Wednesday, April 25, 2012

Lincoln and Liberty: Part One

Ex parte Merryman

Are all the laws but one to go unexecuted, and the government itself go to pieces, lest that one be violated?
President Abraham Lincoln's presidential message, July 4, 1861

In Article I, section nine of the United States Constitution the framers implied that liberty could be disturbed: "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 [italics added]." The framers back then thought that Congress would enact such a measure in wartime (hence, the clause is put in the article that deals with the legislative branch), but President Abraham Lincoln had different ideas.

His ideas would be applied to Maryland, a state, according to Lincoln biographer Ronald C. White, Jr., that was like a crab to Washington, D.C., "with claws pinching in on the capital from three sides." What made those claws dangerous was that they contained a large minority of secessionists in the legislature and in its eastern and southern half. In the days immediately following Fort Sumter, many Confederate flags were raised in Baltimore. When troops of the 6th Massachusetts Regiment marched through the city on April 19, 1861, the local populace assailed it with bricks, knives, and pistols; like the Boston Massacre nearly a century before, fired, quelling their assailants once and for all. Four New Englanders and 12 Baltimoreans fell in the clash, with many more wounded. The secessionist sympathies of much of the populace was also expressed in cut telegraph wires from Washington, D.C., destroying bridges, tearing up railroad tracks, anything that would render the nation's capital incommunicado.

Not surprisingly, rumors soon became for a time the sole means of communication, one of which was that the Virginia Militia and gun-toting pro-southern Marylanders were marching to attack them. Consequently, residents and government clerks formed militia units and buildings were fortified. Fortunately, there was good news to counter the bad: more regiments from above the Mason-Dixon lines were on their way to the rescue.

While there was no battle in front of the White House, more Yankees did indeed come. The secessionists, though, were to still worrisome. On April 27, Lincoln authorized General Winfield Scott, the elderly general in chief., "to suspend the writ of habeas corpus" if "an insurrection against the laws of the United States" broke out in the vicinity of the railroad line that started at Philadelphia, went through Baltimore, and ended in the capital. Lincoln's order was zealously executed, the prisoners being detained at none other than Fort McHenry of War of 1812 fame. Ironically, one of the men in those jail cells was a grandson of Francis Scott Key, whose song "The Star Spangled Banner" was written during and inspired by the British attempts to take the fort 49 years before.

Yet it was the arrest of a relatively unknown, wealthy landowner that would cause controvery to be raised over Lincoln's measure. John Merryman was also a lieutenant in a secessionist cavalry unit who had burned bridges and cut telegraph wires, but it was for drilling secessionist troops that he was arrested at his home in Cockeysville, Maryland on May 25. His lawyer took action, petitioning the federal court in Baltimore to impart to his client a writ of habeas corpus.
Justice Roger B. Taney, Supreme Court, U.S by Mathew Brady.

Back then, a Supreme Court Justice, who is from each of the nine circuits, held the dual role of not only making important decisions in the Supreme Court building but of being the presiding judge of the circuit court. It just so happened that Chief Justice Roger Taney presided over the court the lawyer petitioned. Taney-- an elderly, gaunt Marylander whose strict constructionist views had got him into President Andrew Jackson's "kitchen cabinet" as attorney general and secretary of the treasury, and then an appointment as the chief justice of the U.S. Supreme Court in the waning days of the Jackson Administration in 1836-- granted the request. But when Taney's writ reached Fort McHenry, the commanding refused to obey the order, citing, of course, the one given by the commander in chief.

As for Lincoln, he simply did not give Taney's order the time of day despite the chief Justice making his views quite plain in his ruling of Ex parte Merryman on May 28. Lincoln, Taney asserted, was becoming despot, sucking power from both the legislative and judicial branches. On the other ends of the political spectrum-- the left, center, or left of center in this case-- the Republican press stood behind the chief executive, as well as many scholars of the constitution, who argued that the location of the habeas corpus clause did not matter.

Nevertheless, the fact remained that the same man who as a Whig criticized the presidency of "King Andrew I" was in turn a president who exercised more executive power than even Jackson.


McPherson, James M. Battle Cry of Freedom: The Civil War Era. New York: Oxford University Press, 1988. Print. The Oxford History of the United States v. 6. 
White, Ronald C. A. Lincoln: a Biography. 1st ed. New York: Random House, 2009. Print.

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