Thoughts on Lincoln’s other proclamation
By Ted Streuli
The Daily Record Newswire
Abraham Lincoln was born, as you surely recall from your third-grade history class, Feb. 12, 1809, making Tuesday the 204th anniversary of his arrival. And, of course, there’s the movie (we still like you, Sally). Jan. 1, you might also recall, marked the 150th anniversary of Lincoln’s Emancipation Proclamation.
But Lincoln made another proclamation that was nearly as contentious. On May 25, 1861, two months into the war, Northern troops knocked upon the door of a sleeping John Merryman, placed him under arrest, and detained him at nearby Fort McHenry just outside Baltimore. The only problem was that they didn’t have a warrant.
Lincoln antagonist Roger Taney, age 80, chief justice of the U.S. Supreme Court since 1836, appeared personally in Maryland, convening court on a Sunday to hear Merryman’s petition for a writ of habeas corpus, an order to release him. Although he had freed his own slaves, Taney in 1857 delivered the majority opinion in Dred Scott v. Sandford, which concluded that no one of African descent could be a U.S. citizen and therefore they had no standing to bring a lawsuit. The ruling overturned the Missouri Compromise and declared slavery protected under the Constitution.
Lincoln knew that keeping Maryland in the Union was critical; if Maryland were to follow Virginia in seceding, there would be no safe road to Washington. The military, in Lincoln’s view, needed the power to quickly squelch treasonous uprisings.
Article I of the Constitution, which established the Congress, provided for the suspension of the habeas corpus doctrine only “when in cases of rebellion or invasion the public safety may require it.” Taney argued, in part, that because the clause appears in Article I, the framers intended to give only Congress that power. Lincoln held that his sworn duty to defend and protect the Constitution bestowed him with whatever powers were necessary to fulfill the obligation.
The New York World on June 7, 1861, admonished Taney for undermining the president, saying, in part, “In the midst of a rebellion which threatens the very existence of the government, its highest judicial officer volunteers the weight of his influence and of the influence of his high position in favor of the rebels. Volunteers, we say, because a strict interpretation of his duty required him to do no more than to award the writ when applied for.”
The New York Daily Tribune on May 30, 1861, was even harsher: “Let us not be afraid of a military despotism. Of all the tyrannies that afflict mankind, that of the Judiciary is the most insidious, the most intolerable, the most dangerous.”
Other papers supported Taney. The Baltimore American and Commercial Advertiser wrote on June 4, 1861 that the government should not arbitrarily revoke the rights promised under the Constitution it is trying to uphold, and the New York Weekly Journal of Commerce on June 6 opined: “The importance of the writ was never more manifest than at this moment, when the executive Department of the Government of the United States, in the attempt to suppress a rebellion, is tempted to take upon itself the exercise of judicial functions.”
Had I been an editorial writer in 1861, I am not certain I would have come down on Lincoln’s side; I tend to view intrusions on civil liberties unfavorably. The paradox is that Lincoln’s goal was enactment of the greatest stroke of civil liberty in the nation’s brief history. In retrospect, the ends might well have justified the means.
