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President Lincoln suspends the writ of habeas corpus during the Civil War

President Lincoln suspends the writ of habeas corpus during the Civil War


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John Merryman, a state legislator from Maryland, is arrested for attempting to hinder Union troops from moving from Baltimore to Washington during the Civil War and is held at Fort McHenry by Union military officials. His attorney immediately sought a writ of habeas corpus so that a federal court could examine the charges. However, President Abraham Lincoln decided to suspend the right of habeas corpus, and the general in command of Fort McHenry refused to turn Merryman over to the authorities.

Federal judge Roger Taney, the chief justice of the Supreme Court (and also the author of the infamous Dred Scott decision), issued a ruling that President Lincoln did not have the authority to suspend habeas corpus. Lincoln didn’t respond, appeal, or order the release of Merryman. But during a July 4 speech, Lincoln was defiant, insisting that he needed to suspend the rules in order to put down the rebellion in the South.

Five years later, a new Supreme Court essentially backed Justice Taney’s ruling: In an unrelated case, the court held that only Congress could suspend habeas corpus and that civilians were not subject to military courts, even in times of war.

This was not the first or last time that the U.S. federal government willfully ignored its own laws during times of strife. Hundreds of thousands of Japanese Americans were sent to internment camps following the attack on Pearl Harbor and America’s entry into World War II. Some forty years later, a U.S. congressional commission determined that those held in the camps had been victims of discrimination. Each camp survivor was awarded $20,000 in compensation from the U.S. government.


President Lincoln suspends the writ of habeas corpus during the Civil War - HISTORY

Posted on 02/12/2003 12:07:03 PM PST by WhiskeyPapa

The Anniversary of Abraham Lincoln's

Gettysburg, Pennsylvania November 19, 1996

Remarks by Sandra Day O'Connor

Associate Justice, Supreme Court of the Unites States

I am honored to have the opportunity to speak with you today, on this anniversary of the Gettysburg Address. But I have to admit that my task is a bit daunting, even for a Supreme Court Justice.

No speaker, I am afraid, can find the words to compete with those spoken here by Abraham Lincoln six score and thirteen years ago (that's 133 years, for those of you without calculators). That goes for me, as well as for Edward Everett, perhaps the greatest orator of the Nineteenth Century. He was commissioned to be the Keynote speaker at the dedication of this cemetery in Gettysburg in 1863. Everett's oration was a two-hour affair, filled with rhetorical flourishes, peppered with allusions to Greek antiquity, and ending with a recitation of every hill and gully where men had fought and fallen at Gettysburg. The speech was considered the masterpiece of Everett's career.

But is was quickly overshadowed when Lincoln rose from his chair and gave, as his secretary modestly described it, a "half dozen words of consecration." Lincoln was indeed a poor prophet when he predicted that "[T]he world will little note nor long remember what we say here."

Lincoln's "few appropriate remarks" began this way:

"Fourscore and seven years ago our fathers brought forth on this continent, a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal. Now we are engaged in a great civil war, testing whether that nation or any nation so conceived and so dedicated can long endure."

In the early days of the Civil War, it looked as though the young American nation, "conceived in liberty" might not "long endure." It faced so many threats. The southern states had broken away. European powers were poised to intervene, to permanently divide the young nation into Union and Confederacy.

The war posed another sort of danger, as well--a danger less obvious, perhaps, than columns of soldiers marching through the countryside, but one far more insidious to a nation "conceived in liberty". It was the danger that government at war might use its extraordinary powers to stamp out political opposition. And when President Lincoln suspended the Writ of Habeas Corpus during the Civil War, there was a good chance of that happening.

Because it is an issue of considerable interest to lawyers and judges, I propose to talk today about Lincoln's suspension of Habeas Corpus. I will make three points. First, I will review a little bit of the history of Habeas Corpus: where it came from, what it means, and how it came to be viewed, by the beginning of the Civil War, as a principle guarantee of political liberty. Second, I will talk about what prompted President Lincoln to suspend the Writ of Habeas Corpus in those first few days of the Civil War, when states were seceding left and right, and our capital, Washington, was threatened with invasion. Finally, I will come to the main question: how did the Lincoln Administration act once Habeas Corpus was suspended, and it was free to take people into custody without arrest warrants issued by courts? I think that history shows that President Lincoln did not arrest civilians during the Civil War to repress political dissent, but only to protect the military and security interests of a nation at war.

II. Background About Habeas Corpus

But first, a bit of background is in order. Those of you who are not lawyers may recognize the term "Habeas Corpus" as a sort of criminal appeal. You may be following the ongoing debate about how to regulate Habeas Corpus proceedings brought by prisoners, particularly those on death row. Earlier this year, Congress passed a law making it more difficult for prisoners to challenge their convictions or sentences by invoking the Writ of Habeas Corpus. This new law has prompted quite a bit of activity in the courts, and it remains to be seen exactly what effects that law will have. But history shows that constant change is part and parcel of the remedy of Habeas Corpus.

We can trace the Writ Habeas Corpus as far back as the Norman Conquest of England. Back then, William the Conqueror sent royal judges to ride throughout the countryside of his new kingdom dispensing justice. These itinerant judges would, on occasion, order local sheriffs to "have the bodies" of accused criminals brought before their courts. That's where we get the Latin phrase "Habeas Corpus". It means literally, "have the body". And we call it a "writ" because these traveling judges would put their orders into a "written" document.

So Habeas Corpus began as a way of dragging an unwilling suspect into court. But eventually people who were unlawfully imprisoned--say, by a corrupt mayor, or even the king--began asking royal judges to bring them out of jail and into court, where their jailers would have to justify why they were in custody. This explains why today, when a prisoner seeks a Writ of Habeas Corpus, he technically names his prison warden as the defendant.

England grew to regard the Writ of Habeas Corpus as a beacon of individual liberty against the gloom of tyrannical government. It was not a "get out of jail free" card, mind you--but it at least ensured that a prisoner could have his day in court. If you were to ask an Englishman to name the greatest legal documents in English history, right alongside the "Magna Carta" would be the "Habeas Corpus Acts" passed by Parliament in the 1600s, guaranteeing this remedy to all English subjects.

When English settlers moved to the New World, they brought with them more than hammers and saws to build new homes, plows and shovels to till new fields. They also brought with them the English Common Law to build their new legal system. That included habeas corpus. When tensions mounted between the colonies and the crown, royal governors were known to lock up "troublemakers." And local courts were known to issue Writs of Habeas Corpus to release those troublemakers.

One of the guiding principles of the American Revolution, of course, was that governments should not be able to lock up citizens arbitrarily, or simply because they raised their voices against the government. The founding fathers took this concern to heart at the Constitutional Convention. Like their ancestors, they saw the Writ of Habeas Corpus as a bulwark against tyranny. So, to safeguard the writ, our new constitution provided that "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 only one brief incident during the early days of the republic when "public safety" led to suspension of the writ. During the War of 1812, General Andrew Jackson imposed martial law in New Orleans. At one point, he locked up a newspaper editor who had been fiercely critical of the General. When a judge issued a Writ of Habeas Corpus to free the editor, Jackson not only ignored the writ--he arrested the judge, too! Only a few days later, when a peace treaty had been signed and the British fleet sailed away from the coast, did Jackson release both editor and jurist.

This proved to be an isolated incident. After that brief wartime interlude, courts went on issuing the writ as justice demanded.

As time went on, the Writ of Habeas Corpus took on new dimensions. For a time, the writ became a lightning rod for people on both sides of the slavery issue. When runaway slaves were apprehended by slave catchers in Northern states, abolitionist lawyers helped them secure their freedom with Writs of Habeas Corpus from sympathetic courts. Perhaps the most successful lawyer in this regard was Salmon P. Chase, Secretary of the Treasury under Lincoln and later Justice of the Supreme Court. Chase extracted so many slaves from jail that he earned the moniker "Attorney General for Fugitive Slaves."

While abolitionists interposed the writ as a shield to protect freed slaves, some pro-slavery forces tried to use it as a sword. Some Northern states let slavemasters use the Writ of Habeas Corpus to force local sheriffs to bring back runaway slaves. But this fight over the soul of Habeas Corpus--a longstanding instrument of freedom--was interrupted by the Civil War.

III. The Civil War: Suspension of the Writ

1861 was a difficult time, to say the least. Barely a month after Lincoln's inauguration, Washington was abuzz with rumors that Confederate soldiers, gathering near Harper's Ferry in Virginia, might move against the capital. The Southern states had been seceding, one by one, and it looked as though Maryland--south of the Mason-Dixon Line and still a slave state--might be next. Lincoln himself had traveled incognito through Baltimore, at night, to avoid assassination plots on his way to his own inauguration.

In April, in the midst of all this confusion, a trainload full of Union soldiers passed through Baltimore en route to Washington. They were fresh recruits from Massachusetts, outfitted with polished boots and belt buckles, satin-trimmed coats and hats. They had been summoned to man the defensive fortifications around the capital.

These soldiers were not greeted by brass bands and waving flags, but by an angry mob of Southern sympathizers who were spoiling for a fight. The soldiers literally had to fight their way across the town of Baltimore to reach another station, where their train to Washington waited. Four of them did not make it out of town alive. Later that night, local authorities--whose sympathies clearly ran in a southerly direction--burned the bridges and cut the telegraph lines between Baltimore and Washington, claiming that Union soldiers might come back, looking for revenge after the riot. But as one commentator has put it, "Bridge-burning looked more like plain treason to the government in Washington, which was now defenseless and cut off from the rest of the North."

Washington had a rebel army to its south and a secession-minded mob to its north. Congress was out of session. Lincoln felt the need to take things into his own hands. Invoking his power as Commander-in-Chief, he authorized local military commanders to suspend the Writ of Habeas Corpus along the railroad line from Washington to Philadelphia. Essentially, this meant that the Army could arrest civilians without getting a warrant from a court or without probable cause to believe a crime had been committed by the person arrested, and without providing the speedy jury trial that the Constitution guarantees in times of peace.

Enter Mr. John Merryman, a member of the Maryland legislature. Merryman had been recruiting local men to march south and join the rebel army. When a Union General found out, he ordered Merryman's arrest and packed him of to Fort McHenry in Baltimore Harbor (of Star-Spangled Banner fame) for the rest of the war. Merryman, in turn, applied for a Writ of Habeas Corpus from his local federal circuit judge.

Now, as you may remember, I mentioned earlier that royal judges in medieval England used to "ride circuit," holding court throughout the countryside. Well, the Supreme Court worked much the same way until late in the Nineteenth Century. Justices of the Supreme Court sat together only part of the year. During their plentiful spare time the justices would hop onto their horses and serve as federal circuit judges around the country. When Merryman filed his request with his local circuit judge, he went to none other than Roger Taney, Chief Justice of the Supreme Court.

The Chief Justice was no friend of the Republican administration, having written the Dred Scott Decision only four years before. When he received Merryman’s petition, Taney ordered the commander of Fort McHenry to bring Merryman to his court in Baltimore. Instead of sending Merryman, the Colonel, sent back an aide bearing a polite message. The President had authorized the Colonel, in this time of war, to suspend the Writ of Habeas Corpus. Merryman would stay at Fort McHenry. This, as you can imagine, incensed the Chief Justice. He wrote a fiery opinion arguing that only Congress had the power to suspend Habeas Corpus. The President could not. The President’s job, he said, was merely to see that the laws be faithfully executed.

Lincoln did not publicly respond to Taney's opinion until Congress met a month later, on July 4. Lincoln said that, had he not suspended Habeas Corpus immediately, Washington itself might be now be in Southern hands. That, of course, would have prevented Congress from meeting, let alone from responding to the rebellion. Lincoln then took aim at Taney's claim that the President's job was to sit back and ensure that the laws be faithfully executed, even in the face of Merryman's recruiting soldiers for the Confederate cause. In the Confederacy, fully one-third of the country, the Constitution itself was being ignored. Should Lincoln's hands be tied by the writ of Habeas Corpus in such a national emergency? He asked "[A]re all the laws, but one, to go unexecuted and the government itself go to pieces, lest that one be violated?"

Merryman stayed in jail. Now, Merryman was only one of many people arrested, without benefit of Habeas Corpus relief, in the early days of the war for providing military aid to the young Confederacy. Lincoln later said that he regretted not arresting even more traitors to the Northern cause--particularly the Robert E. Lees who had abandoned the Union Army to lead its Southern enemy to victory after victory.

Scholars still debate whether Lincoln had the authority to invoke the Constitutional provision suspending Habeas Corpus during the early days of the war. I will not wade into the muddy waters of that debate. I am more interested in talking about what Lincoln did after March of 1863--for that is when Congress gave Lincoln legislative authority to suspend the writ. From that point forward, Lincoln faced no constitutional obstacles. He could arrest whomever he chose, without courts interfering with Writs of Habeas Corpus. What did Lincoln do at this point? Did he attempt to stifle political debate, by imprisoning his opponents? In short, did he trample on the civil liberties the Writ of Habeas Corpus was meant to protect?

A recent historical study, entitled The Fate of Liberty, says "no." The author, Mark Neely, combed through the musty boxes of arrest records from the Civil War "to find out who was arrested when the Writ of Habeas Corpus was suspended and why." Neely concludes that, throughout the war, Lincoln was guided by a "steady desire to avoid political abuse under the Habeas-Corpus policy."

According to the best estimates, about 38,000 civilians were arrested by the military during the Civil War. Who were they? Almost all fell within a few categories: "draft dodgers, suspected deserters, defrauders of the government, swindlers of recruits, ex-Confederate soldiers, and smugglers." And strikingly, most of these were Confederate citizens, caught behind Northern lines. The numbers show that very few civilians were taken from their homes and arrested. And of those few arrests, only a handful were colored by political considerations.

Indeed, Lincoln issued his most sweeping proclamation suspending Habeas Corpus not to silence political dissent, but to stop judicial interference in the draft. Early in the war, patriotic zeal was so strong that volunteers flooded into the Army. But as the war dragged on, public enthusiasm ebbed. Eventually, the government was reduced to instituting a draft. Conscription was rather unpopular, to say the least. If any of you remember the burning of draft cards during the Vietnam War, imagine that unrest multiplied several times over in the New York City Draft Riots in 1863. The problem was especially bad in Pennsylvania. Coal miners attacked men thought to be "in sympathy with the draft." State and federal courts added to the problem. They were churning out Writs of Habeas Corpus, freeing soldiers as soon as they were drafted. Lincoln observed that "[T]he course pursued by certain judges is defeating the draft."

Lincoln's response was to suspend the Writ throughout the North in any case that involved military arrest of deserters or draft dodgers. And for good measure, he threw in prisoners of war, spies, and those giving assistance to the enemy--say, by smuggling goods to the Confederate government. But his focus was always on military necessity. Lincoln never tried to suppress political dissent. He understood that a democracy only grows stronger by allowing people to voice their opposition to the government, even in the midst of war. He understood that the strength of the Union lay not only in force of arms, but in the liberties that were guaranteed by the open, and sometimes heated, exchange of ideas. And as one historian has put it, "[T]he opposition press in the North was vibrant, vigorous, and often vicious."

This point is illustrated by the most sensational arrest of the Civil War: the arrest of Clement Vallandigham, a former democratic congressman from Ohio. Vallandigham was an out-spoken Confederate sympathizer, a man who minced no words expressing his contempt for the Lincoln administration. He was one of the “Peace Democrats,” or “Copperheads,” who originally earned their name from “the poisonous snake that attacks without notice.” The Copperheads co-opted the title, wearing the head of the goddess Liberty cut from a copper penny as lapel pins, to broadcast their opposition to the war. Its a nice irony, I think, to remember whose head appears on the penny today! The Copperheads must be turning in their graves.

In May 1863, General Ambrose Burnside was in charge of the Department of The Ohio. Burnside, it turned out, is a man bettered remembered for his long whiskers--or "sideburns"--than for his political acuity. The general announced that anyone within his jurisdiction who was in the "habit of declaring sympathies for the enemy" would be arrested as a traitor.

Vallandigham took Burnside's proclamation as a challenge. At a public rally opening his campaign for the Governor of Ohio, Vallandigham gave a vitriolic speech. He denounced the President as "King Lincoln," accused Burnside of being a heavy-handed tyrant, and called for a negotiated peace with the south. Burnside read the speech, arrested Vallandigham, and shipped him off to jail in Boston.

This, of course, was exactly what Vallandigham wanted. Overnight, he became a martyr for the Copperhead cause. The papers called him "Valiant Val." Democrats triumphantly announced that Lincoln had finally shown his true colors: he was nothing more than a petty tyrant.

Lincoln, for his part, was not pleased by the General's actions. To be sure, he was not fond of Vallandigham. The former Congressman had been stirring up sentiments against the war, and Lincoln suspected that was purposely fanning the flames of street violence in opposition to the draft. But Lincoln realized that the arrest was valuable ammunition for his political opponents.

Burnside, ever the zealous soldier, had one more blunder to make. Turning his attention to Illinois, the General decided that the Chicago Times was getting too loud in criticizing the war effort. It was time to shut the paper down. So he sent out two companies of infantry, and they stopped the presses.

This was too much. Lincoln had to engage in what today might be called "damage control." Burnside had proclaimed that traitors would either be put on trial or sent "into the lines of their friends." Lincoln decided to take the second option. Early one morning, Union troops escorted a bewildered Vallandigham to the Confederate lines in Tennessee and, there, they set him free. After some confusion, he made his way to Charleston, South Carolina. He exchanged some awkward pleasantries with his Confederate hosts, and eventually caught a slow boat to Canada.

The next order of business was to get the Chicago Times back in circulation. Lincoln rescinded Burnside's order, called back the troops guarding the presses, and warned his overzealous general not to arrest any more civilians or shut down any more newspapers without express approval from Washington.

Although Lincoln undid most of the damage, he still wanted to make a point. He explained to a group of New York Democrats that he would not allow civilians to be arrested merely for "damaging the political prospects of the administration or the personal interests of the commanding general." Arrests would be made only to protect national security. Now, national security is always a difficult line to draw, especially during a civil war. But the line had to be drawn somewhere, if the Union was to be preserved.

"Must I shoot a simple-minded boy who deserts, while I must not touch a hair of wily agitator who induces him to desert. I think that, in such a case, to silence the agitator and save the boy is not only constitutional, but withal a great mercy."

In sum, the Vallandigham episode is emblematic of Lincoln's approach to political liberties during the Civil War. The President was not out to trample on the First Amendment. He was not out to crush his political opposition. He suspended the writ of Habeas Corpus in response to perceived military threats to the Union. After he, and later Congress, removed that Constitutional safeguard, the Lincoln Administration did not use its power selfishly or arbitrarily. It arrested only those people who actively supported the Confederate war machine--people like Merryman, who recruited troops to march south. And when people walked this fine line between political dissent and treason, as Vallandigham did, Lincoln tried to err on the side of free speech.

Midway through the war, Lincoln predicted that Habeas Corpus would quickly be re-instituted after the war was over. He could not bring himself to believe that Americans would allow the wartime suspension of Habeas Corpus to extend into peacetime, he said, "Any more than I am able to believe that a man could contract so strong an appetite for emetics during temporary illness as to persist in feeding upon them during the remainder of his healthful life." Lincoln died before he could see the writ of habeas corpus restored.

In one of his most famous debates with Stephen Douglas, Lincoln spoke about how a society that tolerates slavery corrodes the very foundations of its own liberty. These words, I think, reveal Lincoln's awareness that he wasn't battling for territory on a map. He was battling to preserve a nation "conceived in Liberty."

"What constitutes the bulwark of our own liberty and independence? It is not our frowning battlements, our bristling sea coasts, the guns of our war steamers, or the strength of our gallant and disciplined army. These are not our reliance against a resumption of tyranny in our fair land. All of them may be turned against our liberties, without making us stronger or weaker for the struggle. Our reliance is in the love of liberty which God has planted in our bosoms. Our defense is in the preservation of the spirit which prizes liberty as the heritage of all men, in all lands, everywhere. Destroy this spirit, and you have planted the seeds of despotism around our doors. Familiarize yourselves with the chains of bondage, and you are preparing your own limbs to wear them. Accustomed to trample on the rights of those around you, you have lost the genius of your own independence, and become the fit subjects of the first cunning tyrant who rises."

So today, let us heed the wisdom of a man who led our nation to a "new birth of freedom." Let us always be, first and foremost, lovers of liberty.


