By Stephen Smoot
On April 17, 1861, newly inaugurated President Abraham Lincoln faced a nightmare scenario.
In the Washington DC of his time, if he strolled out of the doors of the Executive Mansion and turned to the south, in the distance he could see the low hills rising in what is now Arlington National Cemetery. On the most prominent knob stood a Greek Revival mansion more impressive in appearance than in size.
Between the two houses flowed the mighty Potomac River, which at the time was the only wall standing between the National Capital and the forming Confederate States of America. While the C.S.A. had no desire to fight, they had a strong will to exit the Union.
Lincoln’s will to retain the seceded states was just as strong and he stood ready to use the full might of the remaining states to keep them in place. That strength, however, lay far from Washington DC.
The Upper South seceded because they refused Lincoln’s demand to provide troops to quash the Rebellion. As skirmishes exploded in the Western Virginia mountains and South Carolina servicemen forced the surrender of Fort Sumter in Charleston Harbor, the capital had not been more vulnerable since British troops burned it in the War of 1812.
Lincoln waited. And waited. On the afternoon of April 23, alone he paced the floor of his Executive Office. Every so often, he’d pause, peer out the window and remark in frustration “Why don’t they come? Why don’t they come?”
The answer to that question lay in the person of 1st Lieutenant John Merryman of the Baltimore County Horse Guards, a state militia formation.
Merryman and a number of others both in and out of the state military service learned that troops from Massachusetts and elsewhere in the Northeast would soon come by train to defend Washington DC in case of attack from Commonwealth of Virginia or Confederate States forces. They tore up tracks, sabotaged bridges, and did what they could to derail the movements.
Those troops, unfortunately, would have to disembark from the Philadelphia, Wilmington, and Baltimore Railroad, march across the center of Baltimore, and get on another train at the eastern terminus of the Baltimore and Ohio Railroad.
There, citizens had their hatred of the Union whipped into a frenzy and prepared to greet the newly raised regiments with Confederate States banners and violence. As Union forces marched in tight formation, they took fire from weapons handed out by gun store owners. Those without guns broke up the city street pavement and hurled rocks at the blue uniformed men.
Pushed beyond exasperation and under threat to their lives, the Union troops reluctantly opened fire. They fought a running battle to the B&O station, which lay beyond the zone of insurrection.
Memories of that day still run deep in Maryland, with the lyrics of the state song including “Avenge the patriotic gore/That flecked the streets of Baltimore.”
Troops made it to DC after that, but Marylanders still sought ways to block their movement. Many in the north and in Maryland urged Lincoln to send the troops to the capital via other paths.
The President rightly saw that as a dangerous path that would only embolden those already overtly breaking the law.
By late May Lincoln’s patience had dissipated and he went into action, suspending the writ of habeas corpus. Merryman was located, arrested, and locked in a cell at Baltimore’s Fort McHenry.
“Habeas Corpus” means simply “deliver the body.” Judges issue these writs to the government to bring a prisoner before the court to examine the cause of incarceration. The judge can then return the person to prison or free them. Suspending the writ can give the government broader powers to imprison and hold contrary to normal law or custom and only occurs in time of severe upheaval.
During the 1600s, Britain’s Parliament chafed under the authoritarian first three Stuart monarchs. In response to their penchant, especially under Charles I, for arresting political opponents and those who refused to “loan” the cash-strapped monarch money, Parliament gradually took the right to suspend from the executive branch and into their own hands.
The Founding Fathers made the issue somewhat more clear with Article 1, Section 9, Clause 2. It reads “the privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or invasion the public Safety may require it.”
While the United States Constitution never specifically forbade the executive from suspending the writ, case law and reliance on British legal tradition put that purview squarely in the hands of the legislative branch.
In that same crisis, Chief Justice John Marshall in ex parte Bollman and Swartout asserted that the United States Supreme Court justices, individually or collectively, could issue writs. His successor, Chief Justice Roger B. Taney in 1861 issued one to free Merryman and ordered United States Marshals to deliver the writ to Fort McHenry
There, U. S. Army authorities declined to honor it.
