| Book Reviews | The Body of John Merryman: through their state, Lincoln replied: not give the Supreme Court original ju- Abraham Lincoln and the Sus- risdiction to issue writs of habeas cor- pension of Habeas Corpus I must have troops to defend this pus, but section 14 of the Judiciary Act Capital. Geographically it lies sur- of 1789 gave this power to both indi- By Brian McGinty rounded by the soil of Maryland; vidual justices and district court judges; Harvard University Press, Cambridge, MA, and mathematically the neces- therefore, in either event, Taney was 2011. 253 pages, $29.95 sity exists that they should come acting legally when he ordered General over her territory. Our men are George Cadwalader, the military com- Abraham Lincoln and Treason in not moles, and can’t dig under mander of Fort McHenry, to “have the the Civil War: The Trials of John the earth; they are not birds, and body of John Merryman” brought to his Merryman can’t fly through the air. There is courtroom. no way but to march across, and Cadwalader declined Taney’s order, By Jonathan W. White that they must do. But in doing citing President Lincoln’s suspension of Louisiana State University Press, Baton Rouge, this there is no need of collision. the writ of habeas corpus as his justi- LA, 2011. 191 pages, $49.95 (cloth), $18.95 Keep your rowdies in Baltimore, fication. For, on April 27, Lincoln had (paper) and there will be no bloodshed. written to General Winfield Scott: “If Go home and tell your people at any point or in the vicinity of the REVIEWED BY HEN R Y CO H EN that if they will not attack us, we military line” between Philadelphia and will not attack them; but if they Washington, “you find resistance which On April 12, 1861, the South fired on do attack us, we will return it, renders it necessary to suspend the writ Fort Sumter and the Civil War began. and that severely. of Habeas Corpus for the public safety, On April 15, President Lincoln issued a you ... are authorized to suspend the proclamation calling for 75,000 state mi- Following the Pratt Street riot, state writ.” In response to Cadwalader’s dis- litiamen and summoning a special ses- authorities ordered members of the obedience, Taney issued a writ of at- sion of Congress for July 4. Two days Baltimore police and Maryland militia tachment, citing Cadwalader for con- later, Virginia seceded from the Union, to burn railroad bridges north of Bal- tempt of court. A marshal brought the putting Washington, D.C., in danger timore to prevent additional Union writ to Fort McHenry, but he was not and making it imperative that Maryland troops from passing through the city. admitted and Cadwalader would not not secede and cause the capital to be On April 23, John Merryman, a wealthy appear to be served with it. On May 28, surrounded by enemies. Militiamen Baltimore County farmer, slaveholder, the day Taney had specified for return from Massachusetts and Pennsylvania and first lieutenant in the Baltimore of the writ, the federal courtroom was started to stream into Maryland on their County Horse Guards (which was at- jammed, as a crowd estimated to be way to Washington. On April 19, they tached to the Maryland militia), burned as large as 2,000 formed on the street. arrived by railroad at Baltimore’s Presi- at least six bridges. A month later, on Taney read from a written memoran- dent Street Station (today the site of a May 25, at 2 a.m., a Union military dum he had prepared, stating that, un- Civil War museum). There the railroad force entered Merryman’s home, ar- der the Constitution, the President had cars had to be detached and pulled by rested him, and imprisoned him in Fort no power to suspend the writ of ha- horses for more than a mile west on McHenry in the Baltimore harbor. Fort beas corpus. He followed up his state- Pratt Street to be hooked to a locomo- McHenry, today an attractive tourist ment with a written opinion known as tive at the Camden Street Station (still site, was the birthplace, during the War Ex parte Merryman. a railroad station) to proceed to Wash- of 1812, of the poem that became “The Article I, section 9 of the Constitu- ington. Star Spangled Banner.” tion provides, “The Privilege of the Although Maryland had not seceded And now to the legal part of our sto- Writ of Habeas Corpus shall not be (and did not secede), it was a slave ry. Through his lawyers, Merryman pe- suspended, unless when in Cases of state, and much of its population was titioned Chief Justice Roger B. Taney, Rebellion or Invasion the public Safety sympathetic to the Confederacy. On a fellow