President Lincoln suspends the writ of habeas corpus during the Civil War - HISTORY

Around the 14th century English common law began to recognize the principle by which a prisoner who feels they were unlawfully detained can challenge that detainment. The writ of Habeas Corpus became written law in Britain in the 1600s and enshrined in Article One, Section 9 of the U.S. Constitution. There was, however an out written into the clause: it shall not be suspended “unless when in cases of rebellion or invasion the public safety may require it.” Such cases have been infrequent, but did crop up several times during the history of the U.S.

On this day, October 17, in 1871, President Ulysses S. Grant, engaged in his own “war on terror” against the Ku Klux Klan, suspended the writ of Habeas Corpus to ensure clansmen arrested and imprisoned would not be sprung from captivity by sympathetic legislators.

Grant’s proclamation was brief and affected just South Carolina, making it relatively tame compared to an earlier series of suspension by President Abraham Lincoln during the Civil War, to help the Union army operate among Confederate loyalists in the north. Lincoln’s precedent was also cited by President George W. Bush in his suspension of the writ in trying suspected terrorists.


Lincoln's Suspension of Habeas Corpus During the Civil War

This activity can be used in a unit on the Civil War or in a civics or government class when studying the Constitution and separation of powers. For grades 9-12. Approximate time needed is 30 minutes. Students may complete the activity individually, in pairs, or in a full-class setting.

Ask students to begin the activity or display the activity for the full class. They will be prompted to carefully analyze President Lincoln's Presidential Proclamation 94 that suspended the writ of habeas corpus. Highlighted text will guide them to the most pertinent parts. They can click on View Entire Document to read the full document as well as a transcription. (If doing the activity in a full class setting, you may wish to distribute the document at the beginning of the activity or ahead of time.)

Students should answer the following discussion questions provided:

  • How would you describe Lincoln's language?
  • How are members of the Confederacy categorized?
  • How does Lincoln justify enacting martial law and suspending habeas corpus?
  • Is his suspension justified by the wording in Article 1, Section 9 of the Constitution?
  • If you were a Supreme Court Justice would you rule Lincoln's suspension constitutional or unconstitutional?

Students should respond to the questions provided:

  • The Constitutional provision of separation of powers grants the Supreme Court the power to interpret laws and the President the power to enforce them. What are the constitutional implications when the President refuses to enforce Supreme Court decisions?
  • Did the ends justify the means in this case – Lincolns suspension of the writ of habeas corpus during the Civil War?
  • Do you know of other historical examples of a President's hesitation to enforce a Supreme Court ruling?

Documents in this activity


To the extent possible under law, National Archives Education Team has waived all copyright and related or neighboring rights to " Lincoln's Suspension of Habeas Corpus During the Civil War ".


One thought on &ldquo Civil War tested Lincoln’s tolerance for free speech, press &rdquo

“While President Lincoln’s wartime First Amendment record is certainly controversial, it is nonetheless remarkable how much restraint he exercised in the face of truly nation-threatening challenges.”

So much for eternal vigilance… that earth-tremor you just felt, is the Founders turning over in their graves.
You’re simply presuming the veracity of Lincoln’s core legal arguments, printing propaganda BASED on nothing but propaganda when in reality each state ratified the Constitution as a separate nation, and did not TERMINATE that status thereby.
But I realize I’m throwing a superball at the Hoover Dam with that one.


A proclamation on the suspension of habeas corpus, 1862

The doctrine of habeas corpus is the right of any person under arrest to appear in person before the court, to ensure that they have not been falsely accused. The US Constitution specifically protects this right in Article I, Section 9: "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." Lincoln initially suspended habeas corpus in the volatile border state of Maryland in 1861 in order to try large numbers of civilian rioters in military courts and to prevent the movement of Confederate troops on Washington. The order was eventually extended in response to different threats. In the summer of 1862, President Lincoln had called up the state militias, leading to increased opposition to the Civil War within the Union. By General Orders No. 141, September 25, 1862, Lincoln subjected protestors to martial law and the suspension of habeas corpus.

The suspension of habeas corpus was one of Lincoln’s most controversial decisions. In the spring of 1863, General Ambrose Burnside arrested Peace Democrat Clement Vallandigham, who had been critical of the US government, and banned publication of the Chicago Times, which was supportive of Vallandigham. Burnside’s actions drew widespread criticism, to which Lincoln responded by reducing Vallandigham’s sentence and revoking Burnside’s order suppressing the Times. Lincoln defended himself against charges that his administration had subverted the Constitution, however, arguing that acts that might be illegal in peace time might be necessary "in cases of rebellion," when the nation’s survival was at stake.

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What does suspending habeas corpus mean?

On April 27, 1861, Lincoln suspended the writ of habeas corpus between Washington, D.C., and Philadelphia to give military authorities the necessary power to silence dissenters and rebels. Under this order, commanders could arrest and detain individuals who were deemed threatening to military operations.

Subsequently, question is, what is habeas corpus and why is it important? The write of Habeas Corpus allows individuals arrested and detained illegally to be brought before a judge in a court of law in order to be found either legally detained and arrested or illegally detained and arrested. This is important because it protects the peoples individual freedom from a state acting lawlessly.

Accordingly, what is habeas corpus and when can it be suspended?

The Suspension Clause of the United States Constitution specifically included the English common law procedure in Article One, Section 9, clause 2, which demands that "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."

Can the President suspend habeas corpus?

Under the Constitution the federal government can unquestionably suspend the privilege of the writ of habeas corpus if the public safety requires it during times of rebellion or invasion. The issue is whether Congress or the president holds this power.


Lincoln's Suspension of Habeas Corpus

Along with declaring martial law, President Abraham Lincoln ordered the suspension of the constitutionally protected right to writs of habeas corpus in 1861, shortly after the start of the American Civil War. At the time, the suspension applied only in Maryland and parts of the Midwestern states.

In response to the arrest of Maryland secessionist John Merryman by Union troops, then-Chief Justice of the Supreme Court Roger B. Taney defied Lincoln's order and issued a writ of habeas corpus demanding that the U.S. Military bring Merryman before the Supreme Court.

When Lincoln and the military refused to honor the writ, Chief Justice Taney in Ex-parte MERRYMAN declared Lincoln's suspension of habeas corpus unconstitutional. Lincoln and the military ignored Taney's ruling.

On Sept. 24, 1862, President Lincoln issued a proclamation suspending the right to writs of habeas corpus nationwide.

Additionally, Lincoln's proclamation specified whose rights of habeas corpus would be suspended:

In 1866, after the end of the Civil War, the Supreme Court officially restored habeas corpus throughout the nation and declared military trials illegal in areas where civilian courts were again able to function.


Lincoln’s Suspension of Habeas Corpus

This article addresses President Abraham Lincoln’s wartime suspension of the Writ of Habeas Corpus and recounts the cases of John Merryman, Clement Vallandigham, and Lambdin Milligan. The cast of characters includes many Ohioans.

Suspension of the Writ of Habeus Corpus and the Milligan Case

Following his election in the face of Southern opposition, Abraham Lincoln had to travel through Baltimore by train secretly under threat of assassination to take office as president in a badly divided county in 1861. Following the firing on Fort Sumter on April 12, 1861 and the secession of Virginia on April 17, he faced the possibility of the nation’s capital being isolated from the North if the neighboring border state of Maryland would secede and join the Confederacy. Given the small size and scattered location of the United State army, Lincoln called for help from Northern governors to defend Washington, D.C.

On April 19, when the 6th Massachusetts regiment took to the streets of Baltimore (known as “Mob City” and home to many secession sympathizers) to switch trains enroute to Washington City, a mob attacked it. In the ensuing fracas known as the “Pratt Street riot,” four soldiers were killed and 36 wounded and 12 civilians died. In the wake of this bloodshed, Baltimore Mayor George Brown and Maryland Governor Thomas Hicks requested that Lincoln send no more Northern troops by train through Baltimore. Lincoln responded: “Union soldiers are neither birds to fly over Maryland nor moles to burrow under it.” While Hicks was pro-Union, he authorized Maryland militia to prevent the passage of more Union troop trains by disabling railroad bridges and cutting telegraph wires. Answering the call was the Baltimore County Horse Guards, including Lieutenant John Merryman, a farmer.

Its origins in the Magna Carta, the Founding Fathers in the Constitution enshrined the right to a Writ of Habeas Corpus to ensure that Americans who were arrested by the government had the right to go before judges to be informed of the charges against them. Article I, Section 9, Clause 2 of the Constitution states in what is called the suspension clause: “The Privilege of Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” With a rebellion underway and Washington threatened by the formation of a Confederate army across the Potomac River and with Congress not in session, on April 27 Lincoln authorized Winfield Scott, commander of the army, to suspend Habeas Corpus if necessary to ensure the safety of the military supply lines between Philadelphia and Washington. Before Congress convened on July 4, Lincoln would also suspend the writ on the Florida coast and between Philadelphia and New York.

Meanwhile, on April 29, the Maryland Legislature voted 53-13 against secession. On May 13, Massachusetts politician and now General Ben Butler (later known as “Beast” to Southerners because of his occupation policies in a captured New Orleans) marched his troops from the Maryland capital of Annapolis to Baltimore, where he declared martial law. Butler then imprisoned the mayor, city council, and police commissioner in Ft. McHenry (birthplace of the Star Spangled Banner during the British bombardment of the city during the War of 1812). James Ryder Randall, a native Marylander living in Louisiana, responded to these events by composing “Maryland, My Maryland” (adopted as the state song in 1939). Its opening verse begins: “The despot’s heel is on thy shore, Maryland! His torch is at thy temple door, Maryland! Avenge the patriotic gore that flecked the streets of Baltimore and be the battle queen of yore.” Its ninth and concluding verse shouts: “Huzza! She spurns the Northern scum.” The bands of Lee’s Army of Northen Virginia played “Maryland, My Maryland” as his army invaded the state in September, 1862 and Maryland regiments fought for the South, as well as for the North. But Maryland did not secede (and Lincoln would later imprison pro-secessionist state legislators).

On May 25, John Merryman was arrested and imprisoned in Ft. McHenry on suspicion of treason. His lawyers petitioned Roger Taney, Chief Justice of the United States and federal Circuit Court Judge for Maryland, for a Writ of Habeas Corpus. The elderly Taney obliged within a day. Taney, a Maryland slaveholder, was President Andrew Jackson’s Attorney General and Secretary of the Treasury. Jackson appointed him to the U.S. Supreme Court in 1836. Taney was notorious for his opinion in the 1857 Dred Scott case, which inflamed abolitionist opinion in the North. Taney dispatched a U.S. marshal to Ft. McHenry to bring Merryman to court. Ft. McHenry’s commander, General Cadwallader, refused to obey, citing President Lincoln’s suspension of the writ.

An outraged Taney then wrote an opinion on June 1 calling Lincoln’s action unconstitutional. Taney’s primary reasoning in Ex Parte Merryman was that the placement of the suspension clause in the Constitution’s section on the powers of the Congress meant that only the Congress and not the President could suspend Habeas Corpus. In the face of Taney’s opinion, Lincoln simply ignored it. Given Taney’s age and pro-slavery views and the dangers that his new administration faced, it is understandable that Lincoln would not bow to Taney’s view of the Constitution. Taney would die on October 13, 1864, the same day that Maryland outlawed slavery. Lincoln called Congress into session, and his Attorney General issued an opinion justifying his action to address the emergency. Lincoln wrote to Congress: “Are all the laws but one to go unexecuted, and the government itself go to pieces, lest that one be violated?”

Under an amnesty proclamation issued by Lincoln, nevertheless, on July 13, Merryman was turned over to the civilian authorities and released. However, in July, 1863 the U.S. Attorney for Baltimore re-indicted Merryman for treason. However, his trial was postponed and the charges eventually dismissed in April, 1867. In May, 1863, the North Central Railroad sued Merryman for damages for his participation in the 1861 railroad bridge burnings but nothing came of this. In turn, Merryman sued General Cadwallader for unjust imprisonment but his suit was dismissed by a federal court in April, 1864. In July of that year, Merryman entertained Maryland Confederate General Bradley Johnson at his farm during Jubal Early’s incursion into Maryland that led to the confrontation at Fort Stevens outside Washington with President Lincoln present. Merryman was a prosperous farmer and prominent citizen after the war, dying in 1881.

Extension of Habeas Corpus

On September 24, 1862 (following the Battle of Antietam), Lincoln expanded the suspension of the Writ of Habeas Corpus:

“All Rebels and Insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to Rebels against the authority of the United States, shall be subject to martial law and liable to trial and punishment by Courts Martial or Military Commission.”

Lincoln initially delegated implementation of this policy to Secretary of State William Seward but then transferred this responsibility to Ohioan Edwin Stanton, the Secretary of War. It was been estimated that between 14,000 and 38,000 were imprisoned and denied access to Habeas Corpus during the war.

In March, 1863, Congress passed the Habeas Corpus Act, effectively authorizing its suspension. However, this law required the government to provide lists of those imprisoned to civilian judges and to have them charged by grand juries when they next met. Non-compliance required their release. This legislation reflected growing opposition to the military draft, culminating a few months later in the New York City draft riots. Again, Lincoln simply ignored the conditions that Congress attached to the suspension of the writ.

Copperheads: Vallandigham

“Peace Democrats” (known as “Copperheads”) opposed the war policy of the Lincoln administration, arguing instead for a negotiated peace with the Confederacy (which Lincoln refused to recognize). Their opposition grew in tandem with Union military setbacks and the draft. This was heightened by discontent among many Northerners at Lincoln’s issuance of the Emancipation Proclamation in fall, 1862. The Peace Democrats enjoyed considerable electoral success that fall in reaction to these events.

Clement Vallandigham

A prominent voice among the Peace Democrats was Ohio Congressman Clement Vallandigham, a lawyer from Dayton, even though he lost his seat in the fall, 1862 election. He was sympathetic to the South and an outspoken critic of Lincoln. General Ambrose Burnside, following his disastrous defeat at Fredericksburg in December 1862, was re-assigned to the Ohio department. On April 13, 1863, Burnside issued an order which stated that “Treason, express or implied, would not be tolerated.” On May 1, Vallandigham spoke in Mt. Vernon, where he denounced “King” Lincoln, in the presence of a federal agent. He was arrested by the army on May 5, imprisoned in Cincinnati, tried before a military tribunal despite his request for a jury trial, and sentenced to imprisonment for the remainder of the war. Vallandigham protested a denial of due process and demanded a Writ of Habeas Corpus. His appeal to the U.S. Supreme Court would be rejected in Ex Parte Vallandigham in February, 1864 because the court ruled that it had no jurisdiction over military commissions.

However, rather than allow his sentence to be carried out and make him a Copperhead martyr, Lincoln instead exiled him to the Confederacy. He was turned over to General Braxton Bragg’s Army of Tennessee on May 25. This exile didn’t last long because within 24 days he was sent out to sea, making his way to Canada via Bermuda. Vallandigham than ran for governor of Ohio on the Democratic ticket from Windsor, Ontario but lost in a landslide to pro-Union War Democrat John Brough that fall. Undeterred and allowed by Lincoln to travel freely back in the United States, Vallandigham attended the Democratic convention in Chicago in the summer of 1864 and drafted its peace platform (although the party’s candidate George McClellan, twice dismissed by Lincoln, refused to accept its demand for an immediate end of the war). After the war, Vallandigham ran unsuccessfully for seats in the U.S. Senate and House of Representatives on an anti-Reconstruction platform. His practice as a lawyer ended with his death in 1871 in Lebanon when he accidentally shot himself while defending an accused murderer.

Copperheads: Milligan

Despite Vallandigham’s 1863 defeat in Ohio, there was considerable Copperhead support in southern Ohio and neighboring Indiana. Union authorities feared that a secret underground group of pro-Confederate sympathizers – the Knights of the Golden Circle or the Sons of Liberty – might actually stage an uprising aimed at freeing Confederate prisoners and leading disaffected Midwestern states to secede. This was despite the lack of support for General John Hunt Morgan when his Confederate cavalry passed through southern Indiana and Ohio from July 8, 1863 until the capture of his remaining raiders on July 26.

Another outspoken Copperhead opponent of the Lincoln administration’s war policy was Ohio-born lawyer and farmer Lambdin Milligan (a law classmate of Edwin Stanton). Suspected of conspiring against the Union, he and some other Indiana Copperhead leaders were arrested by the military under the direction of General Alvin Hovey on October 5, 1864 and tried by a military tribunal beginning on October 21. Milligan was convicted of treason (along with four others). He was sentenced on December 10 to be executed by hanging, His execution date was set for May 19, 1865. Following Lincoln’s assassination and apparently at the behest of War Secretary Stanton, President Andrew Johnson postponed Milligan’s execution until the civilian courts could hear his appeal.

On March 6, 1866, the U.S. Supreme Court began six days of argument on the issue of the validity of his trial and conviction by the military, led by Ohioan and Chief Justice Salmon Chase, formerly Lincoln’s wartime Secretary of the Treasury. The government’s case was presented by Attorney General James Speed, aided by Ben Butler and former Ohio Attorney General Henry Stansbury. Milligan was represented by a legal team that included Ohioan Civil War hero, Congressman, and future president James Garfield and David Dudley Field, a prominent attorney and the older brother of sitting U.S. Supreme Court Justice Stephen Field.

The court issued its opinion and the Writ of Habeas Corpus on December 17, 1866 in Ex Parte Milligan. It ruled unanimously that under the 1863 Habeas Corpus Act Milligan should have been tried in the open civilian courts in Indiana, rather than by military commission. The author of the lead opinion was Justice David Davis. Maryland-born Davis attended Kenyon College in Ohio and began a law practice in Illinois. He became a state judge. Befriending attorney Abraham Lincoln, Davis became his campaign manager at the 1860 Chicago Republican convention that nominated him. In 1862, Lincoln (by recess appointment) named Davis to the U.S. Supreme Court. With Lincoln now dead and the Civil War over, Davis famously wrote:

“The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads to anarchy or despotism.”

Davis not only recognized the operation of the civilian courts in Indiana in 1864 but also the denial of the Sixth Amendment right of Milligan to a trial by jury. On behalf of four justices, Chief Justice Chase wrote that Congress did have the power to create military commissions, something not recognized by Davis in his opinion. In March 2, 1867, in the first Reconstruction Act, Congress empowered military commanders in the occupied South to use military commissions, which were used until its end when Ohioan and President Rutherford Hayes withdrew Federal troops from the South and ended its occupation after his controversial election in 1876.

Released in April, 1866, Milligan inveighed publicly the next month against the martyred president and the wartime pro-Union governors of Indiana and Ohio. He then sued those involved in his jailing for $500,000 in damages for trespass and false imprisonment. Milligan was represented by Thomas Hendrickson, a future Vice-President. The general who ordered his arrest was represented by Ohio-born future president Benjamin Harrison. In 1871, the jury awarded a verdict for Milligan but only $5 in damages. Milligan died in 1899.

Conclusions

    Lincoln was entirely justified in his initial suspension of Habeas Corpus with Congress not in session under unprecedented wartime conditions caused by the secession of the Southern states.

Today

The Milligan opinion still resonates today as the legal and political debates continue over the treatment of “enemy combatants” imprisoned in Guantanamo Bay, Cuba, their trials before military commissions, and the Patriot Act provisions for the arrest of those Americans accused of being associated with “terrorism.”

References (Click the book title to purchase from Amazon. Part of the proceeds from any book purchased from Amazon through the CCWRT website is returned to the CCWRT to support its education and preservation programs.)

Williams, Frank. 2004 (May 5). Abraham Lincoln and Civil Liberties in Wartime. The Heritage Foundation (Lecture #834)


The Suspension of Habeas Corpus during the War of the Rebellion

An 1888 article in Political Science Quarterly discussing the constitutional issues and debate related to President Lincoln's suspension of the writ of habeas corpus in 1861, without the approval of Congress. Page scans are available.

T HERE are several writs of habeas corpus known among lawyers, and they are used for various purposes. But when people speak of the writ of habeas corpus without more, they mean the great writ ad subjiciendum, the bulwark of liberty, the great writ of liberty, as it is called. It is the writ which is applied for when a man is supposed to be unjustly held in custody, and when it is issued and served, the person holding the prisoner must bring him before the judge and show cause for the detention. If the detention cannot be justified the prisoner will be discharged. The object of habeas corpus is to inquire into the legality of imprisonment, whether it is by competent authority and for a sufficient reason and according to the evidence given at the hearing, the prisoner is either discharged, bailed, tried, or remanded to custody.

