BOOK ONE
 
John Cabell
Breckinridge
CHAPTER I
JUDICIAL DEFIANCE
Getting up the steps to the bench was a problem. Irritated at his own infir-
mity, Roger Taney waved aside the bailiff's offer of help. The oaf had mispro-
nounced his name in calling the court to orderTaney should be said to
sound like "tawny"and the Chief Justice wanted no assistance up the stairs
from the likes of him.
The Chief Justice of the United States was one year older than the nation.
At eighty-four, after thirty-six years of service as John Marshall's successor at
the head of the Supreme Court, Roger Taney was aware that he had been
preparing for a lifetime to take the action likely to cause his arrest and impris-
onment. The old man had told his daughter as much that morning, in-
structing her what clothes and books to bring him at Fort McHenry's mili-
tary jail.
He pulled himself up the railing next to the steps, taking his seat behind the
bench with an angry grunt. The prospect of dying while incarcerated held no
terrors for him; that sort of martyrdom would help him make his point.
The point that Taney was determined to drive home to the nation on the
broiling day in late May in Baltimore was that the Constitution could not
rightly be defended by unconstitutional means. If the Union could not be
maintained lawfully, with a proper regard to the civil liberties of its citizens
during its greatest test, then it was the Chief Justice's opinion that a peaceful
separation of the slaveholding states should be permitted.
Not that he approved of secessionon the contrary, Taney believed that
the Southerners were mistaken in their intent to dismember the Union. But
he never let his personal views determine his decisions: his job, his mission in
life, was to stick to the law as written. No law, no word in the Constitution,
prohibited a state from withdrawing from the Union, and every power not
expressly given to the national government belonged to the states and the
people. The founders had established a federal system, not a national system,
and nothing that this arrogant new President said in his Inaugural about an
oath "to preserve the Union" could change that. Taney had to give Lincoln
credit for being a clever lawyer; interpreting the union of states as indissolu-
ble on the basis of his understanding of the oath of office was creative. But it
was not the law, nor was it for the President to decide what was the law.
Roger Taney and his Court would do that.
He ignored the gavel in front of him; a judge should be able to quiet a
courtroom by the force of his gaze, with no help from pounding wood on
wood. Not that this was much of a court, he observed; the old Masonic Hall
served as a district court because the citizens of the rowdy city of Baltimore
were too cheap to build a courthouse.
Each of the nine members of the Supreme Court was expected to ride
circuit, as he was today, sitting as an individual judge in a designated area.
Taney's assigned area included the state of Maryland, where the first casual-
ties of a civil war had taken place. He had seized the opportunity to come to
Baltimore and try the case that would hold the new President to the rule of
law.
The bailiff, although he could not pronounce a name properly, had been
properly instructed to cry out Taney's national titleChief Justice of the
United States of Americaand not judge of the federal circuit court, sitting
as a local jurist. Taney was determined to issue his order as Chief Justice of a
nation, just as Chief Justice Marshall had done in the time of Thomas Jeffer-
son, establishing the court's authority to decide what is constitutional and
what is not.
Not since he had issued his decision on the runaway slave, Dred Scott,
holding that a negro in this country had no rights which the white man was
bound to respect, had Taney felt as exhilarated. He looked around the court-
room for black faces; there were a few, and he could feel their hostility. Pity
about that. They would never understand he held no animosity toward the
blacks, had freed his own slaves fifty years ago, and had said in open court
that slavery was a blot on the national character. But it was not for a judge to
write law, merely to interpret it as its writers intended.
Robed and ready, comfortable in the law and secure in the rightness of his
cause, the Chief Justice surveyed the other faces in his courtroom. Word had
evidently spread, as he had hoped, that this would be a day of confrontation
between the national executive and the national judiciary, between the force
of arms and the rule of law. Taney's eyes, still sharp enough to read footnotes
in agate type in printed opinions, spotted some familiar faces at a table set
aside for members of the press. The correspondents of the Northern radical
press were there in full strength, poised to brand him "traitor" for daring to
uphold the authority of due process. The man from Horace Greeley's New
York Tribune, along with the man from Henry Raymond's New York Times,
were certain to support their radical Lincoln in any of his dictatorial acts
aimed at punishing the seceding Southerners. The other side was there, as
well: a reporter from the Louisville Courier was present, a man Taney had
spoken to several times, and from whom he expected a fair report on the
day's proceedings. Kentucky was as important as Maryland these days, and
both those internally divided border states were more important than New
York.
