Chief Justice Roger B. Taney
After the events in April of 1861, President Lincoln was determined not to let Washington be cut off from the North again. He turned to Article I, Section 9 of the U. S. Constitution: "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." Habeas corpus is part of a Latin phrase habeas corpus ad subjiciendum meaning, "You should have the person brought to examination."
Long before, when Latin was the language of British law, that phrase had been used in writs, or legal documents. Protected by that phrase, a person who was arrested had to be brought before a judge, who would then decide whether the person could be held for trial. The Founding Fathers put that guarantee in the Constitution to make sure that no one could simply be thrown into jail without just cause, or held in secret.
Lincoln used his power to proclaim a special status for the railroad and telegraph lines between Washington and Philadelphia. He suspended habeas corpus along that stretch of America and gave Union soldiers the power to arrest anyone who was suspected of acting against or even just speaking against the Union.
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Chief Justice Roger B. Taney
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Soldiers began rounding up Southern sympathizers. Among the Marylanders arrested was John Merryman, a militia officer who had led some of the bridge-burners and wire-cutters who tried to cut off Washington from the North. When he demanded his right of habeas corpus, Supreme Court Chief Justice Roger B. Taney ruled that Merryman had to be brought before a judge. Merryman was being held at Fort McHenry (whose bombardment by the British in the War of 1812 inspired Francis Scott Key to write "The Star-Spangled Banner" One of Key's grandsons was also arrested).
Taney did not set down an opinion as to whether suspending the Writ of Habeas Corpus was legitmate or not. Instead he argued that because suspension of the writ was covered in Article I of the U.S. Constitution, the section dealing with Congress, that therefore only Congress could suspend the writ. He cited Jefferson's approach in dealing with Aaron Burr's attempted rebellion, and other precedents.
The commander of the fort refused to produce Merryman. And when Taney sent a marshal to the fort with a court order for the commander, the soldier at the gate barred the marshal from entering the fort.. Taney said he could not enforce his orders because military force was "too strong for me to overcome." As for Lincoln, Taney said the president lacked "a proper respect for the high office he fills" and "does not faithfully execute the laws..."
Lincoln defended his suspension of the writ on Independence Day, July 4, 1861. In a message to a special session of Congress, he said that he moved "with the deepest regret" in "employing the war power." But he believed that he had to use that power "or surrender the existence of the Government." He further argued that, because Congress was often out of session for long periods, there would be times when only the President would be able to act quickly in the event of an emergency.
"Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one [law against suspending habeas corpus] be violated?" he asked. In other words, if the commander in chief was not allowed to arrest spies and military saboteurs, there soon wouldn't be anything left for him to command. In February 1862, Lincoln, judging that the Maryland threat had eased, restored the right of habeas corpus, but he periodically suspended it at other times in other places when he felt it was necessary for the military to enforce the law.
Later in the war, Lincoln, with congressional approval, declared that "prisoners of war, spies, or aiders and abettors of the enemy" everywhere in the nation were denied the right of habeas corpus. There were unquestionably abused under that suspension. It has been estimated that 10,000 to 15,000 people were detained. Some have argued in hindsight that none of the suspensions were needed, and that none of those detained could have done any serious damage to the government. But it's impossible to know what would or would not have happened -- and certainly it's much safer to decide how to deal with risks and threats from 150 years on.
Many of Lincoln's enemies -- in the North and the South -- called him a "tyrant" in large part because he did suspend Habeas Corpus. Whether or not he was right to do it, and whether or not he had the right to do it, are still be debated.