From a political point of view, the great value of habeas corpus is that it protects citizens from a dangerous tendency which is generally found in those who exercise the powers of government. These rulers of men often want to rid themselves quickly of their personal enemies or of those whom they choose to consider the enemies of their country, and one of the easiest methods is to arrest on any sort of charge or suspicion, and keep the victim in confinement simply by not allowing him to be brought to trial. And it has often been said,—and the Bastile and the Tower of London will warrant the assertion,—that the power secretly to hurry a man to jail, where his sufferings will be unknown or soon forgotten, is more dangerous to freedom than all the other engines of tyranny. On the other hand, it is generally admitted that when a government is attacked by a rebellion it is impossible for it to protect itself from conspirators and assassins if every one of them has to be taken before a court of law and proved guilty beyond a reasonable doubt. In such a crisis some arbitrary power must be given. The sovereign, whether king, president, or legislature, must be allowed to arrest on suspicion, without giving reasons and in doing this, to preserve the balance between the liberty of the citizen and the safety of the government is one of the great problems of political science.

Whether it is the President or Congress that has power under the constitution to suspend the privilege of the writ of habeas corpus was a burning question during the civil war. When Lincoln became President in the spring of 1861 he found the Southern states in rebellion against the general government, and to subdue them and bring them back into the Union he conceived to be the duty of his office. Against the enemy in the rebellious states he employed the army and the navy, and against those individuals who in the North gave aid and comfort to the enemy and plotted to betray the government he employed the power of arrest and imprisonment. Like many others who have been placed in a similar predicament he found that the procedure of the courts was insufficient. There were men in Baltimore, Philadelphia and New York, in the cities of the West, in the departments at Washington, and in the White House itself who were ready and eager to hand over the government's property and strongholds to the rebels, and had laid their plans with that intent. Their schemes must be forestalled, their conspiracy killed before it blossomed. But none of them could be convicted by a court of law until they had committed an overt act. If arrested on mere suspicion they would be promptly discharged by a habeas corpus. The remedy for this state of affairs is to get rid of the troublesome writ and this Lincoln proceeded to do. He began to arrest, without any warrant from a magistrate and usually by a military officer, those whom he suspected of treasonable designs, and he instructed the officers who had the prisoners in charge to disregard any writ of habeas corpus that was issued to them and to say that he had suspended it. [1] The case of John Merryman, one of these prisoners, was the first to come up for judicial interpretation. Merryman lived near Baltimore, and appears to have been suspected of being captain of a secession troop, of having assisted in destroying railroads and bridges for the purpose of preventing troops from reaching Washington, and of obstructing the United States mail. [2] By order of General Keim of Pennsylvania he was arrested at night in his own house, and taken to Fort McHenry at that time in command of General George Cadwallader. Taney, who was then Chief Justice of the United States, granted a habeas corpus, but Cadwallader refused to obey it, saying that the privilege had been suspended by the President. On the return of the writ, the Chief Justice filed an opinion denying that the President had any power to suspend habeas corpus and affirming that such power rested with Congress alone. Lincoln continued to arrest and imprison without any regard to this opinion, and indeed was advised by his Attorney-General that he was not bound to notice it.

Thus far Lincoln had suspended the writ merely by orders to his officers to disregard it. On the 24th of September, 1862, he made use of more formal proceedings and suspended it by proclamation. On March 3, 1863, an act of Congress was passed giving the President discretionary power to suspend the writ during the continuance of the rebellion. [3] The writ of habeas corpus was therefore not suspended by Congress until the rebellion was half over. In other words, Lincoln suspended it for two years of his own accord and without authority from any one for two years he made arrests without warrants and held men in prison as long as he pleased. The first arrests were caused by the attempts of the Baltimoreans to prevent Northern troops from reaching Washington, and by the fear that Maryland would secede. The Mayor and the police commissioners of Baltimore, many members of the Maryland legislature, newspaper editors, and other persons of distinction and influence were given lodgings inside of Fort McHenry and Fort Warren. Afterwards, executive arrests were made all over the country, especially in the West. An order, issued August 8, 1862, authorized marshals and chiefs of police to arrest any one who discouraged volunteer enlistments, gave aid or comfort to the enemy or indulged in any other disloyal practice. Discouraging enlistments and disloyal practices were offences unknown to the law and the phrase disloyal practice was large enough to include anything.

There are few things in American history more worthy of discussion than the power exercised by Lincoln in those two years. It was absolute and arbitrary and, if unauthorized, its exercise was a tremendous violation of the constitution. Whether it was justifiable and necessary is another matter. If it was unconstitutional and yet necessary in order to save the Union, it shows that the constitution is defective in not allowing the government the proper means of protecting itself. That Lincoln used this power with discretion and forbearance there is no doubt. He was the most humane man that ever wielded such authority. He had no taste for tyranny, and he knew the temper of the American people. But, nevertheless, injustice was sometimes done. His subordinates had not always their master's nature they sometimes indulged their malice they sometimes arrested without excuse, and were sometimes brutally severe in the arrest. Such things are perhaps inevitable when a great rebellion is to be subdued but we must regret that they happened in America.

The constitution contains one short paragraph about habeas corpus and not a word more:—

This passage occurs in the first article which is devoted to the legislative power and up to the time of the rebellion it was the general opinion that Congress alone had the right to suspend. When Lincoln and his Attorney-General claimed the power for the President, nearly everybody was surprised and many were shocked. They had supposed that the question was a settled one, When Aaron Burr and his conspiracy became so formidable as to suggest the suspension of habeas corpus, Jefferson, who was then President, submitted the whole matter to Congress, claiming no right for himself, and in the discussion which followed no one suggested that the President might exercise the power. When the state conventions were adopting the constitution the habeas corpus clause was never mentioned without it being taken for granted that Congress alone could suspend, and some thought that the debates of the convention which framed the constitution showed that such was also the opinion of the fathers of the republic. More conclusive than all, was the position of the clause itself, It occurs in the article devoted to the legislature and contains no words giving power to the executive, while the article devoted to the executive, where mention of the power would naturally be made if it belonged to the President, is entirely silent on the subject. The constitution uses the word suspend. No law can be suspended except by the legislature. The writ of habeas corpus is a law for it is created by act of Congress, and therefore Congress alone can suspend it. In England, Parliament, and not the Crown, suspends the writ, and the makers of our constitution would naturally have followed the English custom, or having it before their eyes would certainly not have made the American President more powerful over civil liberty than the English King. Moreover, authority had spoken. Story in his Commentaries [4] gives the power to Congress, and Chief Justice Marshall in deciding Bollman's case [5] incidentally expressed himself as of the same opinion.

A few months after the publication of Taney's opinion in Merryman's case a remarkable pamphlet appeared. It was by Horace Binney, for many years the leader of the Philadelphia Bar, and at that time retired from practice and in his eighty-second year. Before Binney’s pamphlet appeared Lincoln's action had of course been discussed in the newspapers. Of those who supported the President, some maintained that as commander-in-chief of the army and navy he had the implied right to suspend habeas corpus others held that in a rebellion he could declare martial law, which, as it destroyed all civil authority, would easily dispose of the writ. Binney took an entirely new view of the subject. He believed that the President could of his own motion suspend the writ but he refused to regard such suspension either as the lawful exercise of the military power of the commander-in-chief or as an incident of martial law. He did what no one else had attempted. He took the plain words of the constitution and deduced from them an intention to confer the power of suspension on the President.

The constitution, he said, provides that in cases of rebellion or invasion, when the public safety requires it, the privilege of the writ of habeas corpus may be suspended. That is to say, the people of the United States have declared that this great privilege may under certain conditions be denied or deferred, for a season. The constitution authorizes this to be done, but does not expressly authorize any department to do it. The department to which the duty falls must be discovered by the delineation and attributes of the departments as laid down in the general scheme of the constitution. All the conditions of the exercise of the suspending power, described in the habeas corpus clause, are of executive cognizance, namely, rebellion or invasion, and the requirement of the public safety. The direction of a war, whether of rebellion or invasion, is necessarily with the executive. The suspension of habeas corpus is an instrument for repelling invasion or rebellion, and so its use must lie with the President.

It is true, he went on, that in England Parliament alone may suspend. But this English analogy is misleading. The American and English constitutions are very different. By the English constitution, Parliament, being omnipotent, may suspend the privilege of habeas corpus at any time, even in time of profound peace, and has in our own day suspended it during labor riots. The American constitution confines the suspension to rebellion or invasion. The unlimited power of suspension allowed in England would undoubtedly be dangerous in the hands of one man, but not so the qualified power of our constitution. Again, it must be observed that in England the privilege of habeas corpus is given, without qualification or exception, by an act of Parliament, and nothing but a subsequent act of Parliament can suspend or abridge it. But in America a single clause of the constitution recognizes the privilege and at the same time allows its suspension on certain occasions. The suspending clause in the American constitution stands in place of both the enabling and the suspending act of the English Parliament. In other words, America has a written constitution which cannot be changed by Congress, and England has an unwritten constitution which can be changed at the pleasure of Parliament. If there were in England some law higher than Parliament which said that habeas corpus could be suspended only in rebellion or invasion, and it could be shown that under this law it was the practice for Parliament alone to declare the fact of rebellion or invasion and the fact of public danger, then there might be an analogy. But comparing the two constitutions, as they actually exist, there is none. Our habeas corpus clause is entirely un-English because it restrains the legislative power as well as all other power, and it is thoroughly American because it is conservative of personal freedom and also of the public safety in the day of danger.

There is still another particular in which we must guard against analogy. The motive of the English people in putting the habeas corpus power entirely within the control of Parliament was their jealousy of the Crown. Before the time of Charles II., the King had often atrociously abused the power of arrest and acted in utter disregard of the privilege of habeas corpus. It was the dread of such behavior of their monarchs, who at that time still retained a great deal of their arbitrary power, which aroused the English people to pass the great habeas corpus act. But the framers of our constitution had no such fears of the President. The powers of his office had been substantially settled before the habeas corpus clause was proposed, and there was nothing in those powers to excite alarm. They had given him no power which he could abuse or enlarge except with more danger to himself than to the country. Elected for only four years, unable to veto a law if two-thirds of each house are opposed to him, unable to make a treaty unless two-thirds of the Senate concur, or to appoint a minister, consul, judge, or any officer but inferior ones without the advice and consent of the Senate, commander of the army and navy but unable to arm a soldier or build a ship unless Congress consent, commander of the militia but only when Congress has called them into service, unable to adjourn Congress except when they disagree as to the time of adjournment, and impeachable for any misconduct in office:—such is the array of our President's powers, and distinguished foreigners [6] have remarked that he is probably the feeblest executive ever known in a civilized community.

The history of the clause in the convention that framed the constitution shows strongly the intention of that body. Shortly after the convention met, Pinckney of South Carolina presented what he called "A plan of a Federal Constitution." The sixth article, which was concerned with the legislature, contained the following sentence:

Habeas corpus was not mentioned again until three months afterwards, and about three weeks before the final adjournment of the convention. Pinckney was again its guardian and moved, not the adoption of his plan, but a number of propositions to be referred to the committee of detail. He gave the habeas corpus proposition the following form:

Evidently, Pinckney intended the legislature to suspend. But it is important to observe that in his first motion he confined suspension to rebellion or invasion, and in his second to the most urgent and pressing occasions, and for a limited time. That is to say, in his second motion he left suspension to the discretion of the legislature provided that the suspension did not last longer than a certain number of months. If this last proposition had been adopted, our constitutional provision for habeas corpus might have been somewhat like England's and of course, if such indefinite power to suspend was given, it was right to place it in the hands of Congress, and not in the hands of the executive. The meagre account which Madison has given of the convention's debates furnishes little or nothing more to guide us, until we find that a few days afterwards Gouverneur Morris disposed of the whole question. He moved that:

With the substitution of the word when for where, which was probably done by the committee on style, this is the clause as it now stands in the constitution. The convention rejected Pinckney’s English view. They limited suspension to conditions which were of executive cognizance, and therefore the reference to Congress became unnecessary, and was abandoned. All reference to the legislature is left out, and as moved by Morris and adopted by the convention this clause was not part of the legislative article, but an amendment to the fourth section of the eleventh article, which treats of the judiciary. Subsequently the committee on style and arrangement placed it in its present position. The duty of that committee was not to change the meaning of any phrase they were confined strictly to such work as their name implies. By placing the provision in the judiciary article, the mover and the convention may have intended to admonish the judges of a restraint upon their power over the writ. But however that may be, certain it is, that they must have intended to expressly negative Pinckney's idea of a suspending power in Congress.

The committee on style probably placed the clause in the ninth section of the first article because that section is restrictive throughout. Most of the paragraphs restrain Congress, but one of them restrains the executive department, and another restrains all persons who hold an office of trust or profit under the United States. Position in the ninth section is therefore of no avail to give authority to Congress. Nor can position in the first article be used for such a purpose. The first article is not confined to Congress. The tenth section of it contains prohibitions on the states, and the seventh section gives the President the power of veto. In like manner, the judiciary article is not confined to its title, but gives Congress the power to declare the punishment for treason. Several of the powers of Congress are also enumerated in the fourth article. The argument from position proves nothing. The power given by the suspending clause is left to the department which by the general theory of the constitution has charge of the public safety in times of rebellion or invasion.

If instead of using the word privilege, the clause had spoken of the writ of habeas corpus or of a habeas corpus act, there might be ground for arguing that a writ or an act being created by legislative power may be suspended only by the same. But the privilege being spoken of,—the privilege of being bailed, tried or discharged,—an arrest and detention, which is exclusively an executive function, is enough to suspend the privilege, and no legislative act is necessary. The clause does not give power to authorize suspension, it gives power actually to suspend. The clause itself contains all the authority. If it had given some department the right to authorize suspension, the authorization might be a legislative act, but the right actually to suspend is executive. No legislative body can suspend the privilege by an act on the person to be affected, and they never attempt it. Parliament never actually suspends habeas corpus. They authorize the crown or ministry to do it as the occasion arises. That is all that Congress could do, namely, give effect to the action of the President or some one else, and that the constitution does already. [7]

Binney attempted to show, that no authority to any department could be inferred from English analogy, or from the position or wording of the clause, and that suspending the privilege was naturally an executive act. Whether it is an executive act under the constitution depends somewhat on the question, which department has the duty of ascertaining the conditions of rebellion or invasion and the requirement of public safety. Binney argued that it was clearly the executive. It is his duty faithfully to execute the laws and to protect the constitution. [8] He is commander-in-chief of the army, navy and militia, and if the laws or the constitution are menaced by an invasion or rebellion, it surely belongs to him to decide the fact, to measure the danger and what the public safety requires. If it is his duty to execute the laws and defend the constitution he must have the right to determine when the facts exist which bring his duty into operation. The suspension of habeas corpus is most effective when used quickly in the beginning of an outbreak or conspiracy. Congress can never use it quickly and is often not in session.

This was Binney's argument in support of Lincoln. Such a powerful handling of the subject could not be disregarded. Answers and criticisms came from all sides. He seemed, as he himself said, to have flushed and put upon the wing a whole covey of reviewers. [9] Some of them were anonymous, and some had difficulty in finding a printer, for in those days the expression of an opinion, even in the North, would sometimes result in social ostracism, and there was also an apprehension that perhaps the mob might take part in constitutional discussions.

The foundation of Binney's argument was that the habeas corpus clause, even if expressed in the form of a restriction, implied a grant. It restricted suspension to certain conditions, and at the same time granted power to some department to suspend when those conditions were fulfilled. [10] This was also the underlying principle of Chief Justice Taney's opinion, although he differed from Binney in regard to the department to which the grant was given. Most of the pamphleteers who answered Binney attacked him at this point. They took the ground that if there had been no habeas corpus clause Congress would have had the unlimited right to suspend, and therefore there was no need of reading a grant into the clause, which, as its words implied, was a restriction and nothing more. If it can be shown that the clause is a restriction without a grant, it is at once fatal to Binney's whole chain of reasoning. For if the power to suspend could exist without the clause it would be an unlimited power, and no one would think of arguing that the convention would have given it to the President. In fact, one of Binney's own arguments was that if the power was unlimited it would be dangerous to give it to the President, and that the clause gave it to him because its use was strictly limited to the conditions of rebellion and invasion. If the constitution without the clause gives an unlimited power to some department to suspend, and the clause is simply a restriction on that power, the department intended to wield the power and to be subject to the restriction can be none other than Congress.

One of the reviewers, Judge Nicholas of Kentucky, put the question thus: [11] Suppose, said he, the constitution had no habeas corpus clause and was entirely silent about the writ and its suspension, where then would be the power to suspend? It would be of course with Congress. Congress would have untrammelled discretion over the writ and could suspend it or repeal it out of existence. It was this full power, this full discretion, which the convention intended to restrain, and accordingly they made the habeas corpus clause restrictive. It does not grant power to suspend, for Congress had that already but it says that the privilege shall not be suspended except in certain cases. The words of the clause are entirely restrictive and contain no implication of a grant. They presume the existence of something which they restrain. Moreover, as was pointed out by Randolph in the Virginia convention, Congress was specifically given the right to suspend habeas corpus, when it was given the right to regulate the courts, out of which the writ issues. The habeas corpus clause is an exception to this power.

Binney wrote another pamphlet in reply to this reasoning. He showed what is very evident, namely, that to suppose the constitution silent and infer from that the right of Congress to suspend was mere assertion and a begging of the question. More than that, it was contrary to the most fundamental principle of constitutional law. No powers can be assumed for any part of the government. Nothing is so well settled as the doctrine that Congress has only the powers which are expressly given by the constitution and such other instrumental and incidental powers as are necessary to carry the expressed powers into effect. Ours is a government of enumerated and limited powers, and the powers not mentioned in the constitution are reserved to the states or to the people. It is monstrous to assert that a power exists simply because the constitution says nothing about it. By that reasoning Congress would be omnipotent. It is equally useless to contend that the habeas corpus clause is a restriction on the power of Congress to regulate the courts. Congress has no such power. It is true that it can regulate the appellate jurisdiction of the Supreme Court, and decide on the number of inferior courts, but that is all. The constitution says:

The constitution has therefore vested the judicial power in certain courts. Congress has a discretion as to the number and order of the inferior courts, but it has no discretion whatever as to vesting or not vesting the whole judicial power in courts of some description. The language of the constitution is mandatory. It does not say the judicial power may be vested, but it says it "shall be vested." Congress could not lawfully refuse to create courts of some sort it could not lawfully refuse to create the means for the exercise of that power which the constitution says shall exist. To suppose that the obligation is not binding, but might at pleasure be declined, is to suppose that under the sanction of the constitution Congress may defeat the constitution. The constitution creates the judicial power, and declares to what questions it shall extend. Congress creates only the instruments which are to use that power and when thus created the whole judicial power attaches to them, and cannot he diminished or changed by Congress. [12] By the constitution the judicial power extends to questions of personal liberty, and its exercise in that respect cannot be interfered with by Congress.

Congress, having the right to establish the tribunals, must give to them such an organization as will enable them to exercise completely the judicial power created by the constitution. A tribunal is not constituted unless it is endued with the active powers necessary to the exercise of its jurisdiction. The mere erecting of a court by name and the vesting of jurisdiction in it would amount to nothing. It must have the practical powers of bringing parties before it, enforcing its decrees, and issuing writs. It is idle to argue that the withholding or suspending of the writ of habeas corpus is an appropriate means of constituting a judicial tribunal. It is a caricature of argument to say, that Congress must create a court in which the whole judicial power is to vest, and at the same time may withhold from that court any of the instruments necessary to the practical exercise of judicial power. Accordingly, the act [13] which established our courts says, that they "shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute which may be necessary for the exercise of their respective jurisdictions and agreeable to the principles and usages of law." Courts cannot exist without writs, and Congress has given such as were necessary. Can it be contended that they could now cripple the courts by taking away the writ of habeas corpus? If they could take away habeas corpus they could take away all the other writs, which would in effect be a failure to constitute the tribunals. [14]

Even supposing that Congress had the arbitrary power of withholding or repealing the writ, that would not be the same thing as suspending the privilege of it. If the courts were denied the power to issue the writ, that would simply be a denial to the prisoner of his specific remedy, but the principle, the right, the privilege, whereof the constitution speaks, would still remain. The constitution says, the privilege shall not be suspended except in rebellion or invasion. It speaks only of the privilege, and says nothing of the remedy. Congress might tamper with the remedy indefinitely, and yet be far outside the language and meaning of the habeas corpus clause. The fact that Congress gives the courts a habeas corpus writ has nothing to do with suspending the privilege of personal liberty guaranteed by the constitution.

