Once General Scott had occupied the city of Baltimore, the military commanders under his command began to take aim at those that had earlier opposed them. When the special session of the Maryland legislature was dismissed, some members were captured, sent to Baltimore, and imprisoned in Fort McHenry. Most were treated well, but not so with John Merryman. The Pennsylvania troops which occupied Baltimore had remembered that it was Merryman that had reconnoitered them as they retreated back north in mid-April, and had severed the train line at Pickton. The commanding officer for the Pennsylvania troops, Major General William Keim, ordered one of his lieutenants to arrest Merryman and to escort him to Fort McHenry, where he was to be indefinitely incarcerated. Early on the morning of May 25th, Lieutenant Abel of the Pennsylvania troops arrived at the Merryman residence, roused Merryman, and informed him he was under arrest. He was removed to the train station where he boarded a train for Baltimore. By 9 a.m. he was secure in Fort McHenry. He immediately sought legal relief. His attorney would appeal in his petition that Merryman had been detained illegally. He wrote: (H)e has been imprisoned without any process or color of law whatsoever, and that none such is pretended by those who are thus detaining him; and that no warrant from any court, magistrate or other person having legal authority to issue the same exists to justify such arrest; but to the contrary, the same, as above stated, hath been done without color of law and in violation of the constitution and laws of the United States, of which he is a citizen...Your petitioner, therefore prays that the writ of habeas corpus may issue,...for his arrest and detention, to
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the end that your petitioner be discharged and restored to liberty. [17 Fed. Cas. 145] As it would happen, Baltimore fell within the judicial circuit of Chief Justice Roger B. Taney, who had been appointed by then-President Andrew Jackson, a Democrat. Taney was known as a judicial activist and no coward when it came to confrontation with critics. He had authored the Dred Scott decision in 1857 which had fueled the growing slave controversy. Taney would arrive in Baltimore on the next day and hear the plea from Merryman's attorney seeking relief. He would then issue a writ of habeas corpus, and demanded the presence of Fort McHenry's commanding officer, General Calwalader, to present himself at his court the next day, May 27th, along with Merryman to hear the case and to decide whether Merryman should be released or turned over to the civilian authorities for trial. This would be the opening salvo in one of America's greatest constitutional struggles, both in respect to the struggle between executive and judicial authority, as well as the protection of the civil liberties of the citizens of the states.

Rendering the Verdict

Upon arriving in court the next day, Taney would be greeted by one Colonel Lee, who returned General Calwalader's reply to the court. In his reply he stated that Merryman's arrest had been done without his knowledge, but had been initiated by Major-General Keim of the Pennsylvania troops for various acts of treason. He then appealed to Keim's authority: He has further to inform you, that he is duly authorized by the president of the United States, in such cases, to suspend the writ of habeas corpus, for the public safety. [17 Fed. Cas. 146] General Calwalader would then ask Taney to hold off on proceedings indefinitely, so that he could receive further instruction from the President. In amazement, Taney would ask if the Colonel had brought Merryman along, as the summons had commanded, to which he was told that Merryman had not been brought. The justice would then re-issue the summons for General Calwalader to present himself and Merryman before him the next day, May 28th. The following morning the US Marshall for the District of Maryland would venture to Fort McHenry to serve the summons, only to be rebuffed by the guards outside, who had been instructed not to allow commissioners from the court to enter. The marshal would return to court to inform Taney that General Calwalader refused to abide by the writ of habeas corpus that had been issued on behalf of Merryman. Taney addressed the court that although the marshal had the power of posse comitatus, the General surely had superior power, and the marshal was excused. He then declared that the attachment sent to the General had been issued because the detention of Merryman was unlawful. He then stated that no
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military officer had the right of arrest and detain an individual not subject to the rules and articles of war, except in the aid of judicial authority. He concluded that Merryman was entitled to be set free, and that he would put his opinion into writing. When his opinion would be filed, he would have the proceedings and opinion to be delivered to the President so that he might enforce the laws and perform his duties as proscribed by the Constitution.

