According to James M. McPherson (Battle Cry of Freedom), John Merryman was a lieutenant in a secessionist cavalry unit that had burned down bridges and torn down telegraph wires in April 1861. His arrest was not ordered by Lincoln; it was made by army officers who were rounding up Confederate guerillas/spies in Maryland.
Taney's decision in the case was issued not on behalf of the U.S. Supreme Court, but rather just in his role as the senior judge of the federal circuit court in Baltimore. In his opinion, Taney suggests that Article I of the U.S. Constitution [which contains the habeas corpus suspension provision] "is devoted to the legislative department of the United States, and has not the slightest reference to the executive department." Taney is clearly erroneous about that. Section 7 of Article I, for example, states as follows:
"Every bill which shall have passed the House of Representives and the Senate, shall, before it becomes a law, be presented to the President of the United States; if he approves it he shall sign it..."
Moreover, there are numerous others references in Article I to the powers of individual states, and when a provision therein is intended to be limited to Congress, specific reference is made therein to "Congress shall have power" or language to that effect. In fact, Section 9 therein (which contains the provision for suspending habeas corpus) contains one specific reference to what Congress can do (in the first paragraph), but the rest of that section contains no references limiting its applicability to Congress, which strongly suggests that those restrictions apply to all branches of Congress (and arguably to individual states as well).
According to McPherson, "several prominent constitutional lawyers rushed into print to uphold the legality of Lincoln's position [on the suspension of the writ of habeus corpus]". Taney made a weak attempt to have his order to free Merryman enforced by U.S. marshals, but ultimately he complained that he had "exercised all the power which the constitution and laws confer upon [him], but that power has been resisted by a force too strong for [him] to overcome", so he merely called for the President "in fulfillment of his constitutional obligation to 'take care that the laws be faithfully executed,' to determine what measures he will take to cause the civil process of the United States to be respected and enforced."
This last statement makes it clear that Taney either lacked the courage of his convictions or (more likely) was just making his latest attempt to please his Confederate friends. Don't forget that this was the same Taney who issued the infamous Dred Scott decision. As McPherson points out, Taney's "main theme of his twenty-eight year tenure on the Court was the defense of slavery." Taney also had a well known grudge against the Lincoln administration even before inauguration, and according to McPherson, Taney had stated that he would refuse to administer the oath if William H. Seward were to be elected (because Seward had accused him of colluding with President Buchanan and the Southern Democrats in issuing the Dred Scott decision).
To summarize, the habeas corpus provision is rather ambiguous and a strong argument could be made that the President is entitled to suspend the writ of habeas corpus during a rebellion, particularly when Congress is not in session or does not object. In any event, in the case of Lincoln's suspension of habeas corpus, Congress specifically approved of and ratified his decision.
Keep in mind that when the rebellion broke out in 1861 Congress was not in session, and organizing a special session was not easily done at that time given the state of communications and transportation. The fastest route from California and Oregon then was by ship and overland through Central America. Congressmen also had families, jobs, and responsibilities at home which made it quite difficult for them to drop everything and head for Washington, and the Confederate guerillas in Maryland were doing all they could to cut off Washington from the rest of the Union. Lincoln and the Union military leaders were responding to rumours of an imminent attempt by Maryland secessionists to act in concert with Confederates in Virginia to seize, plunder, pillage, and burn Washington to the ground, so using his suspension of habeas corpus and arrest of suspected rebels as some kind of proof that Lincoln was a "dictator" is utterly ridiculous.
DiLorenzo and his Confederate-glorifying cohorts are masters at lifting sensational sounding tidbits out of historical context and using them to try to morph Lincoln into Joseph Stalin's evil twin, and apparently there are enough delusional neo-Confederates out there to make such a blatant smear campaign profitable. Don't expect any rational minds to fall for it, though.
They weren't just rumors. Less than a week after firing on Sumter, the fire-eating Goverenor was sending his troops to Washington.
South Carolina Governor F. W. Pickens to Gen. James Simons of the 4th Brigade, S.C. Militia.
State of South Carolina Head Quarters.20th April 1861
Dear Genl:
The Navy yard at Norfolk is all in flames -- Baltimore unanimous on our side, and all communications with Washington cut off -- & only 5,000 troops in Washington -- it can be taken.Troops are meeting from Augusta to Norfolk & will be there before we start.
Send Gregg immediately with as many as he can get -- wait not a moment, or we are ruined. I will send companies as fast as possible. Let Gregg start immediately with as many possible -- no delay -- for God sake make every thing move. Let Kershaws start with as many companies as he can get immediately. I have seen Beauregard, & he is sending the detailed orders.
We will be disgraced if Georgia gets there before we do. Raise the flag, & go -- My whole heart is with you. Washington is cut off -- and if we could march on it we could take it -- as Baltimore is a unit for us and Maryland rising. They are alarmed in Va. Genl. Taliaferro & Letcher both telegraph me this morning to push forward.
Truly,
F.W. Pickens
Your expansion on the point I made in the interview regarding the location of the Habeas Corpus provision is among the most lucid I have ever seen. Much better than my own words...