Binney was perhaps successful in answering this objector but there were others with whom it was harder to deal. Like Nicholas, they took the ground that if the clause were absent Congress would have the right to suspend but they drew the authority to suspend, not from the power to regulate the courts, but from the power of Congress to suppress insurrection and repel invasion. One of them, George M. Wharton, took a wider range. [15] He quoted the clauses of the constitution which gave Congress power to declare war, make rules concerning captures, raise and support armies, call out the militia, and make all laws which shall be necessary and proper for carrying these powers into execution, and said that the right to suspend could be implied from any one of them or from all of them together, and that the habeas corpus clause was simply a restriction on the power thus implied. Binney answered this by saying that it was too much at large, too indefinite. None of the powers contained any reference to the writ or even to the judicial department. He had already maintained that Congress could not impair the judicial department after it had once been created, and surely a right to impair an express provision of the constitution could not be implied from the war powers. Suspension of habeas corpus was a matter of municipal law, was not of the nature of military force, could not be identified with it, and could not be implied from it. If it could be implied from the power to call out the militia, or from any of the other war powers, it could be implied still more easily from the power to punish counterfeiting, for it would certainly be very useful against that offence.

But Wharton wrote another pamphlet [16] in which he fortified his argument admirably, and relied on the doctrine of the implied powers of Congress. This doctrine has been extended until it means that any act of Congress is constitutional which has such a relation to one or more of the expressed powers of Congress as in any way or under any circumstances to promote their efficiency. We hesitate to admit that the power to suspend habeas corpus may be implied from the right to make war, because it seems like such a great and substantial power that its authority ought to rest on something stronger than an implication. But in McCullough vs. Maryland the power of Congress to charter a bank was implied from the powers to collect taxes, borrow money, regulate commerce, declare war, and raise and support armies. Congress also has by implication the right to define and punish crimes and the famous embargo act which by prohibiting vessels from leaving port practically destroyed commerce was said to be a natural incident of the power to regulate commerce. The whole question of habeas corpus hinges on this doctrine of implied powers. Congress may do all things necessary and proper to put down a rebellion, and if the suspension of habeas corpus is necessary and proper for that purpose, then Congress and not the President may suspend. Binney never answered these statements, and it is doubtful if they can be answered.

The argument against Binney amounts to this: If there were no habeas corpus clause the right to suspend could be implied from the war powers of Congress, therefore it is unnecessary to read a grant into a clause which is expressed in the form of a restriction, and so the clause is simply a restriction on the implied right of Congress to suspend. Then it is an undoubted fact that the state conventions when adopting the constitution supposed that the suspending power had been given to Congress alone. This of itself is almost enough to settle the question. What was intended by the convention which framed the constitution is of comparatively little importance. That convention was simply offering a constitution, and their opinion about it could not bind the people. But the state conventions were accepting, ratifying, and creating the constitution, and what they understood it to be is almost decisive. When we add to this the fact, that up to 1861 all authorities agreed in ascribing the power to Congress, we have an argument which even the marvellous ingenuity of Binney cannot overcome.

It is curious that in spite of the great importance of the habeas corpus question, very little is said about it in the debates of the convention which framed the constitution and it is hardly referred to in The Federalist. The people of that day were easily excited on the subject of liberty, and Binney suggests, that the Fathers said as little as possible about it, because they were afraid of arousing a discussion which would interfere with the adoption of the constitution. The addition of two or three words to the habeas corpus clause would have put the matter beyond the peradventure of a doubt, and their failure to do this is hard to understand. Gouverneur Morris was the author of the clause as we now have it, and a chance passage in one of his letters has raised a suspicion that that adroit gentleman intended the habeas corpus clause to be exactly what it is,—a masterpiece of vagueness. [17]

Besides Binney's argument there were three others which supported the President. One of them was by Attorney-General Bates. [18] He said, that in time of rebellion the President has a right to arrest and imprison such persons as he suspects of holding criminal intercourse with the enemy. He has this right because by his oath he has sworn to preserve, protect and defend the constitution and Congress has confirmed him in this by those statutes which give him the use of the military power when the combinations are too powerful to be suppressed by judicial proceedings. It is his bounden duty, therefore, to put down insurrection, and Congress has given him the means and instruments which he may use at his discretion. If the insurgents assail with an army, he may find it best to use the army against them. It they employ spies and emissaries, he may find it necessary to arrest and imprison them. Having thus arrested and by this right, he is not bound to obey a habeas corpus issued to him by a court. The departments of government are independent of each other. Each has its own sphere. The President's duties are political those of the courts are judicial. If in time of a rebellion the President arrests a man, it is a political act, not within the domain of the courts, and they cannot interfere with it. They cannot revise or reverse his political decisions. Can it be said, that after the President has conquered the insurgent army and arrested their emissaries, he is bound to bring their bodies before any judge who may send him a writ of habeas corpus, and submit to whatever the judge shall see fit to order? Bates said he felt so sure of the power of the President, that he argued about habeas corpus only out of deference to the opinions of others that he thought it no more necessary to suspend habeas corpus in order to enable the President to arrest spies [19] than to suspend the writ of replevin before seizing the arms and munitions of the enemy.

His reasoning is peculiar. He begins by assuming the proposition which has to be proved. He argues that the President has the power to suspend because he has the power to arrest and imprison. But the right to arrest is derived, if at all, from the right to suspend. It is impossible to reverse the order for the privilege of habeas corpus is intended to be a protection against arrest and imprisonment by the sovereign. Again, he derives the right to arrest and imprison from the oath to preserve and defend the constitution. An oath cannot contain a grant of power which conflicts with other parts of the constitution, and the grant would in this case conflict with the provision declaring that no citizen shall be deprived of life, liberty or property without due process of law, and also with the provision which forbids arrests except by sworn warrants on probable cause. The only exception allowed by the constitution to these two provisions is when habeas corpus is suspended. Arrest and imprisonment derive their validity from suspension. [20] The right to arrest and imprison is the thing to be proved. His final assertion, that when the President has arrested an emissary it is a political act and cannot be interfered with by a department whose duties are judicial, is the most barefaced assumption that ever was heard of. What is habeas corpus for, what is all the talk about liberty for, if not to check these political acts of the ruler?

It remains to notice the two other views in support of the President's power. One declares that suspension of habeas corpus is an incident of martial law, the other that it is one of the implied rights of the commander-in-chief when engaged in putting down a rebellion. Martial law is best defined by distinguishing it from military law and military government. Military law is the code of rules and regulations for the government of the officers and enlisted men of the army, and applies to no others. Military government is the government by a military officer of a conquered foreign province where the local law has been overthrown. It applies to all the people in the province, but is supposed to last only until civil law can be re-established. Martial law is military government at home. It is the government by a soldier of the citizens of his own country. If an American general should invade Canada, conquer it, and govern its inhabitants, that would be military government. [21] If an American general in command of a district which included Ohio should undertake to govern the citizens of that state and to punish them for what he deemed to be crimes and offences, that would be martial law. Martial law is therefore the good pleasure of a soldier administered to the citizens of his district. It is the arbitrary will of one man it overthrows all the civil law and of course suspends habeas corpus. Lincoln declared martial law in several parts of the country. If he had a right to declare it, habeas corpus was thereby suspended wherever such law extended. When the war was over the Supreme Court decided, in Milligan's case, [22] after the most solemn argument and deep consideration, that the President could not declare martial law in any district not invaded by the enemy and where the judges were on the bench and the courts of law in operation. Martial law exists where there is a battle. It exists in a community where war exists and the courts and civil authorities are overthrown. A commander at the head of his army may impose it on states in rebellion, to cripple their resources and quell the insurrection. But it never exists where the courts and civil authorities are performing their normal functions. It prevails on the actual theatre of war because it is the only law there the other law has been destroyed. Beyond these instances it cannot be created, except perhaps by an act of Congress. [23]

The decision in Milligan's case has played havoc with the theories that prevailed during the war. Lincoln maintained that any one who injured the efficiency of the military power could be seized by that power, tried by a military commission and, if necessary, hanged. [24] It was quite generally believed among ardent Unionists, that martial law followed the army that the right to carry on war being given to the government, all things necessary to make the war successful were implied. [25] Undoubtedly when the Union armies captured a soldier of the Confederacy or an inhabitant of the Confederacy who was aiding the rebellion, such person was a prisoner of war, and could be held in confinement without a trial until the war was over, or he was exchanged. No one disputed that people who injured the governments military force in this way could be seized by the army wherever found. But suppose a man who had never been in Confederate territory, who had never joined the Confederacy and who had no connection with it except by sympathy, should, in a loyal Northern state of which he was a citizen, persuade soldiers to desert, combine with others to liberate prisoners, to resist the draft, and to seize the arms and munitions in the arsenals, what name was to be given to this species of traitor? Beyond question he was injuring the military force of the government, and injuring it more thoroughly than if he were an armed Southern soldier. Could he be seized by the army and under martial law dealt with as the commander or a military tribunal saw fit? or must he be simply arrested and turned over to the courts and the ordinary procedure of law? This was Milligan's case. He was a citizen of Indiana, a state within the military district of General Hovey, but at that time not invaded by the enemy, or at most only threatened with invasion, and with courts of law and all the machinery of civil government in full operation. Milligan believed in the Southern cause, but he did not care to join the Southern army and carry a musket or wear a sword. He found he could do better at home and he used his best energies to injure the National government and the Northern army, and belonged to a secret society devoted to that purpose. There is reason to believe that he and some others, belonging to the order of American Knights or Sons of Liberty, had formed a conspiracy to release the ten thousand Rebel prisoners in Indiana, supply them with arms from the Federal arsenal, and use them to conquer the state and take it over to the Confederacy. He and his accomplices were in communication with the enemy, and indulged freely in the usual disloyal practices of the party to which they belonged. It was a case which seemed to justify the argument, that whoever aids the enemy is an enemy, and may be dealt with by the army. A conspiracy by Northern men in the North certainly seemed to be as much an act of hostility as an open attack by armed Southern men from the South. It was hard to say to the army which Milligan attacked, that, because he was not a soldier and because he stood on loyal soil and by accident of birth and residence was a citizen of a loyal state, they could not touch him. It was equivalent to saying that a citizen may take advantage of his citizenship and of the protection of his government to conspire against it. After they had caught this arch-traitor, tried him by a military commission and sentenced him to be hanged, they thought it a strange thing to be told that all their proceedings were void and that he must be allowed to go free. But that is what the Supreme Court decided and it is the law if the constitution is to be followed.

Milligan, though reeking with treason and rebellion, could not be taken as a prisoner of war. He was unfortunately a civilian and a resident of a state which was not the theatre of actual warfare, and in which the courts of law were wide open. All the offences of which he was accused were forbidden by law and could he punished by the courts. [26] Habeas corpus was at that time suspended by act of Congress. He might, therefore, have been arrested and held in custody to prevent his taking part in the conspiracy, and finally turned over to the courts for trial and punishment. But to seize him, try him, and condemn him by a military commission violated three or four provisions of the constitution. First of all, the constitution says, that "'The trial of all crimes except in cases of impeachment, shall be by jury." Again, "No person shall be held to answer for a capital or otherwise infamous offence unless on presentment by a grand jury, . . . nor be deprived of life, liberty or property without due process of law." The sixth amendment declares that, "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed," and goes on to describe further formalities for such a trial. When used to deal with offences which can be tried in courts, martial law and military commissions violate every one of these provisions. The constitution says that no man may be tried and punished except by a jury and due process of law. If the courts are open, and opportunity given for jury trial and due process of law, the constitution must be obeyed, and it is absurd to say that martial law may exist. When the courts are overthrown and there is no chance for jury and due process, then martial law exists by necessity. Necessity creates an exception to the rule of the constitution, and the constitution itself creates another exception by allowing the suspension of habeas corpus. But it is to be observed that the suspension of habeas corpus gives the power to arrest and hold, but not to try and punish.

There have been attempts made to weaken the authority of Milligan's case, but they are of little avail. [27] It is a decision which can stand severe criticism. It received all the light that advocates could give. Of the nine judges who composed the court at that time all but one were Northern men and five of the nine had been commissioned by Lincoln. They were on the side of the President and their political belief inclined them to support his views of martial law. Chase, the Chief Justice, went so far as to say, that, whether martial law was constitutional or not, it was at any rate sanctified by having had Lincoln's approval. Probably the whole court would have been content if the soldiers in Indiana had succeeded in disposing of Milligan and if all the Milligans in the country had been dealt with in a similar way the grief of the learned court would not have been great. But they were Americans, and when called upon to be lawyers and judges they set aside their feelings and stood by the law and the constitution.

One of the best arguments in favor of martial law was made by Attorney-General Speed. [28] He was asked by President Johnson, at the close of the war, whether the accomplices of Booth in the assassination of Lincoln should be tried by the civil courts or by a military commission under martial law. He decided in favor of the military commission and based his opinion on the clause in the constitution which says that, "Congress shall have power to define and punish piracies, etc., and offences against the law of nations." The law of nations, he said, is by the constitution a part of the law of the land. As the laws of war constitute part of the law of nations they must also be part of the law of the land, and must exist whenever there is war and be binding on the citizens and the government. Congress may declare war, and when declared, it must be carried on according to its own peculiar laws. By the laws of war the army may capture the soldiers and sailors of the enemy, and, if accused of offences against the laws of war, try and punish them. The army may also capture guerillas, marauders, banditti, spies and other secret or open enemies, try and punish them according to the laws of war. Booth, he thought, was a secret enemy of the government, and his accomplices could accordingly be tried by a military commission. He avoided the constitutional provisions in regard to due process of law and jury trial by saying that the constitution gives the government power to carry on war, and therefore when war comes, the laws of war come with it and are exceptions to those provisions of the constitution. He also had to avoid the argument that the laws of war must, like the rest of the laws of the land, be subject to and modified by the constitution, and this he did by saying that the constitutional provisions for jury trial and due process refer only to crimes, whereas the clause of the constitution on which he relied, speaks of "offences against the law of nations." If an act were a technical crime according to statute or common law it was of course to be dealt with by the judiciary. But if an act were an offence against the law of nations it belonged to the jurisdiction of the army and its military tribunals. If this were not so, every soldier who killed an enemy in battle would be guilty of murder and would have violated the constitution, for he would have deprived a person of life without due process of law. So any one who holds a prisoner of war, is depriving him of liberty without due process of law. And if the army capture a spy and hang him, they are depriving him of life without due process of law, and also of the privilege of trial by jury. But all these acts are lawful because done under the laws of war. They belong to the jurisdiction of the laws of war and have nothing to do with jury trial and due process. The constitution has established the laws of war and also the rule of jury trial and due process, and has assigned to each its own sphere and domain.

The answer to this reasoning brings us back again to the Milligan case. If a man commit an offence which is cognizable in a court, and the courts are open, he must be tried by a court and due process of law, for the simple reason that the constitution commands it. Undoubtedly the constitution provides for carrying on war, and war is to be waged according to the laws thereof. Undoubtedly there are acts, such as killing and capturing the enemy, which are lawful only under the laws of war, and undoubtedly there are offences which are purely offences against the laws of war and cannot be punished by the courts. The trial and punishment for spying, breaking parol , breaking a blockade, violating a flag of truce, uniting with guerillas and bush-whackers, belong entirely to the military. But proving that the laws of war apply to these does not prove that the laws of war apply to offences for which a remedy is provided in the statute book. If the constitution says that no one shall be deprived of life, liberty, or property without due process of law, must not that provision be obeyed whenever it is possible to obey it? Although the constitution provides for war, the war cannot be carried on so as to violate other parts of the constitution. The constitution gives us power to deal with the enemy by the laws of war, but it does not give us power to administer the laws of war to our fellow-citizens. Every offence which can be tried in a court must be tried there, and an offence which cannot be tried in a court, and is purely military, may be left to the army. An offence which is both an offence against the laws of war and a crime triable in court should go to the court, for the command of the constitution is express in this respect and the right of trial by the laws of war is, at best, only implied. Neither the law of nations nor the laws of war can be allowed to overcome, within our own territory, the express words of the constitution. The constitution is the supreme law of the land, and no outside influence or outside law can be paramount to it. The laws of war as laid down by Vattel and other European writers may, perhaps, be liberally construed and administered in monarchical countries, but in a country with a written constitution giving only limited powers to the government, they must yield to the constitution and suffer change whenever they contradict it.

Booth murdered Lincoln, declaring that it was for the good of his country, and he was hunted down and shot as he deserved but his accomplices were tried by a military commission. Guiteau murdered Garfield, saying that it was for the good of his country, and he was tried by the ordinary process of the law. There is no difference between the two cases. They are both crimes triable only in court.

A discussion of martial law is never complete until General Jackson's declaration of it at New Orleans is mentioned. After he had fought and won the battle of New Orleans and knew, though not officially, of the ratification of the treaty of peace, he undertook to govern the city by martial law. The excuse he gave was that the enemy, though beaten, were still in the neighborhood and might return, that the knowledge of peace had demoralized the militia under his command, and brought the whole city into a state of turbulence. Jackson always believed that the salvation of the country depended on his being absolute master of every one about him, and this trait had probably as much to do with the declaration of martial law as any difficulty or danger in his situation. A certain Louallier thought his conduct illegal, and was bold enough to say so in print. He was immediately arrested. Judge Hall of the United States district court issued a habeas corpus for his release, and Jackson, being determined to strike at the root of the matter, arrested the judge. Afterwards, when the judge got back into his court, he called Jackson before him and fined him a thousand dollars for contempt. Jackson promptly paid the fine, and after many years it was refunded to him by act of Congress. In passing the act some of Jackson's friends justified him on the ground of necessity which, they maintained, always decided the right or wrong of martial law. Others did not seam to care whether his act was legal or not he was a grand old hero, they said, and had conquered the British. Some admire Jackson because in spite of law and at the risk of his reputation he acted for the safety of his country. Others admire Judge Hall, because he upheld the dignity of the law against the despotism of a soldier. The precedent has become a most valuable one, for it can be cited on both sides. It is like the other instances of martial law in America. In the Revolution, Gage, the British general at Boston, declared martial law five days before the battle of Bunker Hill, and even his own countrymen thought it outrageous. An attempt was also made to declare it in Virginia during the Revolution, and nearly everybody thought it was outrageous. [29] The Declaration of Independence says that it was outrageous for the king to make the military superior to the civil power and many of the state constitutions have said that the military shall never be superior to the civil power. Everything is against martial law, and yet whenever a president, king, or general is driven to extremities he will make use of it, and those who complain will complain in vain. He who declares martial law has already an army with which to enforce his decrees. After the emergency is past, if he has been successful and has not been cruel or reckless in its use, he will, in all probability, be forgiven and the American people are among those most likely to forgive. [30]

And now suppose it to be proven that the President cannot lawfully suspend habeas corpus without authority from Congress, what have we gained? Very little. The fact remains, that for two years Lincoln suspended the writ, and arrested the enemies of the government as freely as if the right had been expressly given him. [31] People who objected were allowed the privilege of complaining. Some wrote learned pamphlets against him, some passed resolutions, and judges filed indignant opinions. They might have spared themselves the trouble. Lincoln never ceased to use his great power, but he used it without tyranny or cruelty. The great mass of the loyal people either thought he was right or forgave him his wrong. Most of them sympathized with his pathetic exclamation, "Are all the laws but one to go unexecuted and the government itself to go to pieces lest that one be violated?" The man who saved the Union in the war of the Rebellion, and the man who shall hereafter save it in some other war, will never be held to a very strict account for violations of the constitution. Events are stronger than the constitution and stronger than constitutional law. What the people permit to be done in violation of the constitution may by continual repetition become part of the constitution. The acquisition by treaty of the Louisiana territory was admitted by its advocates to be unconstitutional but the people consented to it, and also to subsequent acquisitions, and no one now thinks it worth while to argue against them. May it be said that the consent of the people has given the President power to suspend habeas corpus?

