- The Washington Times - Friday, October 20, 2006

The extent of the president’s constitutional war powers, a topic straight out of today’s headlines, was no less an issue during the Civil War. One incident in Maryland very early in the crisis resulted in a clash between President Lincoln and the chief justice of the United States.

After Fort Sumter surrendered, Lincoln called for 75,000 volunteer troops to reinforce Washington and put down the rebellion. On April 19, 1861, as the Sixth Massachusetts Regiment was marching through Baltimore to change trains en route to Washington, an angry mob of pro-secessionists attacked the soldiers with cobblestones and sticks. Some of the troops fired into the crowd, and when the melee was over, four soldiers and 12 Baltimoreans lay dead.

Baltimore Mayor George Brown and Gov. Thomas H. Hicks declared that they would allow no more troop transfers through the city and state. Local militias took steps to prevent further troop movements.

On the same day as the Baltimore riot, Lincoln wrote to his attorney general requesting an opinion on the legality of suspending the writ of habeas corpus. On April 27, the president authorized General in Chief Winfield Scott and his subordinates to suspend habeas corpus within the vicinity of the “military line” at their discretion.

Lincoln, believing the capital and the nation to be in imminent danger, justified the suspension of habeas corpus on the grounds of military necessity and took the action himself because Congress was not in session.

The suspension was kept secret at first. Even by May, after several members of the Maryland General Assembly had been arrested without warrants or stated charges, the federal government still had not publicly acknowledged the suspension.

John Merryman, a Baltimore County Democrat, president of the Maryland Agricultural Society and an officer in a local militia unit, participated in the repulse of some Pennsylvania troops from the state. He also took a lead role in demolishing a bridge to deter further troop movements. Early in the morning of May 25, 1861, Merryman was roused from his bed by federal troops, arrested and imprisoned at Fort McHenry. His attorney quickly filed a petition for a writ of habeas corpus to secure his release.

The writ of habeas corpus, also known as the “Great Writ,” is a legal proceeding in which a person held in custody can challenge the legality of his detention. “Habeas corpus” is Latin for “you have the person,” the opening words of a 14th-century English writ requiring that a person be brought before a court or judge to determine whether the person is being legally detained.

The right to petition for a writ of habeas corpus is a long-standing tradition under both English common law and American law. As one commentator put it, the writ “is the great remedy of the citizen or subject against arbitrary or illegal imprisonment; it is the mode by which the judicial power speedily and effectually protects the personal liberty of every individual, and repels the injustice of unconstitutional laws or despotic governors.”

Merryman’s petition for a writ of habeas corpus went to the federal circuit court. Luckily for him, the “circuit” judge who received the petition was none other than Roger B. Taney, chief justice of the United States.

Supreme Court justices at that time sat as circuit judges when the Supreme Court was not in session. Each of the justices heard cases in one of the geographical circuits around the country, usually near where the justices had their permanent homes, a practice known as “circuit riding.” Taney’s home was in Baltimore.

Taney was no mere disinterested jurist when Merryman’s petition came before him. A Jacksonian Democrat, Taney had been appointed attorney general of Maryland in 1827 and had become Andrew Jackson’s attorney general in 1831. He had replaced John Marshall as chief justice in 1836.

As a loyal Democrat, Taney certainly was no friend of the recently elected Republican administration. More ominously, he also was the author of the infamous Dred Scott decision, which in 1857 held that slaves and free descendants of slaves were “inferior beings,” not citizens of the United States, and that the “black man has no rights a white man is bound to respect.”

Taney issued the writ, but the military authorities refused to hand over Merryman, claiming they had no instructions from the War Department. Taney set to work to deal with the standoff. His opinion in the case, which became known as Ex parte Merryman, held that the Lincoln administration’s suspension of habeas corpus was unconstitutional. Article 1, Section 9, Clause 2 of the Constitution provides that only Congress has the power to suspend habeas corpus, and only then in “Cases of Rebellion or Invasion” where “the public Safety may require it.”

However, because Lincoln was really making an “argument from necessity” for defending the government from imminent danger, Taney dealt with that issue as well. He angrily wrote that none of the kings of England had exercised such power, and therefore Lincoln’s act was more tyrannical and despotic than those of any British monarch had been. He concluded the opinion with these words:

“These great and fundamental laws … have been disregarded and suspended … by a military order, supported by force of arms. Such is the case 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.”

Taney thought that his ruling in Merryman probably would lead to his arrest, and there is some evidence that Lincoln may have had an arrest warrant drawn up but later changed his mind. Taney was 84 when he wrote the Merryman decision, and he said to a friend soon after, “I am an old man, a very old man, but perhaps I have been spared for this occasion.” His opinion in Merryman did much to elevate his reputation as a jurist after the Dred Scott decision. Taney died in 1864, and Salmon P. Chase, secretary of the Treasury, succeeded him as chief justice.

Lincoln reacted to Ex parte Merryman by ignoring it. Ironically, Lincoln cited as precedent Andrew Jackson, Taney’s political patron, who similarly had ignored Supreme Court decisions because he believed they were not binding on the executive. In a July 1861 address to a reassembled Congress, Lincoln sought authority to suspend the writ and asked rhetorically, “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” Congress failed to act.

To deal with the Copperhead Democrats and other dissenters, Lincoln continued making unauthorized suspensions between 1861 and 1863, and additional federal courts affirmed Taney’s ruling. Congress finally enacted the Habeas Corpus Act of 1863, formally suspending the writ for the duration of the war. In 1866, the Supreme Court restored habeas corpus in another famous case, Ex parte Milligan, ruling that military trials in areas where the civil courts were capable of functioning were illegal.

Interestingly, Jefferson Davis also suspended habeas corpus in various parts of the Confederacy. Davis secured his authority from the Confederate Congress under a provision of the Confederate Constitution that was identical to Article 1, Section 9, Clause 2 of the U.S. Constitution.

Davis, however, unlike Lincoln, did not have to deal with an “interfering” judiciary. The Confederate Constitution authorized a Supreme Court, but the court never came into existence. Some lower “national” courts did exist, but it is unknown whether suspension of the writ was ever challenged in a Confederate court. Nevertheless, suspension appears to have been just as controversial in the South as in the North. Gov. Joseph E. Brown of Georgia inveighed against the measure, and in 1864, the Georgia General Assembly declared Davis’ action unconstitutional.

An ancient legal maxim states: Inter arma silent leges (Latin for “during war, the laws are silent”). That maxim does not seem to have much currency in the United States, however; our courts have always actively grappled with what it means to live under the rule of law even when the nation is faced with imminent danger.

Issues and legal disputes arising from the Civil War, including the tension between civil liberties and the perceived necessities of dealing with an implacable enemy, seem to resonate in our own era. Perhaps it’s comforting to know that both Ex parte Merryman and Ex parte Milligan have been reaffirmed and cited with approval in Hamdi v. Rumsfeld (2004) and Hamdan v. Rumsfeld (2006), two Supreme Court cases dealing with the rule of law in an age of terrorism.

Richard P. Cox is a lawyer, freelance writer and a member of the Chesapeake Civil War Roundtable. He lives in Annapolis.

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