Regards,
Richard F.
Article I, section 8 enumerates the delegated powers to the federal legislature, section 9 enumerated the powers prohibited to the federal legislature, and section 10 enumerates the powers prohibited to the states. In Article II it is found that, "[t]he Congress may determine the Time of chusing the Electors", so would you maintain that Congress may execute Presidential powers of appointment and serve as commander-in-chief, simply because that branch is also mentioned in Article II?
This last statement makes it clear that Taney either lacked the courage of his convictions or (more likely) was just making his latest attempt to please his Confederate friends.
Ya think? Consider what Chief Justice Roger B. Taney wrote in ex parte Merryman about the suspension of the writ of habeas corpus - first he cited Justice Story, "[i]t 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".
Next he cited former Chief Justice John Marshall, "[i]f 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."
Then the Chief Justice adds his opinion, "[t]his article is devoted to the legislative department of the United States, and has not the slightest reference to the executive department." He notes that the Constitution directs that all legislative powers shall be vested in congress, and that the powers of the President are limited to enumerated powers in Article II, "[a]nd 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 not a word in it that can furnish the slightest ground to justify the exercise of the power."
Next he asserts that the Constitution cannot be suspended, "[n]or can any argument be drawn from the nature of sovereignty, or the necessity of government, for self-defence in times of tumult and danger. The government of the United States is one of delegated and limited powers; it derives it existence and authority altogether from the constitution, and neither of its branches, executive, legislative or judicial, can exercise any of the powers of government beyond those specified and granted; for the tenth article of the amendments to the constitution, in express terms, provides that 'the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states, respectively, or to the people."
How much plainer can he be? He cited two other legendary justices, along with his own opinion about the legality of the President's actions. He is quite candid in his assessment:
"These great and fundamental laws, which congress itself could not suspend, have been disregarded and suspended, like the writ of habeas corpus, by a military order, supported by force of arms. Such is the case now before me, and 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 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."
"In such a case, my duty was too plain to be mistaken. I have exercised all the power which the constitution and laws confer upon me, but that power has been resisted by a force too strong for me to overcome."
Since Chief Justice Taney is not the Commander-in-Chief, he certainly can't order the miltary to arrest Lincoln. Isn't the President required to abide by judicial decisions, or is he above the law?
Indeed it was, but in no way does that fact alone discredit it as a legal opinion. Even if it did, I'd direct your attention to John Marshall's majority opinion for the supreme court in Ex parte Bollman & Swartwout:
"If at any time, the public safety should require the suspension of the powers [editors note: "powers" refers to that of the court to award a writ of habeas corpus] 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 his opinion, Taney suggests that Article I of the U.S. Constitution [which contains the habeas corpus suspension provision] "is devoted to the legislative department of the United States, and has not the slightest reference to the executive department." Taney is clearly erroneous about that.
Though in the strict sense, article I does have a reference to the executive department, Taney is absolutely correct that article I is devoted to the legislative department, not the executive. I direct your attention to section I of the said article, which states very plainly "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Executive powers are vested in the president in article II.
Moreover, there are numerous others references in Article I to the powers of individual states
But only to the degree that:
A. such states are entitled to representation in the legislative body
B. Congress may enact certain types of legislation pertaining to the said states
C. Congress may not enact certain types of legislation pertaining to the states
D. Individual states may not exercise certain authorities that are of Congress, namely section 10, (i) which prevents state intrusion upon certain enumerated congressional powers and (ii) requires the consent of congress for certain activities of states
Accordingly, Article I is directly oriented in practically every way around the legislative branch of the government.
In fact, Section 9 therein (which contains the provision for suspending habeas corpus) contains one specific reference to what Congress can do (in the first paragraph), but the rest of that section contains no references limiting its applicability to Congress,
Such a limitation is inherent to Article I itself: "All legislative Powers," meaning that which is specified, "herein granted," meaning in Article I, "shall be vested in a Congress of the United States," meaning the legislative branch of the government.
"which strongly suggests that those restrictions apply to all branches of Congress
The branches of congress are the house and senate. If you instead mean all branches of government, you are mistaken on both precedence and for reasons which I will discuss shortly.
(and arguably to individual states as well).
Not really, and such a statement is rather absurd considering the contents of the said section. Restrictions contained throughout that section are oriented to the national legislative branch alone. Consider clause 4 "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken." The requirement of proportion to the census very clearly demonstrates this legislative restriction's applicability specifically to the congress itself. Then there is clause 5: "No Tax or Duty shall be laid on Articles exported from any State," a clear reference to commerce that exists among the states and not of one state alone, therefore again making it a federal legislative restriction.
It gets even more difficult for your argument as we continue. Clause 6 opens: "No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another;" First, regulation of commerce is a direct reference to Congress' power to do such among the states. Second, an individual state's legislature would likely find it quite difficult to give preference in the regulation of commerce to its own state by legislating over the ports of another state in which no such authority to legislate exists. Therefore this clause can only be a reference to the United States Congress. Clause 7: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time." An individual state would find similar difficulty in appropriating itself money drawn from the national treasury beyond congressional approval of such, or provision upon which such could occur. Clause 8: "No Title of Nobility shall be granted by the United States" - an individual state would have great difficulty granting a title of nobility for the united states as a whole, as to do so would again extend beyond its authority. Clause 8 continued: "And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State." Again, a clear reference to Congressional consent itself, not state legislatures or any other branch.
