I lived in one former colonial enclave in China (Hong Kong), and visited another one (Macau). Both cities were returned to native control, and so Britain and Portugal have better odds of having friendly relations with China.
This summer, watching Cuba reopen their embassy in Washington, something brought these former colonies to mind — some of the Cubans wanted us to know, that they’re still angry about our own little U.S. enclave — we continue to occupy 45 square miles of their country at Guantanamo Bay.
I’m not sure why we’re still there, or how useful the naval base is, now that our Navy doesn’t employ a whole lot of coal-fired dreadnoughts. But I guess it’s just hard to give up such a fantastic rent-controlled lease. Maybe a better deal than the Dutch got for Manhattan – – we’re paying less than 18 cents a year per acre, and it’s beachfront! And the Cubans refuse to cash the checks!
This is a history site, and not a rant about current events or gulags.
But reading about Guantanamo in 2015…
brought up a 2004 Supreme Court case for a prisoner there, Hamdi v Rumsfeld...
and reading about the Hamdi case, brought up the 1861 Merryman Case, which took place in Maryland, during the Civil War.
IN 1861, we didn’t have Cuba to dump prisoners, so we used Baltimore’s own Fort McHenry. And both Guantanamo and Fort McHenry were what Hamdi’s lawyer, Lt. Com. Charles Swift (USN), called “the legal equivalent of outer space”.
I’ll reassure you — we’re gettin’ back to that old-time history just as quick as we can.
So, soon, really soon, I’ll dump Hamdi, Rumsfeld, Cuba, the Taliban, and Antonin Scalia, and all the lawyers in the sea, and we’ll talk about 1861 Maryland in the Civil War.
I have to be honest, I cannot get rid of the lawyers just yet, they have to stay in the story, but I promise to keep them under control.
The only legal term I’ll allow: “habeas corpus.”
We all know what that means.
Wait… no we really don’t, we just pretend.
OK, habeas corpus at its simplest: you need to have proper legal authority to hold someone as a prisoner.
Yaser Esam Hamdi was born 1980 in Louisiana. He and his parents returned to Saudi Arabia when he was a kid, and eventually he went to Afghanistan to join the Taliban. Whether or not he fought with them is apparently unclear. He was captured by anti-Taliban forces, handed over to the U.S. Army, and shipped to Guatanamo. He was classified as an “illegal enemy combatant.”
His family maintained that, as a U.S. citizen, he was entitled to his civil rights: an attorney, due process, and a trial. They filed a habeas corpus suit, which the government fought all the way to the Supreme Court. In brief, the Court decided that the President does not have the right to hold a U.S. citizen indefinitely without due process. U.S. citizens have a right to (eventually) have their day in court, even if captured as enemy combatants.
Even though Hamdi “won”, the Supreme Court justices were all over the map on what the President and Army should do, could do, and could not do.
And one justice, Scalia, dissented from the whole mishegoss, and said Hamdi should either be tried in a civilian court, or cut loose. If this be treason, charge him and try him. And when he washed his hands of the decision, he went back to a case from 1861 Civil War Maryland, and a Chief Justice from Maryland, Roger Brooke Taney.
Taney and Scalia believed that only Congress, not the President, and not the U.S. Army, could suspend habeas corpus, and just dump people in a black hole indefinitely.
And yet, in 1861 or 2004, issues are never really 100% clear.
Hamdi was released, free of charges, but only on the condition that he be deported to Saudi Arabia, renounce his U.S. citizenship, and never return. So Hamdi is gone, and this article isn’t about him.
In fact, this story takes place largely in 1861 Maryland. The three main characters involved are:
Roger Taney, Frederick, Maryland,
Chief Justice of the Supreme Court of the United States
John Merryman, Hayfields Estate, Cockeysville, Maryland
Farmer & 1st Lt., Baltimore Horse Guards.
George Cadwalader, Philadelphia, Pennsylvania
Attorney and Major General, Union Army.