The English nation has had great experience with the habeas corpus question, and it is good proof of the wisdom of their law that Lincoln's method was in almost exact accordance with it. Since the time of William III. it has been the custom in England for the ministry, when the emergency arises, to arrest and hold in defiance of the writ, and afterwards ask Parliament for an Act of Indemnity. The reason is obvious. If they waited to get a bill through Parliament the conspiracy or rebellion might become successful, or, as was the case with ours, gain such headway as to be difficult to subdue. Parliament moreover might not be in session. It was the prompt action of the ministers of the crown that saved the life of William III., and Parliament not only indemnified them, but thanked them for it. Lincoln found himself face to face with a rebellion, and Congress not in session. He called out the militia, increased the army and the navy, and suspended habeas corpus. Afterwards in his message to Congress he submitted all his acts to their judgment. They supported him as far as they could. A bill was passed August 16, 1861, making valid all his acts in regard to the army, navy and militia, and giving them the same effect as if they had been done under the previous authority of Congress. [32] About the same time a joint resolution was introduced in the Senate making valid his suspension of habeas corpus, but though much debated it never reached a vote. [33] Afterwards in December, 1862, the House of Representatives passed a bill indemnifying the President for previous suspensions of habeas corpus and giving him authority to suspend in the future. [34] The Senate would not agree to the clause making valid the previous suspension, and the bill finally passed both houses with that clause omitted and became known as the Habeas Corpus Suspension act of March 3, 1863. Both President and Congress, driven by the necessities of a state of rebellion, followed the English practice as closely as circumstances would allow. But there was this difference. If the President had violated the constitution, Congress could not make his acts valid. There is no power in Congress to excuse violations of the constitution. Even the elastic war powers cannot be stretched to that extent.

It might be well therefore if Binney's argument were the true one. It is the only one that, under the present wording of the constitution, can by any possibility give the power to the executive. It gave him during the Rebellion at least a claim of right, and was adopted and repeated in the speeches of all the Republican leaders. The habeas corpus clause as now understood stands in the way of the government's protecting itself. In such a case we want something more than a claim of right. Violations of the constitution demoralize the people and abate their reverence for the great charter but violations will surely come if such provisions are to remain. Every man thinks he has a right to live and every government thinks it has a right to live. Every man when driven to the wall by a murderous assailant will override all laws to protect himself, and this is called the great right of self-defence. So every government, when driven to the wall by a rebellion, will trample down a constitution before it will allow itself to be destroyed. This may not be constitutional law, but it is fact.

1. Decision of Chief Justice Taney in the Merryman case, upon the Writ of Habeas Corpus, published by authority, Philadelphia, John Campbell, Bookseller, 419 Chestnut St., 1862. (Same reported in Taney, 246.)

2. Habeas Corpus. The proceedings in the case of John Merryman of Baltimore County, Maryland, before the Hon. Roger Brooke Taney, Chief Justice of the Supreme Court of the United States, Baltimore. Published by Lucas Brothers, 170 Baltimore St., 1861.

3. Suspension of the Writ of Habeas Corpus. Letter from Attorney General transmitting his opinion. Printed by order of House of Representatives.

4. The Privilege or the Writ of Habeas Corpus under the Constitution. Second Edition, Philadelphia C. Sherman & Son, Printers, 1861. By Horace Binney.

5. Second Part. The Privilege of the Writ of Habeas Corpus under the Constitution. Philadelphia, John Campbell, Publisher, 419 Chestnut St., 1862. By Horace Binney.

6. Third Part. The privilege of the Writ of Habeas Corpus under the Constitution, Philadelphia. Sherman & Co., Printers, 1865. By Horace Binney.

7. A review of the Argument of President Lincoln and Attorney General Bates in favor of the Presidential Power to suspend the Privilege of the Writ of Habeas Corpus. By S. S. Nicholas of Louisville, Ky. Printed by Bradley & Gilbert, Cor. First and Market Sts., 1861.

8. Habeas Corpus. A Response to Mr. Binney, by S. S. Nicholas, Louisville. Printed by Bradley & Gilbert, 1862.

9. Martial Law. By S. S. Nicholas, part of a pamphlet first published in l842 over the signature of A Kentuckian. Philadelphia, John Campbell. Bookseller, 419 Chestnut St., 1862.

10. A Review of Mr. Binney's Pamphlet on "The Privilege of the Writ of Habeas Corpus under the Constitution." By J. C. Bullitt. Philadelphia, John Campbell. Publisher, 419 Chestnut St., 1862.

11. Remarks on Mr. Binney's Treatise on the Writ of Habeas Corpus. By G. M. Wharton. Second Edition, Philadelphia, John Campbell, Bookseller, 419 Chestnut St., 1862.

12. Answer to Mr. Binney's Reply to "Remarks" on his treatise on the Habeas Corpus. By Geo. M. Wharton, Philadelphia, John Campbell, Bookseller, 419 Chestnut St., 1862.

13. Authorities cited Antagonistic to Horace Binney's Conclusions on the Writ of Habeas Corpus. By Tatlow Jackson: John Campbell, Bookseller, 419 Chestnut St., Philadelphia, 1862.

14. An Undelivered Speech on Executive Arrests. Philadelphia, 1862. By Charles Ingersoll.

15. Personal Liberty and Martial Law. A Review of some Pamphlets of the day. Philadelphia, April, 1862. By Edward Ingersoll.

16. The Writ of Haheas Corpus and Mr. Binney. Second Edition: Philadelphia. John Campbell, Bookseller, 419 Chestnut St., 1862. By John T. Montgomery.

17. Reply to Horace Binney on the Privilege of the Writ of Habeas Corpus under the Constitution. By a member of the Philadelphia Bar. Philadelphia, James Challen & Son, Publishers, 1308 Chestnut St., 1862. (Author, David Boyer Brown.)

18. A reply to Horace Binney's Pamphlet on the Habeas Corpus. Philadelphia, 1862. Anonymous. (Author, C. T. Gross(?).)

19. The Privilege of the Writ of Habeas Corpus under the Constitution of the United States: In what it consists. How it is allowed: How it is suspended: It is the Regulation of the Law, not the Authorization of an exercise of Legislative Power. John Campbell, Bookseller, 419 Chestnut St., Philadelphia, 1862. Anonymous. (Author, Wm. M. Kennedy(?.)

20. A Treatise on the Law of the American Rebellion and our true Policy, Domestic and Foreign. By Daniel Gardner, Jurist. Author of Gardner's Institutes of International, Inter-State and American Public Law, and member of the New York Bar: New York, John W. Amerman, Printer, No. 47 Cedar St., 1862.

21. Presidential Power over Personal Liberty. A Review of Horace Binney's Essay on the Writ of Habeas Corpus. Imprinted for the Author, 1862. Anonymous. (Author, Isaac Myers.)

22. The Suspending Power and the Writ of Habeas Corpus. Philadelphia: John Campbell, Bookseller, 419 Chestnut St., 1862. Anonymous. (Author, James F. Johnson.)

23. The Habeas Corpus and Martial Law. By Robert L. Breck. Prepared for the Danville Quarterly Review for December, 1861, Cincinnati: Richard H. Collins, Printer, 25 West Fourth St., 1862.

24. Speech of Hon. Samuel Shellabarger of Ohio on the Habeas Corpus: Delivered in the House of Representatives, May 12, 1862, Washington: Printed at the Congressional Globe Office, 1862.

25. Speech of Hon. Lazarus W. Powell of Kentucky, on Arbitrary Arrests, in reply to Mr. Wright of Indiana: In the Senate, January 19, 1863. Washington, Printed at the Congressional Globe Office, 1863.

26. The Habeas Corpus. The benefit of the Writ of Habeas Corpus is naturally suspended until granted, and the suspension is lawful until made unlawful. Anonymous. (Author, William Kennedy(?).)

27. Opinion of Judge N. K. Hall of the United States District Court for the Northern District of New York on Habeas Corpus in the case, Rev. Judson D. Benedict and Documents and Statements of Facts relating thereto. Buffalo: Joseph Warren & Co., Printers, Courier Office, 178 Washington St., 1862.

28. Military arrests in Time of War, by William Whiting, Washington, Government Printing Office, 1863. (Afterwards incorporated in the Author's Volume on War Powers.)

29. Habeas Corpus and Martial Law. A Review of the Opinion of Chief Justice Taney, in the case of John Merryman. By Joel Parker, Second Edition. Published by Authority, Philadelphia, John Campbell, Bookseller, 419 Chestnut St., 1862.

30. Martial Law: What is it and Who can Declare it? By Tatlow Jackson Philadelphia, John Campbell, Bookseller, 419 Chestnut St., 1862.

31. Our National Constitution: Its Adaptation to a State of War or Insurrection. Philadelphia, C. Sherman, Son & Co., Printers, 1863. By Daniel Agnew.

32. Executive Power. By B. R. Curtis, Boston, Little, Brown & Co., 1862.

33. The Power of the Commander-in-Chief to Declare Martial Law, and Decree Emancipation. As shown from B. R. Curtis. By Libertas, Boston: A. Williams & Co., 100 Washington St., 1862. (Author, Charles Mayo Ellis.)

34. The Trial of the Constitution, by Sydney George Fisher. Philadelphia, Lippincott & Co., 1862. (Treats incidentally of the habeas corpus question.)

35. Habeas Corpus, Facts, and Authorities on the Suspension of the Privilege of the Writ of Habeas Corpus.

36. War Powers of the General Government: Who made the War? The Right to Suspend the Writ of Habeas Corpus. &c., &c. By Anna Ella Carroll of Maryland. Washington, printed by H. Polkinton, 1861.

37. Reply to the speech of Hon. J. C. Breckenridge, delivered in the United States Senate, July 16, 1861, and in defence of the President's War Measures. Suspension of the Writ of Habeas Corpus, &c., &c. By Anna Ella Carroll of Maryland. Washington, printed by H. Polkinton, 1861.

38. The Southern Rebellion and the Constitutional Powers of the Republic for its Suppression. By Henry Winter Davis, New York, Published by E. D. Baker, 1862. (Pulpit & Rostrum, No. 24.)

39. Military Despotism! Suspension of Habeas Corpus! Curses coming home to roost, New York, 1863. (Loyal Publication Society, No. 20.)

40. War Powers of Congress and of the President. An address delivered before the National Club of Salem, March 13, 1363. By Joel Parker, Cambridge, H. O. Houghton, 1863.

41. The Trial of Clement L. Vallandigham by a Military Commission, and the Proceedings under his Application for a Writ of Habeas Corpus in the Circuit Court of the United States for the Southern District of Ohio. Rickey & Carroll, Cincinnati, 1863.

42. The Trials for Treason at Indianapolis, disclosing the place for establishing a North Western Confederacy. Being the Official Record of the Trial before a Military Commission, &c., &c. Edited by Ben Pitman, Recorder, Cincinnati. Moore, Wilstach & Baldwin, 1865.

43. The following are newspaper and magazine articles relating to the subject.

Abstract of Lectures by Prof. Parsons of the Harvard Law School, in Daily National Intelligencer for June 7, 1861, and in Boston Daily Advertiser for June 5, 1861. Reverdy Johnson's Argument in favor of the right of President as Commander-in-Chief to Suspend Habeas Corpus, in Daily National Intelligencer for June 22, 1861. Articles in 9 American Law Reg. (O. S.) 504, 705.

  1. ↑ It was on the 27th of April, 1861, that Lincoln addressed to General Scott his first suspending order:

"You are engaged in suppressing an insurrection against the laws of the United States. If at any point on or in the vicinity of any military line which is now or which shall he used between the City of Philadelphia and the City of Washington, you find resistance which renders it necessary to suspend the writ of habeas corpus for the public safety, you personally or through the officer in command, at the point at which resistance occurs, are authorized to suspend the writ.

Besides Story and Marshall there are some minor authorities to the same effect. Hurd, Habeas Corpus, 133, 134 Johnston vs. Duncan, 1 Martin (La.), 157 2 Tucker's Blackstone, 134, note Sheppard, Constitutional Text Book, 143.

Congress does not attempt to suspend but authorizes the President to do so.

Const. Art. 2, sec. 1, "Before he enter on the execution of his office, he shall take the following oath or affirmation:—'I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.'"


The Sesquicentennial Edition

On Monday, April 1, 1861, Abraham Lincoln decided how he would deal with the problem of Fort Sumter. It was plain that an attempt to enter Charleston Harbor with military force would be recognized the world over as an act of hostility by the United States against South Carolina, that the State would be privileged under the laws of war to resist. It was exactly this outcome that William H. Seward had been adament in arguing, over the last two weeks, Lincoln should avoid.

Just three days earlier, at a Cabinet meeting, Seward’s policy seemed to be accepted, when General Scott formally opined that both Fort Sumter and Fort Pickens be evacuated. Backing Scott up, Seward had stressed the point that the dispatch of an expedition to Charleston “would provoke an attack and so involve war at that point.” Seward had tried to bloster his case with the concession that, while Sumter should be evacuated, Pickens should be held— suggesting that Captain M.C. Meigs could organize an expedition to relieve Pickens.

Lincoln responded, by giving Seward the choice of either having the expedition to Charleston result in a collision of arms, as Lincoln already had Gustavus V. Fox organizing it, or help Lincoln derail it without any one knowing.

Executive Mansion, April 1, 1861

My dear Sir: Upon your propositions, you say that whatever policy we adopt either the President must energetically prosecute it or delegate it to some member of his cabinet such as you. I remark that if this must be done, I must do it. When a general line of policy is adopted, I want no unncessary debate.

Accepting the fact he could not move Lincoln to his view, Seward agreed to participate. Working hand-in-hand now with Seward, Lincoln wrote the following messages on Monday, April 1.

No originals of these messages have come down to us. There are more than one version of some of them, written by different persons. None of the messages in the record are in Lincoln’s hand, but their essential accuracy is confirmed by David D. Porter who received them from Lincoln’s hand and carried them to New York. (Porter does not tell us what he did with the order addressed to him.)

Executive Mansion, April 1, 1861

Commandant Andrew H. Foote, commanding Brooklyn Navy Yard

Sir: You will fit out the Powhatan without delay. Lieutenant Porter will relieve Captain Mercer in command of her. She is bound for secret service, and you will under no circumstances communicate to the Navy Department the fact that she is putting out.

Executive Mansion, April 1, 1861

Captain Samuel Mercer, U.S. Navy

Sir: Circumstances render it necessary to place in command of your ship, and for a special purpose, an officer who is duly informed and instructed in relation to the wishes of the Government, and you will therefore consider yourself detached.

Executive Mansion, April 1, 1861

Lieutenant David D. Porter

Sir: You will proceed to New York, and with the least possible delay assume command of the Powhatan. Proceed to Pensacola Harbor, and at any cost prevent any Confederate expedition from the mainland reaching Fort Pickens. This order, its object, and your destination will be communicated to no person whatever until you reach the harbor of Pensacola.

New York Times, April 1, 1861

There are four percipiant witnesses who have left accounts in the historical record of what happened next. First, Gideon Wells:

On Friday, March 29, Welles had received this message from Lincoln.

Executive Mansion, (Friday) March 29, 1861

Hon Secretary of the Navy

Sir: I desire an expedition, to move by sea, be got ready to sail as early as April 6, the whole according to memorandum attached and that you cooperate with the Secretary of War for that object.

Steamers Pocahontas at Norfolk, Pawnee at Washington, and Harriet Lane at New York to be ready (under sailing orders) for sea.

Two hundred men at New York ready to leave garrison. Supplies for twelve months for two hundred men ready for instant shipping. A large steamer and three tugs engaged.

In a book published by his son after his death, these words are put in Welles’s mouth: “Mr. Gustavus V. Fox visited Fort Sumter, (on March 23 rd) and saw Major Anderson, and was confident he could reinforce the garrison. The President determined to accept the volunteer services of Mr. Fox. The transports which the War Department was to charter were to rendezvous off Charleston Harbor with the naval (war) vessels, which would act as convoy, and render such assistance as would be required of them. The steam frigate Powhatan, which had returned from service in the West Indies and needed considerable repairs, had just arrived and been ordered out of commission the day before the final decision of the President was communicated. Dispatch was sent revoking the decommissioning order, directing that the Powhatan be again put in commission, and to fit her without delay for brief service. The Pawnee and one or two other vessels were ordered to be in readiness for sea service on or before the 6 th of April. These preparatory orders were given on Saturday, March 30.” (The Diary of Gideon Welles, Vol I, pp.15-16.)

Note: At some point between Friday, March 29 and Friday, April 5, Welles sent Commandant Foote an order to add the Powhatan to the list of ships in Lincoln’s memorandum. Presumably the impulse to do this came from Lincoln probably, after he had gotten Seward to cooperate with him, on the basis that, instead of attempting to force an entrance into Charleston Harbor, he would make it seem as if the fleet was steaming to do that. The way to do this, the two men together probably figured out, was to tie the execution of the naval fleet’s attack on Charleston Harbor to the presence of the Powhatan.

Lincoln, leaving the details to Seward, had two naval expeditions being organized on April 1,by two different groups of people, with one officer, Lt. Porter, operating independantly of each:

One expedition going to Pensacola was under the command of Colonel Harvey Brown. Captain M.C. Meigs and Lt. Colonel E.D. Keyes were charged with the duty of requistioning the necessary men, vessels, and materials. General Scott was in overall charge, as shown by his letter to Col. Brown.

Headquarters of the Army, April 1, 1861

Sir: You have been designated to take command of an expedition to reinforce and hold Fort Pickens. You will proceed to New York, where the Atlantic will be engaged, and putting on board such supplies as you can ship without delay, proceed at once to your destination. Captain Meigs will accompany you until you are established at Pickens, then he will return to Washington. Lt.-Col. Keyes will be authorized to give all necessary orders to requisition material, and steamers for transportation. The naval officers in the Gulf will be instructed to cooperate with you in every way.

The other expedition, going to Charleston, was under the command of G.V. Fox. Fox, with Welles’s cooperation, was also ordered to New York, for the purpose of going aboard the steamer Baltic, in the company of two hundred recruits from the army station at Governor’s Island, and with supplies, then sail to Charleston for the rendevousz with the four U.S. Navy war ships, Powhatan (assigned by Welles), Pochantas, Pawnee and Harriet Lane (assigned by Lincoln). Three tugboats would also sail for the harbor as well. As Fox and Welles understood it, once all the vessels were before the harbor mouth, Fox would put the troops in whaleboats and have the tugs pull them into the harbor while the guns of the warships suppressed the fire of the Confederate batteries.

Now came Lincoln’s brilliant trick. While news of the departure of the war ships from New York would be communicated to the Confederate Government the instant the ships sailed, and though Lincoln would send a messenger to Governor Pickens of South Carolina, informing him the fleet of ships was coming, with men and materials to reinforce the garrison at Fort Sumter, he would freeze the fleet at sea by the simple device of secretly diverting the Powhatan from Charleston to Pennsacola.

Lincoln used Welles to do it..

Navy Department, (Friday) April 5, 1861

Captain Mercer, commanding U.S. Steamer Powhatan, N.Y.

The United States steamers Powhatan, Pawnee, Pocahantas and Harriet Lane will compose a naval force under your command, to be sent to the vicinity of Charleston, S.C. for the purpose of aiding in carrying out the objects of an expedition of which G.V. Fox has charge.

Should the authorities at Charleston permit the fort to be supplied, no further service will be required of the naval force under your command. Should the authorities, however, refuse to permit, or attempt to prevent the vessels having supplies on board from entering the harbor, you will protect the boats of the expedition in the object of their mission in such manner as to open the way for them, and repelling all obstructions.

You will leave New York with the Powhatan in time to be off Charleston Bar, ten miles distant from and due east of the lighthouse, on the morning of the 11 th instant, there to await the arrivial of the transports with troops and stores. The Pawnee and Pocahantas will be ordered to join you there at the time mentioned, and also the Harriet Lane.

Your Obt Servt. GIDEON WELLES

Welles’s “diary” tells the balance of the story: “Sealed orders were given to Commander Rowan of the Pawnee, Commander Gillis of the Pocahantas, and captain Tanner of the Harriet Lane, to report to Captain Mercer on the 11 th .” They were to “wait on station ten miles due east of the lighthouse for the Powhatan to arrive and then take their orders from Mercer.” Obviously if Mercer and the Powhatan did not appear nothing would happen, except three ships and some transports would be standing in the sea.

Lt. David Porter gives his version of events.

“Armed with [the secret orders] I bade the President good day, . . . Next morning (Wendesday April 3) I was at the Brooklyn Navy Yard, and found Captain A.H. Foote was in command. . . . He read my orders over and over. `I must telegraph to Mr. Welles before I do anything and ask for further instructions,’ he said.