After the refusal, Taney issued ex parte Meryman in his role as a federal circuit judge in Baltimore. All Supreme Court justices did double duty in those days. The opinion said Merryman “appears to have been arrested upon general charges of treason and rebellion, without any proof, so far as it appears.”
Taney added later that the officer answered that “he is authorized by the President to suspend the writ of habeas corpus at his discretion” and can do so at his discretion under authority granted by Lincoln.
The President had ordered suspension of the writ on April 27, stating “if at any point (close to avenues of military transport) you find resistance which renders it necessary to suspend the writ of habeas corpus for public safety, you personally . . . are authorized to suspend the writ.”
Taney also stated in ex parte Merryman, as Chief Justice William Rehquist wrote in his work on civil liberties in wartime, that “because the Suspension Clause was placed in Article I, which deals with the powers of Congress, it must have been intended that only Congress should have the power.” Additionally, Taney shut any opening for Presidential authority in war or other civil emergencies.
Lincoln rejected Taney’s decision and opinion and cited exigent circumstances, writing to Taney, “Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated?”
He also argued that with Congress out of session, it could take months in that time to assemble it to act. Lincoln feared that acts of sabotage unchecked could embolden Confederate supporters to sweep the state from the Union. Time being key, the President chose to ignore the convention of legislative primacy and also the ruling of Taney and use a limited suspension to restore order.
A century and three years later, Lyndon B. Johnson faced a different type of insurgency. The Ku Klux Klan had wormed its way into powerful positions in Southern society, blocking federal attempts to protect civil rights while also intimidating those in those states advocating for change. In 1964, they enraged the President and most of the nation by assassinating black U. S. Army Lieutenant Colonel Lemuel Penn. Through Attorney General Robert Kennedy, the President informed Federal Bureau of Investigation Director J. Edgar Hoover that the KKK threatened national security and, as a result, the FBI could take the Constitutional gloves off.
In a few short years, the FBI used many of the tactics of the old Russian Tsarist Okhrana to successfully end the power through fear the KKK once enjoyed. The movie Mississippi Burning illustrates the lengths some went in going after brutal KKK terrorists. Agents set up entrapment scenarios, planted women’s underwear in the cars of married KKK leaders, and not only infiltrated, but saturated KKK meetings, church services of those favoring the Klan, and more.
Both the Civil War and the Ku Klux Klan presented unprecedented, but general threats to the nation that the President had to act quickly on to protect lives and property.
Starting with mass assaults on Immigration and Customs Enforcement agents raiding a violent Mexican cartel operation, events of the past two weeks have illustrated a different kind of threat. From Los Angeles disturbances spread across several major cities. These are not protests as the word is generally understood.
Those involved benefited from significant levels of funding, planning, accumulation of supplies to use against law enforcement, and effective nationwide organization. They seek to intimidate the federal government out of enforcing laws to expel criminal illegal aliens from the nation.
During the Biden years, millions crossed. These included leaders of violent criminal organizations who preyed almost immediately on legal immigrants and those whose only crime was crossing illegally, but who otherwise obeyed the law. They took over housing complexes, enticed young women into the sex trade, and tried to extend the tentacles of their organizations deeper into the heartland.
President Donald Trump vowed to remove, especially, criminal illegal aliens and won in large part due to that pledge. Efforts to enforce the law attracted the ire of these groups, foreign and domestic, many of whom so closely resemble fifth columnists. The efficiency of their response bespeaks the depth of their cancerous roots and how difficult it will be to yank them up.
Like Emperor Valens in 376 A. D., Biden opened his border to allow large numbers from other countries in. Also like Emperor Valens’ Roman Empire, America has come to regret its generosity as too many of those who crossed the border proved to be malevolent..
Trump has skirted the line of going into legal gray areas due to this necessity. Persistence of resistance will determine if he has to play his Lincoln card in the context of the insurrection rising in American cities.