On April 12, 1861, Confederates fired on Fort Sumter. The real shooting war had started.
A week later, mobs attacked U.S. troops marching through Baltimore, on their way to defend Washington, and Lincoln declared martial law in Maryland. If you’ve ever seen the old cannons on Baltimore’s Federal Hill, you may notice, they’re pointed toward the city — Union soldiers built and occupied a fort there after the riot, and stayed throughout the war, not to defend the port from raiders, but to keep the locals under control.
Lincoln asked his Attorney General for an opinion on suspending habeas corpus during the emergency. Congress was in recess, and the President looked to the Constitution and read:
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.
There was clearly a rebellion under way, and Lincoln ordered the army to suspend habeas corpus when necessary.
The pro-south Governor of Maryland demanded that no more U.S. soldiers be sent through his state, and when this was refused, he ordered the state militia to destroy the railroad lines and bridges north of town, to prevent any more U.S. troops from entering (and pretty much cutting off Washington from the northern states). Merryman commanded one of the militia units destroying the railroad bridges.
Late one night, shortly after the bridges were burnt, Union soldiers arrived at Merryman’s farm.
- Merryman indicated he was a state militia officer
- & Just Following Orders.
- The soldiers accused him of treason, seized him, and tossed him into Fort McHenry.
And there he stayed. His lawyer asked for a writ of habeas corpus, and Justice Taney granted it.
Merryman was now supposed to be brought to court, for a judge to consider the charges. But General Cadwalader indicated that he could not hand over the prisoner.
- Cadwalader indicated that he was a federal army officer
- & Just Following Orders.
- Taney then ordered General Cadwalader to be arrested for contempt.
So, a U.S. Marshal from Baltimore went to Fort McHenry, to serve an arrest warrant on a Major General in the U.S. Army.
- The Fort told the Marshal that they weren’t supposed to open the door to strangers.
- They mentioned that they had a lot of guns,
- and that it would be a good idea if he went away now,
- and he did.
Taney advised the Marshal that he was duty-bound to raise a posse, and to use force if necessary, but when the Marshal pointed out that Fort McHenry really did have a whole lot of guns, even for Maryland, and that it was his professional opinion, that after the Baltimore Riot, the Yankee soldiers at the fort seemed a bit tense and trigger-happy, even for Baltimore, the Chief Justice relented.
Taney instead called on the President to “discharge his constitutional duties” and enforce the court’s decision. President Lincoln and his Secretary of State, William Seward, ignored him, and continued to seize people, perhaps 800 of them, throughout the Civil War.
Taney had home-cooked meals sent to Merryman in his cell.
Merryman soon had company. Baltimore’s mayor, city council, and its police commissioners were also tossed in Fort McHenry. Secessionists in the state legislature followed. Later on, Francis Scott Key’s grandson criticized these detentions in an editorial, and he was also sent to the fort.
- The grandson felt it was ironic, being sent to the fort that his grandfather wrote about in The Star-Spangled Banner, exactly 47 years to the day after the 1814 bombardment.
- In fact, he published a book about it.
- So, Lincoln had the publishers arrested.
Chief Justice Taney probably sent meals to Key as well, since they were related by marriage – – Taney was married to Francis Scott Key’s sister.
Even before he tried to have General Cadwalader arrested, it was probably safe to assume, that Taney already didn’t like Union Major Generals too much — because one of them, Daniel Sickles, had shot and killed his wife’s nephew. Sickles gunned down Francis Scott Key’s son a few years before the war, within sight of the White House. Of course, Sickles was not yet a general in 1859 — he was a congressman from NY, and was therefore acquitted of murder on the basis of insanity.
Merryman was released from the Fort McHenry that summer, and was promptly charged by a grand jury with treason…and then went home on bail. Taney blocked any attempts to schedule a hearing, so Merryman never went to trial. Charges were dropped…in 1867. So we can see why Lincoln might not have turned to the courts for swift action.