According to McPherson, "several prominent constitutional lawyers rushed into print to uphold the legality of Lincoln's position [on the suspension of the writ of habeus corpus]".
That they may have, but a simple lawyer's opinion does not fulfill the role of arbiter of the constitution. That role is in the supreme court, and as was noted, Marshall, writing on the part of the supreme court, noted the courts authority to grant writs came from the legislature and that the suspension of such vested authority in a time that public safety should require it was an act for the legislature to say.
Taney made a weak attempt to have his order to free Merryman enforced by U.S. marshals, but ultimately he complained that he had "exercised all the power which the constitution and laws confer upon [him], but that power has been resisted by a force too strong for [him] to overcome", so he merely called for the President "in fulfillment of his constitutional obligation to 'take care that the laws be faithfully executed,' to determine what measures he will take to cause the civil process of the United States to be respected and enforced."
This last statement makes it clear that Taney either lacked the courage of his convictions
I ask you then how so? I further question based upon your assertion of this to be the case, your familiarity with the constitutional history of the court itself. It was recognized dating back to marbury that the court itself had only its own authority and word. Enforcement came elsewhere. Taney was simply reasserting this principle, and correctly so.
or (more likely) was just making his latest attempt to please his Confederate friends.
Again, your ignorance of the constitutional history of the court is showing. You are attacking Taney's decision not on its intrinsic merits or legal scholarship, but rather on an unsubstantiated appeal to vaguely asserted and presumed external motives. Considered in and of itself, Taney's opinion is in consistency with prior precedent and legal scholarship, specifically the Marshall opinion I cited for you and the commentaries on the same subject by Story, not to mention a common sense strict reading of the Constitution.
Don't forget that this was the same Taney who issued the infamous Dred Scott decision.
Again, you give me reason to doubt your familiarity with the constitutional history and processes of the supreme court. The Scott decision was indeed infamous, and Taney was part of the majority on that decision. But that in no reasonable way renders every single decision he has ever made null and void any more than a bad decision on a single modern case renders the vote of any particular justice today on all other given cases null and void. If you knew your constitutional history, which obviously seems to be a point of trouble for you at least in this area, you would note that the Taney court produced more than its fair share of landmark rulings on items of basic constitutional principles in consistency with that document's original intent and meaning. Dred Scott was obviously an error in and of itself, but it does not make all Taney decisions erronious in and of themselves. To assert otherwise as you appear to do is fundamentally irrational.
As McPherson points out, Taney's "main theme of his twenty-eight year tenure on the Court was the defense of slavery."
I would disagree with you there, noting Taney's court to have been characterized most prominently by its decisions on commerce regulation, economic issues, and the sort.
Taney also had a well known grudge against the Lincoln administration even before inauguration,
In other words, you are again trying to discredit Taney's opinion per se on external circumstance. As a side note, one could easily make and document the argument that Lincoln had a grudge against the Taney court as exhibited during his senate debates and presidential campaign speeches, thereby making him less inclined to abide by any ruling by Taney. But that's only if we argue in circumstance as you insist upon doing.
To summarize, the habeas corpus provision is rather ambiguous
Not really. It is under an article explicitly directed to the legislative branch with little more save the direct interaction of other branches in a legislative function (such as impeachment and signing legislation).
and a strong argument could be made that the President is entitled to suspend the writ of habeas corpus during a rebellion
Historical constitutional scholarship on the part of the supreme court and its greatest justices, such as Marshall, argue otherwise, and I would argue that they, along with a common sense reading of the constitution (as opposed to the tortured one you yourself give it) are the opinion that matters.
particularly when Congress is not in session or does not object.
Again, Marshall seems to think otherwise.
In any event, in the case of Lincoln's suspension of habeas corpus, Congress specifically approved of and ratified his decision.
But it was not his decision to make in the first place. It was congress' decision. Your argument is akin to the president deciding all of a sudden he wants to hike the income tax by 10%, instructing the IRS to make it so, and then after the fact recieving a simple congressional acknowledgement that states "yeah, we agree with you" and fails to legislate by statute that decision to be so.
Keep in mind that when the rebellion broke out in 1861 Congress was not in session, and organizing a special session was not easily done at that time given the state of communications and transportation.
Still, it nevertheless could have been done. The "rebellion" broke out in an isolated event on the coast of South Carolina and proceded slowly from there.
The fastest route from California and Oregon then was by ship and overland through Central America.
And that was exactly the problem that plagued those state's senators and representatives regardless of the circumstances and timing. If you look at the congressional records from those times, you will note widespread extended and frequent absences of those said persons, yet the senate and house operated just fine.
Congressmen also had families, jobs, and responsibilities at home which made it quite difficult for them to drop everything and head for Washington
Well sorry for the inconvenience! That's life!