corpus in Congress’s power to regulate the federal courts.41 But Nicholas’s argument was subject to some doubt. The Constitution does give Congress the power to “ordain and establish” courts and to make “exceptions” to the jurisdiction of the Supreme Court.42 But it contains no explicit power to “regulate” the courts, and it is generally conceded that, if a power is not conferred on Congress by the Constitution, Congress does not have the power.43 Philadelphia lawyer George M. Wharton weighed in with a pamphlet arguing that Congress’s constitutional powers to “declare war,” “make rules concerning captures on land and water,” “raise and support armies,” “provide for calling forth the militia to execute the laws of the union,” “suppress insurrections and repel invasions,” and “make all laws which shall be necessary and proper for carrying into execution the foregoing powers”44 implied the power to suspend habeas corpus in times of rebellion and invasion.45 But Wharton’s argument was strained, for none of these powers contained any reference to habeas corpus, or even to the federal courts. Pamphlets replying to Horace Binney were published in Boston, Philadelphia, Washington, Cincinnati, and Louisville. Twenty years after Binney’s pamphlet appeared in Philadelphia, historian Sydney George Fisher published a list of more than forty pamphlets that were published during the Civil War on the difficult and controversial issues presented by the habeas corpus suspension.46 Binney’s pamphlet was probably the most influential of all the pamphlets published on the Merryman case. It was circulated throughout the United States. Lawyers, members of Congress, and judges read it and reflected on its arguments. Associate Justice Robert Grier of Pennsylvania read a copy and was reportedly pleased by it. Grier loaned out his copy to so many others that it was eventually lost. When his Supreme Court colleagues, Associate Justices John Catron of Tennessee and James

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Wayne of Georgia wanted to see it, Grier wrote to U.S. District Judge John Cadwalader (General Cadwalader’s brother) in Philadelphia to ask if additional copies could be obtained, and he wrote the clerk of the Philadelphia court asking him to send him a dozen copies if they were available.47

7 THE COURTS

While Congress and legal scholars weighed in on the habeas corpus issue, courts continued to struggle with it. Military arrests were made before and after Taney’s Merryman opinion, before and after Congress passed legislation ratifying Lincoln’s early orders of suspension, and before and after the passage of the Habeas Corpus Act of March 3, 1863. Inevitably, the legality of the arrests came before the courts for review. In one early case, Judge Nathan K. Hall of the U.S. District Court in New York issued a writ of habeas corpus in behalf of a Campbellite minister named Judson Benedict, who had been arrested for “giving aid and comfort to the enemy.” Benedict was taken into custody by a United States marshal pursuant to an order issued by the secretary of war that required marshals and local police to arrest and imprison persons who discouraged volunteer enlistments in the army. But Judge Hall ruled in Benedict’s favor, agreeing with Taney that the president had no power to suspend the privilege of the writ of habeas corpus. “[T]he power of suspension,” Hall ruled, “is a legislative and not an executive power, and must be exercised, or its exercise authorized, by Congress.”1 In another federal case, Associate Justice Nathan Clifford of the U.S. Supreme Court issued a writ of habeas corpus in behalf of a prominent Philadelphian who had been imprisoned in Fort Warren in Boston Harbor. But when the federal marshal was denied admission to the fort to serve the writ ( just as the

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marshal in Baltimore had been when he attempted to serve Taney’s writ in Fort McHenry), Clifford declined to take any further action in the matter. He determined that he had no power to enforce the writ in a U.S. military installation. Unlike Taney, he was not disposed to publish his opinion on the question.2 The habeas corpus issue arose in a petition that was presented to Supreme Court justice James M. Wayne in Washington. A man named Edward Stevens had fought with federal troops at the battle of First Bull Run in July 1861 and, after the Union defeat there, had come back to the capital complaining that his superiors had ordered him to stay in the army past the expiration of his ninety-day enlistment period. Stevens’s lawyer challenged the authority of President Lincoln to order volunteers to extend their enlistments without prior authorization of Congress. The issues presented to Wayne were, first, whether Congress’s Act of August 6, 1861, had been sufficient to ratify any defects in the president’s early military orders and, second, whether Stevens was entitled to be released from the ser vice by habeas corpus. Wayne refused to order Stevens’s release, ruling that Congress had constitutional power “to legalize and confi rm Executive acts, proclamations, and orders done for the public good, although they were not, when done, authorized by any existing laws.” He said that congressional legislation could “be made to operate retroactively to confirm what may have been done under such proclamations and orders.”3 The habeas corpus issue arose in an important state court after more than a hundred antidraft rioters were arrested by order of the governor of Wisconsin and turned over to the U.S. army for trial by court-martial. The arrests followed Lincoln’s proclamation of September 24, 1862, in which he imposed martial law on “all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to Rebels against the authority of the United

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States.” The same proclamation made those persons liable to trial and punishment by courts-martial or military commissions and suspended the writ of habeas corpus “in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fort, camp, arsenal, military prison, or other place of confinement by any military authority or by the sentence of any Court Martial or Military Commission.”4 The Supreme Court of Wisconsin issued a writ of habeas corpus in behalf of some of the rioters, then concluded that the rioters had violated state law and should be tried in state courts for their crimes but not held in federal custody. The Wisconsin court said that the writ of habeas corpus was available to provide them the relief they requested. “The power to issue the writ is given by law,” wrote Justice Byron Paine. “It requires a law to change a law, and the president cannot make a law.”5 A different result was reached by a federal judge in Vermont when he was asked to issue a writ of habeas corpus in behalf of a Democratic politician who had been accused of vaguely disloyal conduct. In Ex parte Field, Judge David A. Smalley observed that the president was commander in chief of the armed forces and of the militia of the several states and, as such, charged with the constitutional duty to “take care that the laws be faithfully executed.” In a series of statutes dating back to the early days of the republic (most notably the Militia Act of 1795),6 Congress had invested the president with the power to call out the militia “to execute the laws of the Union, suppress insurrections, and repel invasions.” The power to do these things included the power to impose martial law. Pursuant to his power to impose martial law, Lincoln had issued his proclamation of September 24, 1862, suspending the writ of habeas corpus. Smalley believed that congressional statutes, in themselves, were sufficient to invest the president with the power of suspension. The question of who has the power to suspend habeas corpus was, in Smalley’s

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estimation, “the most grave and important question that has ever been presented before the judicial tribunals of this country.” He approached it “with great hesitancy and would be glad to avoid expressing an opinion upon it,” but he had “no choice.” “In order to examine it in all its aspects,” he wrote, “it is necessary to consider the present condition of the Union. That a gigantic insurrection and rebellion has been, for more than eighteen months, and is still, raging in many of the states, and that the armies of the rebellious states have been, and are, invading loyal states with immense forces, that hundreds of millions of dollars have been expended, and many thousands of lives lost, in endeavors to suppress and put it down, and that hundreds of thousands of men are now in the field, and in hostile array against each other, we know to be true. That there are recruiting stations in nearly every town in the loyal states, and troops in various places in every state being drilled and disciplined, in squads, companies, and regiments, and that a draft has been ordered we also know.”7 Smalley concluded that, “in the present military exigencies of the country,” the president had the power to proclaim martial law and, “as a necessary consequence thereof,” the power to suspend the writ of habeas corpus.8 The judge acknowledged that Vermont was a loyal state, more than five hundred miles from the seat of war, and that its people were “patriotic and law abiding.” Thus some had argued that there was nothing to justify martial law in the state. “But we have already seen that this is a question for the President,” Smalley said, “not for the Court, to determine.”9 Other judges were more willing than Smalley to follow Taney’s example in Ex parte Merryman. When U.S. District Judge Samuel Treat issued a writ of habeas corpus to an army officer in St. Louis and the officer, like General Cadwalader in Baltimore, refused to produce the body of the named man in court, Judge Treat rendered an opinion much like Taney’s and

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sent a copy of it to the chief justice.10 The chief justice wrote back to Treat with approval. “It exhibits a sad and alarming condition of the public mind,” Taney said, “when such a question can be regarded as open to discussion; and no one can see to what disastrous results the inflamed passions of the present day may lead. It is however most gratifying to one trained in the belief that a government of laws is essential to the preservation of liberty to see the judiciary fi rmly performing its duty and resisting all attempts to substitute military power in the place of judicial authorities.”11 The full Supreme Court of the United States was not asked to rule on military arrests until early 1864, but the circumstances that gave rise to its ruling then were almost as troubling as those of the Merryman case, and the ruling itself almost as controversial. Clement C. Vallandigham was an Ohio politician with strong Southern sympathies who tried at every turn to undermine Lincoln’s efforts to combat the Southern rebellion. He was a member of the House of Representatives when Lincoln called the Congress into special session in 1861, and he lost no opportunity to speak out against the president’s efforts to combat the rebellion. He was a strong critic of Lincoln’s blockade of Southern ports, the administration’s decision to issue legal tender notes (“greenbacks”) to fi nance the Union war effort, and the conscription laws passed by Congress in 1862 and 1863. He was, of course, a sharp critic of the president’s suspension of the writ of habeas corpus. A Democrat, Vallandigham had warmly supported President James K. Polk’s prosecution of the war against Mexico in the 1840s (a fact he found somewhat embarrassing after he adopted his anti-Lincoln, anti-Union war stance in the 1860s). A staunch defender of the right of Southerners to own slaves, Vallandigham was particularly harsh in his criticism of Lincoln’s Emancipation Proclamation, issued in final form on January 1, 1863. “If this Union cannot endure ‘part

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slave and part free,’ ” Vallandigham argued, “then it is already and finally dissolved.”12 He was vociferous in his condemnation of Lincoln’s military arrests in the North and suggested that, if the arrests continued, the president ought to be impeached.13 He even went so far as to introduce a bill in the House of Representatives that would have condemned Lincoln as a tyrant and despot and imprisoned him for up to two years if he repeated the conduct by which Merryman had been arrested.14 After Vallandigham lost his congressional seat in the elections of 1862, he set his sights on the governorship of Ohio.15 If his political competition was not enough to deter him from achieving his new goal, he soon found that the Union military was. Lincoln had placed Major General Ambrose Burnside in command of the Military Department of Ohio in the spring of 1863. There Burnside issued a sweeping military order (later famous as “General Orders, No. 38”) that he hoped would stamp out antiadministration agitation. It declared that “all persons found within our lines who commit acts for the benefit of the enemies of our country will be tried as spies or traitors, and, if convicted will suffer death.” It added that the “habit of declaring sympathy for the enemy will not be allowed in this department. Persons committing such offenses will be at once arrested, with a view to being tried as above stated, or sent beyond our lines into the lines of their friends.”16 Vallandigham condemned Burnside’s order as “a base usurpation of military power” and said he could “spit upon it and stamp it under foot.” It was a violation, he said, of “General Orders, No. 1, the Constitution of the United States.” Burnside soon learned that Vallandigham was planning to speak to a large outdoor gathering in Mount Vernon, Ohio, on May 1, 1863. Vallandigham’s biographer later suggested that Vallandigham needed “martyrdom” to make his political campaign effective and intended to openly defy Burnside’s order at Mount Vernon. He in fact did so, telling the crowd of twenty

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thousand spectators that Lincoln’s war against the South was “a wicked, cruel, and unnecessary war,” a war that was not waged “for the preservation of the Union” but for the purpose of “crushing out liberty and erecting a despotism.” It was a “war for the freedom of the blacks and the enslavement of the whites.” Vallandigham said that the government was about to “appoint military marshals in every district, to restrain the people of their liberties, to deprive them of their rights and privileges.”17 Burnside responded to Vallandigham’s provocation by having him arrested and delivered into the hands of a military commission, which promptly tried and convicted him of “declaring disloyal sentiments and opinions with the object and purpose of weakening the power of the government in its effort to suppress an unlawful rebellion.”18 He was sentenced to imprisonment for the duration of the war. Ohio’s former U.S. senator George E. Pugh (a political ally of Vallandigham) then petitioned the U.S. Circuit Court in Cincinnati for a writ of habeas corpus in Vallandigham’s behalf. But U.S. District Judge Humphrey Leavitt declined to set Vallandigham at liberty because he did not believe he had any authority to review a decision of a military commission.19 Lincoln had known nothing of Vallandigham’s case until he read about it in the newspapers.20 But he recognized its importance as soon as it came to his attention and conferred with his cabinet about it. Secretary of the Navy Gideon Welles later reported that every member of the cabinet considered Vallandigham’s arrest “arbitrary and injudicious” and regretted what had been done. The president agreed but did not want to openly rebuke General Burnside. He noted that one of the punishments that could be meted out to offenders under General Orders, No. 38, was to be “sent beyond our lines into the lines of their friends.” Picking up on that cue, Lincoln ordered that Vallandigham be turned over to Confederate authorities in Tennessee.

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If he should return and be arrested, he was to be “kept in close custody for the term specified in his sentence.”21 Meanwhile, the Ohioan’s conviction was appealed to the Supreme Court in Washington. Its decision was announced on February 15, 1864, by Associate Justice James M. Wayne of Georgia. Wayne was an old Georgia slaveholder and Andrew Jackson appointee whose strong loyalties to the Union had persuaded him to stay in Washington after his native state left the Union. Wayne reviewed the constitutional and statutory provisions governing the Supreme Court’s jurisdiction and concluded that it had no jurisdiction over military tribunals. Thus, the legality of Vallandigham’s arrest, trial, and conviction were all beyond the purview of the high court. Associate Justices Samuel Nelson of New York, Robert Grier of Pennsylvania, and Stephen J. Field of California all concurred in Wayne’s opinion. Chief Justice Taney was ill at the time and, for all that the published report of the case reveals, took no part in the Supreme Court’s decision, which represented an important (perhaps even key) judicial victory for Lincoln.22 For the time being, at least, the president’s military arrests would not be overturned by the Supreme Court. His suspensions of habeas corpus would be undisturbed, except by the exercise of his own discretion. In June 1863, Lincoln availed himself of another opportunity to express his views on the difficult issues raised by military arrests and the suspension of habeas corpus. At a public meeting held in Albany, New York, on May 16, prominent Democrats had adopted a series of resolutions that were sternly critical of the president and his policies. The Democrats pledged loyalty to the Union but denounced the arrest of Clement Vallandigham. They said that the Ohioan had been arrested merely for publicly criticizing the administration and Burnside’s General Orders, No. 38. They called on the president to “be true to the Constitution”

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and “maintain the rights of the States and the liberties of the citizen.” Lincoln replied in a public letter dated June 12, addressed to Erastus Corning, the chairman of the Albany meeting. It was a long essay (nearly four thousand words) in which he attempted to explain his policies and the circumstances that he felt justified them. The words that he devoted to the suspension of habeas corpus are of most interest to the present discussion. “Ours is a case of Rebellion,” the president wrote, “. . . a clear, flagrant, and gigantic case of Rebellion.” He said that the habeas corpus clause of the Constitution made it clear that “ordinary courts of justice are inadequate to ‘cases of Rebellion,’ . . . that in such cases, men may be held in custody whom the courts acting on ordinary rules, would discharge.” But this could only be done “when, in cases of Rebellion or Invasion the public Safety may require it.” “This is precisely our present case,” Lincoln said, “—a case of Rebellion, wherein the public Safety does require the suspension.” Military arrests were not made to apprehend men who had violated the law and were to be punished for their crimes. That was the function of the civil courts. They were made for the purpose of protecting the nation from men who endangered the “public safety.” To illustrate this point, the president gave “a few notable examples” of the kind of men who fell into this category: John C. Breckinridge (who had left the U.S. Senate and now served the Confederacy as a general), Robert E. Lee, Joseph E. Johnston, John B. Magruder, William B. Preston, Simon B. Buckner (all Confederate generals), and Franklin Buchanan (a Confederate admiral), who, Lincoln pointed out, were “now occupying the very highest places in the rebel war service.” These men were “all within the power of the government since the rebellion began, and were nearly as well known to be traitors then as now. Unquestionably if we had seized and held them, the insurgent cause would be much weaker. But no one of them had then committed any crime defi ned in the law. Every

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one of them if arrested would have been discharged on Habeas Corpus, were the writ allowed to operate.” Lincoln observed: “In view of these and similar cases, I think the time not unlikely to come when I shall be blamed for having made too few arrests rather than too many.”23 Lincoln disagreed with the Albany Democrats’ contention that military arrests might be constitutional “in localities where rebellion actually exists” but not “where rebellion, or insurrection, does not actually exist.” They had argued that military arrests could not be made “outside of the lines of necessary military occupation, and the scenes of insurrection.” But Lincoln pointed out that the Constitution made “no such distinction.” He conceded that military arrests were constitutional “only when, in cases of Rebellion or Invasion, the public Safety may require them.” But they were constitutional “wherever the public safety does require them.” He referred to places outside the lines of military occupation where there was interference with army enlistments and supplies, where army desertions and mutinies were encouraged. Military arrests were justified, he said, “at all places where they will conduce to the public Safety, as against the dangers of Rebellion or Invasion.”24 Lincoln conceded that if Clement Vallandigham had been arrested “for no other reason than words addressed to a public meeting, in criticism of the course of the administration, and in condemnation of the military orders of that general [Burnside],” the arrest would have been wrong. But he understood that the arrest was made “for a very different reason. Mr. Vallandigham avows his hostility to the war on the part of the Union; and his arrest was made because he was laboring, with some effect, to prevent the raising of troops, to encourage desertions from the army, and to leave the rebellion without an adequate military force to suppress it. He was not arrested because he was damaging the political prospects of the administration, or the personal

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interests of the commanding general; but because he was damaging the army, upon the existence, and vigor of which, the life of the nation depends. He was warring upon the military; and this gave the military constitutional jurisdiction to lay hands upon him.” If Vallandigham was not in fact “damaging the military power of the country,” Lincoln would be glad to correct the error, “on reasonably satisfactory evidence.”25 The president said that “long experience” had shown that “armies can not be maintained unless desertion shall be punished by the severe penalty of death. The case requires, and the law and the constitution, sanction this punishment.” Then he asked one of the powerful questions that he was accustomed to ask when arguing a case in court. He used his technique of “interrogatory argument,” making a point by asking a question to which the answer seemed unavoidable. “Must I shoot a simpleminded soldier boy who deserts,” he asked, “while I must not touch a hair of a wiley [sic] agitator who induces him to desert? . . . I think that in such a case, to silence the agitator, and save the boy, is not only constitutional, but, withal, a great mercy.”26 He could not resist the temptation to refer to the example Andrew Jackson set when he suspended habeas corpus in New Orleans during the War of 1812. “After the battle of NewOrleans,” Lincoln said, “and while the fact that the treaty of peace had been concluded, was well known in the city, but before official knowledge of it had arrived, Gen. Jackson still maintained martial, or military law.” He paid a fine for contempt of court, but Congress later exonerated him by refunding the fine. “[W]e had the same constitution then, as now,” Lincoln reminded the Albany Democrats. “[W]e then had a case of Invasion, and . . . now we have a case of Rebellion.” He observed that “the permanent right of the people to public discussion, the liberty of speech and the press, the trial by jury, the law of evidence, and the Habeas

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Corpus, suffered no detriment whatever by that conduct of Gen. Jackson, or its subsequent approval by the American congress.”27 Lincoln admitted that he was distressed by Vallandigham’s arrest. “I was pained,” he said, “that there should have seemed to be a necessity for arresting him.” He added that it would afford him “great pleasure to discharge him so soon as I can, by any means, believe the public safety will not suffer by it.” “As the war progresses,” he observed, “it appears to me, opinion, and action, which were in great confusion at first, take shape, and fall into more regular channels; so that the necessity for arbitrary dealing with them gradually decreases. I have every reason to desire that it would cease altogether. . . . Still, I must continue to do so much as may seem to be required by the public safety.”28 Lincoln’s letter to Erastus Corning resembled a lawyer’s argument to a jury. In simple, homespun language, it defended his conduct of the war and explained why he believed he was right in ordering military arrests and suspending habeas corpus. The letter was widely circulated throughout the country, printed in newspapers, and reprinted in at least seven different pamphlet versions, some with circulations in the hundreds of thousands.29 It made some good points, and some weak ones (was it really plausible to believe that Lee and the other Southern generals could have been arrested before they took to the battlefield, on some vague suspicion that they might in the future pose a danger to the Union?). But his juxtaposition of the “simple-minded soldier boy who deserts” and the “wiley [sic] agitator who induces him to desert” was well calculated to turn public opinion in his favor. Of course, the letter was far from a comprehensive constitutional justification of all that he had done. He knew that it wasn’t. But he also knew that he didn’t need to provide a comprehensive constitutional justification. Roger Taney had done his best to denigrate the power of the president of the United States to arrest and to suspend habeas corpus, even in the face

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of a massive rebellion. Lincoln, and the constitutional scholars who supported him, had done their best to sustain that power. And Congress had come to his support with acts and resolutions. In the end, he knew that the question would be decided by public opinion. After Lincoln’s letter to Corning was published, a delegation of Ohioans appeared in Washington with resolutions adopted by the Ohio State Democratic Convention. Led by Matthew Birchard, former chief justice of the Ohio Supreme Court, the Ohio Democrats were fi rm defenders of Vallandigham and sharp critics of Lincoln, and they presented a litany of objections to his arrest and suspension policies. The president replied to them in a public letter, as he had to Corning. In their resolutions, the Ohio Democrats took issue with Lincoln’s argument that the Constitution is “different in time of insurrection or invasion from what it is in time of peace & public security.” But Lincoln’s reply made it clear that that was not his argument. The Constitution is, of course, the same, in both times, but its application is different. This, as Lincoln said, is “simply because, by the constitution itself, things may be done in the one case which may not be done in the other.” The Democrats argued that, if the habeas corpus clause were entirely removed from the Constitution, the other guarantees of personal liberty contained in it would still have to be enforced. But Lincoln pointed out that habeas corpus was the means by which the other constitutional guarantees were enforced—Vallandigham and his lawyers had themselves proved that when they applied to the court for a writ in his behalf. The Constitution makes it clear that habeas corpus may be suspended “when in cases of Rebellion or Invasion the public Safety may require it.” Thus the other guarantees set forth in the Constitution are suspended when habeas corpus is suspended. The Ohio Democrats boldly asked whether Lincoln believed that he had the power to override con-

