Fateful Lightning: A New History of the Civil War & Reconstruction by Allen Guelzo (self help books to read TXT) 📕

one bond sale circular, “they secure the Loans. Take the Loans! and the Taxes will fall more lightly—and they supply the ready, present and required means to strike the death blow at rebellion and the foul disturbers of the Nation’s peace!”

By skillfully juggling the dynamic of notes, bonds, paper money and taxation, Chase, Cooke, and Congress succeeded in raising the money needed for the war without sapping the Northern economy. They also hooked the nation’s private finance capital to the interests of the federal government, for as private investors bought the new securities, they were also buying an interest in the success of the North in the war (after all, if Lincoln and Chase failed, investors would probably never recover their investments). In return, as the federal government inched toward victory, Northern financiers such as Cooke, J. Pierpont Morgan, and A. J. Drexel found themselves mounting a rising tide of financial power and experience. Over the 1860s, the number of New York City banking houses would leap from 167 in 1864 to 1,800 in 1870, and the New York Stock Exchange would open its own building in 1863. The war would thus produce a temporary transfer of the nation’s private capital into government hands (the nightmare of the old Jacksonians) and the rise of a new class of American financiers who brokered this transfer.63

Successful though these fiscal measures were, there remained some question as to whether they were actually constitutional, and the need to deal with the constitutionality of a broad spectrum of wartime policies soon became a major headache for Lincoln and Congress. At the very beginning of the war, on April 27, 1861, Lincoln authorized General in Chief Scott to suspend the writ of habeas corpus along the insecure railway lines running into Washington through Maryland, and to imprison anyone suspected of threatening “public safety” there. The “Great Writ” of habeas corpus means, in the simplest terms, that a civil court can demand to “have the body”—it can require a ruler or a government who has imprisoned someone purely on his own authority to surrender the prisoner to the courts for a full and fair trial of his offense, instead of being locked forever in a dungeon with no notice to anyone and the key thrown away.

Habeas corpus has been part of English common law since the Magna Carta in 1215, and part of English statute law since 1679. The very first statute adopted by the new federal Congress under the Constitution empowered all federal courts to issue the writ. The Constitution itself mentioned the writ only once (Article I, Section 9), to permit its suspension “when in Cases of Rebellion or Invasion the public Safety may require it.” But the provision for suspension was located in the article concerning Congress, which implied that the suspension power lay there. When Andrew Jackson suspended the writ while preparing to defend New Orleans from the British in 1815, he was punished for his presumption with a $1,000 fine from a federal judge once the threatened British invasion was over.64

Roger Taney, who was still sitting as the chief justice of the United States despite his eighty-four years, was deeply antagonistic to Lincoln. He was convinced that Lincoln had no authority to repress secession, and he now looked for an opportunity to stymie Lincoln’s self-claimed war powers by contesting the suspension of the writ in Maryland. Taney got his chance in the case of John Merryman, a Confederate sympathizer and Maryland militia officer who had helped put to the torch railroad bridges leading into Baltimore during the uproar over troop passage in April 1861. Merryman, a substantial landowner in Cockeysville, was arrested on May 25, 1861, and imprisoned without a warrant in Fort McHenry. On May 26, Merryman’s brother-in-law and family lawyer hurried to Taney’s home in Washington to petition him for a writ of habeas corpus for Merryman.

Each Supreme Court justice was, in 1861, responsible not only for sitting on the high court but also for administering one of the federal circuits of appeal; Taney’s responsibility was for the Fourth Circuit Court of Appeals, which included Baltimore, and Taney promptly issued a writ of habeas corpus for Merryman to be delivered to his district courtroom in Baltimore. George Cadwalader, the commandant at Fort McHenry, refused to honor the writ, and when Taney issued a contempt citation, the U.S. marshal who carried it to Fort McHenry was refused admittance. Taney then read aloud a condemnation of Lincoln and Cadwalader, based on Taney’s conviction that “the privilege of the writ could not be suspended, except by act of Congress” and that Merryman’s arrest constituted a violation of the safeguard against “unreasonable searches and seizures.” On June 3 Taney filed his objections as Ex parte Merryman.65

For several days it seemed that Lincoln might be legally incapable of keeping pro-Southern agitators off the streets. Lincoln argued that the Constitution merely located the suspension clause among the articles describing the functions of Congress; it did not actually specify who had the authority to do the suspending, and since Congress was at that moment out of session, Lincoln saw no reason why he should let the situation in Maryland come crashing down around his ears. It was folly to dillydally over legal niceties when Confederate sympathizers were bent on committing sabotage against the Union war effort—folly to wait until the sabotage had taken place before arresting Merryman, and folly to turn Merryman over to a civil jurisdiction that would, in all likelihood, set him loose with a wink. Action to prevent this by suspending the writ lay fully within his war powers as commander in chief. “Ours is a case of Rebellion,” Lincoln argued, “in fact, a clear, flagrant, and gigantic case of Rebellion; and… in such cases, men may be held in custody whom the courts acting on ordinary rules, would discharge.”66 In the end, Lincoln ignored Taney, and the case of Ex parte Merryman became a dead letter.

This was only the beginning of a lengthy