Speaking Truth to the Great Incarcerator

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"The evil men do live after them," Marc Antony said in the famous funeral oration in Shakespeare’s The Tragedy of Julius Caesar; "the good is oft interred with their bones." To which the great Casey Stengel might have replied: "And vice versa."

For in the minds of most Americans, the evil that Abraham Lincoln did lies buried with his bones in Springfield, Illinois, where today, both Republicans and Democrats make pilgrimage to pay him homage. Indeed, Illinois Senator Barak Obama, hoping to be the first African-American president, made the formal announcement of his candidacy in the state capital, home and final resting place of "the Great Emancipator."

The good that Roger Taney did, on the other hand, lies buried more deeply than Lincoln’s abuses of power. The chief justice of the United States during the middle third of the 19th century, Taney is generally remembered, if at all, solely for his decision in the Dred Scott case, for which he was much despised by Republicans and abolitionists. The Scott case notwithstanding, Taney was worthy of a better fate. In our own day, when the President of the United States has claimed the power to imprison, indefinitely and without trial, anyone suspected of being an "enemy combatant," the opinion of the chief justice in the case called Ex parte Merryman is worth considering.

The case came to the aged chief justice — he was then 84 — in late May of 1861, roughly six weeks after the attack on Fort Sumter. John Merryman, a Baltimore resident with known Southern sympathies, was arrested by military authorities and imprisoned at Fort McHenry. The next day his lawyer appeared before the chief justice in Washington with a petition for a writ of habeas corpus. Taney ordered that Merryman be brought before him at a court in Baltimore the following day.

Instead, a military aide to General George Cadwalader, commander of the district, appeared and informed the chief justice that the President of the United States had suspended the writ of habeas corpus. Thus it was that Taney learned, as he wrote in his opinion a few days later, "that the President not only claims the right to suspend habeas corpus himself, at his discretion, but to delegate that discretionary power to a military officer, and leave it to him to determine whether he will or will not obey judicial process that may be served upon him."

The firing on Fort Sumter had occurred on April 12. Three days later Lincoln summoned Congress to meet in extraordinary session — at noon on July 4th. It was there, in addressing Congress for the first time since the outbreak of hostilities, that Lincoln set forth the reasoning behind his extraordinary claim of power. The president cited the following from Article I, Section 9 of the Constitution: "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." Lincoln argued that the Confederate states were in rebellion against the national government and that the public safety did, indeed, require what he called "the qualified suspension of the privilege of the writ…"

Then semi-Honest Abe, who repeatedly belittled the "sophism" behind the claim to a right of secession, committed a major league sophistry of his own. "Now it is insisted," he noted, "that Congress, and not the Executive, is vested with this power. But the Constitution 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…"

Note that by that time Lincoln had three months to bring the Congress together and put the question of suspending habeas corpus before it and had not done so. Nor did he do so on July 4th. Neither did he consult or advise the judicial branch on the matter. He merely claimed that, since "the Constitution is silent as to which or who is to exercise this power," he would arrogate it to himself.

By the time Lincoln informed the Congress of his reasoning, Taney had already dismissed it. The provision concerning the suspension of habeas corpus, he pointed out, appears in Article I, which enumerates the powers and duties of the Congress. Article II, which details the powers and duties of the Executive, makes no mention of it. That, he reasoned, makes clear where the power lies and where it does not. "And 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 (the second) article. But there is not a word in it that can furnish the slightest ground to justify the exercise of the power."

Taney didn’t stop there. He noted that President Jefferson, confronted with a conspiracy led by Vice President Aaron Burr, asked Congress for a suspension of the writ of habeas corpus. The Congress refused to grant it. He quoted, among others, Justice Joseph Story. "It would seem," Story had written, "as the power is given to Congress to suspend the writ of habeas corpus, in cases of rebellion or invasion, that the right to judge whether the exigency had arisen must exclusively belong to that body."

Taney further noted that the war had not interfered with the ordinary functions of the courts and law in the district where Merryman was arrested and imprisoned. "For, at the time these proceedings were had against John Merryman, the district judge of Maryland, the commissioner appointed under the act of Congress, the district attorney, and the marshal, all resided in the city of Baltimore, a few miles only from the home of the prisoner. Up to that time, there had never been the slightest resistance or obstruction to the process of any court or judicial officer of the United States, in Maryland, except by the military authority."

The chief justice ordered that Merryman be freed and that a sealed copy of his decision be delivered to the president. Merryman was released a few weeks later, but Lincoln never recanted his claim that he had the power to suspend the writ of habeas corpus when he determined that the public safety required it. The Great Incarcerator continued to have civilians arrested by the military and imprisoned without trial throughout the war. But remember the Merryman case and score one for Chief Justice Taney.

Manchester, NH, resident Jack Kenny [send him mail] is a freelance writer.

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