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stitutional liberties whenever he said “the public safety requires it.” Putting aside the suggestion that he was “struggling for an arbitrary personal prerogative” (a suggestion that, of course, he rejected), Lincoln replied that the proper question was not whether liberties should be put aside when “the public safety requires it,” but “who shall decide, or an affirmation that nobody shall decide,” when there is a rebellion or invasion and the public safety requires it. “The constitution contemplates the question as likely to occur for decision,” Lincoln noted, “but it does not expressly declare who is to decide it. By necessary implication, when Rebellion or Invasion comes, the decision is to be made, from time to time; and I think the man whom, for the time, the people have, under the constitution, made the commander-in-chief, of their Army and Navy, is the man who holds the power, and bears the responsibility of making it. If he uses the power justly, the same people will probably justify him; if he abuses it, he is in their hands, to be dealt with by all the modes they have reserved to themselves in the constitution.”30 Lincoln went on to distinguish circumstances in which men are arrested and punished for crimes they have committed from those in which men are confined because they are a danger to the public safety. On this point he addressed the Ohioans directly: You claim that men may, if they choose, embarrass those whose duty it is, to combat a giant rebellion, and then be dealt with in turn, only as if there was no rebellion. The constitution itself rejects this view. The military arrests and detentions, which have been made, including those of Mr. V[allandigham], which are not different in principle from the others, have been for prevention, and not for punishment— as injunctions to stay injury, as proceedings to keep the peace— and hence, like proceedings in such cases, and for like reasons, they have not been accompanied with indictments, or trials by juries, nor, in a single case by any

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punishment whatever, beyond what is purely incidental to the prevention. The original sentence of imprisonment in Mr. Vallandigham’s case, was to prevent injury to the Military ser vice only, and the modification of it was made as a less disagreeable mode to him, of securing the same prevention.31

Lincoln said that Vallandigham’s arrest was certainly not meant to show any disrespect for Ohio. “I am grateful to the State of Ohio for many things,” he said, “especially for the brave soldiers and officers she has given in the present national trial, to the armies of the Union.” He had no personal knowledge of the facts that led up to Vallandigham’s arrest, but he did know that there had been massive efforts in Ohio and elsewhere to resist the draft, to discourage men from enlisting in the military, and to encourage desertions. He did know that Vallandigham had been in the vanguard of the Ohio efforts. And he did know that the Ohio Democrats were now promoting Vallandigham as their candidate for governor. Lincoln bluntly charged that the attitude of the Ohio Democrats “encourages desertion, resistance to the draft and the like, because it teaches those who incline to desert, and to escape the draft, to believe it is your purpose to protect them, and to hope that you will become strong enough to do so.”32 Lincoln sent duplicates of his letter to the Ohio Democrats so they could, if they saw fit, indorse their names on it, with the understanding that they were thereby committing themselves to three propositions: 1. That there is now a rebellion in the United States, the object and tendency of which is to destroy the national Union; and that in your opinion, an army and navy are constitutional means for suppressing that rebellion. 2. That no one of you will do any thing which in his own judgment, will tend to hinder the increase, or favor the decrease,

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or lessen the efficiency of the army or navy, while engaged in the effort to suppress that rebellion; and, 3. That each of you will, in his sphere, do all he can to have the officers, soldiers, and seamen of the army and navy, while engaged in the effort to suppress the rebellion, paid, fed, clad, and otherwise well provided and supported.33

If the Ohio Democrats (or a majority of them) agreed to these propositions, Lincoln promised that he would publish his letter and the names indorsed on it, and that the publication would, in itself, constitute “a revocation of the order in relation to Mr. V[allandigham].”34 The Ohioans did not accept the president’s extraordinary offer, and the order regarding Vallandigham was not revoked. After a short stay in the Confederate states (during which he met with Jefferson Davis), Clement Vallandigham went to Canada where, across the river from Detroit, he resumed his campaign for the governorship of Ohio. He was not successful.35

8 A GENTLEMAN STILL

Taney’s Merryman opinion may have stirred controversy in the nation. It may have prompted Congress to ratify Lincoln’s early efforts to respond to the Southern rebellion. It may have aroused legal scholars to publish learned opinions on the respective powers of Congress and the executive to suspend the Great Writ of Liberty. And it may have presented new and difficult issues for resolution by federal and state courts. One thing it did not do, however, was secure John Merryman’s release from Fort McHenry—nor, of course, could it have. For all of its virtues (and faults), Taney’s opinion did not end with an order granting Merryman his freedom. It explained why he was entitled to be set at liberty but did not order Lincoln or Cadwalader (or anybody else) to set him at liberty. Bowing to the superior power of the military, Taney had contented himself with delivering a stern lecture to the president without attempting the futile exercise of sending a posse to the gates of Fort McHenry, where it would certainly have been rebuffed as fi rmly and defiantly as the federal marshal had been when he tried to serve court papers there. Merryman was kept in Fort McHenry through the month of June and into the fi rst two weeks of July 1861. Conditions were crowded there, for other prisoners were being brought in on charges similar to those that had caused him to be confined. On June 27 Baltimore’s police marshal, George P. Kane, was brought in on charges that he was refusing to enforce order in the city.1

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Kane was arrested pursuant to orders of General Cadwalader’s successor in Baltimore, Major General Nathaniel P. Banks. On the same day that he arrested Kane, Banks named Colonel John R. Kenly of the First Regiment of Maryland Volunteers to run the police department in place of Kane and the Baltimore City police commissioners.2 On July 1 Banks had the commissioners arrested on the ground that they were refusing to obey his orders or recognize his appointees.3 One notable man, rumored for a time to become one of Merryman’s fellow prisoners at Fort McHenry, did not make it into military custody. As Chief Justice Taney was leaving the courtroom at the end of the Merryman proceedings, he told Mayor Brown “that his own [Taney’s] imprisonment had been a matter of consultation, but that the danger had passed.” Brown repeated this ominous bit of information in the recollections he later left of the troubled times in Baltimore in 1861.4 Taney’s comment seemed to suggest that someone in the military chain of command wanted to arrest him and put him in Fort McHenry with Merryman and the other prisoners. Could that “someone” have been President Lincoln himself? Taney returned to his home in Washington shortly after completing the Merryman case. There he was close to the Old Capitol Prison, where military prisoners were incarcerated. But Taney was never arrested. Such an arrest would, of course, have been an outrageous provocation, not just flagrantly illegal but politically dangerous, for it would have aroused a storm of indignation throughout the country, even in the North, where Taney’s Merryman ruling had evoked little sympathy. But a strained bit of plausibility was later added to this rumor. Ward Hill Lamon was an Illinois lawyer the president had appointed to the office of marshal of the District of Columbia. Lamon was a friend of Lincoln’s and had practiced law with him on the Eighth Judicial Circuit in central Illinois. He was a big, strapping man who volunteered

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to act as a kind of presidential bodyguard, sleeping on the floor outside Lincoln’s White House bedroom to protect him against intruders. He was not, however, regarded as a man of particular intelligence or discretion. As marshal, it was Lamon’s duty to carry out orders of the federal courts in Washington. An unpublished manuscript was found some years later in which Lamon had written: “After due consideration the administration determined upon the arrest of the Chief Justice.”5 According to this manuscript, Lincoln issued a “warrant or order” for the chief justice’s arrest but could not decide who should make the arrest or where the place of imprisonment should be, so he told Lamon to “use his own discretion about making the arrest unless he should receive further orders.”6 But the marshal decided not to arrest Taney. Close examination of the manuscript raises serious doubts about its credibility. After Lincoln’s death, Lamon and a man named Chauncey Black joined forces to produce a biography of Lincoln, with Lamon supplying most of the information and Black doing the writing.7 Chauncey Black was the son of Jeremiah Sullivan Black, a Democrat and one of Lincoln’s political opponents (the elder Black had been both attorney general and secretary of state in James Buchanan’s cabinet). When Lamon and Black’s book was published, however, it contained no mention of the planned arrest of Chief Justice Taney. Lamon himself tried to produce a second book about Lincoln without Black’s help, but his manuscript (which included a brief mention of the Taney “arrest warrant”) was disjointed and rambling, and he could not find a publisher for it.8 After Lamon’s own death, his daughter published another volume of her father’s Lincoln recollections in which the story of Taney’s “planned arrest” was notably absent.9 The apparent inference is that the Taney rumor may have been invented by Chauncey Black (or possibly by Lamon himself and then transmitted to Black) but wholly excluded from any of Lamon’s published writings. It strains credulity to suppose

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that Lincoln would have engaged in such an outrageous effort to muzzle the chief justice, or that he would have entrusted such a sensitive mission to the good-natured but bumbling Lamon. In fact, the chief justice was never molested by anyone in or out of Washington, though the military and civil authorities always knew where they could lay their hands on him if they wanted to. What prompted Taney’s curious remark to Mayor Brown? In the tumult that engulfed Baltimore in April and May of 1861, rumors were swirling wildly in every direction. Perhaps Taney heard one of them and for a moment believed it was true, but he quickly dismissed it. He may also have been influenced by the recollection that when his old mentor Andrew Jackson was in New Orleans in 1814 and 1815, he had jailed U.S. District Judge Dominick Augustin Hall for the “offense” of issuing a writ of habeas corpus in defiance of his (Jackson’s) suspension of the writ.10 If Jackson could have a judge arrested and imprisoned, Taney might well have thought that Lincoln could too. But the fact is that he did not. Merryman was treated well during the time he was in Fort McHenry. His family and friends were allowed to visit him and help him make plans for his future while, outside the walls of the fort, Marylanders sympathetic to the South protested the “injustice” he was suffering. A committee of the Maryland State Assembly published a report describing him as “the victim of military lawlessness and arbitrary power—the great remedial writ of habeas corpus, and all the guaranties of freedom which it embodies, having been stricken down, at one blow, for his oppression.”11 Neither Lincoln nor the War Department seemed anxious to keep Merryman in confi nement. Lincoln had stated that the purpose of military arrests was not to subject wrongdoers to punishment for past acts but to restrain enemy sympathizers from committing future acts. Merryman himself told one prominent Baltimorean (the pro-Southern attorney and state legislator

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Severn Teackle Wallis) that the administration was planning to release him before Taney issued his habeas corpus ruling. Secretary of War Simon Cameron had already signed the release order, Merryman said, but he misplaced it due to the rush of business in his office, and when Taney brought “the Judiciary in confl ict with the Executive” the administration “became offended” and withheld the order. “In other words,” Wallis reported to Maryland’s U.S. senator James Alfred Pearce, “he has been punished for using a lawful right, secured to him by the Constitution.”12 Secretary Cameron visited McHenry on July 4, the same day that Congress assembled for its special session. While there, he had an interview with Merryman, in the course of which he promised him a parole.13 On July 12, Cameron sent a letter to General Banks, directing him to cause Merryman to be delivered to the U.S. marshal.14 Attorney General Bates forwarded Cameron’s order to U.S. District Attorney William Meade Addison, who had responsibility for criminal prosecutions in Baltimore.15 On July 10, two days before Merryman was turned over to the marshal, an indictment for treason was returned against him in the U.S. District Court in Baltimore. In the indictment, he was described as “John Merryman, late of the district aforesaid, gentleman.” It recited that he was a resident of the United States, under the protection of its laws, and owing it his “allegiance and fidelity.” It alleged that on April 23, 1861, with upwards of five hundred other persons, “armed and arrayed in a warlike manner,” he had “most wickedly, maliciously and traitorously” levied war against the United States. He had burned and destroyed six bridges on the Northern Central Railroad “with intent then and there to hinder, delay and prevent the passage and movement of military troops of the State of Pennsylvania, and military troops of the United States of America, and good and loyal citizens and inhabitants of the United States of America, to the defense of the government of the United States

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of America.” Another count alleged that Merryman destroyed telegraph wires running along the railroad, “with intent then and there to prevent the speedy and rapid transmission of intelligence, and thereby obstruct, hinder and delay the said United States . . . in the prompt adoption of the measures and acquisition of means necessary and proper for the defense of the said United States against the aforesaid evil-disposed persons and bodies.” The indictment listed the names of thirteen witnesses to the facts alleged.16 Merryman was not the only man to be indicted that day. His neighbor Charles Cockey was named in another indictment, while similar charges were fi led against Samuel Mactier, Lewis Bitter, James McCartney, Philip Casmire, Michael Hooper, and Richard H. Mitchell.17 But Merryman’s name took fi rst place in the list of the indicted traitors, partly because of his prominence in Maryland society, but mostly because Chief Justice Taney had made his name famous all over the United States. Because treason is a capital offense, U.S. statutes required that the case be tried in the circuit court. Accordingly, District Judge Giles made an order on July 13 remitting the indictment to the circuit court for further proceedings.18 Merryman appeared in court on the same day and was admitted to bail in the amount of twenty thousand dollars, conditioned upon his appearance in the circuit court on the fi rst Monday of the following November. Now admitted to bail, he was free to return to Hayfields. Roger Taney was the presiding judge of the circuit court, in charge of its calendar and entitled to preside over its trials. The U.S. district attorney had abundant evidence showing that Merryman had burned bridges and cut telegraph lines north of Baltimore, and that he had done so for the avowed purpose of preventing Northern troops from coming through the city. One of the members of the U.S. grand jury kept a diary showing witnesses

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who testified about anti-Union activities in and around Baltimore from the nineteenth of April on through the month of June (there were more than two hundred witnesses in all), and the testimony against Merryman was damning.19 Dozens of witnesses had seen and heard the squire of Hayfields and the men who helped him as he went about the business of burning bridges and cutting telegraph lines. Merryman’s only plausible defense seemed to be that he had been acting under orders received from General Steuart of the Maryland militia and local officials in Baltimore (Governor Hicks strenuously denied that he had ever given or even approved such orders).20 But it seemed doubtful at best that disloyal state officials were competent to provide legal cover for treasonous acts committed against the federal government. Under the U.S. Constitution, laws made and enforced by the United States government were clearly “the supreme law of the land, . . . anything in the Constitution or laws of any State to the contrary notwithstanding.”21 When Merryman’s case (and the cases of the other men indicted by the grand jury on charges of treason) reached Taney, he declined to set them for trial. It was one of the principal points of his Ex parte Merryman opinion that men who were accused of criminal acts were entitled to be tried in civil courts by juries of their peers. They were not to be arrested and imprisoned by military authorities. But when cases actually confronted Taney in the United States courts in Baltimore, he decided that the trials were not so very urgent. At the November term of the circuit court, he postponed the cases to the April 1862 term. When that term opened, he was too ill to attend court, and the cases were postponed to the following November term. As Carl Brent Swisher has written: “It is clear that his sympathies were with the persons accused of treason, and that he felt unable to guarantee them a fair trial under the circumstances. He may

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therefore have welcomed an excuse for absenting himself from court, in so far as his absence provided a reason for further postponing the cases.”22 Taney realized that his absence would put some pressure on Judge Giles to hear the cases alone, so he wrote Giles to inform him that, since the treason cases were capital offenses, the district judge could not try them alone.23 In the meantime, William Price had become the new U.S. district attorney in Baltimore. He wrote Attorney General Bates in September 1862, advising him that “if the Chief Justice should be on the bench, the treason cases will have to be made very plain and conclusive if we expect a conviction.”24 To move the treason trials forward, Price sought to have another Supreme Court justice assigned temporarily to Baltimore, but he was unsuccessful.25 The new district attorney had hoped to use notes of the grand jury testimony kept by one of the grand jurors to help him prepare his cases. But when Judge Giles learned this, he showed sympathies similar to Taney’s. He informed the grand juror that his oath forbade him to give out secret information obtained in the course of his grand jury duties.26 Taney stubbornly refused to permit the treason cases to go to trial. He believed that the military occupation of Baltimore had rendered the judicial authorities virtually powerless and that, if the accused men were tried, there was no guarantee that they would receive fair trials. The public was intimidated by the military presence in the city, he thought, fearful of doing or saying anything that would offend the occupiers. In May 1864 Taney expressed his feelings in a letter to his Supreme Court colleague, Associate Justice Samuel Nelson of New York. “I will not place the judicial power in this humiliating position,” he told Nelson, “nor consent thus to degrade and disgrace it, and if the district attorney presses the prosecutions I shall refuse to take them up.”27 In the same month, he heard that Judge Giles

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might be willing to let the district attorney take the Baltimore treason cases to trial. Still fi rmly opposed to the idea, Taney wrote his son-in-law James Mason Campbell: I do not exactly understand what my Brother Giles means by saying the treason cases would probably be forced to trial by the District Attorney. I am yet to learn that the District Attorney can force the court to do anything that they think illegal or unjust, whatever he may think of it. The treason cases cannot be tried simply because it is not at present in the power of the Court to give the parties the rights or the trial which the Constitution requires. Maryland is now under martial law, and the process of the Court is obeyed or not at the pleasure of the military authority. The treason cases cannot therefore be tried under present circumstances and I shall so write to my Brother Giles.28

Taney’s delaying tactics in Baltimore reflected his general attitudes about the war and the Lincoln administration. Both distressed him deeply. He disagreed with key administration policies—the income tax, for example, which Secretary of the Treasury Salmon P. Chase designed to raise the enormous revenues necessary to fund the Union war effort; the adoption of legal tender (or “greenbacks”), which was another of Chase’s most important financial initiatives; conscription, which Congress and the president believed was necessary to raise the large armies needed to defeat the insurrection; and emancipation of the slaves in areas of the country then in rebellion, which was announced by Lincoln in a preliminary proclamation on September 22, 1862, and in final form on January 1, 1863.29 These questions did not come before the Supreme Court for review during the war. Courts in the American system are, by their nature, passive institutions. They must wait for “cases” or “controversies” to be presented to them before they are legally empowered to make decisions and render their opinions, and the process by which a

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legal issue makes its way up the judicial ladder from initial grievance to trial and to Supreme Court review can be (and often is) agonizingly slow.30 A few of the most important constitutional issues raised by the war did make it to the Supreme Court while the fighting still continued. Some, however, arrived there only after the South had laid down its arms. Taney, however, did not wait for cases to be presented to him before expressing his views on key issues. At home in his study, he wrote out long opinions on judicial salaries, legal tender, and conscription that he could use in court if and when those issues came before him for review. Not surprisingly, his opinions were uniformly hostile to the federal government’s policies.31 The most important constitutional decision that the Supreme Court handed down during the war was in the Prize Cases of 1863. This tested the legality of the blockade that Lincoln imposed on Southern ports at the outset of the confl ict. Many ships (some of foreign registry and ownership) had been caught “running” the blockade. They (and their cargos) were seized and hauled into federal ports, where U.S. district judges declared them “prizes” of the war. The constitutionality of the blockade was challenged on the ground that it was a war measure and that Congress had never declared war against the secessionist states. Lincoln had proclaimed the blockade on his own authority, without prior congressional authorization. Private property worth millions of dollars had been seized and ordered forfeited. British shipping interests had been so sorely vexed by the blockade that they attempted to persuade the British government to recognize the Confederacy, a move that would have given some protection to their ships but could have had disastrous international implications. It might even have resulted in war between the United States and the United Kingdom, thus providing aid and comfort to the Confederate States. When the Prize Cases reached the Supreme Court in early 1863, the justices had the

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option of declaring the blockade beyond the constitutional power of the president, and thus illegal, or sanctioning it as a lawful war measure taken by the president in his role as commander in chief. The case was argued before the full court in February 1863 and decided in early March by a bare majority of five votes to four.32 Associate Justice Robert Grier of Pennsylvania delivered the majority opinion in the Prize Cases, declaring that the confl ict raging in the country was in fact a war despite the fact that Congress had not declared it. Lincoln did not have to wait for “Congress to baptize it with a name” before he responded. Grier said that it would be anomalous to require that Congress declare that “insurgents who have risen in rebellion against their sovereign, expelled her Courts, established a revolutionary government, organized armies, and commenced hostilities” are not enemies because they are traitors, or to argue that “a war levied on the Government by traitors, in order to dismember and destroy it” is not a war because it is an insurrection. It was well within the authority of the president to decide whether to treat the insurrectionists as belligerents. “He must determine what degree of force the crisis demands,” Grier said.33 Even if the president had no independent power to meet the insurrection with a blockade, Congress had approved and ratified all of his acts and orders “as if they had been done under the previous express authorization and direction of Congress.” Without admitting that this ratification was necessary, Grier said “it is plain that if the President had in any manner assumed powers which it was necessary should have the authority or sanction of Congress, . . . this ratification has operated to perfectly cure the defect.”34 Associate Justice Samuel Nelson wrote a dissent in which he declared that the president’s orders made before July 13, 1861, when Congress fi rst ratified the blockade, were illegal. After that date, Nelson said, the war was prosecuted with the full authority