As far as I can tell, no one tried to lock up General Cadwalader, either. Merryman sued him for unlawful imprisonment, but didn’t pursue the suit, and it was dismissed. 
Taney died October 12, 1864. The next day, a new state constitution ended slavery in Maryland.
Five years after the war ended, Merryman was elected State Treasurer. And his cattle won a medal at the Centennial Exposition in Philadelphia.
Now here’s the thing. I admire Abraham Lincoln.
And I do not admire Roger Brooke Taney.
“Chief Justice” seems an ironic title for someone from a slave-owning family, who declared, in the infamous Dredd Scott case, that slaves were essentially not people and could never be citizens, and were:
beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior that they had no rights which the white man was bound to respect…
So, Taney goes down in history with the worst decision ever issued by the U.S. Supreme Court.
But this is what Taney had to say about the Merryman case:
1. The President, under the Constitution and laws of the United States, cannot suspend the privilege of the writ of habeas corpus, nor authorize any military officer to do so.
2. A military officer has no right to arrest and detain a person, not subject to the rules and articles of war, for an offence against the laws of the United States [except according to and under the control of civil authority]…it is the duty of the officer to deliver
him over immediately to the civil authority, to be dealt with according to law.
In 1861, Maryland was an anti-Lincoln, anti-abolition, slave-owning state, full of secessionists, Copperheads, spies, and southern sympathizers. The people in power in Baltimore and Annapolis were trying to cut off communications and reinforcements to our nation’s capital during the crisis. I absolutely think Abraham Lincoln did the right thing, locking some of them up. And I’m not pretending to be a constitutional scholar.
But when you see American citizens getting grabbed by guys in uniforms, who are “just following orders, ” and disappearing into Fort McHenry, or Guantanamo, without a trial, you worry, and you see a guy like Taney, who usually did the wrong things, maybe trying to do the right thing, and sticking up for the Constitution?
Or was he just being a racist creep as usual, helping to sabotage the war effort, and sneak his slavery-loving, saboteur pals out of justly-deserved imprisonment?
So what is History from 1861 telling us about Guantanamo in 2004? I do not know if there is anything meaningful in attempting to draw parallels. But perhaps worth thinking about the issue of locking up Americans without a trial, since it keeps cropping up. And since “History never repeats itself,” that’s why you need historians – to take notes.
 Even if you’re not crazy about “The Star-Spangled Banner”, Francis Scott Key was a fascinating character. He was a slave-owner who as a U.S. attorney, prosecuted abolitionists, but who also represented black clients in court pro bono.
And years later, there was also a distant cousin and namesake, Francis Scott Key Fitzgerald, who became kind of well-known in his own right.
F. Scott Fitzgerald did not write only about the Jazz Age – – he was a Civil War buff, and during his Hollywood years, was called in to work on the dialog for “Gone with the Wind.” He claimed his father had ridden with Mosby’s cavalry, and he was also related somehow to Mary Surratt, so it’s not surprising he wrote several Civil War pieces, including “The End of Hate“, about the night Lincoln was assassinated. Another short story , “The Night at Chancellorsville“, was about a trainload of women from Philly, on their way to join General Hooker’s army, to serve as the general’s namesakes.
My personal favorite, was his mock newspaper article about Appomattox, which insisted that General Lee had not meant to surrender, and only handed his sword to Grant, as a courtesy when Grant’s pencil broke, and he needed to sharpen it.
 General Cadwalader became a federal judge after the war, and according to a Philadelphia paper, was known for his “gentleness of manner” and being a “kind-hearted gentleman” on the bench. In 1866, he granted a writ of habeas corpus for John McCall, being held prisoner on a U.S. Navy ship. The ship’s captain appeared in court, and responded that McCall was enlisted as a U.S. Navy Seaman, and was being court-martialed for theft. Judge Cadwalader remanded the sailor into his captain’s custody. OK that’s the way to do it – – everything ship-shape…and legal.
Merryman, according to his obituary in the Baltimore Sun, was also a “kind-hearted gentleman.”
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