Above, Chief Justice Roger Taney
Two days after Lincoln's letter to Scott, he suspended the writ of habeas corpus along the rail corridor from Philadelphia to Washington D.C. This meant that anyone arrested in the area did not need to be brought before a judge and could be held indefinitely. On May 25th, a lieutenant in the Baltimore County Horse Guards, John Merryman, was arrested by Federal troops. Merryman had been under orders from the Governor of Maryland, Thomas Hicks, and the mayor of Baltimore, George Brown, to blow up railroad bridges north of the city. He was held at Fort McHenry, under command of Gen. George Cadwalader.
The Chief Justice of the Supreme Court at this time was Roger Taney. You may remember him from his infamous decision in Dred Scott v. Sanford. Taney and Lincoln were political adversaries, and it just so happened that Justice Taney was serving temporarily as a Circuit Court judge in Maryland. Back then, Supreme Court justices would sometimes travel and preside over Circuit Courts. That doesn't happen today! Taney demanded that Merryman be presented in his court, a request that was denied by Gen. Cadwalader. Cadwalader claimed that Lincoln's suspension of habeas corpus gave the Army the right to hold Merryman without trial for as long as it deemed necessary. Furious, Taney charged Cadwalader with Contempt of Court and issued a decision in the case, even though Merryman was not present for the case, known as Ex parte Merryman. For the full court case, click here. Here are excerpts from that decision:
"The clause of the constitution, which authorizes the suspension of the privilege of the writ of habeas corpus, is in the 9th section of the first article. This article is devoted to the legislative department of the United States, and has not the slightest reference to the executive department."
Taney is clearly stating that in the Constituition, the section that pertains to the writ of habeas corpus is found in Article 1, which deals with powers of Congress, not the President. Taney continues by asserting that the protection of this right was very important to the Founding Fathers:
"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 first in the list of prohibited powers."
Taney claims the President has no power to suspend habeas corpus:
"If the high power over the liberty of the citizen now claimed, was intended to be conferred on the president, it would undoubtedly be found in plain words in this article; but there is not a word in it that can furnish the slightest ground to justify the exercise of the power."
Taney next mentions the Aaron Burr case as an example of a President, Thomas Jefferson, asking Congress to suspend habeas corpus:
"When the conspiracy of which Aaron Burr was the head, became so formidable, and was so extensively ramified, as to justify, in Mr. Jefferson's opinion, the suspension of the writ, he claimed, on his part, no power to suspend it, but communicated his opinion to congress, with all the proofs in his possession, in order that congress might exercise its discretion upon the subject, and determine whether the public safety required it. "
Taney makes an argument that the military, under Presidential orders, has subverted American government itself, and replaced it with a military government:
"But the documents before me show, that the military authority in this case has gone far beyond the mere suspension of the privilege of the writ of habeas corpus. It has, by force of arms, thrust aside the judicial authorities and officers to whom the constitution has confided the power and duty of interpreting and administering the laws, and substituted a military government in its place, to be administered and executed by military officers."
Finally, Taney asserts that Lincoln's actions violate the very soul of American democracy, freedom:
"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."
Was Taney right? Did the President have no power to suspend habeas corpus? What do you think?