`Look at these orders again,’ I said. `If you must telegraph, send a message to the President or to Mr. Seward.’ Captain Foote was puzzled. At last he said, `I will trust you. I will set to work immediately, and by night we will have the spars up on the Powhatan and the officers called back.’ Next morning I went with Foote to the office and Captain Mercer was sent for and the President’s orders read to him, and he was enjoined to secrecry. On the fourth day the Powhatan was ready for sea and Meigs informed me that he would sail on the Atlantic.’”

The New York Times

At some point, apparently while the Powhatan was still at the yard, a message from Welles arrived for Foote. It read “Prepare the Powhatan for sea with all dispatch.” According to Porter’s story, Foote turned to him and said, “There, you are dished!.”

“Not by any means,” Porter says he replied. “Let me get on board and off, and you can telegraph that the Powhatan has sailed.” Bidding Foote good by, Porter says he went on board the Powhatan and proceeded down the East River to Staten Island where Captain Mercer was put ashore. This movement took at least several hours, if not more. Just as Porter gave orders to move across the bar into the open sea, he says, a boat appeared alongside the Powhatan and a Lt. Roe came aboard and handed Porter a message.

Deliver up the Powhatan at once to Captain Mercer.

Porter gave Roe a message to telegraph back::

Have received confidential orders from the President, and shall obey them. D.D. Porter

Porter then gave orders to go ahead and the Powhatan put to sea. It was Saturday, April 6, “late afternoon.” A few days later the Powhatan was off Pensacola, in the company of the Gulf fleet watching over Colonel Brown’s transfer of troops into Fort Pickens. (D.D. Porter, Incidents and Anecdotes of the Civil War see also, E.D. Keyes, Fifty Years of Observation of Men and Events.)

Brooklyn Navy Yard (1861)

The New York Times Tells the Story

Fox’s Expeditions

On the evening of April 11, 1861, Confederate Brigadier-General P.G.T. Beaureguard, late Superintendent of the U.S. Military Academy at West Point, was in command at Charleston. Word came to him from the sentry boats guarding the harbor mouth that the Harriet Lane was standing some miles off in the sea. The sighting confirmed in his mind what he already knew—a fleet of U.S. Navy war ships was bearing down on Charleston, to force an entrance into the harbor. Beaureguard had learned this, from a message brought to Governor Pickens on April 9, by an agent from Lincoln. The message said: “Expect an attempt will be made to supply Fort Sumter if such attempt is resisted an effort will be made to throw in men, arms, and ammunition.”

Beaureguard had informed the Confederate Government at Montgromery of this, and instructions had come from Secretary of War Walker to bombard the fort if Major Anderson did not surrender. At 4:30 a.m., on April 12, 1861, Beaureguard ordered the batteries to commence firing.

Headquarters Provisional Forces

Charleston, S.C., April 12, 1861

Hon. L.P. Walker, Secretary of War

Sir: I have the honor to report our fire was opened upon Fort Sumter at 4:30 o’clock this morning. The pilots reported to me last evening that a steamer, supposed to the Harriet Lane, had appeared off the harbor. She approached slowly, and was lying off the main entrance, some ten or twelve miles, when the pilot came in.

Your Obt. Servt. G.T. Beaureguard, Brigadier General Commanding

The Rebels fire on Sumter


Charleston looking toward Sumter

Rebels Batteries Open on Sumter

The view From the Rooftops

April 12th.— I do not pretend to sleep. How can I? If Anderson does not accept terms by four, the orders are, he shall be fired upon. I count four, St. Michael’s bells chime out and I begin to hope. At half-past four the heavy booming of a cannon. I sprang out of bed, and on my knees prostrate I prayed as I never prayed before. (Mary Boykin Chesnut, A Diary From Dixie)

The Confederate Government Blundered

That Beaureguard did not wait for the enemy to actually initiate its naval attack, ex-Confederate President Jefferson Davis wrote, in 1881:

It would have been merely, after the avowal of a hostile determination by the Government of the United States, to await an inevitable conflict with the guns of Fort Sumter and the naval forces of the United States in combination with no possible hope of averting it, unless in the improbable event of a delay of the expected fleet for nearly four days longer. There was obviously no other course to be pursued than that announced by General Beaureguard.” (Had Davis known that the fleet had been rendered a nullity by Lincoln’s orders his decision probably would have been different.)

(See, Jefferson Davis, The Rise and Fall of the Confederate Government (Appleton & Co. 1881)

Fifteen years after the end of the Civil War, Davis did not know he had been manipulated by Lincoln.

Robert Toombs, the Confederate Secretary of the Treasury, had warned Davis to wait for the actual attack. As his biographer put it, in 1913:

“Toombs entered the Cabinet meeting of April 9 after the discussion had already begun. (Lincoln’s message to Governor Pickens had been by then delivered and news of the fleet’s sailing had reached Montgomery.) Upon learning the trend of the discussion and reading the telegram from Charleston, he said: `The firing on that fort will inaugurate the war, Mr. President it is suicide and will lose us every friend in the North. You will strike a hornet’s nest which will sting us to death. It is unnecessary it puts us in the wrong it is fatal.’ Davis, however, decided in favor of attack.” (Ulrich B. Phillips, The Life of Robert Toombs, MacMillan Co. 1913)

The New York Times

.’

The Historians Blind to Reality

“Lincoln had failed to peruse the orders carefully and inadvertently assigned the Powhatan simultaneously to both Pickens and Sumter.”

(Doris Kearns Goodwin, Team of Rivals: The Poltical Genius of Abraham Lincoln, Simon & Shuster 2005)

“Before Captain Mercer recognized the superiority of the President’s instructions to those of the Secretary of the Navy, the confusion was reported to Seward, who took the telegram to Welles. Then both went to the White House. Lincoln gave his support to Welles. Then the Secretary of State telegraphed these words to Porter: `Give up the Powhatan to Mercer—Seward.’ Porter held his course, being in no mood to admit that a Presidential order could be swept away by a few words telegraphed by Seward. It was a striking exhibition of Seward’s mental state at the time that he should fail to send the command in the President’s name (or, perhaps, that Lincoln let him).” (Frederic Bancroft, The Life of William H. Seward, Harpers Brothers 1899)

Note: When Porter presented Lincoln’s orders to Commandant Foote at the navy yard, Foote had received, or soon thereafter received, a telegraphed order from Welles to get the Powhatan ready for sea. Uncomfortable with holding both an order from his direct commander, Welles, and an order from Lincoln, once Porter had gone aboard the Powhatan and the ship began moving down to the bar, Foote apparently telegraphed Seward for clarification. (Why Foote chose to communicate with Seward and not Welles, only he can explain.)

At this point, Seward and Lincoln must have decided to give the Powhatan time to clear the bar, by having Seward, instead of immediately replying to Foote, take Foote’s telegram to Welles. (Seward, on his own, could not rightly have ordered one of Welles’s naval officers to do anything.)

Welles, rightly irritated that Seward had somehow gotten involved in his chain of command, expectedly charged to the White House to confront Lincoln. Welles now became a manufactured witness to show that Lincoln had “inadverently” mixed things up in other words, to show that he had actually intended to use the war fleet to force an entrance into Charleston Harbor, rather than that he had intentionally orchrestrated events to make it seem that was his intent.

The proof of this lies in what Welles says was Lincoln’s response to his complaint of Seward’s interference with Navy affairs. Lincoln, Welles says, now told Seward to reply to Foote with “Welles is right, tell Porter to give the Powhatan to Mercer.” Having given Porter direct orders, Lincoln would not have expected Porter to obey Seward’s. Had the “give back” order come to Porter from Welles, he might have obeyed it.

Striking indeed that the myth of Lincoln’s innocent mixup could be sustained by the historians so long. But then Lincoln is a holy icon to the historians: they are loath to show him in his full nature: even when his own words expose himself.

On July 4, 1861, in a special message to the Congress, he gave this explanation of what had happened in the runup to the bombardment of Sumter.

“It was believed that to abandon Sumter would be utterly ruineous that the necessity under which it was done would not be fully understood that by many it would be construed as a part of a voluntary policy that at home it would discourage the friends of the Union, embolden its adversaries, and go far to insure to the latter a recognition abroad that, in fact, it would be our national destruction consummated. This could not be allowed. (italics original)

In precaution, the Government had commenced preparing an expedition, as well adapted as might be, to relieve Fort Sumter, which expedition was intended to be ultimately used or not, according to circumstances. It was resolved to sent it forward. It was further resolved to notify the governor of South Carolina that he might expect an attempt would be made to provision the fort and that, if the attempt should not be resisted, there would be no effort to throw in troops. This notice was given whereupon the fort was attacked and bombarded to its fall. Without even awaiting the arrival of the provisioning expedition. (Italics added.)

It is thus seen that the assault upon Sumter was in no sense a matter of self defense on the part of the assailants They well knew that the garrison in the fort could not possible commit agression upon them. They knew that the giving of bread to the few brave men of the garrison was all that on that occasion would be attempted, unless themselves, by resisting so much, should provoke more. (Wow, Lincoln!) They knew the Government desired to keep the garrison in the fort as visible evidence that the Union was preserved—trusting to time, discussion, and the ballot-box for final adjustment.” (Italics added.) (See, Congressional Globe, Appendix, Debates and Proceedings, First Session of the Thirty-Seventh Congress, 1861)

Your resistence provokes me. Is that what he said? Never did an accomplished trial lawyer ever spill more ink in the eyes of his audience, pour more sonorous sound in its ears than Lincoln did here. (Shhhhh, not a word said about the Powhatan’s “mixup.”)

The Republican Senators Give Lincoln’s Conduct Their Spin

During the several weeks debate that went on in Congress after it came into special session, over the issue of approving by joint resolution Lincoln’s conduct in initating the war, Senator John Breckinridge of Kentucky engaged in argument with the leading figures of the majority party now in power.

Of the proposed resolution, Senator Breckinridge said, “It proposes that all of the extraordinary acts of the President be, and hereby are, approved and declared legal and valid as if they had been done under the authority of the Congress. The resolution seems, on the fact of it, to admit the acts of the President were not performed in obedience to the Constitution and the laws. I should like to hear some reasons showing the power of Congress to cure a breach of the Constitution or to indemnify the President against violations of the laws. Congress has no more right to make valid a violation of the Constitution or the laws than does the President to `proclaim.’ If a bare majority of the two houses of Congress by joint resolution, make that constitutional which was unconstitutional, by the same reasoning it may confer upon the President in the future powers not granted by the Constitution. This resolution contains the very essence of a Government without limitations of powers.”

I deny that the President may violate the Constitution upon the excuse of necessity. The doctrine is utterly subversive of the Constitution and it substitutes, especially where you make him the ultimate judge of that necessity, and his decision not to be appealed from, the will of one man for a written constitution.”

In reply to Breckinridge, several senators focused their remarks on the source of the “necessity” that justified the President’s proclamation of April 15 calling for 75,000 volunteers to suppress “insurrection.”

Mr. John Sherman, freshman senator from Ohio. speaks:

“Senator Breckinridge says that the President has brought on this war—that by issuing the proclamation of April 15 he commenced the war. I ask the honorable senator from Kentucky who fired upon our flag at Charleston? Was not that an act of war? Who attacked our fort at Sumter? Who fired on one of Kentucky’s distinquished citizens, and even fired upon him after he had raised a flag of truce, fired upon him while the buildings were burning over his head? Was this no act of war?”

Mr. Browning of Illinois, speaks:

“I ask the senator from Kentucky, what, in his judgment, should the President have done when the flag was fired upon, when Fort Sumter was attacked, when a starving handful of loyal men in the discharge of their lawful duties were fired upon? Should the government have humbled itself in the face of treason? Was that what he thinks should have been done? The alternative was either disgraceful submission, or manly, constitutional, heroic resistence to the infamies that had been committed against us. This is strictly a war of self defense as ever a people were compelled to prosecute. It is strictly a war of self defense and nothing else.”

Senator Johnson, of Tennessee, speaks:

“On the 11th of April Beauregard had an interview with Anderson and made a proposition for him to surrender. Major Anderson refused but he said at the same time that by the 15th his provisions would give out. We find that after being in possession of this fact, on the morning of the 12th Beauregard commenced the bombardment, fired upon your fort and upon your men. They knew that in three days Anderson would be compelled to surrender but they wanted war. It was indispensible to produce an excitement in order to hurry Virginia out of the Union, and they commenced the war. Who commenced the war? Who struck the first blow? Was it not South Carolina in seceding? And yet you talk about the President having brought on the war by his own motion, when these facts are incontrovertible.”

President Lincoln Rushes to the Public with his Proclamations

The New York Times

and in Charleston

The Status of Virginia?

The Governors Respond to Lincoln&rsquos Call

On April 15, Lincoln called forth the militia of the several states of the Union, to the aggregate of 75,000 men, the details of the call to be communicated to the governors through the War Department.

On the same day, Simon Cameron, Secretary of War, telegraphed the governors:

&ldquoUnder the act of Congress `for calling forth the militia to execute the laws of the Union&rsquo approved February 28, 1795. I request the immediate detachment from the militia of each of your states the quota designated below, to serve as riflemen for the period of three months. . . &ldquo

Forty Regular army officers were dispatched to the states to muster into the service of the United States the militia collected in camps and organized into companies and companies into regiments.

The Northern States

The same day these communications were sent from Washington, Governor Washburn of Maine telegraphed Cameron: &ldquoThe people of Maine will rally to the maintenance of the government and the Union.&rdquo Massachusetts Governor John A. Andrew wired, &ldquoBy what rout shall we send?&rdquo Governor William Dennison of Ohio telegraphed Lincoln&mdash&ldquoWe will furnish the largest number you will receive.&rdquo Governor Goodwin of New Hampshire wrote Cameron: &ldquoImmediate measures will be adopted for the formation of companies.&rdquo Samuel Kirkwood of Iowa wrote on April 16 to Cameron: &ldquonine-tenths of the people here are with you.&rdquo Governor Morton of Indiana wired, &ldquothe six regiments will be full in three days.&rdquo Governor Yates of Illinois chimed in with &ldquoSend requisitions for arms and accouterments.&rdquo Alex Randall of Wisconsin wired: &ldquoThe call for one regiment of militia will be promptly met.&rdquo Same from Governor Erasmus Fairbanks of Vermont. The governors of New York and New Jersey asked for clarification.

The Special Case of Pennsylvania

On April 17, Governor Andrew Curtin of Pennsylvania wrote Cameron a message that led to a consequence no one apparently made an effort to avoid: &ldquoVolunteers are arriving. Shall I order the Philadelphia regiments to march?&rdquo Cameron answered, &ldquoThe President has modified the requisition made upon you for troops from Pennsylvania so as to make it 14 instead of 16 regiments. You are entitled to 2 major generals and 3 brigadier generals.&rdquo

Governor Curtin promptly appointed Robert Patterson, aged 74, an old crony of General Scott, now a wealthy Pennsylvania businessman, as Major General of Pennsylvania&rsquos Militia. President Lincoln appointed Patterson to command for the period of three months enlistment the Department of Pennsylvania. On April 26 Patterson wired Curtin that his force should be increased by an additional twenty-five regiments. Curtin wired Cameron to say that he was moving to recruit these additional regiments, that many companies were already on the march and asked that an immediate order be sent to Patterson instructing him to receive the additional regiments.

The Border States

Governor John Ellis of North Carolina, responded in the vein Virginia&rsquos Governor John Letcher did: &ldquoI can be no party to this wicked violation of the laws of the country.&rdquo Governor Magoffin of Kentucky, likewise, was not pleased. He wrote, &ldquoKentucky will furnish no troops for the wicked purpose of subduing her sister Southern states.&rdquo Governor Thomas Hicks of Maryland, walking the tightrope between martial law and secession, called personally on Lincoln to say Maryland would provide two regiments to remain inside Maryland. Isham G. Harris, Governor of Tennessee wired Cameron, &ldquoTennessee will not furnish a single man for purpose of coercion.&rdquo Governor C.F. Jackson of Missouri wired the same, &ldquoNot one man will the State of Missouri furnish to carry on such an unholy crusade.&rdquo

President Lincoln Suspends The Writ of Habeas Corpus

On April 15, 1861, President Lincoln called for troops. On April 17, Virginia seceded. On April 19, a large mob of Baltimore residents attacked the soldiers of a Massachusetts regiment passing through the city to Washington. Several soldiers and civilians were killed. On April 27, Abraham Lincoln ordered General Scott to arrest any civilians Scott, or his subordinate officers, thought might pose a threat to the Union.

President Lincoln’s Order to General Scott

To the Commanding General of the Army of the United States:

You are engaged in suppressing an insurrection against the laws of the United States. If at any point in the vicinity of the military railroad line between Philadelphia and Washington, you find resistance which renders it necessary to suspend the writ of Habeas Corpus for the public safety, you, personally or through an officer in command at the point the resistance occurs, are authorized to suspend the writ.

The Merriman Case

John Merryman, a Maryland Militia member was seized by the military and imprisoned at Fort McHenry in Baltimore Harbor. Merryman, through counsel, filed a petition for the issuance of a writ of habeas corpus with the United States Circuit Court for the District of Maryland. Chief Justice Roger Taney, sitting as presiding judge over the district, granted the petition, and the writ was issued and served on Merriman’s custodian, General George Cadwalader. When Cadwalader refused to produce Merriman in court, Chief Justice Taney—in his capacity as presiding circuit judge—issued an opinion holding that only Congress had the authority to suspend the writ

The basis of the Court’s jurisdiction was the 14 th section of the Judiciary Act of 1789 which gave the courts of the United States, as well as each justice of the Supreme Court, power to grant habeas corpus petitions and issue writs for the purpose of making a factual inquiry into the grounds the Government asserted as justification for holding the petitioner.

Merryman’s petition set forth the allegations that, on May 25, 1861, he had been residing peaceably at his home in Baltimore County when soldiers entered, seized him and imprisoned him in Fort McHenry.General Cadwalder replied in writing to Merryman’s petition, offering as lawful authority the fact that Merryman had been seized by a General Keim, of Pennsylvania, and brought to Cadwalder at Fort McHenry. Keim, Cadwalder asserted, believed that Merryman was a traitor and a rebel who had burned railroad bridges in Pennsylvania. Cadwalder, offering no facts to support this hearsay belief, refused to obey the writ on the ground that “he was duly authorized by the president to suspend it.”

Taney summed up the situation this way: “I understand that the president not only claims the right to suspend the writ of habeas corpus himself, at his discretion, but to delegate that discretionary power to a military officer, and to leave it to him to determine whether he will or will not obey judicial process that may be served upon him.”

Taney then stated his basis for rejecting the President’s claim of power to suspend the writ: “This is one of those points of constitutional law upon which there is no difference of opinion, as I think it is admitted by everyone, that the privilege of the writ cannot be suspended, except by act of Congress. Having, therefore, regarded the question as too plain and well settled to be open to dispute, . . .I should have contented myself with referring to the clause in the constitution (Art I, Section 9.), and to the construction it received from every jurist since the founding.

But, given the response received, I state plainly and fully the grounds of my opinion.”Section 9 of Article I has not the slightest reference to the Executive department. . . The great importance which the framers of the constitution attached to the privilege of the writ of habeas corpus, to protect the liberty of the citizen, is proved by the fact, that its suspension, except in cases of invasion or rebellion, is first in the list of prohibited powers and even in these cases the power is denied, and its exercise prohibited, unless the public safety require it.” (The constitution of the Confederate States had the same provision see Article I, Section 7, subparagraph 3.)

It is Congress, Taney wrote, that the framers made “the judge of whether the public safety does or does not require” suspension of the writ in the context only of invasion or rebellion. “There is not a word in the Constitution,” he went on, “that can furnish the slightest ground to justify the exercise of this power” by the president.

President Lincoln, by implication, was basing his exercise of the power on the Executive’s oath of office and his status as Commander-in-Chief as described in Article II. In other words, Lincoln was claiming, by reference to these two elements in Article II, that the framers meant to give the Executive the inherent power to suspend the writ of habeas corpus whenever he felt it necessary to do so.

Chief Justice Taney rejected this contention out of hand: &ldquoThe only power which the president possesses, where the `life, liberty or property&rsquo of a private citizen is concerned, is the power and duty prescribed in the third section of the second article, which requires `that he shall take care that the laws be faithfully executed.&rsquo He is not authorized to execute the laws himself, or through agents or officers, civil or military, appointed by himself, but he is to take care that they be faithfully carried into execution, as they are expounded and adjudged by the coordinate branch of the government to which that duty is assigned by the constitution. (Thus) in exercising this power he acts in subordination to judicial authority, assisting it to execute its process and enforce its judgments.&rdquo (Justice Taney&rsquos reasoning here is based on Chief Justice John Marshall&rsquos famous pronouncement in Marbury v. Madison (1807) that the Supreme Court, and only the Supreme Court, is assigned the task, under the Constitution, of interpreting its words.)

