McGinty Brian. Lincoln and the Court

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assumed during the war years as a fulﬁllment, not an abandonment, of the rule

of law.”

In his message to Congress, the president denied that “any law was vi-

olated” by his suspension of habeas corpus and explained:

The provision of the Constitution that “The privilege of the writ

of habeas corpus, shall not be suspended unless when, in cases of re-

bellion 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. 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.

It was a point that Taney had avoided entirely in his Merryman opinion.

But allowing that the circumstances for suspension had arisen does not answer

the chief justice’s question of who has the authority to order the suspension.

Taney insisted that the power resided exclusively with Congress. Lincoln dis-

agreed: “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 was arguing that, as commander in chief of the armed forces of the

United States, and as the only federal ofﬁcial charged with a constitutional

duty to “preserve, protect, and defend the Constitution,” he was as fully em-

lic safety” required a suspension of habeas corpus. But he was not anxious to

overstate his argument. He knew that contrary arguments could be made and

that a ﬁnal resolution of the question might depend on future events. Legal his-

torian Mark E. Steiner has written that, when Lincoln was “pressed by neces-

sity, he was a sophisticated user of the available sources of legal information.”

In this particular case, Lincoln was “pressed by necessity” as never before, and

more in need of a practical solution than he had ever been in a courtroom. He

had asked the attorney general to render a formal opinion on the issue, and he

recognized that Congress might also be heard on the question. Any legislation

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that might be enacted on the subject would, he said, be “submitted entirely to

the better judgment of Congress.”

On July 5 Attorney General Bates rendered the opinion requested by the

president.

Bates was an old lawyer with a wealth of political and legal experi-

ence. He had been a delegate to the convention that drafted Missouri’s ﬁrst

constitution in 1820, a member of the Missouri state legislature, a congress-

man, a United States district attorney, and a judge of the St. Louis Land Court.

But his instincts for legal analysis were less sure than Lincoln’s, and he had

none of the president’s genius for explaining complicated legal propositions in

words that ordinary men and women could understand. Bates pointed out that

the Constitution itself required the president to “preserve, protect, and defend”

it, while it required that other ofﬁcers of the government (including federal

judges) simply “support” it.

The phrase “preserve, protect, and defend,” he ar-

gued, gave the president the duty to suppress the rebellion and also, by implica-

tion, the power to do so. And because the means of suppression were not pre-

scribed in the Constitution, the president had discretion to choose them. On

this point, the attorney general’s argument was persuasive. But his further argu-

ment—that because the executive, legislative, and judicial branches of the fed-

eral government are coequal and independent, the Supreme Court had no

right to impose its will on the president—was less so. In 1803, in the landmark

case of Marbury v. Madison, Marshall had stated that it is “emphatically the

province and duty of the judicial department to say what the law is,” and in the

almost half-century since then, the proposition had not been seriously chal-

lenged.

Bates thought suspension of habeas corpus was a “political” rather

than a “judicial” question and thus not subject to judicial supervision. His

words were serious and his conclusion—that the president had ample constitu-

tional power to suspend the privilege of the writ of habeas corpus—was em-

phatic. But his reasoning did not carry a fraction of the persuasive power that

Lincoln had imparted in the simple question he put to Congress: “Are all the

laws, but one, to go unexecuted, and the government itself go to pieces, lest

that one be violated?”

if taney was right that the power of suspending habeas corpus rested

solely with Congress, the federal legislature could have expressed its opinion

on the subject at any time after Lincoln called it into special session in July

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1861. Efforts were repeatedly made in the Senate and the House to address the

habeas corpus issue head on, but they were repeatedly frustrated, not so much

because senators and representatives were unwilling to take a stand on the is-

sue as because they could not agree on what stand to take. If Taney thought

that only Congress could suspend habeas corpus, he gave no consideration to

the need for prompt or expeditious suspension. More than a month after it be-

gan its special session, Congress approved an act ratifying and approving the

president’s previous war measures. The actual language was “that all the acts,

proclamations and orders of the President . . . [after March 4, 1861] respecting

the army and navy of the United States, and calling out or relating to the mili-

tia or volunteers from the States, are hereby approved and in all respects legal-

ized and made valid ...asifthey had been issued and done under the previous

express authority and direction of the Congress of the United States.”

