He also forwarded it to President Lincoln, which was not the act of a Circuit Court Judge. He was acting under his powers as a Justice of the Supreme Court referring a valid order of a Supreme Court Justice to the Executive Branch of government. It was now up to the Executing Branch to follow the order or appeal it to the entire Supreme Court. Lincoln punted and ignored it. It was during this time that, according to Lincoln's associate Ward Lamon, that Lincoln had had an arrest warrant for Taney prepared that in the end was never executed.
Taney may have filed in the District Court because that court was open, and he could get it into the public record more quickly that way. Time was of an essence.
Taney had gone to Baltimore to issue the writ so that General Cadwalader in Baltimore could not use the excuse that he couldn’t leave Baltimore to go to Washington to appear before Taney because his military duties kept him in Baltimore.
I remember the Supreme Court’s ruling in Ex Parte Bollman and Ex Parte Swartwout (1807). The first sentence in the Syllabus is, "This Court has power to issue the writ of habeas corpus ad subjiciendum." The opinion of the Supreme Court in this case (which, as an aside, was issued by my blood cousin, Chief Justice John Marshall) cited US law as follows:
"That all the before mentioned courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute which may be necessary for the exercise of their respective jurisdictions and agreeable to the principles and usages of law. And that either of the justices of the Supreme Court as well as judges of the district courts shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment. Provided that writs of habeas corpus shall in no case extend to prisoners in gaol unless where they are in custody under or by color of the authority of the United States or are committed for trial before some court of the same or are necessary to be brought into court to testify. "
As Chief Justice of the Supreme Court, Taney had the authority to issue a writ of habeas corpus. As the writ says, he issued it as Chief Justice of the Supreme Court and response to the writ was answerable to Taney acting as Chief Justice, not Taney acting as a Circuit Court Judge.
The military had previously refused a writ issued by District Court Judge Giles in a May 4, 1861 habeas corpus case. They had thus already rendered the District Court impotent. In that circumstance, Taney was right to elevate it to the Supreme Court level.
Merryman’s lawyers applied to Taney for the writ. As I said above, Taney had it in his power to issue the writ as a Justice of the Supreme Court, which is what he did. I did find my old newspaper account of what Taney said to the court. From the Baltimore Sun in its May 29, 1861, issue:
“Chief Justice Taney, upon taking his seat on the bench, said that he desired to state that his associate, Judge Giles, of the Circuit Court, was present with him yesterday by his invitation, because he desired to avail himself of his counsel and advice in so important a case. The writ of habeas corpus was ordered by him as Chief Justice of the Supreme Court of the United States, consequently Judge Giles could not act with him in the case.”
If the writ had been issued by Taney acting as a Circuit Court judge, then Judge Giles could have acted with him.
I am reminded too of Taney citing Chief Justice John Marshall’s opinion in Ex Parte Bollman and Ex Parte Swartwout (1807): 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.
In that opinion, Chief Justice Marshall was agreeing with Alexander Hamilton and John Jay (authors of the Federalist Papers whom I cited above) in what the Constitution meant with respect to habeas corpus, i.e., “…that such inquiry or removal ought not to be denied or delayed, except when, on account of public danger, the Congress shall suspend the privilege of the writ of habeas corpus.
It is refreshing these days, is it not, to hear of a Justice of the Supreme Court following the Constitution.
Unlike Confederate President Jefferson Davis who convened his Congress less than three weeks after Fort Sumter. Lincoln could have done the same given the momentous events that had occurred. However, Lincoln did not convene his Congress until months after Fort Sumter. During that time before the July date that he had specified for Congress to reconvene, Lincoln violated the Constitution on several occasions, usurping the powers of both Congress and the Courts without Congress in session to object.
If Lincoln did have the power to suspend the writ, why did Congress in 1863 finally pass a law that authorized him to suspend it from that point on? If Lincoln legitimately had the power to suspend the writ on his own without Congress acting, then Congress’s 1863 action was unneeded and superfluous.
Belts and suspenders. You may call it superfluous but in view of the partisan stink taney started I see it as prudent.