6 December 2013
TANEY, Roger B. (1777-1864), Chief Justice. Autograph manuscript, unsigned, n.d. . Taney's draft for his opinion in Ex Parte Merryman (1861). 1 page 4to, in pencil. With a second leaf of notes in a clerical hand (also in pencil), docketed on blank integral leaf in a contemporary hand.
"THE PEOPLE OF THE UNITED STATES ARE NO LONGER LIVING UNDER A GOVERNMENT OF LAWS"
TANEY'S ANGRY REBUKE TO PRESIDENT LINCOLN for ignoring a writ of habeas corpus which he himself had issued. These two leaves--one in Taney's hand the other likely dictated by him to his law clerk--comprise the final two paragraphs of his landmark decision, with Taney's draft including additional language not present in the published version: "If the authority which the Constitution has confided to the judiciary department and judicial officers may thus upon any pretext or under any circumstances be usurped by the military power at its discretion, the people of the United States are no longer living under a Government of laws, but every citizen holds life, liberty, and property at the will and pleasure of the army officer in whose military district he may happen to be found." In language not used in the decision, Taney continued: "His home is no longer what lawyers & judges have been forced to call it--his castle--which the Constitution of the United States forbids anyone to enter to search for or seize things or persons but upon probable cause..." Beneath that in parentheses he adds "without a warrant issued."
On 27 April 1861, Lincoln suspended the writ of habeas corpus along the rail lines carrying troops from Philadelphia to Washington D.C. Pro-secession sentiment ran high in the crucial border state of Maryland, and John Merryman (1824-1881)--a loud secessionist--led a force in training of some 500 men. On 25 May, at 2:30 in the morning, Union troops broke into his home, arrested him and threw him into Fort McHenry. His lawyers petitioned directly to Chief Justice Taney, correctly surmising they would get a sympathetic hearing from the author of the Dred Scott decision. Taney traveled to Baltimore to hear the petition, which he granted on 29 May. But Gen. George Cadwalader at Fort McHenry refused to accept the writ, and also refused to appear when Taney cited him for contempt. Lincoln was just as contemptuous when Taney issued this opinion from the bench of the Supreme Court on 1 June.
A RARE AUTOGRAPH MANUSCRIPT FROM ONE OF THE LANDMARK SUPREME COURT CASES IN AMERICAN HISTORY.
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