This

language did not explicitly refer to the president’s order suspending habeas cor-

pus, though it was broad enough to apply to it. Thus, less than two months af-

ter it was ﬁled in the circuit court in Baltimore, Taney’s opinion seemed to

have become moot. But the important constitutional points made in it clearly

had not, for Congress’s action did not settle the basic question of whether Con-

gress or the president had power under the Constitution to suspend the pre-

cious writ. Difﬁcult questions still were unanswered: What would have been

the effect of Lincoln’s suspension if Congress had not ratiﬁed it? Does the presi-

dent have authority to act when Congress cannot (because, for example, it is

not in session, or it is prevented from assembling by interrupted transportation

lines to Washington or hostile military action around the capital)? Is the gov-

ernment paralyzed when legislative action is impossible?

Conceding the importance of Taney’s Merryman opinion, it is nevertheless

appropriate to point out some of its weaknesses. The chief justice’s assertion

that Congress, and only Congress, has constitutional authority to suspend ha-

beas corpus assumes that proposition without proving it. The suspension clause

does not state that only Congress may suspend habeas corpus, and it is by no

means certain that, because the clause is located in Article I, this is what it

must have meant. In fact, records of the debates in the Constitutional Conven-

tion of 1787 show that the framers at one time proposed to include the suspen-

sion clause in the article governing the federal judiciary, and that the Commit-

tee on Style moved it at the last minute to the article governing the legislature,

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without offering any explanation for the move.

Taney correctly quoted Mar-

shall’s comments about habeas corpus, but the quotation was misleading, for

Marshall’s comments—made in Ex parte Bollman (1807)—were obiter dicta

(statements unnecessary to the decision of the case and not binding precedent

in future cases). In that case, Marshall decided that the Supreme Court could

issue writs of habeas corpus in aid of its appellate jurisdiction. He did not de-

cide whether Congress or the president could suspend the writ when “the pub-

lic safety may require it,” as the case did not raise that question.

Taney should also be faulted for failing to describe the tumult that

prompted Lincoln to suspend the writ in the ﬁrst place. For all that appears

from the chief justice’s opinion, Baltimore was a peaceful city in April 1861, its

residents were duly respectful of their obligations to obey the law, and “the

public safety” required no extraordinary measures. Taney did not discuss the re-

bellion then facing the federal government or the threats posed to federal

troops. Nor did he note that saboteurs and bombers in Maryland in 1861 could

be dealt with under the civil law only in the United States courts in Maryland,

and that the only law that could be applied in those courts was woefully inade-

quate to the task.

In fact, federal law then on the books was excruciatingly thin. There were

few federal crimes, and the prescribed penalties were either so lenient as to be

almost inconsequential, or draconian in their severity. Hyman has pointed out

that disloyalty itself was not a crime in 1861.

Almost the only federal law that

could be applied to the conditions in Maryland in 1861 was the 1790 statute

prescribing death as the penalty for treason.

This statute was enacted pursu-

ant to the deﬁnition of treason set forth in Article III, Section 3, of the Consti-

tution: “Treason against the United States, shall consist only in levying war

against them, or in adhering to their enemies, giving them aid and comfort.

No person shall be convicted of treason unless on the testimony of two wit-

nesses to the same overt act, or on confession in open court.” Merryman and

others like him may well have been guilty of treason under the constitutional

deﬁnition, but it was wildly unrealistic to suppose that juries composed of

Marylanders would convict them of any crime for which they could be hanged.