Looking at the seats beyond the table of reporters and defendants, the old
man could make out the strong features of the face of another Kentuckian:
Senator John Breckinridge. Taney nodded in his direction. Breckinridge, un-
til a few months ago, had served as Vice President of the United States in the
Buchanan administration, and many thought he was more responsible than
any other man for Lincoln's election. By running for President as a Peace
Democrat, Breckinridge had split the vote of War Democrat Stephen Doug-
las, helping Lincoln to win the presidency with fewer than four votes out of
ten cast. After the national election, the legislature of Kentucky had immedi-
ately sent the popular Breckinridge back to Washington as senator.
Why was Breckinridge in court here in Baltimore? Taney surmised that the
Kentuckian wanted to receive instruction on the limitation of the war powers
of the President. The Chief Justice would give him that, and more, all to be
used as ammunition in the Senate to curb a runaway Chief Executive.
Taney's eyes followed Breckinridge as the tall man changed his seat to put
himself next to Anna Ella Carroll, who had positioned herself in the first row
behind the reporters' table. Taney knew Miss Carroll, too, just as everyone of
any influence seemed to; he was friendly with her father, the former governor
of Maryland. In Maryland, the Carrolls were as influential as the Biairs,
though not as wealthy. This daughter had surprised everyone by turning out
to be a writer, a pamphleteer and publicist for the railroads. Taney considered
her an attractively vivacious, if somewhat assertive, young woman. Not so
young anymorehe estimated her to be fortyish nowand blessed with a
keen mind. Would likely have made a good lawyer, had she been born a man.
The large family that sat together at the defendants' table, looking more
indignant than worried, was the kin of John Merryman, the man seized by
Union troops after the outbreak of violence and the subject of the day's
hearing. Taney did not see Merryman himself in the courtroom. That meant
that the government was refusing to "produce the body" and was prepared to
show its contempt of the court. The Chief Justice called on Merryman's
lawyer to begin.
"Being at home, in his own domicile," the lawyer read from notes, "peti-
tioner John Merryman was aroused from his bed about two o'clock in the
morning of May 25, 1861, by an armed force and deprived of his liberty."
Taney nodded and prompted him. "The writ."
"He has been imprisoned without any process or color of law whatsoever.
The person now detaining him at Fort McHenry is General George Cadwal-
lader."
"The writ, the writ," Taney snapped, wishing the lawyer knew how to
present evidence in proper order.
"We promptly came before you in this court to pray that a writ of habeas
corpus be issued, directed to the said George Cadwallader commanding him
to produce your petitioner before you with the cause, if any, for his arrest and
detention."
"Upon my order, the writ was issued," Taney said. "Clerk will read it."
"The United States of America to General George Cadwallader, Greet-
ing," the clerk called out. Taney wondered if the characters in this drama
realized the constitutional import of their roles. "You are hereby commanded
to be and appear before the Honorable Roger B. Taney, Chief Justice of the
United States, in the U.S. Courtroom in the Masonic Hall and that you have
with you the body of John Merryman"
Taney cut him short and pointed at the U.S. Marshal, a portly fellow
standing alongside a man in uniform. "Did the court's marshal serve the
writ?"
"I served the writ on the general, Your Honor," the marshal's voice
boomed, "who sends this court his aide, Colonel Lee, in reply. So answers
Washington Bonifant, U.S. Marshal for the District of Maryland."
Taney glared down at the military aide; for the general to send a flunky
added insult to constitutional injury. "What is the general's response to the
lawful writ issued by this court?"
"The prisoner is charged with various acts of treason," replied the colonel
coolly, "and with avowing his purpose of armed hostility against the govern-
ment."
"That is no answer to the writ."
"General Cadwallader has further to inform you," the officer went on,
unperturbed, "that he is duly authorized by the President of the United
States, in such cases, to suspend the writ of habeas corpus for the public
safety." He began to offer a legal argument. "In times of civil strife, errors, if
any, should be on the side of the safety of the country, and"
Taney would have none of that, from a person with no standing before this
court. He wanted to keep the issue clear. "Have you brought with you the
body of John Merryman?"
"No."
"The General has acted in disobedience to the writ," Taney declared, "and
it is ordered that an attachment forthwith issue against him for a contempt,
returnable before me here at two P.M. today. Marshal, do your duty."
The Chief Justice took lunch alone in what passed for his chambers, a
dingy room upstairs where he spooned down an obligatory bowl of Maryland
she-crab soup. He wondered if it would be his last meal as a free man, and
whether it was possible to bring on a heart attack through willpower. He
could also refuse to eat. The death of a Chief Justice in jail would surely
create a furor, setting a precedent that might protect other judges in a time
that presidents liked to call "necessity."