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of Congress; before it, he was acting in excess of his constitutional powers. If Nelson’s opinion had prevailed, the Union war effort would have suffered a major, perhaps even fatal, setback, for lives had been lost and treasure worth millions of dollars had been spent before Congress acted. A Supreme Court decision that Lincoln had acted in excess of his authority would have struck at the constitutional foundations not just of the blockade, but of the whole war effort. His call for the militia to assemble in Washington could have been declared illegal; his suspension of habeas corpus could have been declared null and void. Everything that the president did before Congress ratified his actions would be subject to constitutional doubt. Grier’s opinion saved the day for the administration. It validated his actions. It clothed his war effort with the mantle of constitutionality, without which it may have irretrievably foundered.35 Despite his almost continual complaints of “indisposition,” Chief Justice Taney made it to the Supreme Court in time to participate in the decision in the Prize Cases. He was seven days short of his eighty-sixth birthday when the decision in the momentous case was announced. Not surprisingly, he joined in Nelson’s dissent, not Grier’s majority opinion. In his mind, Lincoln had once again exceeded his constitutional powers. His voice, old but still defiant, was raised in opposition to the Republican president— as it would be, in fact, for the remainder of his life. It is easy to imagine that Chief Justice Taney was distressed by the Supreme Court’s decision in the Prize Cases. But then he was distressed by much of what he saw happening around him as the war progressed. He made no serious effort to conceal his proSouthern sympathies. Most of his friends in Baltimore freely expressed their moral support for the cause of Southern independence, though they were cautious enough not to take any action that might cause their arrest and military confi nement. Some

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despaired of remaining in Baltimore while the war was being fought and left the city for Virginia or points south. After George Kane, the former police marshal of Baltimore was released from military custody, he promptly went south to Richmond, Virginia.36 George H. Steuart, the West Pointer who had commanded the Maryland militia during and after the riots of April 19, 1861 (and who may have supplied arms to Merryman and his men around the time that they burned the railroad bridges), resigned his Maryland commission and went south, where he became a Confederate general and was put in command of the First Maryland Infantry of the Confederate States Army.37 One of Taney’s sons-in-law, Richard T. Allison, became a major in the Confederate army.38 When a grandson of John Eagar Howard, one of Maryland’s most famous Revolutionary War patriots, came to Taney to say good-bye before leaving for the Confederacy, the chief justice gave him his blessing. “The circumstances under which you are going,” the chief justice said, “are not unlike those under which your grandfather went into the Revolutionary War.”39 Taney maintained correct but not cordial relations with President Lincoln. It was the custom for Supreme Court justices to call on the president around the opening of each court term (they began on the first Monday of December). Taney refused to make the trip to the White House on January 1, 1862, although the other justices were going, coolly explaining in a letter to his colleague from Georgia, Justice Wayne: “I expect some friends tomorrow, and as there is no established Etiquette which requires the court to wait on the President on the 1st of January, as a matter of official courtesy, I am sure my Brethren will excuse me for not joining them tomorrow.”40 Of all the issues—legal, cultural, and emotional—that separated Taney and Lincoln, it is interesting to note that one key issue united them, if not in practice, at least in legal contempla-

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tion, and that issue may have been the most important of all the deeply troubling issues raised by the war. It was the issue of secession. The conviction that individual states had the right to secede from the United States if and whenever they determined that there was “justifiable cause” for doing so was the legal cornerstone of the Confederacy. Jefferson Davis and the other elected officers of the Confederate States of America implicitly believed in it (Davis enunciated that right in the farewell speech he delivered to the United States Senate on January 21, 1861).41 The United States was, in their view, a kind of league or association composed of sovereign states that had come together to form a compact (or contract). The league or association was called the Union; the compact was the Constitution, and the parties to it were the sovereign states. Like the parties to a private contract, each state had the right to terminate its duties under the compact if and when other parties breached their duties under it. A breach was a “justifiable cause” for withdrawal from the compact (that is, secession from the Union), and each state retained the right to determine for itself whether the cause was “justifiable.” Under this theory, the states were supreme, for they (and they alone) retained the right to determine whether the Union would continue or would be broken up.42 Lincoln rejected this theory. He believed that the Union was in fact a nation formed by the “people of the United States” (as stated in the Preamble to the Constitution), and that the nation could not be broken up by any state or combination of states without the consent of the “people.” The Articles of Confederation had proclaimed that the Union was “perpetual,” and the Constitution was established to form “a more perfect Union.”43 In his first inaugural address, Lincoln said that perpetuity was “implied, if not, expressed in the fundamental law of all national governments.” The “central idea of secession,” he said, was “the essence of anarchy.”44 In the message he sent to Congress on July 4, 1861, he reaffirmed this

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view, stating that secession was an “ingenious sophism,” which, if “followed by perfectly logical steps” would lead to “the complete destruction of the Union.” “The sophism itself,” he wrote, “is, that any state of the Union may, consistently with the national Constitution, and therefore lawfully, and peacefully, withdraw from the Union, without the consent of the Union, or of any other state. The little disguise that the supposed right is to be exercised only for just cause, themselves to be the sole judge of its justice, is too thin to merit any notice.”45 There had, of course, been arguments about secession from the earliest days of the Republic. John C. Calhoun had advanced the doctrine at the time of the nullification crisis of 1832, and President Andrew Jackson had fi rmly rejected it.46 In a proclamation issued on December 10, 1832, Jackson had denied that the Constitution formed a league. It formed a “nation,” he said, and individual states had no right to secede because secession “destroys the unity of a nation” and is “an offense against the whole Union. . . . [T]o call it a constitutional right is confounding the meaning of terms.”47 James Buchanan had held the same view, rejecting the suggestion that the United States was “a mere voluntary association of States, to be dissolved at pleasure by any one of the contracting parties.” “If this be so,” Buchanan argued in his last message to Congress, delivered in December 1860, the United States was “a mere rope of sand, to be penetrated and dissolved by the first adverse wave of public opinion in any of the states. . . . By this process a Union might be entirely broken into fragments in a few weeks which cost our forefathers many years of toil, privation, and blood to establish.”48 Taney was too good a lawyer to disagree with Jackson and Buchanan on the constitutionality of secession, even if it meant that he had to agree with Lincoln. He had, in some of his judicial decisions, made strong statements that were inconsistent with the secessionist theories of Jefferson Davis and other Con-

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federates. In Ableman v. Booth, decided in 1858, for example, he had made a strong statement in favor of federal supremacy over the states, declaring that the federal Constitution had been adopted by “the people” and that its main purpose was “to secure union and harmony” among the states. At the time the Constitution was framed, he said, many of the states’ sovereign rights had been “ceded to the General Government” which, “in the sphere of action assigned to it,” had been made “supreme.” This had been done so that “local passions or prejudices, incited and fostered by individuals for sinister purposes,” would not lead to “acts of aggression and injustice by one State upon the rights of another, which would ultimately terminate in violence and force.” Disputes between states and the federal government, Taney declared, “must always depend upon the Constitution and laws of the United States, and not of a State.”49 But there was another aspect to the secession question that Taney shared with Buchanan, but not Lincoln or Jackson. In the same message to Congress in which he denied that the Union was “a mere rope of sand,” Buchanan had stated that he did not believe that Congress or the president had any power to prevent a recalcitrant state from leaving the Union or, once having left, to force it to return. He said he had searched the Constitution for any such power and, “after much serious reflection,” concluded that there was none.50 This was a view that was more amenable to Roger Taney, and one that he was ultimately to embrace. Some historians have stated that Taney accepted the constitutional right to secession.51 This, however, is clearly incorrect. Taney never squarely addressed the issue in a judicial opinion, for a case presenting the question was never brought to him for decision. (The Supreme Court did, in Texas v. White,52 reject secession and hold that the United States was “an indestructible Union, composed of indestructible states”; but that decision

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was not rendered until 1869, more than four years after Taney’s death.) Taney did, however, address it in a private memorandum. When the late Don Fehrenbacher was researching his magisterial study of the Dred Scott case, he examined an eight-page memorandum that Taney wrote, probably in February 1861, about a month before he administered the oath of office to Lincoln.53 In that memorandum, the chief justice clearly stated his view that secession was not sanctioned by the Constitution. At the same time, however, he adopted a Buchanan-like theory that the United States government could do nothing to prevent a state from seceding if it chose to do so. “The South contends that a state has a constitutional right to secede from the Union formed with her sister states,” Taney wrote in that memorandum. “In this I submit the South errs. No power or right is constitutional but what can be exercised in a form or mode provided in the constitution for its exercise. Secession is therefore not constitutional, but revolutionary; and is only morally competent, like war, upon failure of justice.”54 But Taney then went on to argue that the Constitution did not recognize any power in the federal government to “coerce” a seceding state to remain in the Union. He also argued that federal power could enter a state only “at the call of that state” and that there was, therefore, “no rightful power to bring back by force the states into the Union.”55 In other words, it was wrong for a state to secede, but also wrong for the United States to try to prevent it from seceding. Secession was, according to this view, a wrong without a remedy, an offense without a redress. Faced with the impending dissolution of the Union, the president and Congress could protest, object, and remonstrate. But they could not lift a finger to prevent the dissolution from proceeding before their very eyes. Shortly after he completed his opinion in Ex parte Merryman, Taney received a letter of congratulation from former president Franklin Pierce, then living in retirement in New

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Hampshire. Like James Buchanan, Pierce was a Northern politician with Southern friends and special sympathies for the slaveholding politicians of the Old South. If politicians of this class (called doughfaces because of their political pliability) did not defend slavery, they defended the right of Southerners to hold slaves, and attacked the abolitionists and “Black Republicans” who posed a threat to the continuing right. In the grateful letter Taney sent back to Pierce, he expressed some of his heartfelt feelings about the war: The 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.56

“Peaceful separation” was, of course, a kind of code for secession in 1861. Jefferson Davis and his supporters would have been delighted if Abraham Lincoln had peacefully acquiesced in their desire to break off a third of the nation and form it into a separate, slaveholding republic. The Confederacy’s strategy from the start was to protect its territory from Northern “interference.” “Coercion” was, for Davis and his supporters, the polar opposite of “peaceful separation” and, as such, a synonym for “repression,” “despotism,” and “tyranny.” If Lincoln sent troops south to protect federal installations from suffering the fate of Fort Sumter; if he interfered with the free flow of ocean commerce in and out of Southern ports; if he insisted on collecting

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the duties and imposts that federal law required to be paid in every state of the Union; if he suspended the writ of habeas corpus and ordered military arrests, he was “coercing” the South. The South raised armies to show that it had the power and the will to resist the “coercion.” Lincoln raised armies to protect Washington, D.C., from attack. Step by inexorable step, the nation found itself engulfed in a civil war. And the dream of “peaceful separation” vanished amid the fi re and thunder of marching armies, sounding artillery, and corpses strewn across the landscape. Taney did not live to see the end of the struggle he so bitterly deplored. He died on October 12, 1864, peacefully, at home in his bed in Washington, D.C. He was eighty-seven years old and had served more than twenty-eight years as chief justice. Lincoln’s own death came only five months after Taney’s. The bullet that ended his life five days after Robert E. Lee’s surrender at Appomattox came from a pistol aimed at his head by a hatecrazed young actor who regarded him as one of the great tyrants of history. The Civil War was a drama that abounded in tragic ironies. One of these ironies was that John Wilkes Booth was a Marylander by birth and upbringing; a Southern sympathizer who lived in a border state and whose loyalties were sharply divided between North and South. Like John Merryman and Roger Taney, Booth’s heart was with the South in its great struggle with the North. Unlike them, however, his heart overpowered his brain, and he committed one of history’s greatest acts of violence. Piled on top of all the other terrible violence of the war, Booth’s crime put another nail in the coffi n of Taney’s dream of a “peaceful separation.” John Merryman was forty years old when the Civil War ended. He was still in good health, still surrounded by a large and protective family, still in the full ownership and enjoyment of his grand farm north of Baltimore. The indictment for treason re-

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turned against him by the grand jury in 1861 was dropped in 1863. After that, Merryman filed a civil suit against General Cadwalader in a Maryland state court, seeking fifty thousand dollars in damages for his “false imprisonment” in Fort McHenry.57 Cadwalader successfully moved to have the case removed to the U.S. Circuit Court (on grounds of diversity of citizenship).58 But Merryman decided not to pursue the suit, and his attorneys notified the court in April 1864, that they would not prosecute it further.59 When a new indictment for treason was returned against Merryman in Baltimore, the specter of an ugly trial and a possibly disastrous sentence was once again raised. But the new indictment, like the old one, was left pending without trial. In the wake of the awful fighting that ended with Lee’s surrender, the mood in Maryland—and in much of the rest of the country— favored reconciliation rather than recrimination. Neither Lee nor Jefferson Davis was ever tried for his massive treason against the United States. What would have been the point of trying a relatively minor offender like John Merryman of Hayfields for his offenses? The bridges that he burned north of Baltimore had long since been rebuilt. The telegraph lines that he cut had long since been restored. The federal government in Washington that he so strongly deplored had survived and gained in vigor and strength. And the institution of slavery he had tried to defend from Yankee “interference” had succumbed to a vote of the people of Maryland who, on October 13, 1864, adopted a new state constitution doing away with the old institution. The new constitution became effective on November 1, 1864.60 Merryman went about his business. He resumed his friendships, tended to his crops and herds. He grieved when, on July 5, 1865, his sixth son (and ninth child) died at the age of only seven months. He had been born on December 5, 1864, less than two months after the passing of Chief Justice Taney, and it was in grateful remembrance of the old judge that his parents

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named him Roger Brooke Taney Merryman.61 In 1867 Andrew Sterrett Ridgely, appointed as the new U.S. district attorney in Baltimore by President Andrew Johnson, signed a nolle prosequi, announcing his intention not to bring Merryman’s treason indictment to trial.62 The document marked the end of the legal proceedings. In 1865 Merryman formed a partnership with a man named Benjamin Waring to produce and sell fertilizer in Baltimore.63 Conducting their business under the name of John Merryman and Co., the partners sold “ammoniated dissolved bones,” which they advertised as “the most concentrated and durable article offered to the planter.” Their market was in the South, where they were warmly endorsed by cotton planters.64 In 1870 Merryman was elected Maryland’s state treasurer.65 In 1874 he was elected to the Maryland House of Delegates, where he served on a committee appointed to receive a statue of Chief Justice Taney that had been presented to the legislature.66 All the while, he continued to breed Hereford cattle at Hayfields. In 1876 he exhibited one of his prize Hereford bulls at the Centennial Exposition held in Philadelphia. While in Philadelphia, he agreed to trade the bull for another owned by an exhibitor from Maine. But the bull Merryman received from the man in Maine proved to be a huge disappointment as a breeder and was eventually taken to slaughter, while the bull that he gave up went on to become what a historian of the Herefords called “one of the most noted sires in American history.” Merryman grumbled, “That is what you get for dealing with a Yankee!”67 In 1877 Merryman was elected president of the reorganized Maryland State Agricultural and Mechanical Association.68 In 1878 and 1879 he visited England, where he purchased prime specimens of his favorite breed: a yearling bull named Prince of the Wye and a heifer named Winifred the Fifth. While in England he also purchased two fi ne Southdown rams for the flock

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of sheep maintained by the City of Baltimore in Druid Hill Park.69 In 1880 he was elected president of the United States Agricultural Society and of its sister organization, the American Agricultural Association.70 He continued to support the Sherwood Church at Cockeysville, serving as a member of its vestry and representing it for many years in the conventions of the Episcopal diocese.71 Merryman was at home in the big house at Hayfields when he died on November 15, 1881, at the age of fi fty-seven. The Baltimore Sun noted his passing with a laudatory obituary. “Few men have been better known, either in their own State or throughout the greater part of the Union,” the Sun declared, “than Mr. Merryman.” The newspaper reviewed his activities as a farmer, stock breeder, businessman, and public official, and wrote: “No one exercised a more generous hospitality than he, or had a more extensive circle of friends. . . . In all the relations of life, at home and among his numerous friends and acquaintances, he was the kind-hearted gentleman, the good neighbor and the hospitable host.”72 The Sun did not mention his pro-Southern activism in April and May of 1861. It breathed not a word of the bridges he burned to prevent federal troops from passing through Maryland on their way to Washington. It did not recall the national crisis precipitated by his arrest and confinement in Fort McHenry, or even hint at his indictment for treason.

9 THE GREAT TRIBUNAL

Ex parte Merryman was the fi rst great legal confl ict of the Civil War. The challenge that Chief Justice Taney laid down in Baltimore in May of 1861 was stark and profound. Was the president of the United States empowered by the Constitution to meet the crisis with the exercise of his own constitutional powers? Or was he required to act in “subordination” to judicial decisions? Was the Supreme Court, as the highest judicial tribunal in the land, to be the arbiter of national efforts to put down the insurrection and resist the rebellion? Or was that awesome duty to be entrusted to the president as holder of the executive power and commander in chief of the armed forces? Strict analysis of Taney’s Merryman decision reveals that the issue presented by the case was much narrower than the war itself: Which of the three branches of the United States government holds the constitutional power to suspend the privilege of the writ of habeas corpus? Taney quickly decided that the power was held by Congress and that any effort by the president to exercise it was unconstitutional and void. But just as quickly he went beyond that narrow issue to discuss broader questions about the conduct of the war. What is the power of military authorities in times of rebellion and invasion? What authority can the courts exercise over the commander in chief of the army and navy of the United States, and of the militia of the several states when called into the actual ser vice of the United States?

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In an aggressively expansive pronouncement, Taney argued that the courts have the power to supervise the military, even when the very existence of the national government is threatened by a massive insurrection. All of the personal rights protected by the Constitution remain in full force even when the “public safety” is endangered by a rebellion or invasion. It was a decision as broad and wide as the decision Taney handed down in Dred Scott. There the chief justice attempted to settle the great national controversy over slavery by announcing constitutional rules of amazing breadth. Dred Scott was recognized almost immediately as judicial overreaching. In Merryman, Taney was not content to decide the narrow question of where the power to suspend habeas corpus lay. He immediately proceeded to lay down rules to govern the conduct of the war. It surprised almost nobody that his rules favored the South; that, if adopted, they would have made it easier for the rebels to wage their war. Lincoln rejected the chief justice’s formulation. He insisted that, as commander in chief, he held the “war power” of the nation. He was empowered by the Constitution to resist the rebellion. His constitutionally prescribed oath to “preserve, protect and defend the Constitution of the United States” charged him with the duty to save the Union from destruction and, at the same time, gave him the power to carry out that duty. Who was right? Ex parte Merryman did not defi nitively answer this question. Taney’s reasoning was persuasive to many but rejected by many others. Problems with the decision, its reasoning, and the way in which it was reached were noted from the outset. The decision was controversial on the day it was announced, and it has remained controversial ever since. The fi rst major question raised by the decision was whether Taney made it in his capacity as chief justice of the United States (acting “in chambers”) or as circuit judge for the Fourth

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Judicial Circuit. Most historians and legal scholars have stated (usually without any analysis of the underlying question) that it was decided in his capacity as circuit judge.1 But the handwritten documents in the case, and the written opinion that was later published, are replete with statements showing that Merryman’s petition was presented to Taney as “Chief Justice of the Supreme Court of the United States”; that the writ of habeas corpus was issued by him as “Chief Justice”; that the return of the writ was addressed to him as “Chief Justice”; that the writ of attachment was issued in the name of the “Chief Justice”; and that the case was heard “before the Chief Justice of the Supreme Court of the United States, at Chambers.”2 And a pamphlet version of the opinion published at Baltimore clearly stated that the case was heard “Before the Chief Justice of the Supreme Court of the United States, at Chambers.”3 One leading historian of Lincoln and the Civil War correctly concludes that Taney heard the Merryman case as chief justice but then suggests that he may have had no jurisdiction to do so. Mark E. Neely, Jr.’s, argument is based on a reading of the constitutional language prescribing the original jurisdiction of the Supreme Court, the congressional statute giving individual justices jurisdiction to grant writs of habeas corpus, and John Marshall’s famous opinion in Marbury v. Madison (1803) declaring that Congress cannot add to or subtract from the Supreme Court’s original jurisdiction. Although Article III, Section 2, of the Constitution limits the Supreme Court’s original jurisdiction to “cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party,” Congress attempted in Section 13 of the Judiciary Act of 1789 to give the Supreme Court jurisdiction to grant writs of mandamus in original matters. In Marbury, Marshall declared Section 13 unconstitutional because it violated the terms of Article III, Section 2.4

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In Merryman, Taney claimed to be exercising jurisdiction to grant writs of habeas corpus conferred on individual justices by Section 14 of the Judiciary Act of 1789. Neely asks, “Was it not just as much an addition to the original jurisdiction of the Supreme Court to give its justices power to issue writs of habeas corpus as it was to give them the power to issue writs of mandamus?”5 Neely does not discuss the possibility that individual justices could be subject to a different rule than the full Court, though he seems to allow that possibility by arguing that Taney should at least have raised the question of whether he had jurisdiction, examined it, and then announced his conclusion. Neely believes that Taney did not do so because of the “aggressive nature” of his jurisprudence and because he was “overeager” to claim jurisdiction.6 Neely’s characterization of the chief justice’s motives is almost certainly correct, but his jurisdictional argument is highly questionable. As early as 1807, Chief Justice Marshall and Associate Justices Samuel Chase and William Johnson expressed the view that individual justices could constitutionally grant writs of habeas corpus in original matters, although Marshall believed they could do so only when the full court was not in session.7 None of the contemporary critics of the Merryman opinion challenged Taney’s jurisdiction to decide the case, although they would have been glad to do so if a legitimate constitutional argument to that effect could have been made.8 If Taney had acted in his capacity as a circuit judge, there would have been no question that he had authority to hear the petition as an original matter, even under Neely’s analysis. It was only because he was acting as an individual justice of the Supreme Court (“in chambers”) that the jurisdictional question raised by Neely would arise. The fact that Congress repeatedly conferred jurisdiction to hear habeas corpus petitions on individual justices after 1789 (and long after the decision in Marbury v. Madison)

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suggests that Congress did not share Neely’s view of the constitutional limitation.9 Even today, the applicable federal statute confers this jurisdiction on individual justices,10 and constitutional scholars who have examined the issue have concluded that Taney’s assertion of jurisdiction was constitutionally proper.11 Though it is clear enough from the record that Taney issued his Merryman opinion as chief justice of the Supreme Court, it is only fair to observe that later confusion about the capacity in which he acted resulted at least in part from his muddying of the record. He heard Merryman’s petition in the courtroom of the circuit court in Baltimore. When he completed his opinion, he ordered that it be fi led and recorded in the circuit court, and he directed the clerk of the circuit court to transmit a copy under seal to the president. Years later, the opinion was published in collected reports of circuit and district court decisions, not Supreme Court decisions.12 Of course, Taney was not responsible for the later publication of his opinion, and opinions of individual Supreme Court justices acting in chambers were not routinely published in the nineteenth century.13 Still, Taney delivered his opinion to the clerk of the circuit court, and he ordered the circuit clerk to transmit it to Lincoln. He is at least partly responsible for the resulting confusion. Determining that Merryman was decided by Taney as a Supreme Court justice answers the late Chief Justice William Rehnquist’s question why the decision was never appealed to the Supreme Court,14 and it also explains why District Judge William Giles did not participate in the decision. Decisions of individual justices in chambers are not appealable to the full court, and district judges in Taney’s time could participate in circuit court decisions but not in those of individual Supreme Court justices. Rehnquist sternly criticized Taney’s conduct of the Merryman case. Taney’s decision was “hasty” and “precipitate,” Rehnquist

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said, because it was made without hearing from both sides. Taney refused General Cadwalader’s quite reasonable request for a postponement so he could receive “further instructions from the President of the United States,” deaf to the general’s assurance that Taney would then “hear further” from Lincoln.15 He did not give the United States district attorney an opportunity to express the government’s position on the critical question before the court (which would very likely have been the same as Lincoln’s position), though the district attorney (William Meade Addison) was in attendance throughout the proceedings. The question at issue was, as Rehnquist pointed out, “a tremendously important question of public law,” and before Taney decided it he should at least have given the government an opportunity to be heard.16 Rehnquist said that Taney’s refusal to listen to both sides did “not speak well for either his judgment or his impartiality.”17 Harold Hyman has observed that legal custom ordinarily affords public officials a “presumption of rectitude.”18 If Taney had observed this presumption, he would not so quickly have concluded that Cadwalader was acting unconstitutionally; he could have given the district attorney an opportunity to speak; and he could have granted a modest delay so Cadwalader (and William Meade Addison as well) could confer with Lincoln. Writing of Taney’s conduct in Merryman, Neely says simply that Taney “grabbed the power.”19 It was a characteristic of Roger B. Taney dating back at least to Dred Scott, and possibly further. Was it his “infernal apostolic manner” that made him act so quickly and so aggressively, even when he was venturing into territory that had not previously been traversed by any judge? Or was his judgment simply blinded by his pro-Southern biases? Whether “manner” or “biases,” if Taney had managed to slow his pace and listen to both sides before he made up his mind on so momentous a question, he might have avoided some of the most egregious errors that infected his Merryman opinion.