Even assuming that enough federal judges, district attorneys, and jurors could

be assembled to hear charges against all of the disloyal residents of Maryland,

and further assuming that two witnesses could be produced to testify to each

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“overt act” charged in all the indictments that would have to be ﬁled, the

notion that the slow and cumbersome processes of the federal courts could

make Maryland safe for troops marching through the state on their way to the

national capital, free of saboteurs and attackers along the way, was frankly

unsupportable. Taney did not mention these troubling realities in his opinion.

Taney also ignored his own opinion in Luther v. Borden (1849), in which

he had decided that the federal courts had no authority to second-guess execu-

tive and legislative ofﬁcials who had acted to put down the Dorr Rebellion in

Rhode Island. As part of their response to that emergency, state ofﬁcials had

asked President John Tyler to give them military assistance. They argued that

the federal power to help them suppress the insurgency derived from Article

IV, Section 4, of the federal Constitution, which provides: “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 leg-

islature, or of the executive (when the legislature cannot be convened) against

domestic violence.” But the rebels claimed that they, and not the existing state

ofﬁcials, were the legitimate government of Rhode Island, and thus the exist-

ing ofﬁcials had no authority to call for federal intervention. In his opinion

siding with the existing state ofﬁcials, Taney observed that the power to deter-

mine whether the federal government should help to put down a state rebel-

lion rested initially with Congress; but, by statute, Congress had delegated the

power to the president.

It was therefore a “political decision” and not one

that the courts should interfere with. He wrote: “After the President has acted

and called out the militia, is a Circuit Court of the United States authorized to

inquire whether his decision was right?...Ifthejudicial power extends so far,

the guarantee contained in the Constitution of the United States is a guaran-

tee of anarchy, and not of order.”

As Hyman has observed, Taney’s pronouncement that Lincoln could not

suspend the writ of habeas corpus in 1861 to put down a national rebellion is

difﬁcult to reconcile with his earlier pronouncement that John Tyler could call

out federal troops in 1842 to put down a state rebellion.

In Maryland, Lincoln

acted under the Constitution’s habeas corpus clause; in Rhode Island, Tyler was

asked to act under the Constitution’s republican form of government clause.

Both presidents were called upon to exercise discretion. But Taney found Tyler

fully empowered to exercise his discretion and Lincoln powerless to do so. As

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constitutional historian Daniel Farber has observed, Taney “failed to realize the

relevance...ofhisownopinion in Luther v. Borden.”

Further, Taney never discussed Lincoln’s constitutional duty to “preserve,

protect, and defend” the Constitution, which he seemed to regard as irrelevant

to the whole question of resisting an insurrection. And his assertion that the

question of who has power to suspend habeas was “one of those points of con-

stitutional law upon which there was no difference of opinion,” and that it was

“too plain and too well settled to be open to dispute,” was simply false. The

question was, as lawyers say, a case of “ﬁrst impression,” for neither the presi-

dent nor Congress had ever previously suspended habeas, or asserted the power

to do so.

The constitutional question had never previously been asked of a

federal court, and it was presumptuous for Taney to claim that a question that

had not even been asked had been deﬁnitively answered.

Finally, Taney failed to recognize the unique opportunities Merryman’s

case afforded him to exhort lawbreakers in Maryland to obey the law. As chief

justice of the United States, he was invested not just with legal power, but also

with moral authority. Yet he made no effort in his Merryman opinion to call for

calm in Maryland, to warn disloyal Marylanders to refrain from attacking fed-

eral troops and stop blowing up bridges. As Bernard Steiner, one of Taney’s

early biographers, stated: “The occasion offered Taney a magniﬁcent opportu-

nity to give men a clarion call to patriotic fulﬁlment of their Constitutional du-

ties and to personal service to secure the preservation of the Union.” Yet Taney

showed “no appreciation of the facts that the life of the country was at stake.”