The Logic of the Decision

The decision that Taney rendered is very straight forward and to the point. In it he appeals to past precedent and constitutional theory by several of his predecessors. Initially, he reviews the incidents leading to Merryman's arrest, recounts his orders and exchanges with General Calwalader, and conveys his perspective of Lincoln's train of thought. He understood that Lincoln felt he had the right to suspend the writ: As the case comes before me, therefore, I understand that the president not only claims the right to suspend the writ of habeas corpus himself, at his discretion, but to delegate that discretionary power to a military officer, and to leave it him to determine whether he will or will not obey judicial process that may be served on him. No official notice has been given to the courts of justice, or to the public, by proclamation or otherwise, that the president claimed this power, and had exercised it in the manner stated in the return. And I certainly listened to it with some surprise, for I had supposed it to be one of those points of constitutional law upon which there was no 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. [17 Fed. Cas. 148] At this point in the decision, Taney has carefully constructed the foundation of his defense against Lincoln's claim of authority to suspend the writ. Taney then begins to appeal to the past practice of former presidents. His first example deals with a brief mention of the Aaron Burr affair during Thomas Jefferson's presidency. When the conspiracy of which Aaron Burr was the head, became so formidable, and was extensively ramified, as to justify, in Mr. Jefferson's opinion , the suspension of the writ, he claimed, on his part, no power to suspend it, but communicated his opinion to congress...And in the debate which took place upon the subject, no one suggested that Mr. Jefferson might exercise the power himself, if, in his opinion, the public safety demanded it. [17 Fed. Cas. 148] By appealing to Jefferson's restraint in the affair, and his recognition of the authority to suspend the writ being vested with the Congress, Taney has evoked the name of one of the constitutional giants, and has seemingly set Lincoln in opposition to that great president. Jefferson had written in his Autobiography that
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during the Constitutional Convention he feared the power of suspension of the writ, as well as a continued tenure of the Executive. The absence of express declarations ensuring freedom of religion, freedom of the press, freedom of the person under the uninterrupted protection of the habeas corpus, & trial by jury in civil as well as in criminal cases excited my jealousy; and the re-eligibility of the President for life, I quite disapproved...but habeas corpus was left to the discretion of Congress, and the amendment against the re-eligibility of the President was not proposed by that body. Jefferson was under the impression that the power of suspension was sole territory of the congress, and as a Framer, it was wise of Taney to appeal to Jefferson. But Taney had not finished with his appeals to the higher personalities of the American experience. He understood that Lincoln was a sizable opponent, and that he would need to summon all of the spirits that would move the population against Lincoln's abuse of power. After admitting his regret about not inserting an accounting of the Burr episode into his attachment to General Calwalader, and appealing to the illegality of the Commander-in-Chief's actions, he begins lay the stones for his opinion that suspension power resided in the legislative branch. He does this by referring to the clause which prohibits the general suspension of the writ, and by what grounds it could be suspended. The clause of the constitution, which authorizes the suspension of the privilege of the writ of habeas corpus, is in the 9th section of the first article. This article is devoted to the legislative department of the United States, and has not the slightest reference to the executive department. It begins by providing "that all legislative powers therein granted, shall be vested in a congress of the United States, which shall consist of a senate and house of representatives."...And at the conclusion of this specification, a clause is inserted giving congress "the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof." [17 Fed. Cas. 148] The logic that Taney uses here is strong. The section dealing with the suspension of the writ is not contained in the article on executive power, but in the article dealing with the powers and prohibitions of the legislative branch. And the necessary and proper clause only gives congress the power to make law or policy on the enumerated rights in the first article. By eliminating the only section in the constitution dealing with the suspension of the writ, and by showing that that power is reserved solely for congress, Taney has swept from Lincoln any constitutional defense for his actions. He then explains his understanding of the reasoning of the Founding Fathers on this point.
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The great importance which the framers of the constitution attached to the privilege of the writ of habeas corpus, to protect the liberty of the citizen, is proved by the fact, that its suspension, except in cases of invasion or rebellion, is first in the list of prohibited powers; and even in these cases the power is denied, and its exercise prohibited, unless public safety shall require it. [17 Fed Cas. 148] But Taney goes further in his constitutional rendering to show that the second article, dealing with executive power, does not confer the authority to suspend the writ. It is the second article of the constitution that provides for the organization of the executive department, enumerates the powers conferred on it, and prescribes its duties. 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 article; but there is nor a word in it that can furnish the slightest ground to justify the exercise of the power. [17 Fed. Cas. 148,149] While examining the purpose and content of the second article and the powers of the executive, he notes that the short term for which the president is elected exhibits the concern that the Framers felt for the executive branch of government by delegating only the powers necessary for the successful operation of the government. Even the military power conferred on the president is limited by congressional appropriation for the armed services, and appointment of militia officers is done by the states to prevent the use of military power against the liberties of the people. After the discourse on the nature and reservations upon the military power vested with the executive, Taney then begins to discuss the civic power of the executive, and its relation with the judiciary. He is not empowered to arrest any one charged with an offense against the United States, and whom he may, from the evidence before him, believe to be guilty; nor can he authorize any officer, civil or military, to exercise this power, for the fifth article of the amendments to the constitution expressly provides that no person "shall be deprived of life, liberty or property, without due process of law"-that is, judicial process. [17 Fed. Cas. 149] Taney's reasoning is a direct strike against Merryman's imprisonment. Not only had Merryman been arrested under unconstitutional means, but he was consequently denied his right to due process by General Calwalader's refusal to abide by Taney's attachment. By developing his decision in this manner, he is slowly and deliberately building his wall against Lincoln's power grab. The final bricks he lays concerning constitutional rendering deals with the executive's power to faithfully execute the laws.