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Those errors were many and serious. He blandly proclaimed that the question presented by the case was “one of those points of constitutional law upon which there was no difference of opinion.” In fact, it was not. It had never before been decided by any American judge; 20 and, as the opinions later published by distinguished constitutional scholars revealed, there were many differences of opinion on the question.21 He reviewed the English history of habeas corpus on the supposition that the American rules for suspension should be the same as the English rules, without fi rst pointing out (as Horace Binney did in his later critique) that the American system is governed by a written constitution and the English is not, and that in England power flows from Parliament while in America it flows from the Constitution.22 He cited John Marshall’s Bollman dictum without acknowledging that it was a dictum and thus of no precedential value, and Story’s remark in his Commentaries without noting that it was a mere commentary and of even less value. As Reverdy Johnson and Horace Binney both observed, neither Marshall’s nor Story’s remarks amounted to a court decision, so any authority they lent to Taney’s argument was very slight.23 He ignored the precedent set when Major General Andrew Jackson suspended habeas corpus in New Orleans in 1814– 1815 (Louisiana then was actually invaded by a British army), although Taney had been a close associate of Jackson during his presidency.24 And he ignored his own opinion in Luther v. Borden (1849), in which he upheld the right of the Rhode Island legislature to suspend habeas corpus in a time of rebellion.25 His language in Luther had been warmly supportive of suspension, even declaring it a “political question” that could not be secondguessed by the courts. He erroneously claimed that the Constitution’s suspension clause gave Congress the power of suspension because Article I, Section 9 (which includes the suspension

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clause), refers only to congressional powers. But Reverdy Johnson and Horace Binney demolished that contention, pointing out that Article I, Section 9, refers to both Congress and the executive, and that if there is a common thread in the section it is not Congress but restrictions on the powers of both Congress and the executive branch.26 And he fi nished his opinion without any reference to the tumultuous conditions that prevailed in Maryland at the time of Lincoln’s April 27 suspension order. Maryland was then in the midst of a rebellion. The progress of federal troops through the state had been impeded by men who sympathized with the secessionists in nearby Virginia. John Merryman himself had burned railroad bridges so that Northern militiamen summoned by the president of the United States could not go to the defense of the national capital. Reverdy Johnson began his opinion on the suspension question by reviewing the troubling conditions in Maryland.27 Taney’s opinion contained not a hint of the tumult and rampant disloyalty that were displayed in his home state. For all a reader of the chief justice’s opinion might suspect, Maryland was in a perfect state of peace and tranquility when Merryman was arrested in his Baltimore County home and spirited away to Fort McHenry. Of course, Taney did not refer to any of these disquieting facts because they did not confi rm his biases. They did not support his rigid insistence that Lincoln had no basis for suspending habeas corpus. Anyone who broke the law in Maryland in 1861 was, according to the chief justice, entitled to be taken to a nearby court and accorded all of the rights available in time of peace to accused criminals: indictment by a grand jury, a speedy and public trial before a jury, and the full panoply of procedural rights embraced by the concept of due process of law. But pointing out the many defects in Taney’s opinion and reasoning does not answer the real question that was presented

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by Merryman. Where does the power of suspending the privilege of the writ of habeas corpus lie? Lincoln argued that he held the power to suspend habeas corpus in time of “rebellion or invasion” when the “public safety” requires it. He pointed out that the suspension clause permits suspension in those circumstances, although it does not state who holds the power of suspension—who is to decide when there is a “rebellion or invasion” and the “public safety” requires a suspension. That, of course, was the very question at issue in Merryman. The power to make those decisions was, in Lincoln’s view, conferred on the president as part of what he called the “war power.”28 This was an amalgam of the president’s authority as chief executive officer of the government and commander in chief of the armed forces, coupled with his constitutional duty to “preserve, protect and defend the Constitution.” Lincoln expressed his willingness to submit the question “entirely to the better judgment of Congress,” but he did not really believe that he was required to do so. As commander in chief, he had the power to “bombard” cities, to order that deserting soldiers be shot, to blockade Southern ports, and to call out the militia. If he had all of these awesome powers to make war, did it make any sense to argue that he did not also have the power to suspend the privilege of the writ of habeas corpus when the public safety required it? If he could, as he once commented to a group of Marylanders, “lay Baltimore in ashes,” could he not also authorize the arrest of John Merryman in the middle of the night and confine him in Fort McHenry? Lincoln’s concept of the “war power” quickly gained currency inside the federal government.29 William Whiting, a Massachusetts lawyer who became a solicitor in the War Department, published an influential book on that very subject in 1862, and it was soon brought out in successive (and enlarged)

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editions. First titled Military Arrests in Time of War, later retitled The War Powers of the President, Military Arrests, and Reconstruction of the Union, Whiting’s book went through more than forty editions by 1870.30 Lincoln’s view was that the suspension of habeas corpus was necessary to prevent disloyal persons from endangering the public safety, not to punish persons who had committed crimes. As he explained in his Birchard letter,31 military arrests of civilians had been for “prevention, and not for punishment.” They were “injunctions to stay injury,” “proceedings to keep the peace.” The arrests had not been accompanied by indictments or jury trials, which were preliminary to the imposition of punishments. He argued that Clement Vallandigham had not been arrested for the purpose of punishing him but to prevent him from endangering the war effort. Vallandigham’s original sentence (imprisonment for the duration of the war) was designed to prevent him from injuring the army, hindering its efforts to recruit men to help it defend the Union. Lincoln’s modification of the sentence (banishment to the Confederacy) was designed to achieve the same purpose in “a less disagreeable mode.”32 The precise question decided in Ex parte Merryman was never presented to the full Supreme Court.33 After March 3, 1863, when Congress passed its own authorization for the suspension of habeas corpus,34 the question of whether the suspension power lay exclusively with Congress or the president did not arise again. Suspensions after that date could rest on the combined powers of the legislative and executive departments. There were, however, cases in which closely related questions were presented to the Supreme Court. The fi rst and most notable were the Prize Cases, decided in early 1863. Although the immediate question presented by those cases was the legality of Lincoln’s blockade of Southern ports,

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the Court’s decision was broad enough to include other war measures. The Court observed that the Constitution “confers on the President the whole executive power. He is bound to take care that the laws be faithfully executed. He is the Commander-in-Chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States.” When there is a rebellion, the president has the power to resist it with military force, and the power to “determine what degree of force the crisis demands.”35 Writing for the Supreme Court, Justice Grier said that the president was “the proper person” to proclaim the blockade.36 If the president was the “proper person” to proclaim the blockade, why was he not also the “proper person” to decide whether the “public safety” requires a suspension of habeas corpus? After the guns of war were silenced, a related case found its way to the Supreme Court. Roger Taney had gone to his reward by the time that Ex parte Milligan was decided in 1866, and the Court was presided over by the man Lincoln named as Taney’s successor, Salmon P. Chase. Lambdin P. Milligan was an attorney and minor politician in Indiana who was arrested on October 5, 1864, by order of Brevet Major General Alvin P. Hovey on charges of “conspiracy against the government of the United States,” “affording aid and comfort to rebels against the authority of the United States,” “inciting insurrection,” “disloyal practices,” and “violation of the laws of war.” Milligan was a member of a secret “army” called the Sons of Liberty that was dedicated to ending the war on terms favorable to the South. He and four other men were tried by a military commission under order of General Hovey. Charges against one of the men were dropped when he agreed to testify against the others, but the commission found the remaining men guilty. One of them was sentenced to hard labor for the duration of the war. Milligan and two of his codefendants were ordered to be hanged.37

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Milligan arranged for Joseph E. McDonald, a prominent lawyer and Democratic politician, to go to Washington and plead with Lincoln for his life. Although he was busy with a host of other matters, Lincoln met McDonald and stayed up until eleven o’clock one night examining the papers in Milligan’s case. He found “certain errors and imperfections in the record” and promised McDonald that he would send them back to Indiana for “correction.” He advised the lawyer to go back home and said he would send for him “when the papers get back.” But he expressed the hope that, by that time, there would be “such a jubilee over yonder” (in the hills of Virginia across the Potomac) that “we shall none of us want any more killing done.” Until then, Lincoln said he would keep Milligan and his fellow defendants “in prison awhile to keep them from killing the Government.”38 Before the papers could come back to him, however, Lincoln was assassinated, and Andrew Johnson succeeded to the presidency. Johnson refused to exercise clemency in Milligan’s case, prompting McDonald to petition the U.S. Circuit Court in Indianapolis for a writ of habeas corpus in his behalf. With Associate Supreme Court Justice David Davis (like Chase, a Lincoln appointee) presiding, the circuit court certified the case to the Supreme Court in Washington. After long arguments, and several months of behind-thescenes deliberations, Justice Davis delivered the Supreme Court’s opinion on December 17, 1866. He acknowledged that the case was vitally important, not just to Milligan, but also to the American people. If Milligan was guilty of the crimes with which he was charged, Davis said, he deserved “severe punishment,” for “open resistance to the measures deemed necessary to subdue a great rebellion, by those who enjoy the protection of government” is “wicked,” but “resistance becomes an enormous crime when it assumes the form of a secret political organization, armed to oppose the laws. . . .”39 Milligan’s guilt or innocence

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was not the real issue in the case, however. The issue was whether Milligan had been tried by a tribunal with constitutional authority not only to try him but to impose a severe punishment on him. Davis drew an important distinction between suspension of the writ of habeas corpus and trying and sentencing a civilian in a military court. He wrote: It is essential to the safety of every government that, in a great crisis, like the one we have just passed through, there should be a power somewhere of suspending the writ of habeas corpus. In every war, there are men of previous good character, wicked enough to counsel their fellow-citizens to resist the mea sures deemed necessary by a good government to sustain its just authority and overthrow its enemies; and their influence may lead to dangerous combinations. In the emergency of the times, an immediate public investigation according to law may not be possible and yet, the peril to the country may be too imminent to suffer such persons to go at large. Unquestionably, there is then an exigency which demands that the government, if it should see fit in the exercise of a proper discretion to make arrests, should not be required to produce the persons arrested in answer to a writ of habeas corpus.40

Thus, Davis concluded that the Constitution authorized the suspension of the privilege of the writ of habeas corpus. (He was careful not to say whether the power of suspension was held by Congress or the president.) But “the Constitution goes no further,” he continued. “It does not say, after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by the courts of the common law.” Even when habeas corpus is suspended, ordinary civilians retain the rights guaranteed them under the Constitution: the freedom from unreasonable search

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and seizure guaranteed by the Fourth Amendment; the right to a grand jury indictment guaranteed by the Fifth Amendment; the right to due process of law guaranteed by the same Fifth Amendment; the right to a speedy and public trial by an impartial jury guaranteed by the Sixth Amendment; and the right to be tried by a jury as guaranteed by Article III, Section 2. The case is otherwise when martial law has been validly declared, Davis said. Martial law can be declared in cases of foreign invasion or civil war, when “the courts are actually closed, and it is impossible to administer criminal justice according to law.” But martial law is proper only “where war really prevails.” There was no war in Indiana when Milligan was arrested. The courts there were open and functioning. Davis then proceeded to declare that the military commission that tried Milligan had no jurisdiction to do so; that Milligan’s trial was unconstitutional and void; and that he was entitled to his release on habeas corpus. Announcing this result, Davis famously declared: The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances.41

Chief Justice Chase fi led a concurring opinion in which he agreed that Milligan was entitled to be released on habeas corpus but disagreed with Davis’s assertion that the Constitution compelled that result. Chase pointed to Congress’s Act of March 3, 1863, authorizing the president to suspend habeas corpus and providing that anyone arrested by military authorities was entitled to be released if he was not indicted in a civil court before the expiration of the grand jury’s term.42 Milligan had not been indicted in accordance with the congressional requirement and was thus entitled to his release. The chief justice believed that

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Milligan’s trial and conviction were illegal because they offended the Act of March 3, 1863, and that it was unnecessary to also decide that they offended the Constitution. (In fact, Chase did not believe that they did so.) Chase noted that the crimes with which Milligan was charged were “of the gravest character” and that the evidence in the case clearly demonstrated his guilt. In any case, Chase said that the Supreme Court should not decide a case on constitutional grounds when statutory grounds are adequate to do so.43 It has frequently been asserted that the Supreme Court’s decision in Ex parte Milligan “vindicated” Taney’s decision in Ex parte Merryman.44 Both decisions were ringing condemnations of executive power and strong assertions of judicial protection for individual rights. To that extent, the cases were comparable, and Davis’s opinion in Milligan may be interpreted as a reaffi rmation of Taney’s opinion in Merryman. In other respects, however, the cases were quite different.45 The issue in Merryman was whether the power to suspend habeas corpus in time of rebellion or invasion is held by Congress or by the president. The issue in Milligan was whether a civilian could be tried and sentenced to death by a military commission in a part of the country where there was no rebellion. The facts were also distinguishable. Maryland in 1861 was beset by rampant disloyalty. Indiana in 1864 was at peace and the courts were open and functioning. Milligan was tried by a military commission and sentenced to death. Merryman was arrested and, after a short detention, paroled. Lincoln’s defense of his power to suspend habeas corpus did not include the claim that he could subject civilians to trial and death sentence. In fact, Lincoln was aiming to grant Milligan clemency at the time that he was assassinated. And he had made his position clear that suspension of habeas corpus was designed to prevent disloyal persons from endangering the pub-

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lic safety, not to punish persons who had committed crimes. The military commission in Milligan attempted to punish Milligan for crimes he had committed. The Milligan case (like the Vallandigham case before it) was conducted without Lincoln’s personal knowledge or approval, as were thousands of other cases during the war. A nation of more than thirty million people was engulfed by a great internal confl ict— a confl ict that Justice Robert Grier described in the Prize Cases as “the greatest civil war known in the history of the human race.”46 Millions of men were under arms. Tens of thousands were arrested, both North and South. Union as well as Confederate prisons were overflowing with prisoners of war. Hundreds of thousands of men were killed or maimed. Lincoln did not personally direct all of the events that occurred on the Union side during the war; he did not supervise each of the military trials that were conducted by Union army officers; and, when he found that there had been errors, excesses, or abuses, he acted to correct them. Further, the decision in Milligan did not contradict any of the positions taken by Lincoln during the war. It did not support Taney’s argument that the president has no power to suspend habeas corpus in cases of rebellion or invasion when the “public safety” requires it— particularly not when, as was the case in Merryman, Congress is not in session.47 It did, to the contrary, state quite explicitly that when the constitutional grounds for suspension are established, it is the right of the government to suspend. The Supreme Court expressed itself on issues related to the suspension of habeas corpus after September 11, 2001, the date of the terrorist attacks on Washington and New York. Following those attacks, Congress authorized President George W. Bush to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks.”48 The congressional

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authorization was widely (and almost certainly correctly) regarded as the declaration of a “War on Terror.”49 Many men, some citizens of the United States and some not, were arrested and confi ned by military authorities at Guantanamo Bay, Cuba. Petitions for habeas corpus were fi led in their behalf alleging the denial of constitutional rights, and important cases arising out of the Guantanamo detentions were presented to the Supreme Court for decision.50 The specific issue decided in Merryman was not raised in any of the Guantanamo cases, though arguments relating to suspension were made and considered by some of the justices. Writing for a plurality of justices in the case of Hamdi v. Rumsfeld (2004), Justice Sandra Day O’Connor said that “a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens,” adding that “unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role” in preserving individual rights, “serving as an important judicial check on the Executive’s discretion in the realm of detentions.”51 In a dissent fi led in the same case, Justice Antonin Scalia asserted that Hamdi was entitled to his release “unless (1) criminal proceedings are promptly brought, or (2) Congress has suspended the writ of habeas corpus.”52 But the statements of O’Connor and Scalia were both tangential to the issues actually before the Court in Hamdi. They were dicta, of no precedential value for future decisions, for habeas corpus had not been suspended by either Congress or the president.53 The issue raised by the case was not whether the president has power to suspend habeas corpus, but what rights men detained at Guantanamo could assert in the absence of any suspension at all. Merryman was referred to in a footnote by Justice Scalia, but it was not cited as authority for any of the propositions he asserted.54 In Boumediene v. Bush (2008), the Supreme Court held that the right to habeas corpus is guaranteed by the Constitution

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and that the right extends to Guantanamo Bay along with other constitutional rights. Writing for a five-to-four majority, Justice Anthony Kennedy condemned the efforts of Congress in 2006 to withdraw habeas corpus rights from alien enemy combatants as an unconstitutional suspension.55 In a concurring opinion, Justice David Souter noted that some of the prisoners detained at Guantanamo had been held there for more than six years without any adequate opportunity to challenge the legality of their detention.56 The Merryman issue of whether Congress or the president holds the power to suspend habeas corpus was not decided because it was uncontroverted that only Congress had acted.57 It is appropriate to observe that the circumstances under which Abraham Lincoln suspended habeas corpus during the Civil War were not accurately reflected in the “War on Terror” of the early twenty-fi rst century. The president in 1861 was confronted with a massive rebellion that threatened the continued existence of the Union. He entertained a reasonable apprehension that the rebels might capture the national capital and send its government fleeing to the North. A state in open rebellion controlled access to the city from the south, and another state that surrounded the city on the north, east, and west was threatening to join the rebellion. Massive armies were assembled in the rebellious states, determined to resist the president’s best efforts to “preserve, protect, and defend” the Constitution. After September 11, 2001, the nation was embroiled in a confl ict with strong international dimensions. Large armies were sent into foreign countries to effect “regime change.” Intelligence was gathered both at home and abroad in an effort to avoid a repetition of the September 11 attacks. There was a widespread apprehension that the safety of Americans both at home and abroad was threatened by international terrorism. But there was no “rebellion,” no “invasion” (at least not in the traditional

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sense of that term), no massing of armies to attack Washington. The value of precedents depends in large measure on the facts from which they rise. In the words of the proverb, “circumstances alter cases.” Because the Civil War differed in substantial respects from the “War on Terror,” it is difficult to draw appropriate parallels between the two confl icts. While Lincoln’s suspensions of habeas corpus in 1861–1864 are instructive for later generations, the lessons they teach are not in all respects clear. What would Lincoln have done if he were president in 2001 rather than in 1861? However compelling that question obviously is, the answer is at least subject to debate. He would, of course, have responded quickly and vigorously to the terrorist attacks. Would he have asserted the power to suspend the writ of habeas corpus? The answer to that question is not clear. Would he have imprisoned “enemy combatants” in a prison on a Caribbean island where he believed the Constitution did not run? Almost certainly not. Would he have authorized the use of “enhanced interrogation techniques” to extract information from military detainees? Most certainly not. For all the suspensions that he proclaimed, and all the arrests that he authorized, Lincoln maintained a belief from the beginning of the war in the rights of the American people. He cautioned his officers to proceed carefully, to use military arrests sparingly, and to exercise discretion whenever and wherever they suspended habeas corpus. Of course, there were abuses— inevitably so in a war of such awful dimensions. But Lincoln believed that “the commander in the field is the better judge of the necessity in any particular cases.” He recognized, of course, that he had to “practice a general directory and revisory power in the matter.”58 Lincoln believed that the power he exercised during the war was temporary. The Constitution gave him the power to sus-

