As usual, capitan_refugio simply lies. The caption says it is an in-chambers opinion of the Chief Justice of the Supreme Court. capitan's favorite source, Daniel Farber says it is an in-chambers opinion of the Chief Justice of the Supreme Court. General Cadwalder was summoned, "Greeting: You are hereby commanded to be and appear before the Honorable Roger B. Taney, chief justice of the supreme court of the United States, at the United States courtroom, in the Masonic Hall, in the city of Baltimore, on Monday, the 27th day of May 1861, at eleven o'clock in the morning...." Better yet, Chief Justice Taney announced from the bench that Judge Giles was not there because he, Taney, was sitting not as a member of the circuit court, but as Chief Justice of the United States.
Obviously capitan_refugio presumes he knows better than the Chief Justice who announced that he was sitting as Chief Justice and not as circuit justice.
"Technically he did not issue it in his capacity as a judge 'on circuit' but rather as an 'inchambers' opinion of the chief justice."
-- Daniel Farber, Lincoln's Constitution, p. 17
As he took his place he announced that he acted alone rather than with Judge Giles because of the fact that he was sitting not as a member of the circuit court, but as Chief Justice of the United States. One reason for the distinction, undoubtedly, was the belief that it would lend added weight to the decision.
-- Carl Brent Swisher, Roger B. Taney, The MacMillan Company, published October 1935, reprint June 1936, pp. 551.
Carl Brent Swisher, Roger B. Taney, The MacMillan Company, published October 1935, reprint June 1936, pp. 548-555.
See especially, pp. 550 and 551. "As he [Taney] took his place he announced that he acted alone rather than with Judge Giles because of the fact that he was sitting not as a member of the circuit court, but as Chief Justice of the United States."
Sabotage on the part of disloyal persons became so general and so dangerous that on April 27, 1861, the President directed General Scott to suspend the writ of habeas corpus, either personally or through his officers, if it proved necessary for the public safety. The purpose was to make it possible to imprison persons on suspicion and hold them in confinement without the prospect of their being released by means of writs of habeas corpus from judges who might themselves be southern sympathizers. The suspension was a delicate step, particularly in view of the fact that it had no authorization from Congress. The Constitution provided that the writ should not be suspended "unless when in cases of rebellion or invasion the public safety may require it." Who might suspend it under these circumstances was not stated, but from the position of the clause in the Constitution it could be reasonably inferred that the power was with Congress, rather than with the President.
Almost immediately the issue came before Judge William F. Giles, in the United States district court in Baltimore. He issued a writ of habeas corpus for the release of a minor who had enlisted in the army without his parents' consent. A deputy marshal presented the writ to Major W. W. Morris, at Fort McHenry, who read it and handed it back declaring that he would see the court and the marshal damned before he would deliver up one of his men. [10]
The Baltimore newspapers played up the story, and Judge Giles, to prevent misunderstanding, made a statement to the press. This was the first time within his experience of thirty-three years at the bar and on the bench, he declared, that the writ of habeas corpus had failed to procure obedience in Maryland. It had not been suspended by a competent authority, and no circumstances had arisen under which it could have been legally suspended. "The court sincerely hopes," he concluded, "that in a crisis like the present wiser counsels
[10] Affidavit of U.S. Deputy Marshal James Gettings, May 2, 1861, Attorney General MSS.
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may prevail at the post, and that no unnecessary conflict of authority may be brought in between those owing allegiance to the same government, and bound by the same laws." [11]
Major Morris wrote to differ as to the justification for the suspension of the writ. For two weeks, he declared, Baltimore had been under the control of revolutionary authorities. Soldiers had been attacked and murdered in the streets, and no arrests had been made. Supplies intended for Fort McHenry had been stopped, and the intention to capture the fort had been boldly proclaimed. The flag over the federal offices had been cut down by a man wearing a Maryland uniform. The Maryland legislature, a body elected in defiance of the law, was debating the forms of abrogating the federal compact. "If this is not rebellion, I know not what to call it. I certainly regard it as sufficient legal cause for suspending the writ of habeas corpus."