Aside from the constitutional argument he made in his message to Congress on

July 4, 1861, and apart from the formal opinion that he asked Attorney Gen-

eral Bates to prepare, what did Lincoln actually do about Ex parte Merryman af-

ter Taney rendered his opinion? The answer is that he declined to comply with

it. He did not concede Taney’s point about the power to suspend habeas corpus,

and he did not formally “obey” the ruling. In fact, the military continued to

make arrests throughout most of the war; habeas corpus was suspended again,

and in other parts of the country; trials were held before military commissions,

and punishments were imposed, for Lincoln continued to assert the constitu-

tional power to do all these things. But John Merryman himself did not suffer

unduly because of this. When Secretary of War Simon Cameron visited Fort

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McHenry on July 4, the day Lincoln delivered his message to Congress, he

promised Merryman a parole, and on July 13, forty-nine days after his arrest,

the Marylander was delivered to the custody of the United States marshal to be

dealt with in the U.S. district court. Indirectly, he was now being accorded the

procedural and substantive rights that Taney said he was entitled to. An indict-

ment was handed down charging that Merryman “did intend to levy war and

carry on war, insurrection, and rebellion against the United States of Amer-

ica,” but he was admitted to bail and never brought to trial. The case was post-

poned and ultimately dropped. Merryman was a free man once again, and he

had no doubt who was responsible for his freedom.

When his next son was

born, on December 5, 1864, Merryman paid tribute to the old judge who had

presided over the habeas corpus hearing in Baltimore by naming the child

Roger Brooke Taney Merryman.

In a book-length study of civil liberties in wartime, the late Chief Justice

William Rehnquist raised the question of why Taney’s decision in Ex parte

Merryman was not appealed to the full Supreme Court.

Although Taney him-

self said that his decision was made in his capacity as “Chief Justice of the Su-

preme Court of the United States at chambers,” Rehnquist believed that it was

made in his capacity as a circuit judge. The original writ, after all, was issued by

the clerk of the circuit court in Baltimore; the hearing was held in the court-

room of the circuit court; the opinion was ﬁled with the circuit clerk; and the

opinion was eventually printed in Federal Cases, a set of volumes devoted to

decisions of the district and circuit courts, but was never published in United

States Reports, the ofﬁcial repository of Supreme Court decisions. And in Fed-

eral Cases, the case was identiﬁed as a decision of the Circuit Court for the Dis-

trict of Maryland.

If the decision was in fact a circuit court decision, Taney could have ar-

ranged to have it reviewed in the Supreme Court by persuading Judge Giles to

join him in the Merryman hearing and then issuing a certiﬁcate of division.

The certiﬁcate of division, authorized by Congress in 1802, was frequently used

by district and circuit court judges to bring cases before the Supreme Court. It

was even used when their opinions did not actually differ but they considered

the case, or the issues raised by it, important enough to be reviewed by the full

Supreme Court.

Giles was deferential to Taney and would not have objected

to this procedure. But the certiﬁcate of division applied only to circuit court

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decisions, and no other statute permitted appeals to the full court from deci-

sions of individual Supreme Court justices.

Although the precise capacity in which the decision was made is not en-

tirely clear, the better view seems to agree with Taney that it was a decision of

the chief justice “in chambers.”

Since the Supreme Court’s inception in 1789,

both the full Court and its individual justices have had jurisdiction, pursuant

to statute, to grant writs of habeas corpus.

But the full Court’s habeas power

can be exercised only as part of its appellate jurisdiction (that is, when a deci-

sion of an inferior court is being reviewed), and not when a habeas corpus peti-

tion is presented to it as an “original” matter, for the Constitution speciﬁes that

the Supreme Court’s “original jurisdiction” extends only to “cases affecting am-

bassadors, other public ministers and consuls, and those in which a state shall

be a party.” In all other cases (that is, in nearly all the cases that come before

it), the Court has only appellate jurisdiction, “with such exceptions, and under

such regulations as the Congress shall make.”

But individual justices are not

subject to this same limitation on their “original” jurisdiction and can issue

writs of habeas corpus (and other writs as well) as original matters. They may

do so only when the full court is not assembled, however; that is, they may do

this only when they are on circuit or acting “in chambers.”