Marylander and author of the may require it.” Taney, of course, did April 19, an angry mob of some 10,000 Dred Scott decision, for a writ of ha- not deny that the Civil War constituted men attacked the railroad cars as they beas corpus. Federal law in those days a rebellion, but he found that the pow- carried the troops on Pratt Street. The required Supreme Court justices to ride er to suspend the writ belonged solely soldiers got out and started to march. circuit, and historians to this day de- to Congress. Article I, he observed, “is Some of the rioters fired pistols at the bate whether Taney’s role in the Merry- devoted to the Legislative Department soldiers, and the soldiers shot back. man case was as a circuit judge for the of the United States, and has not the Four soldiers and 12 civilians fell dead, District of Maryland or as a Supreme slightest reference to the Executive De- and dozens more were wounded. Court justice in chambers. The differ- partment.” But that is not true. Article Three days later, when a group from ence this makes is uncertain, but both I, section 9 has several limitations on Baltimore called at the White House to books under review discuss the ques- executive power, including the provi- demand that he forbid troops to pass tion. Article III of the Constitution does sion that “No Money shall be drawn 62 | The Federal Lawyer | April 2012 from the Treasury, but in Consequence whenever, in his judgment, the public on May 11, 1866, allowing federal of- of Appropriations made by Law.” This safety may require it, is authorized to ficials and military officers to sue state is only one of a number of legal prob- suspend the privilege of the writ of ha- judges who refused to remove their lems with Taney’s opinion that Brian beas corpus in any case throughout the cases to federal court. McGinty ably discusses in The Body of United States, or any part thereof.” But, The two books under review cover John Merryman. McGinty does so by if Lincoln already had this power, then much of the same ground, but they also examining the writings of such legal this statute actually limited his power, contain much that is different. The his- scholars of the time as Reverdy John- because it provided that the secretary tory that this review has narrated thus son, Joel Parker, and Horace Binney. of state and the secretary of war shall far has been drawn from both books, But whether Taney was right or wrong, give federal judges a list of all prison- but more heavily from McGinty’s, be- Lincoln suspended habeas corpus sev- ers detained without the benefit of ha- cause McGinty is especially cogent eral times after Taney issued his opin- beas corpus, and, “in all cases where on the legal issues on which this re- ion in Ex parte Merryman. McGinty a grand jury ... has terminated its ses- view has focused. But White discusses quotes Clinton Rossiter: “The one great sion without finding an indictment ... the 1863 act in more depth than does precedent is what Lincoln did, not what against any such person, it shall be the McGinty, and White includes more his- Taney said.” duty of the judge of said court forth- torical detail than does McGinty. (Not In his July 4, 1861, written address with to make an order” discharging the surprisingly, McGinty is a lawyer and to Congress, Lincoln defended his sus- prisoner, provided the prisoner takes White is a historian.) White “remind[s] pension of habeas corpus, asking, “are “an oath of allegiance to the Govern- legal scholars to delve more deeply all the laws, but one, to go unexecuted, ment of the United States, and to sup- into unpublished case materials and to and the government itself go to pieces, port the Constitution thereof; and that rely on more than the published court lest that one be violated?” Congress he or she will not hereafter in any way reports,” and, in Abraham Lincoln and had been out of session when Lincoln encourage or give aid and comfort to Treason in the Civil War, he reproduces suspended habeas corpus. Because the present rebellion. ...” a previously unpublished letter by John the power to suspend, Lincoln argued, As Jonathan White observes in Merryman that he discovered. In the “was plainly made for a dangerous Abraham Lincoln and Treason in the letter, Merryman claimed that his moti- emergency, it cannot be believed the Civil War, this provision of the 1863 vation for burning the railroad bridges framers of the instrument intended, act made suspension of habeas corpus was to protect the city of Baltimore that in every case, the danger should “practically worthless.