CHAPTER 2
PRESERVED FOR THIS OCCASION
"Brave old man," said John Breckinridge.
"Damned traitor," the woman next to him whispered back.
The senator from Kentucky looked at Anna Carroll first in disapproval,
then back again in wonderment. Did she mean that, or did she enjoy being
outrageous?
"The President not only claims the right," Justice Taney was saying from
the bench, "to suspend the writ of habeas corpus himself, at his discretion,
but to delegate it to a military officer. No official notice has been given to the
courts of justice or to the public that the President claimed this power."
"Now they know," Anna Carroll said under her breath, for Breckinridge to
hear. "No proclamation was needed. Taney wants Lincoln to submit to the
court's jurisdiction on this, so the court can deny him his war power. But
Lincoln's no fool."
"I certainly listened to this claim with some surprise," Taney read his
opinion, "for I had supposed it to be one of those points of constitutional law
upon which there was no difference of opinionthat the privilege of the writ
could not be suspended except by Act of Congress."
Breckinridge looked to the small, intense woman at his side for her re-
sponse. "Congress isn't in session," she murmured with less assurance than
before, "it had to be done immediately."
The Kentucky senator shook his head at that. She might be ahead of him
on the war powers of the President versus the Congress as expressed in the
Constitution, but he was squarely in the middle of the tug-of-war that was
going on in Washington today. He knew that Lincoln could easily have called
Congress into session back in April, when the crisis over Fort Surnter arose.
"Wrong," he told his companion. "Lincoln doesn't want us there in session in
Washington, not until he has his war under way."
She shrugged that off, which niggled him. He had known Anna Carroll for
ten years, since he first came to Washington from Lexington to represent
Kentucky. She had been a close friend of his Uncle Bob's, the preacher
Breckinridge, who headed the society that bought up slaves, set them free,
and shipped them off to the new state of Liberia in Africa. The Reverend
Robert Breckinridge had taken a profound interest in being the spiritual
guide of the young woman, and had commended her to his nephew, a
stranger in an unfriendly city, as an intellectual companion and source of new
political friendships. That Anna had surely been to the young senator, and for
the first few years, no more than that; but she was an attractive lady, demand-
ing as well as giving, and one thing had led to another. Their need for each
other in Washington made it awkward for both to see much of Uncle Bob,
and that relationship with the avuncular guide ended for both: the preacher
Breckinridge would not have approved a love affair between the young
woman who looked to him for moral teaching and his nephew, whose wife
was raising three sons for him back in Kentucky. John Breckinridge did not
approve of it either, but the months away from family on official business
were long, and it was impossible for him to separate his need for the stimulus
of this particular woman's unique mind from their mutual need for more. So
they had what they had, and he decided it helped them without hurting
anybody, and tomorrow would take care of itself.
Taney, meticulously building his case against Lincoln, cited the precedent
of President Jefferson's restraint in the matter of rebellious Aaron Burr; in
that instance, the President had deferred to Congress on a suspension of the
writ of habeas corpus. Breckinridge was familiar with that case; his grandfa-
ther had been Jefferson's Attorney General, which instilled a familial interest
in the precedent Taney was citing. Nodding in agreement, he listened to the
aged jurist's analysis of the passage in the Constitution that permitted the
suspension of the writ in case of rebellion: the clause appeared in the enumer-
ation of the powers of Congress, and did not appear in a separate article
listing the powers of the President. He looked at Anna, who did not turn her
head; she had no answer to that.
Taney then plunged into the history of the great writ in English common
law. He showed why it was a legislative rather than an executive prerogative:
the Parliament, suspicious of the power of a king to arrest arbitrarily one of
his subjects, made certain that any temporary suspension of the most elemen-
tal political freedom required a legislative action.
"I can see no ground whatever," said the judge in his piping voice, "for
supposing that the President, in any emergency, can arrest a citizen except in
aid of the judicial power. He certainly does not"here Taney looked up and
laid stress on the next few words"faithfully execute the laws," and looked
down, continuing, "if he takes upon himself legislative power by suspending
the writ of habeas corpus, and if he takes upon himself the judicial power also
by arresting and imprisoning a person without due process of law."
"That lays the basis for an impeachment," Breckinridge whispered to
Anna Carroll.
"No chance," she replied. "The votes for that walked out of the Congress a
month ago."
He had to admit she was right. Six weeks from now, on July 4, Congress
would convene, but the representatives from the Southern states would not be
there. The secession, which Lincoln did not recognize as valid, would remove
most congressional constraints from Lincoln. When the Southern representa-
tives walked out, the man elected by a minority of the people would have a
majority of the votes in the Congress.
Breckinridge realized he would be one of a handful of senators, from the
border states, left to hold out for peace amid a flock of warhawks. In the
current atmosphere, peace did not have many defenders, North or South, but
he believed that some time remained for reasonable men to avert a bloody
war. Fort Surnter was a mere skirmish; no real battles had yet been fought.