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pend habeas corpus. But when the rebellion was over, his power would end. He touched on this point in his letter to Erastus Corning and the Albany Democrats in June 1863. “If I be wrong on this question of constitutional power,” he told the Albany Democrats, “my error lies in believing that 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 its 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. The 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.”59 When the nation was “sick,” it needed strong medicine. When it recovered, the medicine would be withdrawn. But while the nation was sick, Lincoln was not reluctant to administer the “medicine.” He took the actions he took, including the suspension of habeas corpus, because he believed that it was right for him to do so, and that the Constitution gave him the power to do so. His belief was not shaken by the fact that Roger Taney believed otherwise. He suspended habeas corpus several times after Taney issued his Merryman opinion. On September 24, 1862, for example, he issued a sweeping proclamation suspending the writ of habeas corpus for all persons “imprisoned in any fort, camp, arsenal, military prison, or other place of confi nement by any military authority or by the sentence of any Court Martial or Military Commission.”60 On

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September 15, 1863, he issued an even more sweeping proclamation suspending the privilege of the writ of habeas corpus for prisoners of war, spies, “aiders or abettors of the enemy,” deserters, draft resisters, and all persons who committed “any other offense against the military or naval ser vice.”61 The latter proclamation not only invoked his power as president but also the authority he received from Congress under its act of March 3, 1863. The proclamations of September 24, 1862, and September 15, 1863, were both applicable throughout the United States. In April 1864 Lincoln met in the White House with some Kentuckians who were concerned about his policies toward slaves. He made an effort to explain to them his conception of presidential duty in words that applied not only to slavery but to every measure that he adopted during the war, including the suspension of habeas corpus. He said that he understood that his oath “to preserve the constitution to the best of my ability, imposed upon me the duty of preserving, by every indispensable means, that government—that nation— of which that constitution was the organic law. Was it possible to lose the nation, and yet preserve the constitution? By general law life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation. Right or wrong, I assumed this ground, and now avow it.”62 Lincoln took no pleasure in the exercise of his extraordinary powers. He believed it was necessary for him to exercise them, but he did so with a sober realization of the consequences that could flow from them. When Justice David Davis was writing his opinion in Ex parte Milligan, he was approached by William Herndon, Lincoln’s old law partner in Springfield, Illinois, for a

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statement about the deceased president. Both Davis and Herndon knew Lincoln well. Davis had been a trial judge on the Eighth Judicial Circuit in Illinois when Lincoln practiced law there, and he was Lincoln’s campaign manager during the Republican National Convention in Chicago in 1860. Herndon had practiced law with Lincoln for almost twenty years and was preparing to write a biography of him. Answering Herndon, Davis reflected on Lincoln’s views of military trials. He said: Mr. Lincoln was advised, and I also so advised him, that the various military trials in the Northern and Border States, where the courts were free and untrammeled, were unconstitutional and wrong; that they would not and ought not to be sustained by the Supreme Court; that such proceedings were dangerous to liberty. He said he was opposed to hanging; that he did not like to kill his fellow-man; that if the world had no butchers but himself it would go bloodless. . . . I am fully satisfied therefore that Lincoln was opposed to these military commissions especially in the Northern States, where everything was open and free.63

Leonard Swett, another Illinois lawyer who knew Lincoln well, was visiting him in the White House one day during the war. The president’s office table was piled high with the records of military courts that had tried soldiers for offenses against the military code and sentenced them to be shot. After the two men enjoyed a “pleasant talk,” Lincoln turned abruptly and said to his Illinois friend: “Get out of the way, Swett; tomorrow is butcher-day, and I must go through these papers and see if I cannot fi nd some excuse to let these poor fellows off.” Swett said that Lincoln “was not examining the records to see whether the evidence sustained the fi ndings; he was purposely in search of occasion to evade the law, in favor of life.”64

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A century and a half after the epic confrontation between Chief Justice Taney and President Abraham Lincoln, the core issue of the Merryman case remained unresolved. The Supreme Court had not decided the issue. Congress had supported Lincoln’s suspension with a ratification and another law that carefully avoided the central question of precisely where the suspension power resides in the Constitution. The fact remained, however, that the president suspended habeas corpus. Congress lent its support (moral if not strictly legal) to his suspension. And the Supreme Court never ruled the suspension unconstitutional. As Randall observed, “the outstanding fact is that the Chief Executive ‘suspended the writ,’ and that, so far as the legal consequences were concerned, he was not restrained in so doing by Congress or by the courts.”65 Or, as historian and political scientist Clinton P. Rossiter put it, “The one great precedent is what Lincoln did, not what Taney said.”66 Accepting the principal of “judicial review” laid down by John Marshall in Marbury v. Madison, it is “emphatically the province and duty of the Judicial Department to say what the law is.”67 According to this great principle, the Supreme Court decides cases and, in the process, interprets the law. It renders opinions about the Constitution’s meaning and applies the opinions to actual cases. But Congress and the president, each acting within its own sphere of responsibility, also interpret the Constitution. In 1858, Lincoln accused Senator Stephen Douglas of regarding a Supreme Court decision as a “Thus saith the Lord.”68 Lincoln was deferential to the Supreme Court, but not as obsequiously so as Douglas; not when he believed the Court was clearly wrong, and not when its decisions offended his own core constitutional convictions. He believed that Chief Justice Taney’s decision in Merryman was wrong, as he believed Taney’s decision in Dred Scott was wrong. And the full Supreme Court never ruled otherwise. In Lincoln’s constitutional universe, the

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great responsibility of interpreting the Constitution was ultimately shared by the courts, the Congress, and even the executive. Making the Constitution a part of the nation’s life, conforming political decisions to its rules, was a common enterprise in which all of the disparate elements of the body politic could participate. As Lincoln biographer Philip Paludan observed, Lincoln believed that “the document would be defi ned by many voices, not one.”69 The Supreme Court could speak through its decisions, the Congress through its legislation, and the president through his executive acts. The fi nal word, however, would belong to the people, who could agree or disagree with their government’s decisions, assent or dissent to its formulations, and accept or resist its decrees. Lincoln enunciated this principle in his fi rst inaugural address, with Roger Taney listening intently: Why should there not be a patient confidence in the ultimate justice of the people? Is there any better, or equal hope, in the world? In our present differences, is either party without faith of being in the right? If the Almighty Ruler of nations, with his eternal truth and justice, be on your side of the North, or on yours of the South, that truth, and that justice, will surely prevail, by the judgment of this great tribunal, the American people.70

It has sometimes been asserted that the Civil War “settled nothing”; that the great issues stirred by the confl ict ultimately went unresolved; that the probing questions asked by the great actors in that tumultuous chapter of history were never answered.71 If that assertion had ever been made in Lincoln’s hearing, he would almost certainly have disputed it. The Civil War may not have answered all the great questions raised by the national struggle. It did, however, supply the answers to at least two of them. They were the questions that Lincoln posed at Gettysburg in 1863. Can “a nation, conceived in liberty, and

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dedicated to the proposition that all men are created equal,” long endure? Must “government of the people, by the people, for the people,” perish from the earth? The answers were clear enough. The nation can endure. The government need not perish. They were good questions, and the answers were just as good. They would surely have been Lincoln’s answers had he survived long enough to express them. And, almost as surely, they would have been the answers of that “great tribunal, the American people.”

NOTES BIBLIOGRAPHY INDEX

NOTES

Abbreviations

ALP-LC

Abraham Lincoln Papers, Library of Congress

CG

Congressional Globe

Const.

United States Constitution

CW

Basler, Roy P., ed. The Collected Works of Abraham Lincoln. 9 vols. New Brunswick, NJ: Rutgers University Press, 1953–1955.

Fed. Cas.

The Federal Cases Comprising Cases Argued and Determined in the Circuit and District Courts of the United States from the Earliest Times to the Beginning of the Federal Reporter

NAR A-MA

National Archives and Records Administration, Mid-Atlantic Region, Philadelphia

OR

War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies. Series I and II. 70 vols. Washington, DC: Government Printing Office, 1880–1901.

Stat.

United States Statutes at Large

U.S.

United States Supreme Court Reports

Introduction

1. It will be helpful at the outset to explain the difference between the writ of habeas corpus and the privilege of the writ of habeas corpus. When lawyers and judges speak of the “suspension of habeas corpus,” they do not mean that courts cannot issue writs of habeas

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corpus. They mean more precisely that petitioners cannot obtain relief through the use of the writs. The privilege of the writ is the right of an illegally detained person to be discharged. The writ itself is the power of the court to order the custodian of a detained person to appear before it and explain the circumstances of the detention. In the interests of brevity, most books dealing with habeas corpus (this one included) commonly speak of “suspension of the writ,” or sometimes just “suspension of habeas,” but that is an abbreviation of the longer phrase. Analytically, the difference may be of substantive importance, for at least one constitutional scholar who opined on the issue during the crisis that followed Merryman (Horace Binney of Philadelphia) expressed the opinion that the president could suspend the “privilege of the writ” in the exercise of his war power, while only Congress could suspend the writ itself—forbidding courts throughout the land to even issue a writ. See Binney, The Privilege of the Writ of Habeas Corpus under the Constitution, 47; for discussion of Binney’s views, see Chapter 6. 2. Ex parte Merryman, 17 Fed. Cas. 144, 147 (1861). 3. Dred Scott v. Sandford, 60 U.S. [19 How.] 393 (1857). 4. Ex parte Merryman, 17 Fed. Cas. 144, 149 (1861). 5. See Neely, “The Constitution and Civil Liberties under Lincoln,” 37 (Taney’s Merryman decision “stands as one of the most poorly understood of decisions to come from the Supreme Court”). 6. Baker, James Buchanan, 83. 7. Ibid., 1, 38–39. 8. Lewis v. Lewis, 48 U.S. [7 How.] 776 (1849); see Frank, Lincoln as a Lawyer, 80– 81 (Taney’s decision was “utterly in confl ict” with the earlier Supreme Court ruling and “in all fairness . . . must be regarded as overruling the earlier case”). 9. See CW, 4:270 (Lincoln’s First Inaugural). For a discussion of Lincoln’s confidence in “the great tribunal, the American people,” see Chapter 9. 10. “Address Before the Young Men’s Lyceum of Springfield, Illinois,” January 27, 1838, CW, 1:112. 11. CW, 4:268.

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12. Const., Art. II, § 2. 13. Const., Art. II, § 1, cl. 8. 14. For a general discussion of the adequacy of the powers granted by the Constitution to the execution of the duties imposed by it, see Hyman, A More Perfect Union, 124–140. 15. Michael Stokes Paulsen has written extensively about Lincoln’s concept of his presidential power. See Paulsen, “Lincoln and Judicial Authority”; Paulsen, “The War Power”; Paulsen, “The Civil War as Constitutional Interpretation”; Paulsen, “The Most Dangerous Branch.” In “The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation,” Paulsen analyzes the president’s “power to nullify judgments.” 16. McGinty, Lincoln and the Court, 1. See Neff, Justice in Blue and Gray, 1 (“Of all wars in recorded history, none equals— or even comes close to equaling—the Civil War in the role played by law”). 17. This, of course, is a very abbreviated statement of a complicated issue that has been examined in depth by historians and constitutional scholars. See, e.g., Randall, Constitutional Problems under Lincoln, 12–24; Hyman, A More Perfect Union, 41– 48; Farber, Lincoln’s Constitution, 7–25, 71–75, 106–111; Neff, Justice in Blue and Gray, 7–15, 251–252. 18. See Neff, Justice in Blue and Gray, for a broad survey of the many difficult legal issues raised by the Civil War. 19. Vorenberg, Final Freedom, 180, 198–201. 20. Swisher, The Taney Period, 850. 21. See McPherson, Battle Cry of Freedom, 273–278, 339–350. 22. “Message to Congress in Special Session,” July 4, 1861, in CW, 4:421– 441. See also discussion in Chapter 5. 23. See Bates, “Suspension of the Privilege of the Writ of Habeas Corpus”; Johnson, “Power of the President to Suspend the Habeas Corpus Writ.” 24. See Taney, Habeas Corpus: The Proceedings in the Case of John Merryman, of Baltimore County, Maryland, 9; Neely, “The Constitution and Civil Liberties under Lincoln,” 38. See also discussion in Chapter 9.

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25. Ex parte Vallandigham, 68 U.S. [1 Wall.] 243 (1864). See discussion in Chapter 7. 26. Prize Cases, 67 U.S. [2 Black] 635. See discussion in Chapters 8 and 9. 27. Hyman, A More Perfect Union, 89. 28. See Neff, Justice in Blue and Gray, 167–185.

1. The Challenge

1. Memorandum of McHenry Howard, May 5, 1919, in Steiner, Life of Roger Brooke Taney: Chief Justice of the United States Supreme Court, 494. 2. Ibid., 493– 494. 3. Brown, Baltimore and the Nineteenth of April, 1861, 89. 4. Delaplaine, “Chief Justice Roger B. Taney—His Career at the Frederick Bar,” 109–142. 5. CW, 2:492; Foner, The Fiery Trial, 58, 103, 131, 207, 212; Burlingame, Abraham Lincoln: A Life, 1:124; Oakes, “Natural Rights, Citizenship Rights, States’ Rights, and Black Rights,” 112–113, 6. Swisher, Roger B. Taney, 119–131. 7. Burlingame, Abraham Lincoln: A Life, 1:71–75, 407– 442. 8. Cooley v. Board of Wardens, 53 U.S. [12 How.] 209 (1852). 9. Prigg v. Pennsylvania, 41 U.S. [16 Pet.] 539 (1842). 10. McCulloch v. Maryland, 17 U.S. [4 Wheat.] 316 (1819); Const., Art. I, § 8 (“The Congress shall have power . . . to make all laws which shall be necessary and proper for carry ing into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof ”). 11. Swisher, Roger B. Taney, 97. 12. Letter to Secretary of State Edward Livingston, May 28, 1832, as quoted in Swisher, Roger B. Taney, 154. 13. United States v. Lorenzo Dow, Reports of Cases at Law and Equity and in the Admiralty Determined in the Circuit Courts of the United States for the District of Maryland by Roger Brooke Taney, 40, 42. 14. Fehrenbacher, Dred Scott Case, 227.

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15. Dred Scott v. Sandford, 60 U.S. [19 How.] 393, 405, 412, 416 (1857). 16. Somerset v. Stewart, 1 Lofft (G.B.) 1 (1772). 17. Const., Art. III, § 2 (“the judicial power shall extend to all cases . . . between citizens of different states”). 18. Dred Scott v. Sandford, 60 U.S. [19 How.] 393, 407 (1857). 19. Const., Art. IV, § 3, cl. 2. 20. Const., Amend. V. 21. Dred Scott v. Sandford, 60 U.S. [19 How.] 393, 450 (1857). 22. Fehrenbacher, Dred Scott Case, 315, 320. 23. Marbury v. Madison, 5 U.S. [1 Cranch] 137 (1803). 24. Richmond Enquirer, March 10, 1857, quoted in Finkelman, Dred Scott v. Sandford, 130. 25. Charleston Mercury, April 2, 1857, quoted in Finkelman, Dred Scott v. Sandford, 131. 26. New York Journal of Commerce, March 11, 1857, quoted in Finkelman, Dred Scott v. Sandford, 137. 27. Pittsburgh Post, March 14, 1857, quoted in Finkelman, Dred Scott v. Sandford, 142. 28. New York Daily Times, March 9, 1857, quoted in Finkelman, Dred Scott v. Sandford, 146. 29. New York Tribune, March 9, 1857, quoted in Finkelman, Dred Scott v. Sandford, 145. 30. McGinty, Lincoln and the Court, 3. 31. Ibid., 3, 18. 32. Moore v. Brown, 52 U.S. [11 How.] 414 (1850). 33. Forsyth v. Reynolds, 56 U.S. [15 How.] 358 (1853). 34. Like Dred Scott v. Sandford, Lewis v. Lewis had been commenced in federal court under the Diversity Clause of the U.S. Constitution (Const., Art. III, § 2). In diversity cases, the federal courts apply state law. See Judiciary Act of 1789, 1 Stat. 73, § 34 (state laws as rules of decision in trials at common law in U.S. courts). 35. Ross v. Duval, 38 U.S. [13 Pet.] 45 (1839). 36. Lewis v. Lewis, 48 U.S. [7 How.] 776, 777–780. In dissent, Associate Justice John McLean stated that the decision “overrules a solemn

204

Notes to Pages 22–35

decision of this court in the case of Ross et al. v. Duval et al.” Ibid., at 780. 37. An Act to Orga nize the Territories of Nebraska and Kansas, 10 Stat. 277 (May 30, 1854). 38. CW, 2:399. 39. Ibid., 2:400– 401. 40. Ibid., 2:495. 41. Ibid., 4:268. 42. Ibid., 4:271. 43. New York Times, March 5, 1861. 44. Const., Art. II, § 1. 45. The South [Baltimore], May 28, 1861. 46. Although reports of Taney’s words on this occasion vary slightly from newspaper to newspaper, their meaning is unchanged. The text set out here is from Brown, Baltimore and the Nineteenth of April, 1861, 89– 90. 47. Daily Missouri Republican, May 30, 1861, 2; Cincinnati Daily Enquirer, May 29, 1861, 3, as quoted in Anderson, “The Body of John Merryman,” 173. 48. Edward C. Papenfuse, Jr., “Justice under Stress: Federal Courts in Baltimore during the Civil War.” 49. Brown, Baltimore and the Nineteenth of April, 1861, 90.

2. Conflicted Ground

1. Swisher, Roger B. Taney, 27, 43, 49– 50. In an introduction to a volume of Key’s poems that was published in New York in 1857, Taney wrote that “the song has become a national one, and will, I think, from its great merit, continue to be so, especially in Maryland. . . . [T]he song shows his genius and taste as a poet.” See Taney, “Letter from Hon. Chief Justice Taney, narrating the incidents connected with the origin of the song ‘The Star Spangled Banner,’ ” 13. 2. Const., Art. II, § 2. See CW, 4:154, 158, 159, 268. 3. McPherson, Battle Cry of Freedom, 264–274. 4. Mitchell, Maryland Voices of the Civil War, 3– 4.

Notes to Pages 35–40

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5. Brown, Baltimore and the Nineteenth of April, 1861, 30; Mitchell, Maryland Voices of the Civil War, 518n4. 6. Frasure, “Union Sentiment in Maryland, 1859–1861,” 216. 7. Ibid., 212. 8. See Evitts, A Matter of Allegiances, 123–128. 9. For the details of Brown’s capture, trial, and execution, see McGinty, John Brown’s Trial. 10. McGinty, John Brown’s Trial, 260–287. 11. Anderson, “The Body of John Merryman,” 56, says Marylanders were embarrassed because Brown’s raid “had originated from a base in their state.” 12. Towers, The Urban South and the Coming of the Civil War, 149. 13. Ibid., 43. 14. Beirne, The Amiable Baltimoreans, Ch. 7, “The Monumental City,” Ch. 10, “Mobtown.” 15. Burlingame, Abraham Lincoln: A Life, 1:680. 16. Frasure, “Union Sentiment in Maryland, 1859–1861,” 212. 17. Mitchell, Maryland Voices of the Civil War, 9; Radcliffe, Governor Thomas H. Hicks of Maryland and the Civil War, 23. 18. Baltimore Sun, November 7, 1860, 2. 19. Brown, Baltimore and the Nineteenth of April, 1861, 11–12. 20. See Holzer, Lincoln President-elect, 381–383; Evitts, A Matter of Allegiances, 174n115. 21. Brown, Baltimore and the Nineteenth of April, 1861, 19. 22. Baltimore Sun, as quoted in Moore, The Rebellion Record: A Diary of American Events, 5:34. 23. McGinty, Lincoln and the Court, 19. 24. Ibid., 19–20. 25. Burlingame, Abraham Lincoln: A Life, 2:132–134. 26. McPherson, Tried by War, 11. 27. CW, 4:331–332. 28. Const., Art. II, § 3 (power to convene both houses of Congress “on extraordinary occasions”). 29. Act of February 28, 1795, An act to provide for calling forth the militia to execute the laws of the Union, suppress insurrections,

206

Notes to Pages 41–45

and to repel invasions; and to repeal the act now in force for those purposes, 1 Stat. 424, § 2 (“whenever the laws of the United States shall be opposed, or the execution thereof, obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, it shall be lawful for the President of the United States, to call forth the militia of such state, or of any other state or states, as may be necessary to suppress such combinations, and to cause the laws to be duly executed”); see Burlingame, Abraham Lincoln: A Life, 2: 134. 30. CW, 4:332. 31. Burlingame, Abraham Lincoln: A Life, 2:138. 32. Hamlin to Lincoln, April 24, 1861, ALP-LC. 33. Kennedy to Robert C. Winthrop, April 25, 1861, quoted in Burlingame, Abraham Lincoln: A Life, 2:136. 34. Mitchell, Maryland Voices of the Civil War, 48. 35. Clark, “Baltimore and the Attack on the Sixth Massachusetts Regiment, April 19, 1861,” 42. 36. Brown, Baltimore and the Nineteenth of April, 1861, 35. 37. Mitchell, Maryland Voices of the Civil War, 49. 38. Brown, Baltimore and the Nineteenth of April, 1861, 36–37. 39. Burlingame, Abraham Lincoln: A Life, 140–141. 40. Mitchell, Maryland Voices of the Civil War, 50. 41. Brown, Baltimore and the Nineteenth of April, 1861, 19, 26. 42. Ibid., 37–39. 43. Ibid., 40– 41; Radcliffe, Governor Thomas H. Hicks of Maryland and the Civil War, 53. 44. CW, 4:338–339. 45. Brown, Baltimore and the Nineteenth of April, 1861, 41. 46. See New York Herald, April 22, 1861, 8; Brown, Baltimore and the Nineteenth of April, 1861, 42. 47. OR, Series I, 2:7. 48. Ibid., 2:7. 49. See Brown, Baltimore and the Nineteenth of April, 1861, 44– 45. 50. OR, Series I, 2:7. 51. Brown, Baltimore and the Nineteenth of April, 1861, 50.

