Ex parte Merryman and Abraham Lincoln's Suspension of Habeas Corpus

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After the outbreak
of the American Civil War, President Abraham Lincoln, claiming emergency
powers, suspended habeas corpus, a person's right to have a judge
determine the legality of his imprisonment. Lincoln authorized
the military to arrest and indefinitely detain anyone suspected
of aiding the rebels. This decision outraged many of Lincoln's
contemporaries, and has been a subject of debate for constitutional
scholars ever since. Roger Taney, the Chief Justice of the Supreme
Court during Lincoln's presidency, voiced particular outrage in
his Ex
parte Merryman
opinion. The following essay will summarize
Taney's arguments against Lincoln's claim of executive power, arguing
that Taney's interpretation of the Constitution is superior to Lincoln's.

According to
historians David Donald and James Randall, Lincoln relied on arbitrary
arrests for political expediency. If Lincoln had exclusively utilized
the courts to judge cases of suspected treason, he would have convicted
few, since the Constitution sets strict requirements for a treason
conviction. Moreover, those who were convicted might become
martyrs and incite more resistance. Therefore, Lincoln suspended
habeas corpus and allowed the military to conduct arbitrary arrests. [i]

Lincoln gave
several more diplomatic justifications for suspending habeas corpus.
First, he formulated a u201Cdoctrine of necessity.u201D Since the president
takes an oath to preserve, protect, and defend the Constitution,
he must violate it during emergencies to preserve the government.
Sometimes we amputate limbs to preserve life; similarly, presidents
must occasionally violate the Constitution to save it. Second,
Lincoln offered two constitutional justifications for his actions.
He cited the president's duty to make sure that the nation's laws
are faithfully executed; since disloyal Northerners could prevent
Lincoln from u201Cfaithfully executingu201D law, he could suspend their
right to habeas corpus. [ii] He then cited the commander-in-chief
clause of the Constitution, claiming that, as commander-in-chief
in wartime, he had u201Ca right to take any measure which may best subdue
the enemy.u201D [iii]

Before considering
Ex parte Merryman, we should discuss the events that led
Taney to write the opinion. In May 1861, Union General George Cadwalader
ordered John Merryman's arrest for being u201Can active secessionist
sympathizer.u201D Under Cadwalader's order, Merryman was held in a
military prison at Fort McHenry. When Taney, who was on circuit
duty, demanded that Cadwalader allow him to judge the legality of
Merryman's detainment, Cadwalader refused, citing Lincoln's orders.
Taney then attempted to hold Cadwalader in contempt, but Union soldiers
refused to admit the marshal who tried to serve him Taney's writ.
Thereafter, a frustrated Taney wrote his Merryman opinion.
[iv]

In his Ex
parte Merryman opinion, Chief Justice Roger Taney addresses
Lincoln's claims of sweeping executive power. He directly challenges
Lincoln's claim that his duty to faithfully execute the nation's
laws justifies the suspension of habeas corpus. The clause that
requires the president to u201Cfaithfully executeu201D the laws, Taney says,
does not permit him to u201Cexecute them himself, or through agents
or officers, civil or military.u201D
[v]
Instead, the president's duty is to assure that no outside
force interferes with the government's execution of the laws. Therefore,
he must help the judicial branch if some outside force threatens
the judiciary's power; he does not have the right to utilize the
military to usurp judicial authority.

Taney also
challenges Lincoln's assertion that emergencies require the executive
to usurp congressional and judicial authority. Near the end of
the opinion, he says that, if the executive branch can, in any
situation, overstep other branches, then u201Cthe people of the United
States are no longer living under a government of laws.u201D In Taney's
view, the Constitution is not a mere suggestion of how government
should operate under ideal circumstances. Instead, it is a concrete
document to which the executive must adhere at all times, including
times of emergency. If presidents can abandon the Constitution
u201Cupon any pretext or under any circumstances,u201D the Constitution
means nothing. [vi]

Perhaps most
importantly, Taney says the framers never intended for the executive
to suspend habeas corpus. He offers mounds of evidence to support
this contention. First, he cites a major crisis during Thomas Jefferson's
presidency. Aaron Burr, Jefferson's vice president, led a conspiracy
to seize territory around New Orleans to form a new country. During
this time, Jefferson actually wanted to suspend the writ,
but wrote that he lacked the authority. Instead, he suggested that
Congress exercise its power to suspend habeas corpus.
[vii]