He pondered the power of precedent. When his predecessor, John Mar-
shall, in Marbury vs. Madison, affirmed the right of the Supreme Court to
decide whether laws passed by the Congress were constitutional, neither the
Congress nor President Jefferson took issue with him. That lack of challenge
set the precedent that gave the Court its power as an equal branch. Now here
was Lincoln, seizing a war power reserved to the Congress. If nobody chal-
lenged him, the precedent would be set, and the presidency would assume a
power that could not be taken back. The worst part of that dark prospect was
that this war powerarbitrary arrest, the ability to set aside the due process
of lawwas at the core of what had caused the American colonies to rebel
against the English king.
Did Lincoln realize this? Taney was of the opinion that the new President
was not the country bumpkin, the rail-splitter, the baboon soon to be taken
into camp by his betters in the Cabinet, that his detractors were saying he
was. The Chief Justice thought Lincoln knew precisely what he was doing.
First, he had begun the war without the necessary declaration by the Con-
gress, which was not in session. Then he had usurped the power of the absent
Congress to raise armies and pay them. Finally, today, he was snatching from
the legislative branch the power to suspend the writ of habeas corpus, which
was the citizen's basic protection against dictatorship. The President's motive
was obscure, but the pattern could not be more clear.
Taney asked himself, as he finished the lumpy soup, what he would do next
if he were in Lincoln's shoes and wanted to make permanent this seizure of
power. He didn't know Lincoln, but he had known Andy Jacksonindeed,
had written President Jackson's farewell address, warning of North-South
divisionsand prided himself on reading the minds of strong-willed presi-
dents. Jackson would confront the opposition, as he did the banks, spoiling
for a public brawl. What about Lincoln? His style seemed different, decep-
tively self-deprecating, as he made huge incursions into the power of the
Congress. Perhaps he would not accept the invitation of the judiciary branch
to have it out right here and now. Perhaps he would be cagey enough to avoid
the trap Taney was setting. But Taney did not see a way out for Lincoln:
either he would have to back down, setting the precedent that would forbid
any future President from assuming the power to suspend the writ, or he
would have to arrest the Chief Justice for treason.
Court convened promptly at two. Taney called for the marshal's report.
"I proceeded to Fort McHenry for the purpose of serving the writ," in-
toned the marshal, half facing the judge, half the press table. "I sent in my
name at the outer gate. The messenger returned with the reply that there was
no answer to my card."
Taney leaned forward. "Were those the exact words?"
"No answer to my card. I was not permitted to enter the gate. Therefore, I
could not serve the writ. So answers Washington Bonifant, U.S. Marshal."
So that was Lincoln's tactic: neither specific refusal nor permission to
enter. Taney nodded in grim understanding: Lincoln had decided neither to
flout the law nor to obey the law. He would simply try to ignore the law by
refusing to confront the judge.
"You have the legal power to summon out a posse comitatus, " Taney told
the marshal, "to seize and bring into court the party named in the contempt
attachment." A look of horror crossed the marshal's face at the prospect of
leading a posse into the military camp. "But it is apparent you would be
resisted in the discharge of that duty by a force notoriously superior to the
posse." He could hear Washington Bonifant let out his breath.
"Under these circumstances," Taney continued, frustrated by the Lincoln
refusal to engage or disengage, "I can only call on the President of the United
States to carry out his constitutional duty to enforce the law; in other words,
to enforce the process of this court."
The old man could feel his heart racing as he laid the legal base for the
impeachment of the President. Taney forced himself to slow down and to let
his gaze roam over the people in his courtroom: the so-answering marshal,
the angry family of the arrested man, Breckinridge whispering to Miss Car-
roll, the excited reporters, a few of the plug-uglies who had chased the first
contingent of Union troops out of Baltimore.
History, Taney assumed, would either judge the President to be a usurper
or the Chief Justice to be a traitor. Perhaps the Almighty had preserved him
to this age and brought him to the place and moment to draw the issue. He
took his weapon in handa written opinion, prepared as the case ripened in
anticipation of this constitutional impassetitled Ex Parte Merryman.
"The opinion which I shall read," he began, looking at Breckinridge, "is
that of the Chief Justice of the United States." As the leader of the judiciary
branch, he would use every shred of his legal authority and intellectual skill
to stop the encroachment of military despotism. He was certain that the
greatest threat his countrymen faced was not, as Lincoln thought, separation
into two nations, but the loss of freedom in the name of protecting freedom.