Despite the firebrand oratory of the Rhetts and Yanceys in the South, and the
Bakers and Wades in the North, and despite the symbolic action at Fort
Surnter, the war fever was not yet a disease. It could be cooled; military men
knew that war had not yet begun.
Taney applied what, to the lawyer in Breckinridge, seemed to be the crush-
ing argument about who held the constitutional power, in case of invasion or
rebellion, to permit arbitrary arrest. "Chief Justice Marshall," said the judge
who succeeded to his position, "used this decisive language: If at any time,
the public safety should require the suspension of the powers vested by this
act in the courts, it is for the legislature to say so. That question depends on
political considerations, on which the legislature is to decide; until the legisla-
tive will be expressed, this court can only see its duty, and must obey the
laws.' I can add nothing," Taney said triumphantly, "to these clear and
emphatic words of my great predecessor."
Anna Carroll was ready for that. "Marshall's opinion was an obiter dic-
tum," she said quickly, "only his personal opinion, made in passing on an
unrelated matter."
"You've researched that closely," Breckinridge noticed.
"Marshall's obiter dictum was not part of the Court's decision, and doesn't
count as precedent," she insisted. "That troublemaker on the bench knows
it."
He knew, and was aware that Anna knew, that John Marshall's opinion on
whether a President had the right to suspend habeas corpus would count
heavily with anyone concerned with the rule of law. That was why she was so
quick to try to minimize its importance. Breckinridge wondered why she was
so well informed, and repeated his question more directly. "You've been
working on one of your pamphlets?"
She nodded. He could see she was torn between protecting a confidence
and boasting of her assignment. He knew his friend well enough to wait until
her craving for recognition did its work. "I'm helping the Attorney General a
little. Old Bates doesn't have much of a staff."
"Just a little research in the library, then."
That assumption of insignificance nettled her. "Actually, I'm drafting the
Attorney General's memorial to the President on war powers. If Lincoln
agrees with my argument, then I'll put the memorial in a pamphlet form, in
language that people can understand."
Breckinridge knew what that meant: a fiery broadside, certain to be re-
printed by newspapers across the North, demolishing in the most fervid terms
the legal argument being set forth in musty detail by Taney. Anna was superb
at persuasive writing, and had taught Breckinridge a thing or two about
rhetoric in his own speeches. But the trouble with her writing, in his view,
was in the way that she could persuade herself to adopt, without reservation,
positions that served the interests of her client. Lawyers found means to serve
clients' ends all the time, he acknowledged, but she did not have a lawyer's
credentials.
"You really believe," he asked, "that Lincoln has the legal authority to
wage war, to raise and pay troops, and to arrest anybody for no reasonall
by himself?"
She glared at him, then patted his hand and smiled. "This is a war to stop
treason. Get used to it. Don't stand on ceremony."
Her ready acquiescence to what struck him as a clear case of constitutional
outrage troubled him. Here was a woman of intellect, with a solid back-
ground in business and politics, and with the Tidewater good sense that had
kept him out of trouble many times. If Taney's arguments about the limits of
the war power could not persuade Anna Carroll, what chance did peacemak-
ers have against less intelligent Northerners spoiling for a fight? Turning it
the other way, what chance did peace-seeking unionists have against seces-
sionists spoiling for separation and independence?
"Great and fundamental laws have been disregarded," Taney was saying.
"If judicial authority may thus be usurped by the military power, the people
of the United States are no longer living under a government of laws." The
Kentucky senator felt the frustration and sorrow in the Chief Justice's words.
The old man's voice weakened in his conclusion. "I have exercised all the
power which the Constitution confers upon me, but that power has been
resisted by a force too strong for me to overcome."
Except for the buzzing of the flies, the Masonic Hall was silent for the
judge's order about the writ he could not serve. "I shall, therefore, direct the
clerk to transmit a copy of my order, under seal, to the President of the
United States. It will then remain for that high officer, in fulfillment of his
constitutional obligation, 'to take care that the laws be faithfully executed.' "
"That's a personal slap," Anna Carroll said. "It was Taney who swore
Lincoln in two months ago, and he's reminding him of the words of the
oath."
"Good words to remember."
"Lincoln was also sworn to defend the Union."
"No," Breckinridge said carefully, remembering the oaths he had taken as
senator and Vice President, "he swore only to preserve, protect, and defend
the Constitution. Not the Union. The Constitution remains the same when
new states come in or old states go out." She shrugged that off; he suspected
the next time he brought it up, she would have a well-researched answer.
Taney was not a gavel-banger; court was adjourned when he rose and the
bailiff called out for all to rise. Breckinridge saw Taney's grandson come
forward to help the old man down the stairs.
"I want to see him, Anna, and tell him he's a brave man. Will you come
with me?"
