Replies

"There is no document giving General Cadwalader purported authorization to suspend the privilege of the writ until after CJ Taney issued his decision."

You are confused. There is no documentation concerning the purported "arrest warrant" for Taney.

However, April 27, 1861, President Lincoln, as an emergency measure in the face of armed insurrection and the absence of Congress, lawfully suspended (the privilege of the) writ of habeas corpus by proclamation directed to Lt. General Scott. On May 16, Scott authorized Maj. Gen Cadwalader to arrest and detain individuals in certain circumstances.

"Regarding the issuance of the writ, by law CJ Taney could not simply deny the writ."

Not true. Taney could have recognized the circumstances of the war surrounding, admitted his personal relationship with Merryman, and either declared he had no jurisdiction or recused himself. Instead, he steered toward confrontation.

The purpose of the suspension is to allow the government to prosecute the war against the unlawful insurrection, without interference by disloyal judges hoping to spring their friends, neighbors, and fellow-travellers out of jail.

[N-S] You are confused. There is no documentation concerning the purported "arrest warrant" for Taney.

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No, you are confused. The letter of April 27, 1861 granted "authorization" to suspend upon meeting resistance, but Lincoln did not suspend anything. By letter of May 28, 1861, the day after Taney issued his ruling as an in-chambers opinion of the Chief Justice of the U.S. Supreme Court, Cadwalader was told by Assistant Adjutant General Townsend that he was authorized to suspend the writ.

As the official record documents demonstrate, General Keim directed Colonel Yohe to effect the arrest and Colonel Yohe directed Captain Heckman to make the arrest. General Keim was in Pennsylvania and could not be authorized to suspend habeas corpus in Maryland.

As CJ Taney accurately described it, "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 to him to determine whether he will or will not obey judicial process that may be served upon him."

http://www.ehistory.com/uscw/library/or/107/0337.cfm

Page 337 Chapter LXIII. CORRESPONDENCE, ETC. - UNION.

HEADQUARTERS OF THE ARMY,
Washington, April 27, 1861.

The undersigned, General-in-Chief, of the Army, has received from the President of the United States the following communication:

COMMANDING GENERAL ARMY OF THE UNITED STATES:

You are engaged in repressing an insurrection against the laws of the United States. If at any point on or in the vicinity of the military line which is now used between the city of Philadelphia, via Perryville, Annapolis City, and Annapolis Junction, you find resistance which renders it necessary to suspend the writ of habeas corpus for the public safety, you personally, or through the officer in command at the point where resistance occurs, are authorized to suspend that writ.

ABRAHAM LINCOLN.

In accordance with the foregoing warrant, the undersigned devolves on Major-General Patterson, commanding the Department of Pennsylvania, Delaware, and Maryland; Brigadier-General Butler, commanding the Department of Annapolis, and Colonel Mansfield, commanding the Washington Department, a like authority, each within the limits of his command to execute in all proper cases the instructions of the President.

WINFIELD SCOTT.

HEADQUARTERS OF THE ARMY,
Washington, May 28, 1861.

Bvt. Major General G. CADWALADER, U. S. Army,

Commanding Department of Annapolis, Baltimore, Md.

GENERAL: Your letter of the 27th instant with inclosures reporting the arrest of John Merryman and the issue by Chief Justice Taney of a writ of habeas corpus in his case has been received.

The general-in-chief directs me to say under authority conferred upon him by the President of the United States and fully transferred to you that you will hold in secure confinement all persons implicated in treasonable practices unless you should become satisfied that the arrest in any particular case was made without sufficient evidence of guilt.

In returns to writs of habeas corpus by whomsoever issued you will most respectfully decline for the time to produce the prisoners but will say that when the present unhappy difficulties are at an end you will duly respond to the writs in question.

I am, sir, very respectfully, your obedient servant,

E. D. TOWNSEND,

Assistant Adjutant-General.