Notes to Pages 46–54

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52. Ibid., 46. 53. Robinson, “Some Recollections of April 19, 1861,” 275–276. 54. Brown, Baltimore and the Nineteenth of April, 1861, 53. 55. Ibid., 44– 51. 56. Ibid., 56; Radcliffe, Governor Thomas H. Hicks of Maryland and the Civil War, 55. 57. Brown, Baltimore and the Nineteenth of April, 1861, 57. 58. Radcliffe, Governor Thomas H. Hicks of Maryland and the Civil War, 56– 57. 59. Brown, Baltimore and the Nineteenth of April, 1861, 58– 59. 60. Ibid., 63. 61. Ibid., 63– 64. 62. Baltimore American, April 22, 1861, as quoted in Brown, Baltimore and the Nineteenth of April, 1861, 65. 63. Brown, Baltimore and the Nineteenth of April, 1861, 66–71. 64. Ibid., 71–73, 75. 65. Ibid., 74. 66. Ibid., 74. 67. Ibid., 76. 68. For a revealing examination of Lincoln’s political relationship to Andrew Jackson, and how it changed after 1854, see Sean Willentz, “Abraham Lincoln and Jacksonian Democracy,” 62–70. 69. CW, 4:341–342. 70. Burlingame, Abraham Lincoln: A Life, 2:144–145. 71. Chase to Lincoln, April 25, 1861, in Schuckers, The Life and Ser vices of Salmon Portland Chase, 424. 72. Burlingame and Ettlinger, Inside Lincoln’s White House, 12. 73. Letter to Winfield Scott, April 25, 1861, CW, 4:344. 74. Scharf, History of Maryland, 3:444– 445; Brown, Baltimore and the Nineteenth of April, 1861, 84. 75. Brown, Baltimore and the Nineteenth of April, 1861, 84– 85. 76. Manakee, Maryland in the Civil War, 44– 45. 77. Ibid., 155–157. 78. Ibid., 46; see Blake, “Lincoln v. Taney: Fighting over the Body of John Merryman,” 1n1 (stating that Randall’s verse “was adopted as

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Notes to Pages 57–62

the state song in 1939 despite, or perhaps because of, its closing reference to ‘Northern scum’ ”).

3. The Squire of Hayfields

1. Howard, The Monumental City, 689. 2. Ibid., 689– 690. 3. Culver, “Merryman Family,” 297. 4. Merryman, “Hayfields History,” 6. 5. Bishko, “Lafayette and the Maryland Agricultural Society: 1824–1832,” 58– 59. 6. American Farmer, August 1, 1857, 60. 7. Merryman, “Hayfields History,” 5– 6. 8. Howard, The Monumental City, 689. 9. Ibid., 690. 10. Culver, “Merryman Family,” 297. 11. Sanders, The Story of the Herefords, 324–330. 12. Merryman, “Hayfields History,” 6. 13. Howard, The Monumental City, 690. 14. Ibid.; American Farmer, November 1, 1857, 162. 15. See First Circular of the Maryland Agricultural College, Baltimore, July, 1859 (Baltimore: Samuel Sands Mills, 1859). 16. Merryman, “Hayfields History,” 6. 17. Anderson, “The Body of John Merryman,” 53. 18. Whitman, The Price of Freedom, 10. 19. United States Census, Slave schedules for Baltimore County, 1850 and 1860. 20. Brugger, et al., Maryland, A Middle Temperament, 212. 21. The town’s name was spelled as Harper’s Ferry in 1859. Today it is Harpers Ferry. The latter spelling is used in this book. 22. Davis, “The Baltimore County Horse Guard,” 5. 23. Ibid., 5, 9–10. 24. Ibid., 5. 25. Ibid. 26. Ibid.

Notes to Pages 63–66

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27. Testimony of Andrew Sterrett Ridgely in Evidence of the Contested Election in the Case of Ridgely vs. Grason to the General Assembly, 195. 28. Manakee, Maryland in the Civil War, 38. 29. Testimony of Andrew Sterrett Ridgely in Evidence of the Contested Election in the Case of Ridgely vs. Grason to the General Assembly, 194–196. 30. Testimony of Wm. J. Thompson, Thomas Taylor, and C.  N. Whittle in Evidence of the Contested Election in the Case of Ridgely vs. Grason to the General Assembly, 49, 61, 72. 31. See discussion in Anderson, “The Body of John Merryman,” 105–106 (“No matter where or how they came by them, the Horse Guard apparently had rifles stolen from the Federal government. . . .”). 32. Baltimore County American, “Extra,” April 20, 1861, as quoted in Davis, “The Baltimore County Horse Guard,” 5. 33. Davis, “The Baltimore County Horse Guard,” 6; testimony of John H. Longnecker in Evidence of the Contested Election in the Case of Ridgely vs. Grason to the General Assembly, 272–275. 34. Davis, “The Baltimore County Horse Guard,” 5, 7. 35. Baltimore Argus, April 21, 1861, as quoted in Davis, “The Baltimore County Horse Guard,” 5– 6. 36. Davis, “The Baltimore County Horse Guard,” 6. 37. Evidence of the Contested Election in the Case of Ridgely vs. Grason to the General Assembly, 259. 38. Davis, “The Baltimore County Horse Guard,” 6. 39. Evidence of the Contested Election in the Case of Ridgely vs. Grason to the General Assembly, 136, 175, 222. 40. Ibid., 219–221, 261, 270. 41. Ibid., 279. 42. Brown, Baltimore and the Nineteenth of April, 1861, 76. 43. Davis, “The Baltimore County Horse Guard,” 6–7. 44. Evidence of the Contested Election in the Case of Ridgely vs. Grason to the General Assembly, 62. 45. Brown, Baltimore and the Nineteenth of April, 1861, 73. 46. Anderson, “The Body of John Merryman,” 91.

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Notes to Pages 66–73

47. Order of Major General G. H. Steuart dated at Baltimore, April 22, 1861, in Evidence of the Contested Election in the Case of Ridgely vs. Grason to the General Assembly, 198. 48. Testimony of Thomas Taylor in Evidence of the Contested Election in the Case of Ridgely vs. Grason to the General Assembly, 64– 65. 49. Creamer, Baltimore Riots, April 19, 1861, Notes of evidence before the U.S. Grand Jury, June Term, 1861, 13. 50. Ibid., 9. 51. Ibid., 11. 52. Ibid., 10. 53. OR, Series II, 2:566. 54. Anderson, “The Body of John Merryman,” 108. 55. OR, Series II, 2:575. 56. National Cyclopedia of American Biography, Vol. 12 (New York: James T. White, 1904), 269. 57. OR, Series II, 2:575. 58. Ibid., 2:574, 575.

4. The Writ and the Suspension

1. Ex parte Merryman, 17 Fed. Cas. 144, 145 (1861). 2. Scharf, History of Baltimore City and County, 716; see Chapter 2. 3. Biographical Cyclopedia of Representative Men of Maryland and District of Columbia, 249; Scharf, History of Baltimore City and County, 717–718. 4. Habeas corpus is a generic term. At common law, it was used in the names of different writs. For example, habeas corpus ad prosequendum was a writ used to bring a person before a court for prosecution. Habeas corpus ad satisfaciendum was used to bring a person before a court to have a judgment executed. Habeas corpus juratorum was used to bring jurors into court. Habeas corpus ad subjiciendum was used to bring a person detaining another person into court to examine into the reasons for the detention. The latter is the writ commonly referred to as the “Great Writ of Liberty.” See Halliday, Habeas Corpus, 2; Freed-

Notes to Pages 74–80

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man, Habeas Corpus, 1. In this book, “habeas corpus” refers to habeas corpus ad subjiciendum. 5. Ex parte Merryman, 17 Fed. Cas. 144, 145–146 (1861). 6. Swisher, Roger B. Taney, 354–355. 7. Ibid., 93. 8. Scharf, History of Baltimore City and County, 122–123; Biographical Cyclopedia of Representative Men of Maryland and District of Columbia, 670– 671. 9. See Marbury v. Madison, 5 U.S. [1 Cranch] 137, 175 (1803) (appellate jurisdiction revises and corrects the proceedings in a cause already instituted and does not create that cause). 10. Anderson, “The Body of John Merryman,” 213, citing to letter from Andrew Sterrett Ridgely to Chief Justice Salmon P. Chase, December 28, 1866. Salmon P. Chase Papers, Library of Congress. According to Anderson, the pen stroke crossing out words in the petition “seems very similar” to that in the ‘Order for a Writ of Habeas Corpus’ that Taney wrote out at this time. 11. The original petition, with the interlined words, is in the original case file; scanned photocopies are in the Maryland State Archives online. 12. New York Times, May 29, 1861, 4– 5. 13. Swisher, The Taney Period, 845. 14. Ex parte Merryman, 17 Fed. Cas. 144, 146 (1861). 15. Ibid., 147. 16. Judiciary Act of 1789, Section 14, granted all courts of the United States power to issue writs of habeas corpus. 1 Stat. 73, 81– 82. 17. Affidavit of J. Gittings, May 2, 1861, Attorney General’s Papers, National Archives, as quoted in Anderson, “The Body of John Merryman,” 137n3. 18. Morris to Giles, May 6, 1861, Attorney General’s Papers, National Archives, as quoted in Swisher, The Taney Period, 844. 19. Baltimore Sun, May 6, 1861; Swisher, The Taney Period, 844; Scharf, History of Baltimore City and County, 131. 20. Marbury v. Madison , 5 U.S. [1 Cranch] 137, 173–175 (1803); Judiciary Act of 1789, § 13, 1 Stat. 73, 80– 81. 21. Judiciary Act of 1789, § 14, 1 Stat. 73, 81– 82.

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Notes to Pages 81–84

22. In Ex parte Bollman, 8 U.S. [4 Cranch] 75, 96 (1807), Chief Justice Marshall said that the fi rst sentence of Section 14 vested the power to grant writs of habeas corpus in “all the courts of the United States; but as those courts are not always in session, the second sentence vests it in every justice or judge of the United States.” 23. Ex parte Merryman, 17 Fed. Cas. 144, 147 (1861). The grant of jurisdiction in Section 14 of the Judiciary Act of 1789 was supplemented by later statutes. In 4 Stat. 632, 634– 635, Sec. 7 (1833), 5 Stat. 539 (1842), and 14 Stat. 385 (1867), Congress made additional grants of original habeas corpus jurisdiction to individual Supreme Court justices. See Hartnett, “The Constitutional Puzzle of Habeas Corpus,” 273. For doubts about the constitutionality of Section 14, see Neely, “The Constitution and Civil Liberties under Lincoln,” 39– 45, and discussion in Chapter 9. 24. Woods’ Baltimore City Directory, ending Year 1860 (Baltimore: John W. Woods, 1860), 67. 25. Ex parte Merryman, 17 Fed. Cas. 144, 148 (1861). 26. Letter to Winfield Scott, April 25, 1861, in CW, 4:344. See discussion in Chapter 2. 27. See Titian J. Coffee, Notes on martial law, with endorsement from Edward Bates, April 19, 1861, ALP-LC. 28. Seward and Johnson came to the White House in April 1861 to discuss the habeas corpus issue with Lincoln. See letter from Seward to Lincoln, April 1861, ALP-LC. Swisher, Roger B. Taney, 241, 314, 318–319, 450, 521. 29. Steiner, Life of Reverdy Johnson, 46– 50. 30. The fi rst note was sent on April 22, and a follow-up note was sent on April 24. See Johnson to Lincoln, April 24, 1861, ALP-LC. 31. Lincoln to Johnson, April 24, 1861, ALP-LC. 32. Ibid. 33. Seward advised Lincoln that he had made an “engagement with Mr. Reverdy Johnson about the Habeas Case, that he will attend you tonight at 9 o’clock at your home, and I will be with him.” Seward to Lincoln, April ___ [day of month not indicated in original], 1861, ALP-LC. 34. Randall, Constitutional Problems under Lincoln, 121.

Notes to Pages 84–94

213

35. Carpenter, “A Day with Governor Seward at Auburn July 1970,” William H. Seward Papers, Library of Congress. Seward recalled that this conversation took place on a Sunday morning. Since Lincoln’s suspension was on Saturday, April 27, however, this is almost certainly an error. 36. For Andrew Jackson’s suspension of habeas corpus in New Orleans in 1814–1815, see Chapter 5. 37. Ex parte Merryman, 17 Fed. Cas. 144, 148 (1861). 38. OR, Section II, 2:576. 39. Ex parte Merryman, 17 Fed. Cas. 144, 147 (1861). 40. Ibid., 148. 41. Ibid. 42. Ibid., 149. 43. Ibid., 150, 151. 44. See Story, Commentaries on the Constitution of the United States, 3: Sec. 1336. 45. See Ex parte Bollman, 8 U.S. [4 Cranch] 75, 191 (1807). 46. Ex parte Merryman, 17 Fed. Cas. 144, 152 (1861). 47. Ibid. 48. Ibid., 153. 49. Habeas corpus proceedings in which it is decided that the prisoner is entitled to his or her freedom are typically concluded with orders containing the following words: “It is ordered that the prisoner be discharged from custody,” or “Petitioner is discharged and ordered released from the custody of respondent,” or “Respondent shall immediately discharge petitioner from custody.” See American Jurisprudence Pleading and Practice Forms Annotated State and Federal, “Habeas Corpus,” §§ 205–237. 50. Ex parte Merryman, 17 Fed. Cas. 144, 153 (1861). 51. New York Times, May 30, 1861. 52. New York Tribune, May 30, 1861. 53. Baltimore Sun, June 4, 1861. 54. An original copy of the “John Merryman” songsheet is in the collection of Courtney B. Wilson, executive director of the Baltimore & Ohio Railroad Museum in Baltimore.

214

Notes to Pages 94–103

55. Ex parte Merryman, American Law Register, July 1861, 9:524– 538. Pamphlet versions have been found bearing the publishing imprints of O. Everett in Boston; Lucas Brothers in Baltimore; J.  L. Power in Jackson, Mississippi; John Campbell in Philadelphia; and G. Ellis in New Orleans. There may well have been others. 56. Campbell, Reports of Cases at Law and Equity and in the Admiralty Determined in the Circuit Courts of the United States for the District of Maryland by Roger Brooke Taney, 246–270. 57. Ex parte Merryman, 17 Fed. Cas. 144 (1861).

5. All the Laws but One

1. In a letter from Baltimore dated June 17, Reverdy Johnson advised Lincoln that Taney’s Merryman opinion had been mailed to him. Johnson to Lincoln, June 17, 1861, ALP-LC. 2. New York Herald, June 2, 1861, 5. 3. Nicolay and Hay, Abraham Lincoln: A History, 4:176. It is not clear why this statement included the words “of course.” In his perceptive analysis of the Merryman case, Rossiter says that when Taney’s ruling reached the White House it “was certain to win a careful reading.” Rossiter, The Supreme Court and the Commander in Chief (expanded edition), 20. 4. Wilson, Lincoln’s Sword, 77. 5. Whitney, Life on the Circuit with Lincoln, 332. According to Burlingame, Abraham Lincoln: A Life, 154, Lincoln “allegedly” said this. 6. Wilson, Lincoln’s Sword, 72. 7. Ibid., 74. 8. CW, 4:426. 9. Wilson, Lincoln’s Sword, 76. 10. Randall, Constitutional Problems under Lincoln, 123. 11. The fi nal version of the Message to Congress is in CW, 4:421– 441. The italicized words from the fi rst draft are as set forth in Randall, Constitutional Problems under Lincoln, 2d ed., 122. 12. Wilson, Lincoln’s Sword, 78. 13. New York Times, May 29, 1861, 4.

Notes to Pages 104–113

215

14. Cain, Lincoln’s Attorney General: Edward Bates of Missouri, 1–39, 79– 82. 15. Ibid., 212, 222–225. 16. Ibid., 82, 85, 90– 92. 99–100. 17. Ibid., 145–147. 18. Lincoln to Bates, May 30, 1861, in CW, 4:390; see Johnson, “Power of the President to Suspend the Habeas Corpus Writ,” discussed below. 19. Luther v. Borden, 48 U.S. [7 How.] 1 (1849). 20. See Titian J. Coffey, Notes on martial law, with endorsement from Edward Bates, April 19, 1861, ALP-LC. 21. Opinion of Attorney General Caleb Cushing to Secretary of State William L. Marcy, February 3, 1857, in Official Opinions of the Attorneys General of the United States, Vol. 8, 365–374. 22. Bates, “Suspension of the Privilege of the Writ of Habeas Corpus,” 76. 23. Ibid., 87. 24. Ibid., 91. 25. Ibid., 92. 26. Johnson to Lincoln, June 17, 1861, ALP-LC. 27. Ibid. 28. Johnson, “Power of the President to Suspend the Habeas Corpus Writ,” 193. 29. Ibid., 186. 30. McCulloch v. Maryland, 17 U.S. [4 Wheat.] 316 (1819). 31. Richardson, A Compilation of the Messages and Papers of the Presidents, 1789–1908, 2:582. 32. Swisher, Roger B. Taney, 195–197; Swisher, ed., “Roger B. Taney’s ‘Bank War Manuscript,’ ” 227. 33. Johnson, “Power of the President to Suspend the Habeas Corpus Writ,” 186. 34. Ibid., 188. 35. See John Marshall in Marbury v. Madison , 5 U.S. [1 Cranch] 137, 168 (1803) (“Questions in their nature political . . . can never be made in this court”); Roger Taney in Luther v. Borden, 48 U.S. [7 How.]

216

Notes to Pages 113–123

1, 46– 47 (1849) (Court will not express opinion on “political rights and political questions . . . which properly belong to other forums”). 36. Luther v. Borden, 48 U.S. [7 How.] 1, 45– 46 (1849). 37. Johnson, “Power of the President to Suspend the Habeas Corpus Writ,” 191. 38. Ibid., 193. 39. Ex parte Bollman, 8 U.S. [4 Cranch] 75, 101 (1807); Story, Commentaries on the Constitution of the United States, 3: Sec. 1336. 40. Johnson, “Power of the President to Suspend the Habeas Corpus Writ,” 193. 41. Warshauer, Andrew Jackson and the Politics of Martial Law, 19– 45, 77, 112, 189–196, 217. 42. Luther v. Borden, 48 U.S, [7 How.] 1, 83 (1849). 43. Johnson, “Power of the President to Suspend the Habeas Corpus Writ,” 193. 6. Weighing In

1. CG, 37th Cong., 1st sess., 1861, 11, 13. 2. Ibid., 40. 3. Ibid., 393. 4. Ibid., 392. 5. Ibid., 137–138. 6. Act of August 6, 1861, 12 Stat. 326, § 3. 7. CG, 37th Cong., 3d sess., 1861, 529. 8. CG, 37th Cong., 3d sess., 1862, 22. 9. Ibid., 1186 (Trumbull telling his Senate collagues that “those of us who believe that Congress possesses the power [to suspend habeas corpus] can vote for the bill granting it [to the president]; and those who believe the Executive has it, it seems to me, cannot object to the declaratory act at any rate”). 10. Act of March 3, 1863, An Act Relating to Habeas Corpus, and regulating Judicial Procedure in Certain Cases, 12 Stat. 755. 11. Ibid. 12. CG, 37th Cong., 3d sess., 1863, 158. 13. Ibid., 247.

Notes to Pages 124–132

217

14. Parker, Habeas Corpus and Martial Law. 15. Ibid., 7. 16. Ibid., 18. 17. Ibid., 24. 18. Const., Art. I, § 8, cl. 15. 19. Parker, Habeas Corpus and Martial Law, 38. 20. Luther v. Borden, 48 U.S. [7 How.] 1, 46 (1849); for discussion, see Chapter 5. 21. Parker, Habeas Corpus and Martial Law, 30. 22. Ibid. 23. Ibid., 31. 24. Ibid., 32. 25. Ibid., 34. 26. Ibid., 43– 44. 27. Ibid., 44 28. Vidal v. Girard’s Executors, 43 U.S. [2 How.] 127 (1844). 29. Swisher, The Taney Period, 216. 30. Binney, The Privilege of the Writ of Habeas Corpus under the Constitution. 31. Ibid., 40. 32. Ibid., 47 33. Ibid., 58. 34. Ibid., 14. 35. Ibid., 21. 36. Ibid. 37. Ex parte Merryman, 17 Fed. Cas. 144, 148, 149 (1861). 38. Binney, The Privilege of the Writ of Habeas Corpus under the Constitution, 36. 39. Binney to Francis Lieber, December 23, 1861, in front matter of The Privilege of the Writ of Habeas Corpus under the Constitution. 40. Binney, The Privilege of the Writ of Habeas Corpus under the Constitution, 36. 41. Fisher, “The Suspension of Habeas Corpus during the War of the Rebellion,” 466– 469; see Nicholas, Habeas Corpus: A Response to Mr. Binney.