Second, he
writes that the framers, fearing a liberal interpretation of the
u201Cnecessary and properu201D clause, which gives Congress the right to
pass any law deemed u201Cnecessary and properu201D for carrying out its
duties, listed several fundamental rights that cannot be violated.
It is not a coincidence, Taney says, that the first right listed
is the writ of habeas corpus, which may only be suspended in times
of invasion or rebellion.
[viii]

Third, Taney
argues that it defies common sense to believe the framers would
have trusted the executive with the right to suspend habeas corpus.
They had just broken away from a powerful, despotic English monarch.
Therefore, they distrusted a powerful executive, especially one
who could arrest citizens and hold them indefinitely without trial.
As evidence, Taney cites the strict limits Article 2 places on the
executive, such as the requirement for congressional approval of
treaties with foreign nations and his short term of office. [ix]

Taney persuasively
argues that the Constitution expressly denies the executive the
right to suspend habeas corpus, even going so far as to say u201CI had
supposed it to be one of those points of constitutional law upon
which there was do difference of opinion, and that it was admitted
on all hands, that the privilege of the writ could not be suspended,
except by act of Congress.u201D
[x]
To support this contention, Taney cites Article 1, Section
9 of the Constitution, which gives Congress alone the power to suspend
Habeas Corpus. He also cites the fact that Article 1 u201Cis devoted
to the legislative department of the United States, and has not
the slightest reference to the executive department.u201D
[xi]
To further support his case, Taney discusses Article
2 of the Constitution, which deals with the executive branch. Taney
writes that u201Cif 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.u201D [xii] However, Article 2 never gives the president this power.

Taney quotes
his predecessors on the Supreme Court to bolster his arguments.
Justice Joseph Story, for example, once wrote that u201CIt would seem,
as the power is given to Congress to suspend the writ of habeas
corpus…that the right to judge whether the exigency had arisen must
exclusively belong to that body.u201D [xiii] Moreover, he refers to
an opinion written by Chief Justice John Marshall. Marshall's opinion
says that, if suspending the writ is necessary for public safety,
only Congress may do so. Until Congress suspends the writ, the
courts must maintain habeas corpus. To capitalize on the high esteem
most Americans give Marshall, Taney says u201CI can add nothing to these
clear and emphatic words of my great predecessor.u201D
[xiv]

The influence
of English common law on America's legal system, Taney argues, supports
his position. For centuries, the English dealt with monarchs who
arbitrarily imprisoned their own citizens. Therefore, they, like
the framers, denied executives the authority to suspend habeas corpus.
Taney quotes English judge William Blackstone at length, who once
wrote that u201CBut the happiness of our constitution is, that it is
not left to the executive power to determine when the danger of
the state is so great as to render this measure expedient.u201D [xv] Though Taney concedes that the English and
American systems differ greatly, he reminds readers that u201Cupon this
subject they (English judges) are entitled to the highest respect,
and are justly regarded and received as authoritative by our courts
of justice.u201D [xvi]

Even if Congress
had suspended habeas corpus, Taney argues, Merryman should
still be released. Cadwalader did not have probable cause to detain
Merryman. Taney correctly points out that Cadwalader never produced
any witnesses to support his accusations, nor did he bother to specify
u201Cthe acts which, in the judgment of the military officer, constituted
these crimes.u201D [xvii] Furthermore, even if
the suspension of habeas corpus were legal, the military could not
refuse to cooperate with the judicial branch. Though the military
can arrest private citizens, it must immediately transfer them to
civil authorities.

On the question
of the framers' original intent, Taney's view is clearly the correct
one. The framers would never have wanted the executive to have
the power to suspend habeas corpus under any circumstances; they
repeatedly criticized their previous ruler, the English king, for
similar behavior. For example, in the u201CDeclaration of Independence,u201D
Thomas Jefferson attacks King George because he u201Chas affected to
render the military independent of and superior to civil power.u201D [xviii] Lincoln, by allowing the military to
arbitrarily arrest private citizens and sidestep judicial authority,
differed little from George III. Moreover, as Taney points out,
during Thomas Jefferson's presidency, when most of the framers were
still in government, no one, even during a time of crisis (the Burr
conspiracy), believed the president could suspend habeas corpus.
Nor did President James Madison, the u201Cfather of the Constitution,u201D
claim sweeping executive powers during the War of 1812, as Tom
DiLorenzo
has written. [xix]

Even if we
do not consider the framers' original intent, Taney's interpretation
is clearly superior; as Taney writes, this should be u201Cone of those
points of constitutional law upon which there was no difference
of opinion.u201D Article 1, Section 9 of the Constitution gives Congress,
not the president, the power to suspend habeas corpus. If the president
had the power to suspend habeas corpus, it would be found in Article
2, which deals with the executive branch; it is not.