In the hands of an unfriendly authority, he continued, the writ of habeas corpus might depopulate the fort and place it at the mercy of the "Baltimore mob" in much less time than it could be done by all the appliances of war. Furthermore, in view of the ferocious spirit of the community toward the army, he would himself be highly averse to appearing publicly and unprotected in the city to defend the interests of the body to which he belonged. If the judge had never known the writ to be disobeyed it was only because such a contingency in public affairs had not hitherto arisen. [12]
When the marshal attempted to serve Major Morris with an order to appear and show why a writ of attachment should not issue against him, he refused to receive the order. He declared that he would obey no order of any kind issued by this court or by any other court. [13] Judge Giles wrote to Morris deploring the suspension of the writ, and expressing the opinion that it could be legally suspended only by act of Congress, whatever the circumstances. [14] The ability to use force was all on the side of the Major, however, and
[11] Baltimore Exchange, May 4, 1861. [12] Morris to Giles, May 6, 1861, Attorney General MSS. [13] John W. Watkins to Giles, May 8, 1861, ibid. [14] Giles to Morris, May 7, 1861, ibid.
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the district judge had not sufficient prestige to make a serious public issue of the disobedience of the orders of the court.
It was with this case in the background that another case arose involving the same legal problems, when Taney was called upon to take action, presumably chiefly because of the additional prestige which his decision would give to arguments of the type which Judge Giles had advanced. General Keim, of Pennsylvania, had been ordered to put a stop to secessionist activities between Philadelphia and Baltimore. Among other things he called for the arrest of the captain of a secessionist company operating in Maryland. The result was the arrest of John Merryman, a country gentleman, the president of the state agricultural society, and an active secessionist. He was confined in Fort McHenry. On the same day, May 25, 1861, he petitioned for a writ of habeas corpus partly on the ground that he was not the captain of any company—which technically was true, although he was lieutenant in a company of cavalry, and had supervised the destruction of a number of railroad bridges. The petition was presented to Taney, who, it seems probable, went to Baltimore chiefly for the purpose of receiving it.
On May 26 Taney issued a writ of habeas corpus, directing General George Cadwalader to bring Merryman before the Chief Justice of the United States on the following day at the circuit court room in the Masonic Hall. The order added to the already intense excitement. A reporter, phrasing well the vindictive attitude of extreme abolitionists toward Taney, declared that his purpose was "to bring on a collision between the judicial and military departments of the government, and if possible to throw the weight of the judiciary against the United States and in favor of the rebels." Taney was at heart a rebel himself, the reporter continued. He had recently expressed the wish that "the Virginians would wade to their waists in northern blood." The fact that he volunteered to go to Baltimore to issue a writ in favor of a rebel showed the alacrity with which he served the cause of the rebellion. [15]
With the mind of the North prepared for Taney's decision by this
[15] New York Times, May 29, 1861.
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kind of propaganda, and with southern sympathizers eagerly hoping that Taney could and would curb the growing power of the military forces of the Union, the case was called, on the morning of March 27. Instead of appearing in court, and bringing Merryman with him, General Cadwalader sent a statement to be read by his aide-decamp, Colonel Lee, an officer decked out in full uniform with a red sash and wearing a sword. The statement reviewed the facts of the case, called attention to the President's order for the suspension of the writ of habeas corpus, and requested the postponement of the case until the President could be consulted.