What about the constant claim of Lincoln’s successors, “But I think it’s necessary.”

Mr. Chief Justice Taney answered this:

“With such provisions in the constitution, expressed in language too clear to be misunderstood by any one, I can see no ground whatever for supposing that the president, in any emergency, or in any state of things, can authorize the suspension of the privilege of the writ of habeas corpus, or the arrest of a citizen, except in aid of the judicial power. He certainly does not faithfully execute the law, if he takes upon himself legislative power, by suspending the writ of habeas corpus, and the judicial power also, by arresting and imprisoning a person without due process of law” i.e., ignoring the person’s constitutional rights, to counsel, to a statement of the charges against him, and in a trial by jury to proof beyond a reasonable doubt of his guilt of the charges. Lincoln, here, in other words, had made the Federal Government a one man show.

But what about the idea of the existence of a “fundamental law” that Lincoln, in his inaugural address, said recognizes that the Federal Government, regardless of the constitution, has the inherent right to preserve itself?

Here, Chief Justice Taney, writing for himself alone, and not speaking for the Supreme Court itself, expressed the reasoning of his rejection of the idea:

“No such argument can be drawn from the nature of sovereignty, or the necessity of government, for self defense in times of tumult and danger. The government of the United States is one of delegated and limited powers it derives its existence and authority altogether from the constitution, and neither of its branches, executive, legislative, or judicial, can exercise any of the powers of government beyond those specified and granted for the tenth article of the amendments to the constitution, in express terms, provides that `the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states, respectively, or to the people.’”

Lincoln’s position was that the president might do anything, regardless of so-called prohibitions in the constitution, which he believes is necessary to protect the Federal Government from losing control of the land and people it governs. Lincoln put his position this way, in his message to Congress delivered July 4, 1861:

“Soon after the first call for militia, it was considered a duty to authorize the commanding general in proper cases, according to his discretion, to suspend the writ of habeas corpus, or, in other words, to arrest and detain, without resort to the ordinary processes and forms of law, such individuals as he might deem dangerous to the public safety. . . The legality and propriety of what has been done under it are questioned.”

What is Lincoln’s basis for justifying his usurpation of the power to suspend the writ?

“Of course some consideration was given to the questions of power and propriety before this matter was acted upon. The whole of the laws which were required to be faithfully executed by me were being resisted and failing of execution in nearly a third of the states. (But not in Maryland, or in Baltimore County). . .”

Here comes the President’s reasoning for the usurpation!

“Must the whole of the laws be allowed to fail of execution (in the rebel states), even (if) it’s perfectly clear that by the use of the means necessary to their execution (in the rebel states) some single (silly) law. . (applied in a loyal state).should to a very limited extent be violated?”

Abraham Lincoln spent thirty years practicing as a trial lawyer in all the courts of Illinois, reportedly winning the jury’s verdict more often than not. He was publicly acclaimed, since his string of debates with Stephen Douglas for a senate seat, in 1856, as a great speaker and writer of speeches which were clear and lucid in reasoning and which built elaborate arguments in support of the policies of the Republican Party. And yet this written language, preserved in the Congressional Globe, with its confusing syntax, is the best argument he can come up?

What an argument has he constructed out of thin air. He is saying, when the ambiguity is cut through, simply this: “It was absolutely necessary to suspend the writ of habeas corpus in the loyal state of Maryland in order to ensure that the whole of the laws of the United States would be executed in the Confederate States of America.” This must have sounded like nonsense to the public mind.

Knowing this, Lincoln, in his message, tried to bolster his argument with more words, but ended up just saying the same thing over again.

“To state the question more directly: are all the laws but one to go unexecuted, and the government itself go to pieces, lest this one be violated?”

The Government was in danger of going to pieces if the President did not have the inherent power to seize and imprison citizens in Maryland, without judicial process? Hardly. All the laws but one were not going unexecuted in the State of Maryland or in Baltimore County where John Merryman resided. Nor was the government in any real danger of “going to pieces” merely because the Constitution expressly and plainly authorized only the Congress to suspend that “one law” that was so dangerous to execute in times where other States had abandoned the Union. And, of course, by not calling Congress into session immediately upon taking the oath of office, Lincoln had made the conscious decision to keep Congress out of the decision-making process of what to do with the Confederate States of America. Lincoln wanted no debate.

To Lincoln the great writ of habeas corpus that has come down to us through eight hundred years of English Common Law history, is a law “made in such extreme tenderness of the citizen’s liberty that practically it relieves more of the guilty than of the innocent.” And therefore, the clear words of the Constitution can be ignored by the President whenever he or she claims to be acting to preserve the government from hostile forces arraigned against it

Yet again, Lincoln tried to come at his action a different way, a way every war time president who has followed him has seized upon as justification for tyranny. “In such a case,” Lincoln wrote, “would not the official oath be broken if the Government should be overthrown, when it was believed that disregarding the single law would tend to preserve it?” According to Lincoln, then, the President’s fear that the government might be overthrown, however unreasonable that fear might be under the plain circumstances of the case, justifies ignoring judicial process and the law. In 1942, President Franklin D. Roosevelt, issuing an order for the military imprisonment of hundreds of thousands of American citizens, used this argument.. (See the cases cited in the trial lawyer’s notebook.)

So it is seen how all presidents can be expected to think: whoever they are, whatever party they belong to, whatever their education and experience in life may be, they will always seize upon the oath of office to claim for themselves the power to do whatever they think is necessary to preserve the government, and to the winds they will throw silly laws written into the constitution that are too tender for their taste given the times. But, still we are lucky, aren’t we, that it was Lincoln who set the standard? That is why we the people have erected a massive block of marble at the foot of Constitution Avenue to honor the spirit of him.

Lincoln Supports His Position With Attorney General Bate’s Opinion

The day following the day his message was read into the congressional record, Lincoln delivered to the Congress a written opinion ostensibly authored by his attorney general, Edward Bates. Though the opinion contains more words of argument they all boil down to the same old argument of necessity.

“It is the plain duty of the President. . . [to put] down rebellion. The duty to suppress the insurrection being obvious and imperative, the two acts of Congress, of 1795 and 1807, come to his aid, and furnish the physical force that he needs.” (This much is true.)

“The manner in which he puts down the insurrection is not prescribed by any law. . .(This is not true: the President must act in the context of due process of law.) He is, therefore, necessarily thrown upon his discretion, as to the manner in which he will use his means to meet the various exigencies as they arise. If the rebels employ spies to forward rebellion, he may arrest them and imprison them, rending them powerless for mischief, until the exigency has passed.”

“In such a state of things, the President must, of necessity, be the sole judge, both of the exigency which requires him to act, and of the manner he acts. . .”

“Since the President has the legal discretionary power to arrest and imprison persons suspected of traitorous complicity, it might seem unnecessary to prove that, in such case, the President is justified in refusing to obey a writ of habeas corpus issued by a court or judge, commanding him to produce the body of his prisoner, and then yield himself to the judgment of the court.”

“If it be true, as I have assumed, that the President and the Judiciary are co-ordinate departments of government, and the one not subordinate to the other, I do not understand how it can be legally possible for a judge to issue a command to the President to come before him and submit to his judgment and, in case of disobedience, treat him as a criminal, in contempt of a higher authority, and punish him.”

“Besides the whole subject matter is political and not judicial. The insurrection itself is purely political. Its object is to destroy the political government and to establish another government upon its ruins. As the political chief of the nation, the Constitution charges the President with its preservation, protection and defense. And in that character, he wages open war against armed rebellion, and arrests and holds in custody those, whom, in the exercise of his political discretion, he believes to be friends of rebellion, which it is his special duty to suppress.”

“The judiciary department has no political powers and no court of judge can take cognizance of the political acts of the President, or undertake to revise or reverse his political decisions.”

All these words that Attorney General Edward Bates (standing in for Lincoln) provides, mean merely that upon the mere allegation of conduct the President deems dangerous to the preservation of the government, an American citizen residing in a loyal state may be arrested by the military and throw into prison without judicial process.

Chief Justice Taney’s fair warning to we Americans

In closing his opinion, in Merryman, Mr. Chief Justice Taney spoke to us of our time when he wrote, “These great fundamental laws (expressed in the 4 th , 5 th , and 6 th amendments to the constitution), which congress itself could not suspend, have been disregarded and suspended, like the writ of habeas corpus, by a military order, supported by force of arms. I can only say that if the authority which the constitution has confided to the judicial department, may thus, upon any pretext, 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 his life, liberty, and property at the will and pleasure of the army officer in whose military district he may happen to be found.” For over thirteen thousand civilians, this was their fate during the civil war. For hundreds of thousands, it was their fate in World War II. What, one wonders, may happen someday to the Muslim-Americans in Dearborn.

President Lincoln Expands His Suspension of the Writ

On September 24, 1862, seven days after the Battle of the Antietam, and just as the Confederate army, under General Braxton Bragg, reached the outskirts of Louisville, President Lincoln issued his second proclamation regarding the suspension of the writ of habeas corpus.

“Whereas, it has become necessary to call into service portions of the militia of the States by draft in order to suppress the insurrection existing in the United States, and disloyal persons are not restrained by the ordinary processes of law from hindering this measure. . . Now, therefore, be it ordered that all aiders and abettors of the Rebels within the United States, and all persons discouraging volunteer enlistments, resisting military drafts, or guilty of any disloyal practice, shall be subject to martial law and subject to trial and punishment by military commission.” ( A “disloyal practice” was anything President Lincoln said it was.)

In anticipation of the President’s proclamation, the Secretary of War, Edwin Stanton, had already issued instructions to the Army that all persons would be seized and imprisoned who “tried to evade the draft” or who were suspected of committing “disloyal practices,” such as making public speeches criticizing the Government.

The Fort Wayne Sentinel, a Democrat newspaper, editorialized about this on September 27, 1862: “The Constitution has been set aside, freedom of speech and the press destroyed, our citizens subjected to arbitrary arrests, and the right of habeas corpus suspended. If the overthrow of the Constitution. . . is to be excused on the plea of military necessity, it must be obvious that the sooner the war is brought to an end the better.”

What plainer words do we need to understand? War happens. The world, today, is, no question about it, on the move toward a world order—the big dogs have thrown their weight around for two hundred years, been put in their places by two world wars, and now see the point of peace and cooperation but there are still the small dogs, Venezuela and Iran, for example, puffing up and vying for a recognized slot and there is China where the Communist Party rules. But there is one people, one race inhabiting the earth: America is the hard-working model, of how to assimulate into one society all the strands of the race, with their diverse colors, prejudices, and religions. The working principle that stirs the polticial stew is freedom. Who, in their right mind, would want to come to America, if not for the freedom? So we can expect the world order to materialize in the form of freedom, if the model of America fails? Not likely.

The Congress Finally Passes An Act Suspending the Writ

Six months later, on March 3, 1863, as thousands of citizens were being seized by the military, thrown in military prisons and tired by military commissions, the Congress finally stepped in and passed the 1863 Habeas Corpus Act which authorized the President to suspend the writ “in any case throughout the United States whenever, in his judgment, the public safety required it.” Quickly the President established “Military Districts” throughout the Free States bordering the Confederacy.

The Congress, in doing this, however, did not immunize the President from the reach of judicial process it had the political fortitude, backbone, at least to specify in the Act that persons held by the military, who were within the class of nonbelligerents—those persons who were not captured soldiers of the enemy’s armies—were to have the right to petition the courts for issuance of the writ, and if they had not been indicted by a grand jury for crimes allegedly committed, they were to be released from their imprisonment.

Ignoring this, the Judge Advocate of the Army interpreted the congressional Act as inapplicable to persons “triable by court martial and military commission,” such as “prisoners arrested as guerillas or bushwhackers or as being connected with or aiding these.” And, in 1864, Congress authorized military commanders to execute the sentences of military commissions against persons who had violated “the laws and customs of war,” such as suspected spies, mutineers, deserters, saboteurs, and marauders.

. The Milligan Case

Lambdin P. Milligan was admitted to the Indiana bar in 1835. He established a litigation practice in Huntington, Indiana, in the northeastern corner of the state, where he became well known as a Democrat who was active in party politics. In the years before the war, he made public speeches about New England’s exploitation of Indiana farmers, and, during the war, he made speeches about Republican responsibility for causing it. For example, the Columbia City Republican newspaper reported, on July 28, 1862: “Of all the infamous harangues ever delivered in any loyal state of the Union, none can compare to it in traitorous malignity than the one hissed forth from the villainous lips of Lambdin P. Milligan on Saturday last.”

In the fall of 1863, it became known that Milligan had joined a Democrat organization known as the Knights of the Golden Circle. At the same time there existed in Indiana Republican clubs, such as the Union Club and the Loyalty League, the members of which spied on their neighbors, on the look out for “disloyal practices.” Acting on a tip from these sources the military raided a print shop owned by a member of the Democratic Party and found, along with rifles and ammunition, letters linking the Democrats to the Knights of the Golden Circle. One of these letters was signed by Lambdin Milligan.

In October 1864, military officers, with Milligan’s letter as the excuse, arrested Milligan at his home. Milligan, having just had leg surgery, was unable to walk. The officers carried him out of the house and, by train, took him to Indianapolis and threw him in a military prison. Less than three weeks later, Milligan was on trial before a military commission, charged with “conspiracy” against the United States, aiding the rebels, inciting insurrection, committing “disloyal practices” and violating the “laws of war.”

The commission was established by the commanding general of the Indiana military district and was composed of five army officers, presided over by a “Judge Advocate” whose function was to rule on all matters involving procedure and the admission of evidence. The substance of the case the Government put on trial was that Milligan and his co-defendants were guilty by association of the charges made against them. They were members of the Democratic Party in Indiana which in turn was a stand-in for the allegedly treasonous organization known as the Knights of the Golden Circle. “When a person takes upon himself the responsibility of joining an unlawful body, he takes upon himself responsibility for every unlawful act of that body,” the Judge Advocate intoned membership alone, in other words, made Milligan guilty.

On December 6, 1864, the military commission found Milligan guilty of the offenses charged and sentenced him “to be hanged by the neck until dead.” Six months later, after President Lincoln had been shot and killed, his successor, Andrew Johnson, authorized the military authorities to execute the sentence of death.

At this point, David Davis, the judge who rode with Lincoln on the Illinois circuit for years, and who Lincoln had appointed to the Supreme Court bench, traveled to Indiana and met with its wartime Republican governor, Orton Morton. Davis influenced Morton to write to John Pettit, the speaker of the Indiana house of representatives, entreating him to go to President Johnson to seek reprieve for Milligan. Pettit agreed, telling Morton that he doubted the military commission had legal authority to act as it did, given the fact the courts were open at all times in Indiana, and that he thought “at the beginning of peace the President ought not to pick Indiana to have a military execution in.”

Milligan himself wrote to Secretary of War Edwin Stanton.

On May 10, 1865, Milligan, through counsel, petitioned the federal circuit court at Indianapolis for a writ of habeas corpus. The two judge panel consisted of District Court Judge David McDonald, and Supreme Court Justice David Davis. The two judge panel then certified certain questions to the United States Supreme Court. While the petition was pending, President Johnson commuted Milligan’s sentence to life imprisonment.

Lincoln was dead, the armies were evaporating, the time had finally come for the Supreme Court to right wrong.

Supreme Court Justice David Davis Writes a Majority Opinion

Chief Justice Salmon Chase and Three Associates Did Not Completely

All the justices agreed with Davis that President Lincoln did not have the inherent power to cause a civilian residing in a state free of military fighting and where the courts were open, to be arrested, thrown in a military prison, and sentenced to death by a military commission. Though Lincoln had issued illegal proclamations suspending the writ of habeas corpus, it was true the Congress eventually ratified his conduct by passing the 1863 Habeas Corpus Act, but, in doing so, it did not provide the President with authority to impose death sentences, or any sentence, on civilians by military commission. The result of the President’s conduct, therefore, was tyranny.

What source did the military commission that tried Milligan derive its authority?

Mr. Justice Davis set down the rule: “Certainly no part of the judicial power of the United States was conferred on them” as it is not pretended that military commissions are courts ordained and established by Congress. These commissions cannot be justified on the ground that the President mandates them, because he is supposed to be controlled by law, and has his appropriate sphere of duty, which is to execute, not make laws.”

“It was the manifest design of Congress to secure a certain remedy by which any one, deprived of liberty, could obtain it, if there was a judicial failure to find cause of offense against him.”

All of this, Chief Justice Chase, and his adherents, concurred with, but with this pronouncement of Justice Davis he did not.

“No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of the Constitution’s provisions (the rights guaranteed by the 4 th , 5 th , and 6 th amendments, for example) can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism. The theory of necessity on which it is based is false for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence.”

In saying this, Justice Davis, with a majority of the court with him, went beyond the factual situation of Milligan’s case and declared that, regardless of the plea of military necessity, Congress, much less the President, could not suspend the Bill of Rights by authorizing the seizure, imprisonment, and trial by military commission of American citizens in the United States.

Chief Justice Chase and his minority agreed completely with the majority that Milligan was entitled to petition the court for habeas corpus, that, under the congressional act of 1863, he was entitled to be discharged, and that the military commission that tried him had no jurisdiction to try and sentence him. But the minority’s agreement with the majority stopped there. The majority had gone beyond the 1863 Habeas Corpus Act, as the basis of decision, when it asserted as to the concept of a military commission that “Congress had no power to authorize it.”

The majority’s declaration that no exigency of government could justify the suspension of the Bill of Rights, under the constitution, was, Chase wrote, an “expression of opinion” that seemed “calculated to cripple the constitutional powers of the government, and to augment the public dangers in times of invasion and rebellion.”

The Sixth Amendment to the Constitution states plainly: “In all criminal prosecutions, the accused shall enjoy the right of a speedy and public trial, by an impartial jury of the State and District wherein the crime shall have been committed. . . , and to be informed of the nature and cause of the accusation to be confronted with the witnesses against him to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

The Fifth Amendment to the Constitution states plainly: “[N]o person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury.”

Despite the clear language of these constitutional amendments, the Milligan minority took the view that, “We think that Congress has power, though not exercised, to authorize the military commission which was held in Indiana.”

And here are their reasons:

“The Constitution itself provides for military government as well as for civil government. What is the proper sphere of military government? It is not denied that Congress has power to make rules for the government of the army and navy which includes the power to provide for trial and punishment by military courts without a jury. . . “

“We think, therefore, that the power of Congress, in the government of the land and naval forces is not at all affected by [the Bill of Rights]. It is not necessary to attempt any precise definition of the boundaries of this power. But may it not be said that government includes protection and defense as well as the regulation of internal administration? And is it impossible to imagine cases in which citizens conspiring or attempting the destruction or great injury of the national forces may be subjected by Congress to military trial and punishment in the just exercise of this undoubted constitutional power?

So, then, Chase’s logic goes, because the Congress plainly has power to govern the armed forces without regard to the Bill of Rights through, for example, the Uniform Code of Military Justice, whenever it fears citizens are conspiring against it, Congress magically can claim the power under the constitution to seize and imprison citizens without indictment, without trial, indeed without any judicial process at all! How wonderful Chase’s logic is, for tyrants.

Having presented his argument first in terms of rhetorical questions, Chase next claimed the argument had judicial validity. He went at it this way:

“Congress has the power to declare war. It has, therefore, the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of the war.”

“We (the minority) by no means assert that Congress can establish and apply the laws of war where no war had been declared or exists. Where peace exists the laws of peace (the Bill of Rights, for example) must prevail. What we do maintain is, that when the nation is involved in war, and it is exposed to invasion, it is within the power of Congress to determine in what states such great and imminent public danger exists as justifies the authorization of military tribunals for the trial of crimes against the security of the army or against the public safety.”

And there you have it, citizens: Chief Justice Salmon Chase’s minority view, in Milligan, has, in fact, been the majority view of the United States Supreme Court for one hundred and fifty years. The Bill of Rights, as far as the Supreme Court is concerned, is nothing more or less than a fair weather friend. Nothing, in the Supreme Court’s historical judgment, trumps the government’s use of naked power to preserve itself.