Many of Lincoln's
defenders concede the unconstitutionality of his suspension of habeas
corpus, but argue that, although the suspension was dictatorial,
Lincoln was a u201Cgood dictator.u201D James G. Randall even called Lincoln
a u201Cbenevolent dictator,u201D a phrase many would consider an oxymoron.
However, it is easy for those who never suffered the effects of
Lincoln's u201Cbenevolentu201D dictatorship to defend him. John Merryman,
who was arrested in his home without probable cause, would disagree
with Randall's analysis. So would Francis Key Howard, who spent
two years in military prison at Fort McHenry and wrote a book about
his experience there called The American Bastille.
[xx]
Moreover, what is the Constitution worth if one man (the
president), under a pretext of his choosing, can decide to ignore
it?

After Taney
issued his Merryman opinion, which President Lincoln ignored,
the Lincoln administration increased its usurpation of judicial
and congressional powers. Lincoln, incensed by Taney's defense
of civil liberties, issued a warrant for his arrest.
Several sources corroborate this controversial warrant. First,
the private papers of Lincoln's former law partner, Ward Hill Laman
(who was a Federal Marshal at the time) contain a reference to the
warrant, saying u201CAfter due consideration the administration decided
upon the arrest of the chief justice.u201D Second, Taney warned friends
that he may be arrested, including George Brown, the future mayor
of Baltimore. Fortunately, no one could find a marshal who was
willing to arrest an 84-year-old judge. [xxi]

Lincoln's attempt
to arrest Taney helps prove Taney's accusation that Lincoln was
willing to usurp judicial authority and endanger American liberty.
Lincoln not only ignored an order from the Chief Justice of the
Supreme Court; he even tried to have the judge arrested. If Lincoln
had succeeded in arresting Taney, he would have virtually destroyed
the separation of powers upon which this nation was founded. How
can the judiciary maintain its independence if the president can
have the Chief Justice arrested for merely issuing an opinion with
which he disagrees?

Donald and
Randall's analysis also supports Taney's opinion. If Lincoln decided
to suspend habeas corpus simply because he feared that he could
gain few treason convictions, he viewed the Constitution as an obstacle
to be sidestepped, not a foundation for preserving liberty. Furthermore,
his belief that he would attain few convictions supports Taney's
claims. After declaring that the military lacked probable cause
in the Merryman case, Taney concluded that the government
probably lacked evidence for many of its other arrests and encouraged
other judges to demand writs of habeas corpus.
[xxii]
Lincoln's cynicism helps show that Taney was correct.

President Lincoln's
suspension of habeas corpus lacked both moral and constitutional
justification. It confined thousands in military prisons for opposing
war and voided years of jurisprudence. The Constitution never gives
the president the right to suspend habeas corpus, nor can that right
be inferred from the commander-in-chief clause or the president's
duty to faithfully execute the laws. Lincoln's suspension was not
only illegal; it was also dangerous, threatening the separation
of powers that prevents any one branch of government from becoming
too powerful. Moreover, his actions inspired future presidents
to ignore the Constitution during times of crisis. Especially today,
with the post-9/11 crackdown on civil liberties, Americans would
be wise to reread Ex parte Merryman.

Notes

[i] James G. Randall and David Donald, The
Civil War and Reconstruction
, 2nd Ed. (Boston:
D.C. Heath and Company, 1961), 300.

[ii] Michael Genovese, The
Power of the American Presidency
(New York: Oxford University
Press, 2001), 81.

[iii] Genovese, 84.

[iv] Randall, 301–302.

[v] Roger Taney, u201CEx
Parte Merryman
,u201D n.d. (28 Mar. 2005).

[vi] Ibid.

[vii] Ibid.

[viii] Ibid.

[ix] Ibid.

[x] Ibid.

[xi] Ibid.

[xii] Ibid.

[xiii] Ibid.

[xiv] Ibid.

[xv] Ibid.

[xvi] Ibid.

[xvii] Ibid.

[xviii] Thomas Jefferson, u201CDeclaration
of Independence
, n.d. (28 Mar. 2005).

[xix] Thomas J. DiLorenzo, The
Real Lincoln
(New York: Three Rivers Press, 2002), 134.

[xx] Ibid., 134.

[xxi] Charles Adams, u201CLincoln's
Presidential Warrant to Arrest Chief Justice Roger B. Taney
,u201D
5 Jan. 2004 (28 Mar. 2005).

[xxii] Ibid.

April
5, 2005

Andrew
Young [send him mail] is a
senior history major at Kentucky Wesleyan College in Owensboro,
Kentucky.

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