218

Notes to Pages 132–136

42. Const., Art. III, § 1 (power to “ordain and establish” inferior courts), § 2 (power to make “exceptions” to jurisdiction of Supreme Court). 43. See McCulloch v. Maryland, 17 U.S. [4 Wheat.] 316, 405 (1819), in which Chief Justice Marshall said that the principle that Congress “can exercise only the powers granted to it . . . is now universally admitted.” But Marshall made it clear that the principle is modified by the Necessary and Proper Clause (Const., Art. I, § 8, cl. 18), which gives Congress power to “make all laws which shall be necessary and proper for carry ing into execution” the enumerated powers. “Let the end be legitimate,” Marshall wrote in McCulloch, “let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are Constitutional.” Ibid., 421. 44. Fisher, “The Suspension of Habeas Corpus during the War of the Rebellion,” 469– 471; see Wharton, Answer to Mr. Binney’s Reply to ‘Remarks’ on His Treatise on the Habeas Corpus; see also Const., Art. I, § 8 (powers of Congress). 45. Fisher, “The Suspension of Habeas Corpus during the War of the Rebellion,” 469– 470. 46. Ibid., 485– 488. 47. Swisher, The Taney Period, 918.

7. The Courts

1. Ex parte Benedict, 3 Fed. Cas. 159, 165 (D.C.N.Y., 1862). 2. Swisher, The Taney Period, 921. 3. Ex parte Stevens, as reported in National Intelligencer, September 10, 1861; see Swisher, The Taney Period, 863. 4. CW, 5:436– 437. 5. In re Kemp, 16 Wis. 359, 382 (1863); for discussion, see Swisher, The Taney Period, 921– 922. 6. Act of February 28, 1795, An act to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and to

Notes to Pages 137–149

219

repel invasions; and to repeal the act now in force for those purposes, 1 Stat. 424. 7. Ex parte Field, 9 Fed. Cas. 1, 6 (1862). 8. Ibid., 8. 9. Ibid. For an extended discussion of Ex parte Field, see Vladeck, “The Field Theory: Martial Law, the Suspension Power, and the Insurrection Act.” 10. In re McDonald, 16 Fed. Cas. 17 (1861). 11. Taney to Treat, June 5, 1861, Treat Manuscripts, Missouri Historical Society, as quoted in Swisher, Roger B. Taney, 354. 12. Weber, Copperheads, 76. 13. Klement, The Limits of Dissent, 66. 14. CG, 37th Cong., 2nd sess., 1861, 167, 2070; Sellery, “Lincoln’s Suspension of Habeas Corpus as Viewed by Congress,” 239n1. 15. Klement, The Limits of Dissent, 138–140, 151–155. 16. OR, Series II, 5:657. 17. Ex parte Vallandigham, 28 Fed. Cas. 874, 875 (1863). 18. Ibid. 19. Swisher, The Taney Period, 927. 20. Klement, The Limits of Dissent, 175. 21. CW, 6:215–216. 22. Ex parte Vallandigham, 68 U.S. [1 Wall.] 243, 254 (1863); for a more complete discussion of the Vallandigham case, see McGinty, Lincoln and the Court, 182–190. 23. CW, 6:265. 24. Ibid., 6:265–266. 25. Ibid., 6:265. 26. Ibid., 6:266–267. 27. Ibid., 6:268–269. 28. Ibid., 6:269. 29. Neely, “The Constitution and Civil Liberties under Lincoln,” 50. 30. CW, 6:302–303. 31. Ibid., 6:303. 32. Ibid., 6:305. 33. Ibid.

220

Notes to Pages 149–155

34. Ibid. 35. Klement, The Limits of Dissent, 190–256.

8. A Gentleman Still

1. See Manakee, Maryland in the Civil War, 52; Biographical Cyclopedia of Representative Men of Maryland and [the] District of Columbia, 398. 2. Brown, Baltimore and the Nineteenth of April, 1861, 97. 3. Ibid., 98; Manakee, Maryland in the Civil War, 52– 53. 4. Ibid., 90. 5. Ward Hill Lamon, “Habeas Corpus,” in Ward Hill Lamon Papers, Huntington Library. 6. Ibid. 7. Lamon had purchased the notes assembled by Lincoln’s law partner, William H. Herndon, and turned them over to Chauncey Black. 8. Ward Hill Lamon, The Life of Abraham Lincoln (Boston: James R. Osgood, 1872). (Black was not identified as one of the authors.) 9. Ward Hill Lamon, Recollections of Abraham Lincoln, 1847–1865. 10. See discussion in Chapter 5. 11. New York Evening Post, June 17, 1861, as quoted in Swisher, The Taney Period, 853. 12. Steiner, “James Alfred Pearce,” 24. 13. Randall, Lincoln, the President: Midstream, 165. 14. Ibid. 15. Bates to Addison, July 12, 1861, Attorney General’s Letter Books, 1861– 65, National Archives, as cited in Silver, Lincoln’s Supreme Court, 36. 16. Baltimore Sun, July 11, 1861, 1; the indictment is fi led in United States v. John H. Merryman, alias John Merryman. Original records preserved in NAR A-MA. The presentment in the case listed the names of seventeen witnesses. 17. Baltimore Sun, July 11, 1861, 1; the original records are preserved in United States v. John H. Merryman, alias John Merryman, NARA-MA.

Notes to Pages 155–163

221

Sureties on Merryman’s recognizance were John S. Gittings, Charles Ridgely, Adam B. Kyle, and Charles A. Buchanan. 18. Randall, Constitutional Problems under Lincoln, 162n43. 19. Creamer, Baltimore Riots, April 19, 1861, Notes of evidence before the U.S. Grand Jury, June Term, 1861. 20. Radcliffe, Governor Thomas H. Hicks of Maryland and the Civil War, 56– 57. 21. Const., Art. VI, cl. 2. 22. Swisher, Roger B. Taney, 557– 558. 23. Ibid., 558. 24. Ibid. 25. Ibid. 26. Ibid., 559. 27. Taney to Nelson, May 8, 1864, as quoted in Swisher, Roger B. Taney, 559. 28. Taney to Campbell, May 14, 1864, as quoted in Lewis, Without Fear or Favor, 454. 29. Swisher, Roger B. Taney, 570– 572. 30. See Const., Art. III, § 2 (extent of judicial power). 31. Swisher, Roger B. Taney, 571, says: “Apparently his method of thinking on legal topics had so long been that of writing out his ideas in the form of court opinions that he found it easiest to use the same technique even in the privacy of his home.” 32. Prize Cases, 67 U.S. [2 Black] 635 (1863). 33. Ibid., 666– 667, 670. 34. Ibid., 665– 671. 35. Ibid., 682– 699. 36. Biographical Cyclopedia of Representative Men of Maryland and [the] District of Columbia, 398. 37. Manakee, Maryland in the Civil War, 133, 152. 38. Swisher, Roger B. Taney, 574. 39. Steiner, Life of Roger Brooke Taney, 503. 40. Taney to Wayne, December 31, 1861, in “Taney Letters,” 167. 41. Cooper, Jefferson Davis: The Essential Writings, 190–191.

222

Notes to Pages 163–169

42. An extended discussion of the “compact theory” is beyond the scope of this book; for further insights into the theory and its application, see Farber, Lincoln’s Constitution, 32, 34, 45, 47– 49, 81– 85; Neff, Justice in Blue and Gray, 9–13, 251–252. 43. Const., Preamble. 44. CW 4:264–268 45. Ibid., 4:433. 46. See Farber, Lincoln’s Constitution, 60– 62. 47. Dusenbery, Monument to the Memory of General Andrew Jackson, 380–381. 48. Richardson, A Compilation of the Messages and Papers of the Presidents, 2:630– 631. 49. Ableman v. Booth, 62 U.S. [21 How.] 506, 516– 517 (1858). 50. Richardson, A Compilation of the Messages and Papers of the Presidents, 2:635. 51. See, e.g., Spector, “Lincoln and Taney: A Study in Constitutional Polarization,” 209 (comparing the right of a member nation to withdraw from the United Nations to the right of a member state to withdraw from the United States); Simon, Lincoln and Chief Justice Taney, 1, 3, 194, 220–221. 52. Texas v. White, 74 U.S. [7. Wall.] 700, 725 (1869); see McGinty, Lincoln and the Court, 289–291. 53. See Fehrenbacher, Dred Scott Case, 553– 554. 54. “Fragment of a Manuscript Relating to Slavery in the United States,” Roger B. Taney Papers, Library of Congress. 55. Ibid. 56. Taney to Pierce, June 12, 1861, in American Historical Review 10 (1905): 368. 57. The suit was fi led in Harford County, Maryland, north of Baltimore, because Cadwalader owned real property in that county. A writ of attachment was issued attaching his property in the suit. See John Merryman v. George Cadwalader, NAR A-MA. 58. See John Merryman v. George Cadwalader, NAR A-MA. 59. Ibid.

Notes to Pages 169–174

223

60. Brugger, et al., Maryland: A Middle Temperament, 1634–1980, 807– 808; Manakee, Maryland in the Civil War, 60. 61. Culver, “Merryman Family,” 297. The headstone of Roger Brooke Taney Merryman, showing the dates of his birth and death, is in the graveyard of the Sherwood Episcopal Church in Cockeysville. The same graveyard contains a marble monument to John Merryman and headstones of many other members of the Merryman family. 62. The nolle prosequi was entered upon the direction of the attorney general. See letter from Attorney General’s Office, Washington, to Andrew S. Ridgely, U.S. Attorney in Baltimore, dated April 22, 1867, in United States v. John H. Merryman, alias John Merryman, NARA-MA. 63. Howard, The Monumental City, 691. 64. Advertisement in Southern Farm and Home Advertiser 4, no. 9 (July 1873): 4. 65. Howard, The Monumental City, 691. 66. Ragsdale, Ex parte Merryman and Debates on Civil Liberties during the Civil War, 27. 67. Sanders, The Story of the Herefords, 328–330. 68. Howard, The Monumental City, 690. 69. Sanders, The Story of the Herefords, 333–334. 70. Journal of the American Agricultural Association 1 (1881): 245; Proceedings of the Twenty-eighth Annual Meeting of the United States Agricultural Society, January 14, 1880 (Washington, DC: R. O. Polkinhorn, 1880), 2; Proceedings of the 31st Annual Meeting of the United States Agricultural Society, January 10, 1883 (Washington, DC: R. O. Polkinhorn, 1883), 6, 7, 8. 71. Baltimore Sun, November 16, 1881. 72. Ibid.

9. The Great Tribunal

1. See, e.g., Randall, Constitutional Problems under Lincoln, 131; Currie, “The Civil War Congress,” 1137; Halbert, “The Suspension of Habeas Corpus by President Lincoln,” 99, 109; Simon, Lincoln and

224

Notes to Pages 174–176

Chief Justice Taney, 190; Rehnquist, All the Laws but One, 44; Smith, Roger B. Taney: Jacksonian Jurist, 186. 2. See Williams, “Abraham Lincoln and Civil Liberties,” 542. 3. Taney, Habeas Corpus: The Proceedings in the Case of John Merryman, of Baltimore County, Maryland, 9. See Farber, Lincoln’s Constitution, 17 (decision made as “in chambers” decision of chief justice). 4. Marbury v. Madison , 5 U.S. [1 Cranch] 137, 173–175 (1803). 5. Neely, “The Constitution and Civil Liberties under Lincoln,” 41. 6. Ibid., 45. 7. Ex parte Bollman 8 U.S. [4 Cranch] 75, 96– 97, 107 (1807). 8. Hartnett, “The Constitutional Puzzle of Habeas Corpus,” 281, says “surely President Lincoln and his Attorney General would have raised the argument, particularly given the far-reaching arguments they did make.” But they did not. 9. The grant of jurisdiction in Section 14 of the Judiciary Act of 1789 was supplemented by later statutes. In 4 Stat. 632, 634– 635 (1833), 5 Stat. 539 (1842), and 14 Stat. 385–386 (1867), Congress made additional grants of original habeas corpus jurisdiction to individual Supreme Court justices. 10. 28 United States Code § 2241(a) (“Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions”). Notwithstanding this, Rapp, “In Chambers Opinions by Justices of the Supreme Court,” 183, states that “individual Justices no longer entertain writs of habeas corpus.” 11. Hartnett, “The Constitutional Puzzle of Habeas Corpus,” 277– 289, argues persuasively that the jurisdiction of individual justices to issue writs of habeas corpus is constitutional. Duker, A Constitutional History of Habeas Corpus, 165n89 states that, although “the Constitution specifically limits the original jurisdiction of the Court, . . . the individual justice in chambers or on circuit is subject to no such limit.” 12. 17 Fed. Cas. 144 (1861). The full title of this collection is The Federal Cases Comprising Cases Argued and Determined in the Circuit and District Courts of the United States from the Earliest Times to the Beginning of the Federal Reporter.

Notes to Pages 176–179

225

13. Matetsky, “The Publication and Location of In-Chambers Opinions,” vi–viii. 14. Rehnquist, All the Laws but One, 44. 15. OR, Series II, 2:576. 16. Rehnquist, All the Laws but One, 40– 41. 17. Ibid. 18. Hyman, A More Perfect Union, 84. 19. Neely, “The Constitution and Civil Liberties under Lincoln,” 41. 20. See Neff, Justice in Blue and Gray, 34 (“there had never before been a suspension, so that there was no precedent available for guidance”). 21. See Binney, The Privilege of the Writ of Habeas Corpus under the Constitution, 36l; see also discussion in Chapter 6. 22. Professors Paul D. Halliday and G. Edward White have written: “The English system of government in the seventeenth and eighteenth centuries was, in most respects, significantly different from the system of the American government created in the Founding Era. . . . [T]he system of separated tripartite powers, a two-tiered federal Union, and a republican form of government established by the American constitution was a major departure from the English model.” Halliday and White, “The Suspension Clause,” 673. 23. Johnson, “Power of the President to Suspend the Habeas Corpus Writ,” 193; Binney, The Privilege of the Writ of Habeas Corpus under the Constitution, 21. 24. See Warshauer, Andrew Jackson and the Politics of Martial Law, 19– 45, 77, 112, 189–196, 217; see also discussion in Chapter 5. 25. See Luther v. Borden, 48 U.S. [7 How.] 1, 45– 46 (1849) and discussion in Chapter 5. 26. See Johnson, “Power of the President to Suspend the Habeas Corpus Writ,” 187–188; Binney, The Privilege of the Writ of Habeas Corpus under the Constitution, 24–25, 32–34. See also discussion in Chapter 5. 27. See Johnson, “Power of the President to Suspend the Habeas Corpus Writ,” 185–186.

226

Notes to Pages 180–186

28. CW, 4:426. 29. See Hyman, A More Perfect Union, 139–140 (“By 1864 his view was general Republican doctrine”). 30. Whiting, Military Arrests in Time of War, 7–10 (“General War Powers of the President”) (1862); War Powers of the President, passim (1864); Neff, Justice in Blue and Gray, 31. 31. See discussion of the Birchard letter in Chapter 7. 32. CW, 6:303. See discussion in Chapter 7. 33. See concurring opinion of Associate Justice William O. Douglas in Parisi v. Davidson, 405 U.S. 34, 47 (1972), stating: “Mr. Chief Justice Taney, in Ex parte Merryman, 17 F.Cas. 144 (No. 9,487) (CC Md. 1861), held that the President alone had no authority to suspend the writ, a position that Lincoln did not honor. To date, the question has never been resolved. . . .” 34. Act of March 3, 1863, An Act relating to Habeas Corpus, and regulating Judicial Proceedings in Certain Cases, 12 Stat. 755. 35. Prize Cases, 67 U.S. [2 Black] 635, 670 (1863). 36. Ibid., 666. 37. McGinty, Lincoln and the Court, 248. 38. Ibid., 249. 39. Ex parte Milligan, 71 U.S. [4 Wall.] 2, 130 (1866). 40. Ibid., 125–126. 41. Ibid., 120–121. 42. Act of March 3, 1863, An Act Relating to Habeas Corpus, and regulating Judicial Procedure in Certain Cases, 12 Stat. 755; see discussion in Chapter 6. 43. Ex parte Milligan, 71 U.S. [4 Wall.] 2, 132–142 (1866). 44. See, e.g., Genovese and Spitzer, The Constitution: Cases and Controversies, 17; Thysell, “Ex Parte Milligan: Lincoln’s Use of Military Commissions,” 406; Downey, “The Confl ict between the Chief Justice and the Chief Executive: Ex parte Merryman,” 276; Lewis, Without Fear or Favor, 455; Silver, Lincoln’s Supreme Court, 228, 233, 236; Smith, Roger B. Taney: Jacksonian Jurist, 192; Warren, The Supreme Court in United States History, 2:374. 45. See Jackson, “The Power to Suspend Habeas Corpus,” 32.

Notes to Pages 187–194

227

46. Prize Cases, 67 U.S. [2 Black] 635, 669 (1863). 47. See Randall, Constitutional Problems under Lincoln, 137n29 (“in the Milligan case the Court did not go to the point of declaring invalid the action of the President in suspending the privilege, but rather declared against the use of military commissions in peaceful districts”). 48. See Authorization for Use of Military Force, Pub. L. No. 10740, 115 Stat. 224, codified at 50 United States Code § 1541. 49. See, e.g., Williams, “Abraham Lincoln and Civil Liberties,” 542 (“AAUMF was more of a declaration of war than most administrations received and was broad enough to answer any critic.”); Paulsen, “The War Power,” 121, 125 (AUMF as “the broadest, most sweeping, embracing, legal declaration of war in our nation’s history”). 50. See Rumsfeld v. Padilla, 542 U.S. 426 (2004); Rasul v. Bush, 542 U.S. 466 (2004); Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Hamdan v. Rumsfeld, 548 U.S. 557 (2006); Boumediene v. Bush, 553 U.S. 723 (2008). 51. Hamdi v. Rumsfeld, 542 U.S. 507 (2004). 52. Ibid. 53. Justice O’Connor wrote: “All agree suspension of the writ has not occurred here.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004). 54. Hamdi v. Rumsfeld, 542 U.S. 507 (2004). 55. Boumediene v. Bush, 535 U.S. 723 (2008); see Military Commissions Act of 2006, Pub. L. No. 109-366, § 7, 120 Stat. 2600, 2635–2636. 56. Boumediene v. Bush, 535 U.S. 723 (2008). 57. Ibid. 58. CW, 6:269. 59. Ibid., 6:267. 60. Ibid., 5:436– 437. 61. Ibid., 6:451– 452. 62. Lincoln to Albert G. Hodges, April 4, 1864, in CW, 7:281. 63. Herndon and Weik, Herndon’s Life of Lincoln, 449. 64. Ibid., 430. 65. Randall, Constitutional Problems under Lincoln, 137.

228

Notes to Pages 194–195

66. Rossiter, The Supreme Court and the Commander in Chief (expanded edition), 25. 67. Marbury v. Madison, 5 U.S. [1 Cranch] 137 (1803). 68. Holzer, The Lincoln-Douglas Debates, 75. 69. Paludan, “Taney, Lincoln and the Constitutional Conversation,” 29. 70. CW, 4:270. 71. See, e.g., Spector, “Lincoln and Taney: A Study in Constitutional Polarization,” 201 (“[W]e must not think that the Civil War settled any issues. The War settled nothing.”).