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The only power, therefore, which the president possesses, where the "life, liberty or property" of a private citizen is concerned, is the power and duty prescribed in the third section of the second article, which requires "that he shall faithfully take care that the laws shall be faithfully executed." He is not authorized to execute them himself, or through agents or officers, civil or military, appointed by himself, but he is to take care that they be faithfully carried into execution, as they are expounded and adjudged by the co-ordinate branch of the government to which that duty is assigned by the constitution. It is thus made his duty to come in aid of the judicial authority. [17 Fed. Cas. 149] The president, therefore, can only execute the laws according to the judicial interpretation, says Taney. And later he uses this reasoning to urge Lincoln to follow the take care clause and release Merryman in accordance with this decision. To this point, Taney has constructed his constitutional argument that: Lincoln's suspension of the writ is unconstitutional because the legislative branch is the only authorized agent to suspend the writ, and only when the public safety requires it in times of invasion or rebellion; The Framers, wary from years of British oppression, designed the office of the executive to be constrained by a short term and very limited powers, one of which was not the right to suspend the writ; The president has a constitutional obligation to see that the laws are to be carried out in accordance with the decisions of the judiciary. Now, Taney begins to buttress his conclusions by showing that his interpretation on these points is not a new innovation, but has been the standing and exclusive notion from even before the founding of the country. He then appeals to English history and reminds us that the English Constitution does not provide for the suspension of the writ in any case. This was evident even to Taney's opponents. One apocryphal account has Lincoln's Secretary of State bragging to the British Ambassador, Lord Lyons, that; I can touch a bell on my right hand and order the imprisonment of a citizen of Ohio; I can touch a bell again and order the imprisonment of a citizen of New York; and no power on earth, except that of the President, can release them. Can the Queen of England do so much? Seward was known during the Lincoln Administration to use the suspension powers frequently, and the victims of this power were generally vocal Democrats and critical newspaper editors. And it was against this attitude that Taney was striking at. He appeals to the eminent common law scholar, Sir William Blackstone, to show that common law only allows citizens to be imprisoned and deprived of liberty and property by judicial verdict. After evoking the largest name in British common law theory, he then summons the great leaders in American jurisprudence to witness against Lincoln. His first
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subject is Justice Joseph Story, who had written his Commentaries on the Constitution of the United States three decades previous to Taney's decision inMerryman. Taney, in the decision writes that Story was, "...not only one of the most eminent jurists of the age, by for a long time one of the brightest ornaments of the supreme court of the United States." Justice Story writes extensively about the use of the suspension of the writ, and Taney utilizes Story to defend his position. He quotes, Hitherto, no suspension of the writ has ever been authorized by congress, since the establishment of the constitution, It would seem, 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. [Story Comm. Const. 3:1336, quoted 17 Fed. Cas. 152] Story believed that only Congress had the right to suspend the writ, a large indictment against Lincoln indeed, but Taney loads his big guns and takes aim. He then refers to Chief Justice John Marshall's decision in Ex Parte Bollman and Swartwout. Marshall is unquestionably the largest figure in American legal history, and Taney fires with deadly aim. As he sees the fires of civil war rising, he is trying to prevent further impediments to civil liberties, and tries to effectually cut off Lincoln's propensity for overstepping his constitutional bounds. Marshall's words are clear: If at any time, the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so. That question depends on political considerations, on which the legislature is to decide; until the legislative will be expressed, this court can only see its duty, and must obey the laws. [4 Cranch 101, quoted in 17 Fed. Cas. 152] With the words of the immortal Marshall on his side, Taney has adequately proved his point. He questions not only Lincoln's unconstitutional suspension of the writ and its unlawful delegation to his underlings, but the refusal of General Calwalader to abide by Taney's attachment. Even if the writ is suspended, that does not give right to hold a citizen indefinitely or to try him in military courts. And if Merryman had been guilty of treason, the district marshal resided in Baltimore, and the marshal could have sought a warrant and had Merryman tried in the district court in Baltimore. But Taney sees that Lincoln's interest is not serving justice, but to remove his enemies as quickly as possible, even at the expense of a citizens natural and constitutional rights. Taney then gives warning about the consequences of Lincoln's actions. ...(A)nd 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
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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. [17 Fed. Cas. 152] Taney realizes that he has reached the end of his delegated power, and his order to free John Merryman is at the mercy of a power greater than his own. He then charges Lincoln to take care that the laws are faithfully executed, and that constitutional bounds be headed and obeyed. With this he ends his decision, with an order for the decision to be filed, and a copy of it be sent to the president under seal. And with that he completes his solid reasoning and his plea for justice and restraint.