In effect, although it was done in courteous language, the military authorities told the court they would obey a court order only if the President saw fit to direct them to do so. Taney countered with a stern reply. "General Cadwalader was commanded to produce the body of Mr. Merryman before me this morning," he declared, "that the case might be heard, and the petitioner be either remanded to custody or set at liberty if held on insufficient grounds; but he has acted in disobedience to the writ, and I therefore direct that an attachment be at once issued against him, returnable before me here at twelve o'clock tomorrow, at the room of the circuit court." [16]
An audience of some two thousand people assembled on the following day to witness the outcome of the struggle between the Chief Justice and the military authorities. Leaving the Campbell home in the company of his grandson, Taney remarked that he might be imprisoned in Fort McHenry before night, but he was going to court to do his duty. As he took his place he announced that he acted alone rather than with Judge Giles because of the fact that he was sitting not as a member of the circuit court, but as Chief Justice of the United States. One reason for the distinction, undoubtedly, was the belief that it would lend added weight to the decision.
When Taney called for the return upon the writ of attachment the marshal replied in writing that he had not been allowed to enter Fort McHenry to serve the writ, and that he had sent in his card but
[16] The proceedings appear at length in the contemporary newspapers and other records of the period, and are presented and discussed in the Tyler and Steiner biographies.
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had received no reply. "It is a plain case, gentlemen," Taney declared, "and I shall feel it my duty to enforce the process of the court." He had ordered the writ of attachment because the detention of the prisoner was unlawful on two grounds. First, the President could not constitutionally suspend the writ of habeas corpus nor authorize any military officer to do so. Second, if a military officer arrested a person not subject to the rules and articles of war the prisoner must be turned over to the civil authorities. He would write out his opinion at length, and file it in the office of the clerk of the circuit court.
It would have been well for his reputation for judicial calmness had Taney stopped with the reading of his prepared statement. Unfortunately he forgot himself in the excitement of the moment, and made additional comments. Because the military force was superior to any force the marshal could summon, the court would not be able to seize General Cadwalader. If he were before the court it would inflict punishment of fine and imprisonment. Under the circumstances he would write out the reasons for his opinion, and "report them with these proceedings to the President of the United States, and call upon him to perform his constitutional duty and enforce the laws. In other words, to enforce the process of this court." [17]
It is hardly surprising, therefore, that reporters wrote "sensation" after this notice that the Chief Justice would carry war into the camp of the Executive. It was "sensation" of enthusiastic approval on the part of the crowd, and was similarly pleasing to most Baltimore papers and to some few Democratic papers elsewhere. Union presses, however, stormed wrathfully at the "hoary apologist for treason," and were not less abusive than they had been after the Dred Scott decision. The New York Tribune, for instance, continued day after day to rearrange the stock of expletives in Horace Greeley's vocabulary into varied scorching characterizations, and other papers differed only in matters of vocabulary and figures of speech.
Taney had been too much and too often abused to be greatly dis-
[17] As quoted in the Baltimore American, May 29, 1861.
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turbed by the outburst. Indeed, in defending the writ of habeas corpus, one of the great traditional bulwarks of individual liberty, and in resisting military encroachments on the rights of southern sympathizers, he seems to have acted from a profound sense of mission. "Mr. Brown, I am an old man, a very old man," he replied to the Baltimore mayor's congratulations on his decision, "but perhaps I was preserved for this occasion." He believed, indeed, that the government had considered the possibility of imprisoning him. Although that danger seemed to have passed, he warned Mayor Brown, a southern sympathizer, in what proved to be an accurate prediction, that the time of the latter would yet come. [18]
Taney immediately wrote out his opinion in the case, filed it with the clerk of the circuit court, and directed that a copy be sent to the President. "It will then remain for that high officer," he concluded, "in the fulfillment of his constitutional obligation, to 'take care that the laws be faithfully executed,5 to determine what measures he will take to cause the civil process of the United States to be respected and enforced." [19] He elaborated his argument that only Congress, and not the President, could suspend the writ of habeas corpus. He contended that the civil administration of justice in Maryland was unobstructed save by the military authority itself, and that under these circumstances the military had no right to supersede the performance of civil functions.