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INDEX

Abel, William H., 70 Ableman v. Booth (1858), 165 Addison, William Meade, 11, 79, 154, 177 Allison, Richard T., 162

Baltimore: violence in 33, 37, 42, 44– 46, 52– 53, 62, 78–79; response of residents to surrender of Fort Sumter, 34– 35; commercial life and cultural ties, 35– 37; population, 35; Lincoln passes through on way to Washington, 38; plot to assassinate Lincoln, 38; Northern troops arrive in, 42, 44; pro- Confederate sympathies in, 42, 47, 48; meetings held to protest passage of troops, 43 Baltimore and Ohio Railroad, 42, 49 Baltimore County Horse Guards, 61– 68 Banks, Nathaniel P., 151, 154 Bates, Edward: Lincoln solicits opinions of, 8, 82– 83; attorney general, 9, 104; papers forwarded to, 79; Lincoln discusses case

with, 95; to prepare opinion, 101–102; background, 104; opinion re suspension, 104–107, 115–116, 125, 127; consults opinion by Cushing, 105; Lincoln asks him to confer with Reverdy Johnson, 105; solicits Coffey’s views, 105; admires Taney, 105, 115; forwards Cameron’s order re John Merryman, 154; Price writes to re Taney, 157 Benedict, Judson, 134 Bernal, Frederick, 30– 31 Binney, Horace: constitutional scholar, 9; background, 127; critique of Taney’s Merryman opinion, 127–131; distinguishes writ from privilege of writ, 128–129 Birchard letter, 146–149, 181 Birchard, Matthew, 146, 181 Bitter, Lewis, 155 Black, Chauncey, 152, 220n7 Black, Jeremiah Sullivan, 152 Bonifant, Washington, 28–29 Booth, John Wilkes, 168 Bosley, Nicholas Merryman, 57

244

Index

Boumediene v. Bush (2008), 188–189 Breckinridge, John C., 119, 142 Bridges burned north of Baltimore, 47, 63, 67– 68, 69, 126, 154, 155, 156, 179 Brown, George: mayor of Baltimore, 9; memories of Ex parte Merryman, 31; at hearing in Ex parte Merryman, 31– 32; calls Lincoln assassination plot absurd, 38; and “strife in the air,” 42– 43; issues proclamations with Governor Hicks, 43; pro- Southern views, 43; attempts to subdue mob, 45; asks Lincoln to permit no more troops to pass through Baltimore, 47; and burning of bridges, 47– 48, 63; addresses crowd in Monument Square, 47, 72; assembles force for defense of Baltimore, 48; says bridges were burned “by authority,” 49 Brown, John, 35– 36 Buchanan, Franklin, 142 Buchanan, James: and Dred Scott, 2; sophisticated attorney, 2; and Fort Sumter, 33– 34; believes secession unconstitutional, 164; believes federal government lacks power to hold secessionist states in Union, 165, 166 Buckner, Simon B., 142 Burlingame, Michael, 41 Burnside, Ambrose, 139–140, 141, 143

Burr, Aaron, 86, 114 Bush, George W., 187 Butler, Benjamin, 49– 50, 51, 54– 55, 126

Cadwalader, George: as army general, 9; Merryman writ directed to, 11; sends R. M. Lee to court, 11; commander at Fort McHenry, 11, 70, 77; responds to Taney by letter, 12, 85– 86; does not appear in answer to writ, 28– 30; background, 69; receives Merryman at Fort McHenry, 70; in Merryman petition, 74; receives George H. Williams at Fort McHenry, 74; writ issues to, 77; in Taney’s opinion, 86– 91; Taney denies request for postponement, 86, 91, 177 Cadwalader, John, 69, 133 Cameron, Simon: secretary of war, 40; greets troops with Lincoln, 42; advises Hicks that progress of troops has been impeded, 43; tells Brown that bridges have been disabled, 49; Thompson writes about destruction of bridges, 68; promises Merryman parole, 154 Campbell, James Mason, 81, 94, 158 Campbell, Roger B. Taney, 10 Carman, George, 62 Casmire, Philip, 155 Catron, John, 125–126

Index Chase, Salmon P.: on possible secession of Maryland, 51; and income tax and legal tender, 158; and Ex parte Milligan, 182, 185–186 Chase, Samuel, 175 Chew, Charles R., 61 Civil War: as legal confl ict, 5, 6; legal decision made at Appomattox, 9; Grier characterizes as “greatest civil war known in the history of the human race,” 187; compared to War on Terror, 189–190; questions settled by, 195–196 Clifford, Nathan, 134–135 Cockey, Charles, 66, 68, 70, 155 Cockey, Peter, 65, 70 Cockeysville: troops at, 49, 65, 66, 68, 70; and Sherwood Parish, 58, 171, 223n61; Horse Guards at, 65, 69; troops leave, 68 Coffey, Titian J., 83, 105 Collamer, Jacob, 123 Commander in chief: Taney’s view of, 2, 88; Lincoln as, 4, 5, 9, 98– 99, 147, 172, 173, 180; Reverdy Johnson on powers of, 112, 113; Binney on powers of, 128, 131; Smalley on powers of, 136; Lincoln’s view of powers of and suspension power, 147, 173, 180; and Prize Cases, 160; Grier on, 160, 182; judicial authority over, 172 Compact theory, 163 Congress: meets in special session July 4, 1861, 117; debates

245

suspension, 117–122; ratifies all of Lincoln’s acts, proclamations and orders after March 4, 1861, 119; enacts habeas corpus act March 3, 1863, 122–123, 134, 181, 185–186, 192; supports Lincoln’s suspensions, 122–123, 194 Corning, Erastus, 142, 145, 146, 191 Curtin, Andrew, 39, 69 Cushing, Caleb, 105

Davis, David, 183–186, 192–193 Davis, Jefferson, 6, 46, 149, 163, 164, 167, 169 Doolittle, James R., 41 Dorr, Thomas, 112–113 Douglas, Stephen A., 22, 23, 24, 39, 107, 194 Dred Scott v. Sandford (1857): Taney decision in, 2, 11, 17–21; Lincoln’s views on, 21, 23–25; compared to Ex parte Merryman, 173; as judicial overreaching, 173

Emancipation Proclamation, 6, 138, 158 Ex parte Bollman (1807), 114, 130, 178 Ex parte Field (1862), 136–137 Ex parte Merryman (1861): popu lar response to, 1–2, 13; challenge to executive authority, 1–3, 13; hearing in, 1, 10–13, 27– 32; as assertion of judicial supremacy, 2, 173; Lincoln declines to submit

246

Index

Ex parte Merryman (1861) (continued) to, 5, 173; as military victory for South, 7; Taney opinion in, 7, 86– 92; as epic confrontation between Taney and Lincoln, 8– 9; Taney acts as Supreme Court justice “in chambers,” 8, 173–176; Taney decision not followed by Supreme Court ruling, 8, 181; in court of public opinion, 9; importance of, 9, 13; Giles did not participate in decision, 28, 176; unprecedented, 85; did not set Merryman at liberty, 91– 92, 150; reaction to Taney’s opinion, 92– 93; opinion printed, 94; copy of court papers delivered to Lincoln, 95; as case of fi rst impression, 130, 177, 178; as fi rst great legal confl ict of Civil War, 172; broad issues involved in decision, 172–173; controversial nature of decision, 173; errors in Taney opinion, 177–179; compared to Ex parte Milligan, 186–187. See also Lincoln, Abraham; Merryman, John (of Hayfields); Taney, Roger Brooke Ex parte Milligan (1866), 182–187, 192 Ex parte Vallandigham (1864), 8, 141. See also Vallandigham, Clement C.

Fehrenbacher, Don, 166 Field, Stephen J., 141

Fisher, Sydney George, 132 Forsyth v. Reynolds (1853), 21 Fort Sumter: and Ex parte Merryman, 7; Lincoln responds to crisis of, 33– 34, 39, 50, 97– 98, 105, 169; surrender of 34, 62, 167; attack on, 50; Lincoln says attack forces issue of immediate dissolution or blood, 97

Giles, William F.: present but silent on fi rst day of Ex parte Merryman, 11; absent on second day, 28; issues writ of habeas corpus for George Mullen, 78–79; remits indictment of John Merryman to circuit court, 155; Taney instructs not to hear treason cases alone, 157; warns grand juror not to divulge secret information, 157; believes district attorney may force cases to trial, 157–158; did not participate in Merryman decision, 176 Gill, George M.: attorney for Merryman, 11, 72–74; background, 72; and Merryman’s petition for habeas corpus, 73, 78, 79 Gittings, Ann Louisa (Mrs. John Merryman), 57 Glenn, William Wilkins, 42 Gott, Ann Maria, 56 Grason, Richard, 62, 63 Grier, Robert: and Binney’s pamphlet, 132; concurs in Ex

Index parte Vallandigham, 141; opinion in Prize Cases, 160, 161, 182, 187

Habeas corpus: as bulwark of Anglo-American legal system, 73; described, 73; as Great Writ of Liberty, 73, 150, 210n4; as generic term, 210n4; as habeas corpus ad subjiciendum, 210n4. See also Jurisdiction; Suspension clause; Suspension of habeas corpus Habeas corpus clause. See Suspension clause Hall, Dominick Augustin, 114, 153 Hall, Nathan K., 134 Hamdi v. Rumsfeld (2004), 188 Hamlin, Hannibal, 41 Hanan, John, 74 Hay, John, 95 Hayfields: described, 57– 58; cattle at, 58, 170; labor force, 59; slavery at, 60– 61; Merryman establishes observation post at, 65; Merryman arrested at, 70; Merryman returns to, 155; Merryman dies at, 171 Heckman, Adam, 69 Herndon, William, 192–193, 220n7 Hicks, Thomas: governor of Maryland, 9; on sentiment in Maryland in 1860, 35; issues proclamations with Mayor Brown, 43; addresses crowd in

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Monument Square, 47, 72; denies that he agreed to burning of bridges, 47, 156; Lincoln invites to Washington, 48; advises Lincoln and Butler not to land troops in Annapolis, 50; calls special session of Maryland legislature, 51; as KnowNothing, 59 Hooper, Michael, 155 Howard, John Eagar, 162 Hyman, Harold, 8, 177

Jackson, Andrew: Taney and, 14, 15, 16, 109, 114–115, 153, 164, 178; Lincoln and, 15, 50– 51, 144–145; vetoes Bank of United States, 108–109; suspends habeas corpus in New Orleans, 114–115, 144–145, 153, 178; orders arrest of judge Hall, 114, 153; argues that secession is unconstitutional, 164 Jefferson, Thomas, 86– 87, 114 “John Merryman” (song), 93– 94 Johnson, Andrew, 118, 170, 183 Johnson, Reverdy: on constitutionality of suspension, 8, 107–115; background, 9, 83; Lincoln consults on suspension issue, 83– 84; esteem for Taney, 107, 115; believes Lincoln’s suspension “perfectly constitutional,” 108 Johnson, William, 175 Johnston, Joseph E., 142

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Index

Jurisdiction: of federal courts governed by Constitution and statutes, 75, 80; appellate contrasted with original, 76, 79– 81; and Marbury v. Madison, 174–175; of individual justices to grant writs of habeas corpus, 174–176; Taney overeager to claim, 175

Kane, George: tries to prevent violence in Baltimore, 42, 46; calls for troops from western Maryland and Virginia, 48; arrested, 150–151; goes to Richmond, 162 Kansas-Nebraska Act, 22–23 Keim, William, 68– 69, 70, 73–74, 90, 91 Kenly, John R., 151 Kennedy, John Pendleton, 41 Key, Francis Scott, 33, 60, 71

Lafayette, Marquis de, 57 Lamon, Ward Hill, 151–153, 220n7 Lane, Henry, 123 Leavitt, Humphrey, 140 Lee, R.M., goes to court in place of Cadwalader, 11–12 Lee, Robert E., 6, 9, 36, 83, 142, 145, 168, 169 Lewis v. Lewis (1849), 21–22 Lincoln, Abraham: suspends habeas corpus 1, 8, 12, 84, 117–118, 136, 191–192; duty to take care

that laws be faithfully executed, 1, 30, 34, 88, 92, 101, 108, 136, 182; and public opinion, 3; does not believe Ex parte Merryman controlling, 3, 4, 5, 191, 194; legal background, 3, 13, 14; and rule of law, 3, 23; and Dred Scott, 3– 4, 23–25, 194; as commander in chief, 4, 5, 9, 98– 99, 147, 172, 173, 180; view of Supreme Court decisions, 4, 23–26, 194; oath of office, 4– 5, 27; and executive power, 4, 98, 114, 172, 180, 182, 195; calls militia to Washington, 5, 40– 41; and blockade of Southern ports, 5, 43, 105, 117, 138, 159–161, 180, 181–182; and making of suspension decision, 5, 82– 84, 98; declines to submit to Ex parte Merryman, 5, 173; special message to Congress, 8, 96–104; central role in Ex parte Merryman and suspension, 9; as “lawyer in chief,” 9; background and personal characteristics, 13–15; and Andrew Jackson, 15, 50– 51, 144–145; as appellate lawyer, 21–22; fi rst inaugural, 25–27; as lawyerly president, 26; views on secession, 26, 163–164; plot to assassinate in Baltimore, 38; meets Taney and associate justices in Washington, 39; summons Congress to special session, 40; meets with Brown, Scott, and cabinet in White House, 48, 49; orders troops to turn back, 49; refuses demand

Index that troops not be permitted to pass through Maryland, 50– 51; writes Winfield Scott, 51– 53, 82, 84; suspension order to Scott, 84; responds to Taney’s opinion, 95–104, 116; and Corning letter, 142–146, 191; and Birchard letter, 146–149; assassination of, 168, 183; believes Constitution permits certain measures in war time that it would not permit in peacetime, 191; conception of presidential duty, 192; David Davis on his opposition to military commissions, 193; Swett on his search for excuses to “evade the law,” 193; believes responsibility of interpreting Constitution is shared by courts, Congress, and executive, 194–195; the “great tribunal,” 195, 196. See also Ex parte Merryman Luther v. Borden (1849): Reverdy Johnson on, 112–113; Taney opinion in, 113, 115, 125, 178; Parker on, 125

Magna Carta, 89, 124 Magruder, John B., 142 Marbury v. Madison (1803), 20, 80, 174–175, 194 Marshall, John: upholds Bank of United States, 16; and Marbury v. Madison, 20, 80, 174–175, 194; Taney quotes re Burr conspiracy, 90; Reverdy Johnson on Bollman

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dictum, 114; Binney on Bollman dictum, 130; on jurisdiction of individual justices, 175, 212n22; Taney cites Bollman dictum, 178; on political questions, 215n35; and McCulloch v. Maryland, 218n43 Martial law: Coffey’s views on, 105; declared in Rhode Island, 112–113; declared by Jackson in New Orleans, 114–115, 144; Parker’s views on, 125, 126, 127; contrasted with military law, 126; Binney’s views on, 128; Lincoln proclaims, 135–136; Smalley’s views on, 136–137; Maryland under, 158; in Ex parte Milligan, 185 Maryland: ethnic composition and political sympathies, 36– 38, 53, 54, 55; few votes for Lincoln in 1860, 37– 38; slavery in, 59– 61; adopts new constitution October 13, 1864, 169; slavery abolished in, 169 Mason, James M. 53 Masonic Hall, Baltimore: as site of hearing in Ex parte Merryman, 10, 27–28 McCartney, James, 155 McCulloch v. Maryland (1819), 109, 218n43 McDonald, Joseph E., 183 McLane, Robert, 63 Merryman family, 56– 57 Merryman, John (of Hayfields): Southern sympathies, 1, 7; con fi ned in Fort McHenry, 1, 11,

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Index

Merryman, John (of Hayfields) (continued) 70–71, 72, 150–151, 153–154; as prominent Marylander, 1, 56; disloyalty, 7; as gentleman farmer, 9, 56, 58; early life, 56– 60; as one of founders of Maryland Agricultural College, 59; political activities, 59; slaveholder, 60– 61; proposes that bridges be burned, 62– 63; and Baltimore County Horse Guards, 62– 68; burns bridges, 67– 68, 179; arrested, 70; celebrated in song, 93– 94; decision in Ex parte Merryman elevates to fame, 93– 94; paroled from Fort McHenry, 154; indicted for treason, 154–155; Taney declines to set indictment for trial, 155–158; 1861 indictment dropped, 168–169; indictment left pending without trial, 169; new indictment for treason, 169; sues Cadwalader for false imprisonment, 169; names son after Taney, 169–170; elected to House of Delegates, 170; elected state treasurer, 170; nolle prosequi in treason indictment, 170; sells fertilizer with Waring, 170; continues cattle breeding, 170; president of agricultural societies, 170, 171; death, 171. See also Ex parte Merryman Merryman, Nicholas Rogers, 56

Milligan, Lambdin P., 182–186. See also Ex parte Milligan Miltimore, James, 69–70 Mitchell, Richard H., 155 Moore v. Brown (1850), 21 Morris, W.W., 78–79 Mullen, George, 78

Neely, Mark E., Jr., 174–176, 177 Nelson, Samuel, 141, 157, 160–161 Nicholas, Samuel Smith, 131–132 Nicolay, John, 95 Northern Central Railroad, 63, 68– 69, 154

O’Connor, Sandra Day, 188

Paludan, Philip, 195 Parker, Joel: constitutional scholar, 9; background, 123–124; critique of Taney’s Merryman opinion, 123–127 Peaceful separation, 167, 168 Pearce, James Alfred, 154 Pennsylvania Railroad, 68 Philadelphia, Wilmington and Baltimore Railroad, 38, 47, 63 Pierce, Franklin, 166–167 Pinkerton, Allan, 38 Political questions, 90, 113, 131, 178, 215–216n35 Polk, James K. 138 Preserve, protect, and defend Constitution, president’s duty

Index to: as prescribed in presidential oath, 4– 5, 27; Lincoln’s view of power to discharge duty, 4– 5, 173, 192; referred to in Lincoln’s fi rst inaugural, 27; Bates refers to, 106–107; as element of war power, 180; rebels determined to resist president’s efforts to discharge duty, 189 Preston, William B., 142 Privilege of writ of habeas corpus contrasted with writ, 128–129, 199–200n1 Prize Cases (1863): Lincoln administration prevails in, 8; and constitutionality of blockade, 159–160; argued before Supreme Court, 160; majority opinion by Grier, 160; dissent by Nelson, 160–161; Taney joins dissent, 161; and executive power, 181–182 Pugh, George E., 140

Randall, James G., 84, 98, 194 Randall, James Ryder, 53– 54 Rehnquist, William, 176–177 Ridgely, Andrew Sterrett, 62– 63, 170 Ridgely, Charles, 62 Rossiter, Clinton P., 194, 214n3

Scalia, Antonin, 188 Scott, Winfield: as army general, 9; loyalty to Union, 39; confers

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with Lincoln, 39, 48, 49, 84; and Maryland legislature, 51– 53; Lincoln writes to, 51– 53, 82, 84; orders troops to return to Pennsylvania, 66; and suspension of habeas corpus, 84, 95, 102, 103 Seward, William: as secretary of state, 9; arranges for Reverdy Johnson to come to White House, 84; recalls how Lincoln made suspension decision, 84; urges Lincoln to suspend, 84 Sherman, John, 118 Smalley, David A., 136–137 Spicer, Thomas, 12, 77 Steuart, George H., 66, 67, 156, 162 Stevens, Edward, 135 Stevens, Thaddeus, 120–121 Story, Joseph: Taney cites, 90; Coffey cites, 105; Reverdy Johnson on, 114, 178; Parker as successor to at Harvard, 124; Binney on, 130, 178 Suspension Clause: quoted, 87; Taney on, 87, 178–179; Story on, 90; Bates on, 106; Reverdy Johnson on, 110–111, 179; Parker on, 124–125; Binney on, 128, 131, 179; Lincoln on, 142, 146–147, 180 Suspension of habeas corpus: Lincoln’s decision to suspend, 5, 82– 84, 98; as legal issue, 6, 85; issue unresolved by Supreme Court, 8; Taney rules that president has no suspension

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Index

Suspension of habeas corpus (continued) power, 29, 85– 92; tumult in Maryland and, 52– 53; Lincoln’s fi rst mention of, 52, 82; Taney professes surprise at news of Lincoln’s suspension, 81– 82; unprecedented nature of Lincoln’s suspension, 85; Cadwalader informs Taney of Lincoln’s order of suspension, 85– 86 Swett, Leonard, 193 Swisher, Carl Brent: 7, 156–157

Take care that laws be faithfully executed, president’s duty to: Taney on, 1, 30, 88, 92; Lincoln on, 34, 99, 102; Bates on, 106; Reverdy Johnson on, 108; Smalley on, 136; Grier on in Prize Cases, 182 Taney, Roger Brooke: challenges Lincoln, 1; Ex parte Merryman ruling, 1–2, 6, 7; issues writ, 1, 11; Dred Scott ruling, 2– 3, 17–21; legal background, 3, 15–16; pro- Southern sympathies, 7, 79, 93, 161–162, 173, 177; as chief justice, 8, 9; physical appearance, 10; hearing in Ex parte Merryman, 10–13, 27– 32; at Lincoln inauguration, 11, 25, 27; background and personal characteristics, 13–17; and Andrew Jackson, 14, 15, 16, 109, 114–115, 153, 164, 178;

venerated in Baltimore, 31; ignores unrest in Maryland, 33; and “Star- Spangled Banner,” 33, 71, 204n1; Lincoln calls on justices in Washington, 39; as both supreme court justice and circuit judge, 74–75; receives Merryman’s petition, 76; orders that writ issue, 77–78; goes to Baltimore to hear petition, 81; opinion in Ex parte Merryman, 86– 92; opinion in Luther v. Borden, 113, 115, 125, 178; rumored order for arrest of, 151–153; declines to set treason indictments for trial, 155–158; sympathetic to accused traitors, 156–157; to advise Giles not to let treason cases go to trial, 158; writes out opinions before cases are presented, 159; uniformly hostile to policies of Lincoln administration, 159, 161; joins dissent in Prize Cases, 161; likens Civil War to Revolutionary War, 162; declines to join other justices in calling on Lincoln, 162; believes secession unconstitutional, 162–166; prefers peaceful separation, 167; writes Franklin Pierce, 167; death, 168; Rehnquist criticizes conduct of Merryman case, 176–177; errors of in Merryman opinion, 177–179. See also Ex parte Merryman Texas v. White (1869), 165

Index Thirteenth amendment: Lincoln supports, 6 Thompson, J. Edgar, 68 Towson Guards, 61, 65 Treat, Samuel, 137–138 Trumbull, Lyman, 118–119, 121–123 Tyler, John, 112–113

Vallandigham, Clement C.: Ohio politician, 138–139; criticizes Lincoln, 138–140; tried and sentenced by military commission, 140; Lincoln modifies sentence, 140–141, 181; Supreme Court declines to interfere, 141; Albany Democrats denounce arrest of, 141–142; Lincoln responds to Albany Democrats with Corning letter, 142–146; Lincoln has no personal knowledge of arrest, 148; meets with Jefferson Davis, 149. See

253

also Ex parte Vallandigham (1863) Vance, Mr., 29

Wallis, Severn Teackle, 153–154 Ward, Francis X., 53, 55 Waring, Benjamin, 170 War on Terror, 188, 189 War power, 5, 173, 180, 200n1 Wayne, James M., 132–133, 135, 141, 162 Whiting, William, 180–181 Williams, George H.: attorney for Merryman, 11, 72–74; and Merryman’s petition for habeas corpus, 73, 76, 78, 79; affidavits of, 74, 76 Wilson, Douglas L. 97, 201 Wilson, Henry, 117–119

Yohe, Samuel, 69–70