Aftermath

As Taney expected, his order went unheeded, but not unnoticed. On May 30th, Lincoln consulted with the district prosecutor, who obtained an indictment against John Merryman for treason. On July 13th, he was remanded to the custody of the civilian authorities, who allowed him to post bail at $40,000, with the trial scheduled for November. But Merryman benefited from his own dilemma. By the time that November came around, so many people had been arrested, there were no witnesses available, and a postponement was issued until the following May, but the district attorney dropped the charges. As for Lincoln, he tried to plead his case for the necessity of the suspension of the writ. In a special joint session of congress, he made his case that it was a necessary move. Nevertheless, the legality and propriety of what has been done under it are questioned; and the attention of the country has been called to the proposition that one who is sworn to "take care that the laws be faithfully executed," should not himself violate them...Must they (the laws) be allowed to finally fail of execution, even had it been perfectly clear, that by the use of the means necessary to their execution, some single law, made in such extreme tenderness of the citizen's liberty, that practically, it relieves more of the guilty, than of the innocent, should, to a very limited extent, be violated? ...It was decided that we have a case of rebellion, and that the public safety does require the qualified suspension of the writ which was authorized to be made. Now it is insisted that Congress, and not the Executive, is vested with this power. But the Constitution itself, is silent as to which, or who, is to exercise the power. Lincoln's defense here is should all laws go unheeded that one be not violated. He then questions all standing precedent and judicial opinion by stating that the Constitution does not state where the authority is delegated. But the debate surrounding the ratification of the Constitution itself proves what the authors intended, and Taney had proved his case that the judicial opinion was on his side. But unfortunately, the tragedy would be compounded by an act of congress in early 1862 that authorized the arrest of those already imprisoned under
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Lincoln's act, in clear violation of the ex post facto prohibition in Article I Section 8. The South would be made subject by military conquest, despite their valiant fight for freedom, and many northerners languished in jail during the war as a result of the suspension of the writ. While some who did conspire against the Northern States were arrested and imprisoned under these acts, frequent victims included legislators, leading citizens, and critical newspaper editors. These precedents have altered our government's view of its powers. In a letter dated June 12, 1863 to Erastus Corning, Lincoln defends his case again. Corning had led a public meeting held in Albany, New York, that resolved to support the administration in all of its constitutional actions. However, the gathering appealed for any imprisonment under a "suspension of habeas corpus" be discontinued due to the lack of authority on the part of the executive. To this Lincoln responds: Their sympathizers pervaded all departments of the Government and nearly all communities of the people. From this material, under cover of "liberty of speech," "liberty of the press," and "habeas corpus," they hoped to keep on foot among us a most efficient corps of spies, informers, suppliers, and aiders and abettors of their cause in a thousand ways...Yet, thoroughly imbued with a reverence for the guaranteed rights of individuals, I was slow to adopt the strong measures which by degrees I have been forced to regard as being within the exceptions of the Constitution, and as indispensable to the public safety...Civil courts are organized chiefly for trials of individuals, or, at most, a few individuals acting in concert; and this in quiet times, and on charges of crimes well defined in the law...(A) jury too frequently has at least one member more ready to hang the panel than to hang the traitor. Ours is a case of rebellion-so called by the resolutions before me-in fact, a clear, flagrant, and gigantic case of rebellion...This provision (in Article I Section 8) plainly attests the understanding of those who made the Constitution, that ordinary courts of justice are inadequate to "cases of rebellion"-attests their purpose that, in such cases, men may be held in custody whom the courts, acting on ordinary rules, would discharge. Habeas corpus does not discharge men who are proved to be guilty of defined crime; and its suspension is allowed by the Constitution on purpose that men may be arrested and held who cannot be proved to be guilty of defined crime, "when, in cases of rebellion or invasion, the public safety may require it." This is precisely our present case-a case of rebellion, wherein the public safety does require the suspension. Lincoln sees that the Union is clearly in danger. Consequently he believes that the Constitution gives him the power to suspend the writ of habeas corpus. He also shows his distrust of the judicial system and fear of the long history of jury nullification in America by not allowing those arrested under the suspension to see the light of trial.
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In Merryman's case, however, he was arrested on grounds of treason, which the Constitution gives attention to. Either he was guilty, or he wasn't, and the Constitution does not grant the Executive the right to hold those accused of treason indefinitely without trial. The Constitution does not grant the power for the Executive branch to act in place of the Judiciary. Nor was Merryman's state of Maryland in rebellion or under invasion, one could argue, and therefore gave no room for suspension even if the Executive had that power. Lincoln, in his writings and speeches, never tried to defend his delegation of suspension powers to military and civilian authorities under his command. Nor did he ever explain why all of Constitutional thought, commentary, and history, went against his view, and why he thought they were wrong.