It is absolutely true that CJ Taney could not just deny the writ. CJ Taney most certainly had jurisdiction, as such jurisdiction is affirmatively granted to Supreme Court justices, among others. He cannot recuse himself without sufficient cause, and there was no sufficient cause.

The purpose of the suspension was irrelevant. The military officers declaring the suspension could not be lawfully delegated such authority. The action was unlawful.

Even Mario Cuomo has a handle on this one.

The writ of habeas corpus is one of the fundamental constitutional guarantees of personal liberty, assuring a person detained by the government an opporutnity to challenge the detention before a court or judge. There is no question that Lincoln took it upon himself to authorize suspending the writ in contradiction of the Constitution as interpreted by the Supreme Court. He also suppressed two established newspapers, provided unappropriated funds for the purchase of military equipment, allowed a military tribunal to convict Maryland civilian John Merryman without bringing specific charges (to the horror of the still-reigning, eighty-five-year-old Chief Justice Roger B. Taney), and even signed the first income tax act, all in apparent violation of the law.

Source: Mario Cuomo, Why Lincoln Matters, 2004, p. 76-7.

Notwithstanding, however, Lincoln's clever attempts at exculpation, or at least mitigation, and his advocates' pleas for understanding the dire circumstances he faced, I still wish that the great Lincoln had stood by the Constitution despite the strong temptatin not to. Our government has ample authority under the Constitution to take those steps that are genuinely necessary for our security. At the same time, our system demands that government act only on the basis of measures that have been the subject of open and thoughtful debate in Congress and among the American people and that invasions of the liberty or equal dignity of any individual are subject to review by courts that are open to those affected and independent of the government that is curtailing freedom.
Lincoln's willingness to put himself above the law was particularly unfortunate because of the strong pledge to constitutional fidelity he had made and affirmed in his earlier days. In his Lyceum speech of 1838 he went so far as to say that compliance with the letter and the spirit of the law should be treated as the "political religion" of the nation.

Source: Mario Cuomo, Why Lincoln Matters, 2004, p. 85.

CUOMO on Lincoln and Free Speech

Lincoln had a way of personalizing even the most abstract arguments, a talent that made his explanations both palatable and unforgettable. Defending his broad use of executive authority to the Albany opposition in 1863, he selected a vivid example, asking:

Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wiley [sic] agitator who induces him to desert? This is none the less injurious when effected by getting a father, or brother, or friend, into a public meeting, and there working upon his feelings, till he is persuaded to write the soldier boy, that he is fighting in a bad cause, for a wicked administration of a contemptable government too weak to arrest and punish him if he shall desert, I think that in such a case, to silence the agitator, and save the boy, is not only constitutional, but, withal, a great mercy. [53]

Of course what Lincoln was saying, as touching as it sounds, might be translated into something like this: If the government thinks a war is a good idea but a citizen thinks it is an abomination and a fraud, he is not free to say so because he might convince someone.

[53] Collected Works, 6:266-67.

Source: Mario Cuomo, Why Lincoln Matters, 2004, p. 82

You are confused. There is no documentation concerning the purported "arrest warrant" for Taney.

You must not have been paying attention again. There is one piece of eyewitness documentation - Ward Hill Lamon, Lincoln's close friend and US Marshall for the District of Columbia who was part and parcel to the plot.

However, April 27, 1861, President Lincoln, as an emergency measure in the face of armed insurrection and the absence of Congress, lawfully suspended (the privilege of the) writ of habeas corpus

There was nothing lawful about it and no standing court precedent has said otherwise.

Taney could have recognized the circumstances of the war surrounding, admitted his personal relationship with Merryman,

IIRC you have yet to substantiate or document the nature of their acquaintence. The last time I asked you all you could produce was some hack editorial out of the New York Times making a vague and anonymous claim that they were "friends."

and either declared he had no jurisdiction or recused himself.

How could he claim to have no jurisdiction? Section 14 of the Judicial Act of 1789 specifically gave him jurisdiction. If he claimed he didn't have it he would be violating that law.