This document, prepared in defense of the reign of law as against arbitrary military rule, has after the calmer appraisal of more remote periods been hailed as a masterpiece of its kind. Indeed, although it was not specifically mentioned, many of its principles were sanctioned by the Supreme Court shortly after the close of the war, with the personal and political friend of President Lincoln as its spokesman. [20] Immediately contemporary reactions, however, were those which were to be expected. The opinion was loudly praised by friends of the South, and heartily denounced by the friends of the administration.
[18] George W. Brown, Baltimore and the 19th of April 1861, pp. 90-91. [19] Ex parte Merryman, Federal Cases, No. 9487. [20] See Ex parte Milligan, 4 Wallace 1 (1866), opinion by Justice David Davis.
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A few days after Taney's altercation with the commander at Fort McHenry, Judge Samuel Treat, of St. Louis, had a similar experience in a federal district court, when an officer refused to produce a man for whom a writ of habeas corpus had been issued. [21] Treat sent a copy of his opinion to Taney, and Taney replied by sending Treat a copy of his own opinion in the Merryman case. "It exhibits a sad and alarming condition of the public mind," he wrote to Treat, "when such a question can be regarded as open to discussion 5 and no one can see to what disastrous results the inflamed passions of the present day may lead. It is however most gratifying to one trained in the belief that a government of laws is essential to the preservation of liberty to see the judiciary firmly performing its duty and resisting all attempts to substitute military power in the place of the judicial authorities." [22]
Replying in similar fashion to a congratulatory letter from Franklin Pierce, Taney added that the "paroxysm of passion into which the country has suddenly been thrown appears to me to amount almost to delirium. I hope that it is too violent to last long, and that calmer and more sober thoughts will soon take its place: and that the North, as well as the South, will see that a peaceful separation, with free institutions in each section, is far better than the union of all the present states under a military government, and a reign of terror preceded too by a civil war with all its horrors, and which end as it may will prove ruinous to the victors as well as the vanquished. But at present I grieve to say passion and hate sweep everything before them." [23]
If it was true, as reported, [24] that Taney received a letter from the President concerning the Merryman case, neither party made the fact public. On July 4, however, in his message to the special session of Congress, the President made an official though indirect reply to Taney. He stated that the legality and propriety of authorizing the suspension of the privilege of the writ of habeas corpus had been
[21] In re McDonald, Federal Cases, No. 8751. [22] Taney to Treat, June 5, 1861, Treat MSS., Missouri Historical Society. [23] Taney to Pierce, June 12, 1861, Pierce MSS. [24] New York Herald, June 2, 1861.
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questioned. The attention of the country had been called to the proposition that one who was sworn to "take care that the laws be faithfully executed" should not himself violate them. His answer and his justification lay in the fact that all the laws were being resisted in nearly one-third of the states. "Must they be allowed to finally fail of execution," he asked, "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? To state the question more directly, are all the laws but one to go unexecuted, and the government itself go to pieces lest that one be violated?" He did not, however, believe that the Constitution had been violated. He suggested a brief argument to that effect, leaving a more extended argument to be presented on the following day in an official opinion by the Attorney General. [25]
It is futile to argue whether the President or the Chief Justice was right in the matter, for back of their legal differences were fundamental differences of opinion on matters of public policy. Lincoln preferred to interpret the Constitution so as to avoid the appearance of violating it, but he preferred violating it in one particular to permitting the Union to be destroyed. Taney regarded the dissolution of the Union as less disastrous than the reign of coercion which would be necessary to save and maintain it. Lincoln won, and the Union was saved. Men who are the products of the surviving culture, the culture of the North, are not inclined to question that the saving was worth the cost. Yet no one familiar with the destructiveness of the war and with the subsequent decay of the finer aspects of the culture of the old South will deny the greatness of the cost, or wonder that Taney, farseeing as he was, was appalled by it.
[25] Messages and Papers of the Presidents, VI, 25. For the Bates opinion see 10 Official Opinions of the Attorneys General 74.
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