She shook her head. "I don't want to have to testify in a conspiracy trial."
He looked down at her, more amused than disturbed. "You really think it
could come to that? That Lincoln would arrest the Chief Justice for high
treason? Or send his soldiers to arrest the duly elected senator from Ken-
tucky?"
"You just be careful what you say to him. I'll wait for you here; I need
some help getting home."
Breckinridge strode to the stairs behind the bench to shake the judge's
hand, and of course the old man recognized him. The last time they had
talked was at the 1856 inaugural ceremony at the Capitol, when Buchanan
and Breckinridge were sworn to the nation's highest offices. He recalled that
Taney had said something tart at the time about Breckinridge being the
youngest Vice President in the nation's history.
"Ah, Breckinridge," Taney said warmly, "I am an old man, a very old
man, but perhaps I was preserved for this occasion."
"The nation is fortunate that you were."
The Chief Justice waved his grandson away, took the senator's arm and
motioned ahead toward the room serving as his chambers. "It's like a delir-
ium, this passion the country is in. I grieve to say that hate sweeps everything
before it. Too violent to last long, I hope. You will stay in the Senate?"
"For as long as I can," Breckinridge assured him, certain that the majority
in pro-slavery Kentucky opposed secession, "to speak both against secession
and against war."
Taney stopped to catch his breath. "It may be hard to remain adamant
against both. A peaceful separation, with free institutions in each section
that would be better than the union of the present states under a military
government and a reign of terror."
"I always thought that secession would be a mistake."
"A peaceful separation," repeated Taney, evidently preferring that phrase
to "secession," "would be better than a civil war that will prove as ruinous to
the victor as the vanquished."
The old man, Breckinridge judged, was not dealing with political reality. In
the 1860 election, Breckinridge had run for President in the moderate posture
of a man opposing abolitionism forthrightly and secession quietly; as a result,
he had won most of his votes in the South. It was true that his campaign was
taken over by the firebrands eager for secession, but secession had never been
his platform. "Secession means war," he told Taney. "The radicals up North
like Greeley, and out West like Ben Wade, will never let Lincoln agree to
peaceful separation. They want to subjugate the South."
"Don't be so sure," Taney argued. "Lincoln may sound like a radical, but
he may not behe didn't put a Blair in his Cabinet for nothing. Lincoln and
Blair may be personally unsympathetic to slavery, as am I, but they are surely
not for abolition. The new President may turn out to be more reasonable than
he seems."
Breckinridge was surprised. "How can you say that, after the opinion you
just read?"
The judge squinted up at the senator and observed, "I'm not under arrest,
am I?"
"The country would never stand for that."
"For a politician, Breckinridge, you don't know much about the popular
will. If Abe Lincoln were to clap me in jail this minute, the whole North
would applaud, except for a few constitutionalists and they don't count." He
began walking forward. "I wish with all my heart that Lincoln would react to
my order with an arrest. Then I would die on him and drive my message
home. But he's too damn shrewd for that."
"You're a brave man, judge."
"Get to eighty-four and you see how easy it is to be brave. Remember Chief
Justice Coke, the high judge of England? The king asked Coke what he would
do if a case came to him involving the royal prerogative, and Coke told him,
'When the case happens, I shall do that which shall be fit for a judge to do.' If
you're not ready to do what's fit, you shouldn't be a judge. Or a senator."
The Kentuckian thought about that. If and when the time came to decide
between secession and war, what would be fit for him to do? Should he follow
his Kentucky constituency, which was split but leaned toward union? Or
follow his conscience, which was sending him confused signals? He could in
all good conscience oppose secession in principle, but in practice, could he
support a war that would force the South to remain in a union its people
despised? How fine Taney's term, "peaceful separation," sounded, with its
application of a cool intellect to a time of great passion. But Lincoln would
permit no separation without war. The choice, which had been union or
peaceful disunion, had been changed; Lincoln had forced the choice of union
or war.
"What happens to Merryman?" he asked Taney.
"Who?"
"The fellow in the stockade. Lincoln won't hand him over to you. Can the
President get some other court to try him for treason?"
"Ah, Lincoln and Bates probably think they can. They'll try to bring this
fellow Merryman before a district judge here and make an example out of
him. The man did burn the railroad bridge to the North in wartime; that's a
fairly treasonous act."
"And the courts cannot stop the President. What's becoming of this coun-
try?"
"Cool down," said the old man. "Lincoln cannot get any court here to try
Merryman for treason and hang him legally."
"Why not?"
Taney's wizened face took on its cagiest look. "I'll tell the district judge
that all capital cases must be referred to me for trial. And I'll be too sick and
infirm for the next year or so to come to Baltimore, so no treason case will be
tried here for as long as I live." The Chief Justice dug his birdlike fingers into
Breckinridge's arm. "I may be powerless to free that man, but I can damn
well make certain that Lincoln will never have the legal power to hang him."