Conclusion

Taney's decision was disregarded by Lincoln, but his decision did not go unnoticed. Throughout the North and South his decision was reprinted and hailed as being cogent and sound. But the question that applies to us today is if our Constitution does not protect us in times of distress, what good is it? It is during those times that men's passions are stirred and are more apt to tread under the rights of fellow citizens. There are few dangers to liberty when there is no strife. Our government must protect the rights of the minority even when it is uncomfortable. To do otherwise would make any Constitutional guarantee of rights mere paper promises, and subject to the winds of utilitarian public opinion. Lincoln clearly violated not only the spirit, but the letter of the Constitution, and wrapped himself in Union garb to defend his tyrannous actions. Many see his actions as justified as a result of circumstances, however, we are a nation of laws, and when trouble comes and those laws are disregarded, we have ceased being a representative republic, and are subject to the whims of tyrants, no matter how benevolent and well-intentioned they may be. And our government was structured to avoid exactly that. We will face these questions again, and then, prayerfully, we may be able to restrain our passions and the excesses of well-meaning tyrants.

Bibliography: Letter to Winfield Scott, April 27, 1861, Lincoln: Speeches and Writings, (Library of America, 1989; New York) p. 237; Autobiography, Jefferson; Writings (Library of America, 1984; New York) pp. 71-72; Alexander H. Stephens, Constitutional View Of The War Between The States (Sprinkle Publications, 1994; Harrisonburg, Va) Vol. 2, p. 409;
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Special Message to Congress, July 4, 1861, Lincoln: Speeches and Writings, pp. 252-253; Letter to Erastus Corning and others, June 12, 1863, Ibid, pp. 454-458; Dean Sprague, Freedom Under Lincoln, (Houghton-Mifflin, 1965; Boston); Herman Belz, The Dictatorship Question Reconsidered, (Lincoln Library and Museum, 1984; Fort Wayne, In); Mark Neely, The Fate Of Liberty, (Oxford University Press, 1991; New York); Edward Pollard, Southern History Of The War, (Fairfax Press, 1990; New York); The Debate On The Constitution (Library of America, 1993; New York) 2 Vols.