(This takes approximately four minutes to read.)

When hostilities began with Ft. Sumter in April 1861, Lincoln’s first priority was Washington, D.C. Sandwiched between slave states, the District was vulnerable and honeycombed with disloyalists employed by the government, spies, and fellow travelers.

To protect the District, Lincoln summoned troops from Massachusetts, who came under fire when they traversed Baltimore in late April—resulting in the “patriotic gore that flecked the streets of Baltimore” in the still-honored Maryland state song.

One of the leaders of the state militia, which participated in the attack on the Union troops and who burned railroad bridges to frustrate further troop movement, was John Merryman, a prominent local planter.

He was taken into custody by Union forces and incarcerated in Ft. McHenry, near Baltimore. His prominence guaranteed access to a lawyer, who filed a petition for a writ of habeas corpus not with the local federal district court but with the Chief Justice of the United States.

Taney, a Maryland native, leapt at the opportunity to teach Lincoln a lesson, and agreed to hear the petition “in chambers,” since the Supreme Court was not in session, and the Judiciary Act of 1789 gave him jurisdiction as a single justice over the question.²⁶

What developed was a slapdash judicial hearing that was as much politics as law. Taney rushed to Baltimore, to accommodate, he said, the military commander holding Merryman, and quickly concluded that the petition should be granted.

He ordered the military commander to produce Merryman, but he was informed that the prisoner would not be produced. Instead of holding the commander in contempt, Taney announced an oral judgment concluding that Lincoln lacked authority to hold Merryman and that he should be discharged, but he filed no formal opinion until later.

Taney’s opinion scorched Lincoln and dismissed any argument that the executive could suspend habeas corpus. The power to suspend resided in Article I, and thus, Taney reasoned, only Congress could suspend the writ, which it had not. Leaning on an opinion by Chief Justice John Marshall in Ex Parte Bollman²⁷ more than a half-century before, Taney concluded that he was obliged to order Merryman’s release from military custody.

Never mind that Bollman was distinguishable (he had been charged with a federal crime and held in civil, not military, custody); for Taney, the great Chief Justice’s provenance was enough. Never mind that the Suspension Clause expressly granted power to neither the legislative nor executive branch, but only specified when the writ could be temporarily abated. And never mind that in Luther v. Borden²⁸ Taney himself had acknowledged a president’s power to call out the militia to suppress an insurrection—there, the Dorr Rebellion.

Notwithstanding Taney’s opinion, the military commander at Ft. McHenry, acting under the commander-in-chief’s orders, declined to produce Merryman. Thus, Abraham Lincoln defied a lawful order of the Chief Justice of the United States. Even Lincoln’s most energetic defenders flinch at this point.

As Judge Richard Posner has observed, “whether Lincoln was authorized to suspend habeas corpus [does not decide] whether he was authorized to flout Chief Justice Roger Taney’s order granting habeas corpus, as he did. Officials are obliged to obey judicial orders even when erroneous.”²⁹ Rossiter, one of Lincoln’s most tenacious modem critics, called Lincoln’s behavior “astounding” and wholly lacking authoritative support.³⁰

Not exactly. Putting to one side the predictably wooden defense by the administration by Attorney General Edward Bates’ formal opinion,³¹ and the predictably partisan positions by the partisan newspapers, Lincoln enjoyed remarkably strong scholarly support at the time. Horace Binney, the distinguished Philadelphia lawyer, published a sustained critique of Taney’s decision,³² and Joel Parker—Royal Professor of Law at Harvard—issued a careful and compelling pamphlet which skewered Taney premise by premise and point by point.³³

Lincoln held his fire until his special address to Congress, which was read, apparently in somewhat of a monotone, by a clerk on July 4, 1861. Although Lincoln sternly defended all of the actions he had taken to date, his tone changed markedly when he addressed the Merryman issue.

He was obviously sensitive to the criticisms of his policy (including a broadside condemning military arrests written by Benjamin Robbins Curtis,³⁴ the former Justice who had dissented so forcefully in Dred Scott). Lincoln did not mount a closely reasoned, legalistic case, but basically rested on two factors—necessity and logic.

First, he famously asked, “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? Even in such a case, would not the official oath be broken, if the Government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it?”³⁵

Then he implied that Taney’s analysis stood the objective of the Suspension Clause on its head: “[A]s the provision was plainly made for a dangerous emergency, it cannot be believed the framers of the instrument intended that in every case the danger should run its course until Congress could be called together, the very assembling of which might be prevented, as was intended in this case, by the rebellion.”³⁶

Apparently Lincoln felt his response was sufficient both to defend his suspension of habeas corpus and to justify his non-compliance with Taney’s order granting the writ. (In fact, Congress decided to ignore Taney, too, and a year after Lincoln’s statement voted to abolish slavery in the territories—a sharp, if somewhat gratuitous, repudiation of Dred Scott.)³⁷

So, with a rhetorical question and a logical deduction, Lincoln was personally finished justifying what turned out to be one of the most durably controversial decisions [that] he made during the war. Attorney General Bates was left with the duty of more formally squaring the policy with statutes and precedent, but for Lincoln, a short, somewhat awkward paragraph was enough.

(Emphasis added.)

On the surface, denying one Chief Justice’s order to liberate a leader of a rebellious state militia may not seem like that big of a deal, but the greatest danger in this successful action lies in how it sets a precedent for future U.S. politicians: if the most beloved politician in Imperial America’s history can successfully disregard the law like that, what is to stop another head of state from doing the same?

We have already seen the Trump régime crack down on immigrants with reference to the ancient Alien and Sedition Acts, so the Trump régime — or a successor — referencing this action as a justification for something is not out of the question.