When Taney is-

sued the writ in Ex parte Merryman, the full Supreme Court was not in session,

and he explicitly stated that he was acting in chambers. Interestingly, Judge

Giles’s absence during the Merryman hearing is explainable if the decision

was an in-chambers decision of the chief justice. If it had been a circuit court

decision, Giles would have had every right to participate, and would normally

have done so. If it was an in-chambers decision, however, he had no right to

participate.

As an in-chambers decision, Taney’s ruling in Merryman was un-

reviewable, and Lincoln could not have appealed it to the Supreme Court. He

(or Attorney General Bates acting for him) might have steered a case present-

ing the same question to the high court, but neither Bates nor Lincoln was

conﬁdent that the Supreme Court would sustain their position, for the court in

1861 was still dominated by justices with strong Southern sympathies. As late

as January 1863, Bates advised Secretary of War Edwin Stanton not to appeal a

decision of the Wisconsin Supreme Court that held that the president could

not suspend the writ of habeas corpus in that state.

The attorney general

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feared that the Supreme Court would sustain the Wisconsin ruling and that

this would “do more to paralyze the Executive arm and to animate the enemies

of the Union than the worse defeat our armies have yet sustained.”

And so

Taney’s decision in Merryman stood unchallenged by any contrary rulings.

Regardless of the capacity in which it was made, it is clear that Taney’s de-

cision was made in haste and without ﬁrst hearing both sides of the question.

Rehnquist thought that Taney’s “refusal to countenance any delay at all for the

purpose of allowing the government to present its case” did not “speak well for

either his judgment or his impartiality.” (If General Cadwalader’s request for a

postponement so he could consult the president had been granted, he might

have shed further light upon the important constitutional question before the

court.)

Taney’s eagerness to take a public stand on the habeas corpus issue

suggests that he approached it with the zeal of a partisan, not the impartiality

of a judge, and his ﬁnal opinion reads more like an attorney’s brief than a ju-

rist’s reasoned conclusion. Lincoln biographer Phillip Shaw Paludan has de-

scribed the opinion as a “blistering lecture to the president and the American

people.”

Hyman has described it as “a sermon on the Constitution.”

With

its publication, it became apparent, if it had not been before, that the chief jus-

tice had taken sides in the sectional struggle that threatened to destroy the

Union, casting his lot with the South against the North.

But Taney’s strong, pro-Southern response did not answer all of the trou-

bling questions raised by Lincoln’s suspension of habeas corpus. When all is

said and done, the chief justice may have been more right than wrong about

habeas corpus. Perhaps Congress is the only federal authority that has power

under the Constitution to suspend the writ.

Perhaps Lincoln’s action was in

fact in excess of his constitutional powers as president. If it was, however,

Taney’s decision in Merryman did not settle the question in a convincing and

authoritative way. His opinion was not published in the reports of the Supreme

Court, and the views expressed in it, at least insofar as the issue of habeas cor-

pus was concerned, were never endorsed by a subsequent Supreme Court deci-

sion.

Whether the president has power under the Constitution to suspend ha-

beas corpus is, so far as the federal courts are concerned, a question that still

remains unanswered.

This is not to say that Taney’s opinion in Merryman was meaningless. Far

from it. It represented an early and serious challenge to Lincoln’s prosecution

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of the war. It aroused passions in all sections of the country. It raised fears in

the North that the federal judiciary might wage war on the administration

even as the administration waged war on the South, and it raised hopes in the

Confederate states that the federal government would falter in its purpose and

ultimately abandon its effort to “coerce” its Southern brethren. Carl Brent

Swisher wrote that Taney’s Merryman opinion “had the impact of a military

victory for the South.”

But as the chief justice soon learned, one battle does

not make a war. The ﬁrst victory went to Taney, but there were battles yet to be

waged, and victories and defeats yet to be tallied up.

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