That this is the rule, can easily be seen by reading the Supreme Court’s opinions which have sanctioned the Government’s military imprisonment of thousands of Southerners during the ten years it ruled the Southern states as conquered territory, its opinions sanctioning the Government’s military imprisonment of hundreds of thousands of Japanese-American citizens in World War II, and the long line of reported decisions—from the federal district court, to the courts of appeal, to the Supreme Court and back again—that track the game the President of the United States played with the petty Chicago gang-banger, Jose Padilla as like jumping jacks, the President skipped his minions back and forth between the laws of peace and the laws of war until, in the end, he abruptly waved a hand and abandoned the game as it finally was coming to public light. Though, in Padilla’s case, unlike in Milligan’s, the Congress authorized the game. And the United States Supreme Court approved it with a tweak.

No Court Has Said it Better than the Court of 1868

The Supreme Court’s opinion in Ex Parte Milligan is the clearest lecture on the limits of their civil rights, ordinary citizens should expect to ever get from the courts. The opinion, pro and con, provides the clearest picture of the alternatives the people have—either the Bill of Rights rules in all times, or it is extinquished, more or less, by the power of the government to wage war. The power to suspend, Chief Justice Chase correctly said, stems for the power to declare war. Exercising the power involves the laws of war which supplant the laws of peace for the duration.

One point above all: It is the Congress, not the courts, not the President, that decides whether it will be one way or the other. The best the courts can achieve, when Congress chooses to suspend the Bill of Rights by its power to make war, is to qualify the power with at least a little process. (See Hamdan, trial lawyer’s notebook.)

Where the rule takes us, can’t be made any plainer than the present circumstances: Even when there is no threatened invasion and no rebellion, American citizens can be seized by the military and tried for crimes by military commission, on the pathetic pretense that our Armed Forces are battling a rag-tail crowd of fervent Muslims, who are succoring terrorists, in a desolate, lawless wilderness thousands of miles from our shores.

George Washington and his fellow rebels resisted British Government for ten years, finally prevailing in their overthrow of it, when, by chance, the French Navy arrived at the entrance of Hampton Roads just in time to block the British Navy from supplying Cornwallis’s army at Yorktown. General Lee would not be so lucky, and he didn’t expect to be.

In the War of the Revolution, Washington had an advantage that General Lee and the Confederate army of Virginia, in enforcing the South’s resistence against the Union, would not enjoy. Great Britain was unable, because of geography, to bring to bear against Washington the full force of its military strength. The States of the Union, in contrast, pulling together in harness, under the rein of Lincoln, their captain, operated against General Lee with almost three times the strength of the South. Though, in 1861, the states were almost evenly divided between Free States and Slave States, the Free States’ reliance on free labor made their group overpowering as against the South, whose economic basis for prosecuting the war, was slavery. This really was the whole point of the war, The Union wanted free labor everywhere, because it had proved capable of generating more economic force than slavery could, and thus if, nothing else, the Union’s overpowering urge for national security justified the war. For good or bad the law of war came with it.

Nine days after the Ex Parte Milligan decision was announced, Lambdin Milligan was at his home in Indiana. The City of Huntington received him with an ovation of welcome, cannon blasts, marching bands, and a speech by the mayor. Milligan returned to the practice of law. In an attempt to gain some stamp of righteousness over the wrongness of the Government’s conduct toward him, he filed a civil suit, in 1868, against the whole cast of characters responsible for his military imprisonment.

The Indiana Legislature had passed a law that placed a limit of five dollars on the amount of damages Milligan could be awarded. The jury gave him that amount. Today, Jose Padilla, the petty criminal from Chicago, now another classic example in American history of how the United States Government can use the power of war to kick its citizens around, has filed a similar lawsuit against the President’s men, seeking one dollar in damages.

As for us, the latter-day Americans, if we keep in mind anything the Supreme Court has said over the last one hundred and fifty years, it should be the words of Mr. Justice Davis, who saw into the darkest recesses of Lincoln’s mind and shivered.

“This nation cannot always remain at peace, and has no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln and if this right [of suspension] is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate.”

The United States Supreme Court Today

Justice Ruth Bader Ginsburg proves the Best of the Lot

only she urged the acceptance of Jose Padilla’s case

The Secession of Virginia

On February 4, 1861, the voters in each county of Virginia went to the polls to select their delegates to the state convention called by Governor John Letcher to consider the issue of secession. The ballot included the question whether a majority vote of the delegates was sufficient to take Virginia out of the Union, or whether they were merely to recommend it, secession depending in the end on ratification of the convention’s recommendation by a popular referendum. The voters answered, by a two to one margin, that a popular referendum was required to ratify a recommendation of secession.

Augusta County (20.2 enslaved) elected H.H. Stuart,

John Baldwin, Peter Baylor, Unionists

One hundred and fifty-two delegates assembled in Richmond on February 13 and began a debate that lasted until April 17. Back and forth, those pushing secession and those resisting it battled with words for over seven weeks. Among the most prominent of these white men, mostly lawyers, mostly slaveholders, was Jeremiah Morton, a past U.S. congressman, who owned several plantations in Orange County (49.8 percent enslaved). On February 28, he made a ringing speech for secession.

“Our soil has been invaded our rights have been violated principles hostile to our institutions have been inculcated in the Northern mind and ingrained in the Northern heart, so that you may make any compromise you please, and still, until we can unlearn and unteach the people, we shall find no peace.

Mr. President, by the election of Mr. Lincoln, the popular sentiment of the North has been placed in the Executive Chair, of this mighty nation:a man who did not get a single electoral vote south of Mason and Dixon’s line, a man who was elected purely by a Northern fanatical sentiment hostile to the South.

Men in every branch of the business of life do not know how to shape their contracts because of the agitation every four years of this never-dying question of slavery—I say, I want to see this question put to rest, not where it will spring up to disturb my children and involve them in utter ruin twenty or thirty years hence but I want to put it where it never will disturb my descendants—for if there is to be bloodshed, and this question cannot otherwise be settled, I would rather give the blood that runs through my veins. . . “

On March 4, the day of Lincoln’s inauguration, Waitman Willey, representing Monogalia County (0.8 percent enslaved), in the extreme northwestern edge of Virginia, answered Morton, for the Unionists.

“The remedy proposed by the gentlemen on the other side is secession, but I never shall believe that Washington brought the States together without any bond to bind the Union.

But you over there say the Republican party threatens to exclude the South from the common territory. As to this I have said I will never submit to it. But what danger is there of our rights being invaded? Has not the Supreme Court decided to guarantee, to the full extent, the right of every slaveholder in the land to carry his property into all the territories of the United States? (In Re Dred Scott, 1856) But suppose there were no such decision, and we had to redress our rights in another way. I ask you gentlemen to point out to me, how are we to acquire our equal rights in the territories, by seceding, by turning our backs on those territories, by giving up our rights to share in those territories?

I am not here to defend the election of Abraham Lincoln. I believe his election was a fraud, nominated as he was by a sectional party, and upon a sectional platform. But he was nominated and elected according to the forms of law.

I say, sir, that a dissolution of the Union will be the commencement of the abolition of slavery, first in Virginia, and ultimately throughout the Union. Will it not, sir, make a hostile border for Virginia, and enable slaves to escape more rapidly? Will it not, virtually, bring Canada to our doors? The slave will know that when he reaches the line he will be safe and escape he will. The owners of slaves will either move themselves further south, or they will sell their slaves south, which in either case will push slavery further and further south until it is swept from the country. That is what they say, don’t they—Charles Sumner and Lloyd Garrison? They want to surround the slave states “with a belt of fire.” Let the Union be dissolved and the slave states will be hemmed in by a cordon of hostile elements.

But it is said the Union is already dissolved. I think not, sir. The Union still lives, and will live while Virginia stands firm. Let her stand where she ever stood, and this Union can never be permanently dissolved. Some of the states may secede, but they will be like asteroids flung off from the sun. But, sir, the sun still shines. The Union still remains while Virginia is steadfast.”

Willey’s speech was followed by speeches from more Unionist delegates, including among them John Carlile’s (Harrison County 4.2 percent enslaved) George Brent’s (Alexandria 11 percent enslaved) and George Summer’s (Kanawha Country 13.5 percent enslaved). On March 16, as Lincoln was battling Seward for control of the government’s policy, this string of pro-union speeches was broken by George Wythe Randolph’s (Thomas Jefferson’s youngest grandson).

“Take the history of abolitionized governments,” he said “it is the history of abolitionized people. Look at England, France, Denmark. Look at Russia. Abolition mounts the throne and serfdom disappears. What right have we to expect better things from our Government? Will the Constitution restrain it? Abolition will soon have the power to make that what it pleases. The whole argument against the extension of slavery is soon by a very slight deflection, made to bear against the existence of slavery and thus the anti-extension idea is merged in that of abolition. With such views held by the chief Executive, the dispenser of patronage, must we wait for an overt act—must we stand until the bayonet is at our throats?”

More secessionist speeches followed Randolph’s, the emotion in the assembly hall rising and falling as each speaker confronted shouts and interruptions from the other side. Then toward the end of March John Baldwin, a slaveholder from Augusta County (20.2 percent enslaved) stirred the delegates to a fever pitch of passion whichever side of the issue they rested.

“Sir, in regard to the question of slavery, I have always entertained the opinion that African slavery, as it exists in Virginia, is a good thing, a blessing alike to the master and the slave. I have no objection that this mild institution may cover the whole earth.

The election of Lincoln has been spoken if as an overthrow, or a subversion of the Constitution, by the use of its own forms. I regard this assumption, that the election of any man to the Presidency can justify disunion, as a direct assault upon the fundamental principles of American liberty. Our fathers built into the Constitution too many barriers to allow one man to usurp authority. One may fail, and yet another remains to protect the Constitution from overthrow.

Now, sir, these barriers were erected as an injunction to us, if we are to be beaten in the House, we appeal to the Senate. If beaten in the Senate, we appeal to the President’s veto. If that fails, we appeal to the Supreme Court. And, if all these means of protection have failed, we do not give up the ship, but we appeal from the false agents of the people, to their masters at the polls.

If our enemies, our oppressors, are in the ascendant now, who is responsible? Who has withdrawn fourteen senators from the senate and left us a minority in that body? Who, but the seceding States, that have also withdrawn more than thirty members of the House, and left us there a minority too.

But, sir, we are told, there is no use making a bargain with these people that there is such a hatred between the people of the two sections, that it is unsafe to live with them any more that there is an irrepressible conflict that has grown up between us. But is this irrepressible conflict a living thing? We have in the last Congress this remarkable fact, that by a vote of two thirds of both Houses, they have, with a Republican majority in each passed and propounded for ratification by the States of the Union, a constitutional amendment by which it is provided that the Constitution never shall be amended so as to give the right to the Government to interfere with slavery in the States, in any respect whatsoever.

Sir, I cannot and I will not believe that we cannot bargain with these people. On the contrary I am convinced that the great masses of the people, North and South, have this day an earnest yearning for each other, for peace and union with each other.”

On April 4, the delegates voted 88 to 45 against secession.

The shaded area defines the density of slavery in the counties,

the yellow pins Nay votes.

The Virginia Capitol building

On April 5, however, word came to the convention that Lincoln meant to war against the Confederacy. John Baldwin had gone to Washington two days before and met with Lincoln at the White House. When Lincoln said that he meant to supply the garrison at Sumter—the navy fleet was supposedly on the way—Baldwin told Lincoln that the expedition “would cause guns to be fired.” “Whoever fires first,” Baldwin said, “strong as the Union majority in the Convention is now, Virginia will be out of the Union in forty-eight hours.” Baldwin went back to Richmond and gave his report: “Lincoln gives no pledge, no understanding, no offer, no promise of any sort.”

The delegates to the Convention immediately threw themselves back into the fury of speech-making, protesting on both sides that there was no power on Lincoln’s part to coerce the seceded states, that the people of Virginia would never consent to his use of force, and these sentiments should be communicated to the President forthwith. The Convention appointed one secessionist, George Randolph, and two Unionists, William P. Preston and H.H. Stuart, to go to Washington and confront Lincoln immediately. The trio arrived in Washington on Friday, April 12, and gained an audience with Lincoln the next day, Saturday, just as Major Anderson was surrendering Sumter. Carl Sandburg describes what happened:

The three delegates politely inquired of Lincoln as to his intentions. He replied politely that his intentions were still the same as he reported in his inaugural. He read over part of the inaugural, s though they had not read it carefully enough. They took their hats, reported back to their convention—and Virginia, the Mother of States, the Mother of Presidents, went out of the Union.” (Carl Sandburg, The War Years, Vol. I.)

According to the delegates, though, Lincoln said: “If, as now appears to be true, an unprovoked assault has been made upon Fort Sumter, I shall hold myself at liberty to repossess it, if I can.”

Lincoln’s feigned naval attack on the Confederates at Charleston did not cause the delegates to stampede the State of Virginia into secession, his Secretary of War’s telegram to Virginia Governor Letcher did.

WAR DEPARTMENT, Washington, April 15, 1861

Sir: Under the act of Congress, for calling forth the militia to execute the laws of the Union, approved February 28, 1795, I have the honor to request Your Excellency to cause to be immediately detached from the militia of your State 111 officers and 2,229 men, to serve as infantry riflemen, for the period of three months.

Your Excellency will please communicate to me the time at which your quota will be expected at its rendenzvous at Staunton and Wheeling, as it will be met by an officer to muster it into the service of the United States. At the same time the oath of allegiance to the United States will be administered to every officer and man.

Your obedient servant, SIMON CAMERON

The next day, April 16, Governor Letcher replied to Cameron’s telegram.

EXECUTIVE DEPARTMENT, RICHMOND

Hon. SIMON CAMERON, Secretary of War:

I have received your communicatiojn in which I am requested to detach from the militia of the State of Virginia a quota of men to serve as riflemen.

In reply to this communication, I have only to say that the militia of Virginia will not be furnished to the powers at Washington for any such use or purpose as they have in view. You have chosen to inaugurate civil war, and having done so, we will meet it in a spirit as determined as the Administration has exhibited toward the South.

Respectfully, JOHN LETCHER

The day following, April 17, Governor Letcher published a proclamation to the people of Virginia.

“Whereas the Constitution of the United States has invested the Congress with the sole power `to declare war, ‘ the President has no authority to call for a force to wage offensive war against any foreign power and whereas, on April 15, the President of the United States, in plain violation of the Constitution, issued a proclamation calling for a force of 75,000 men and threatens to exert this force on the seceded states and whereas the General Assembly of Virginia, by an almost unanimous vote, declared at its last session that Virginia would consider such an exertion of force as a virtual declaration of war, to be resisted by all the power at the command of Virginia Therefore, I, John Letcher, Governor of Virginia, order all the regiments within this State forthwith to hold themselves in readiness for immediate orders.

On this Wendesday, April 17, The Virginia Convention came to the same conclusion. Ex-Governor Henry Wise, a rampant secessionist, who had been fermenting a preemptive strike against the Union’s military posts in Virginia, took center stage at the Convention. He placed a pistol on the podium in front of him and announced that Virginia militia were on the move to occupy Harper’s Ferry and Norfolk Navy Yard. Outside the Capital building, a mob of men were shouting slogans in support of Wise’s speech.

John Baldwin seized the floor and protested, arguing that the State was not out of the Union until the people, by referendum, said it was. “I must tell my people not to march under any such order as you have no right, Governor Letcher as no right, to give. It is in derogation of the sovereign rights of the people, who have appointed to settle the issue at the polls.”

Wise came back with, “The Convention is authorized to change the whole Constitution of the State.”

Baldwin cut him Wise off. “Not without the sanction of the people.”

Wise retorted with, “Suppose the people have required it. Is there any man here, when the car of war is rushing over the people, when Virginia’s borders are threatened with invasion, will you tell me, sir, whether the people don’t expect us to act in defense, between now and the referendum?” (How was this different than Lincoln’s reaction?)

Baldwin: “Not under our system.”

Then, suddenly, with a rush of shouts and commotion, the secession ordinance came on to a vote and it passed 76 delegates voting yea, 66 delegates voting nay.(The upper Shenandoah Valley had come over.)

The proposed ordinance of seccession was then submitted to the people for an up or down vote, to be held on May 23, 1861.

Virginia’s Proposed Ordinance of Secession, April 17, 1861

On May 23, the people of all the counties east of the Blue Ridge Mountains and south of the Potomac, voted for secession by a margin of four to one. The people living in the counties north of Lexington and west of the Blue Ridge voted against secession by a margin of two to one. Eventually this latter group would secede from Virginia.

Lee Makes a Decision: Was It Treason?

During the seven weeks Robert E. Lee was at Arlington, before he tendered to the War Department his resignation in the United States Army, Lincoln’s inauguration came and went, the delegates to the Peace Conference went home, the Confederate envoys were ignored, the Senate’s executive session ended, Sumter was surrendered, and Virginia seceded from the Union.

This last event forced Lee to decide what to do with his life: he had three alternatives he might resign his commission in the United States Army and go, with his wife, Mary, to Paris where his sister, Mildred Childs, and his half-brother, Harry, had resided he might remain in the U.S. Army, or he might accept command of the armed forces defending Virginia.

The first alternative was certainly a reasonable one. It would allow his wife at least to retain her property intact, and it would allow him to retain an army pension, earned by his thirty-six years of service. The income gained from these sources ought to have been sufficient to support the two of them in Paris for the duration of the war. But, choosing this alternative would have left his three sons behind. (Custis Lee, then an army officer, might have remained in the U.S. Army. Rooney Lee, then managing the White House plantation on the Pampunky River, and Robert Jr, a student at the University of Virginia, would have to decide how to weather the storm.) All three, Lee knew, would go into the service of Virginia and it would be impossible for him to stomach their disappointment in him. Besides, he was a soldier. Sitting out the war at the café tables on the boulevard of Saint Germain de pres was not for him.

The second alternative—remaining in the Union army—was also impossible for Lee to accept. According to a letter Lee wrote, in 1868, to Maryland Senator Reverdy Johnson, shortly before he tendered his resignation to the War Department, he had a conversation with Francis P. Blair, the patriarch of the politically connected Blair family, in which Blair “invited” him to “take command of the army that was to be brought into the field,” an invitation supposely made “at the instance of President Lincoln” which Lee declined to accept.There is no evidence that Lincoln actually used Blair as his messenger, and there was no good reason why Lincoln would not have either called Lee directly to the White House to make the offer, or formally instructed Secretary of War Cameron or General-in-Chief Scott to do it. Lincoln was not one to kowtow.

Under the circumstances of Lee’s case therefore, it seems unreasonable to believe that, had Lee remained in the U.S. Army, Lincoln would have elevated him to army command. First, rank mattered in 1861, and there were several officers, recently promoted Brigadier-General Edwin V.Sumner being one of them, who outranked Lee. Second, Lee was a prominent Virginian, ostensibly an owner of slaves, who most certainly the Radical Republicans in Congress would not have trusted to lead the principal army of the Union in an invasion of Virginia (See, The Lee Family Slaves). The likelihood was, then, that had Lee remained in the U.S. Army he would have been sent back to the western frontier, or assigned Sumner’s place as commander of the Department of the Pacific, or sent to Montana. Foreseeing this, certainly eager like the rest of the West Point officers to test his value in war as a soldier, Lee would have been no more willing to sit the war out in the West than in Paris

This left Lee with the third alternative to weigh in the context of duty, and the realities of the times. First, as to duty, Lee’s decision has been criticized by some, on the ground that the circumstances suggest he had an arrangement with the government of Virginia, to accept command of its forces, before he tendered his resignation on April 20, 1861, and that he had an “ambigous loyalty” to the United States that was manifested in the “very fine line” he walked “between conflicting loyalities.” (See, for example, Alan T. Nolan, Lee Considered, University of North Carolina Press, 1991) The criticism lacks probative evidence, however, that, in fact, Lee was offered command before he tendered his resignation though it seems plainly obvious that Lee most certainly had reason to expect Virginia to offer him command, given who he was. (In fact, Lee may have known on April 20 that Governor Letcher had already selected him as commander of Virginia forces.)

As an Alexandria newspaper put it, in its edition of April 20:

“It is probable that the secession of Virginia will cause an immediate resignation of many officers of the Army and Navy from this State. We do not know, and have no right to speak for or anticipate, the course of Col. Robert E. Lee. Whatever he may do, will be conscientious and honorable. But if he should resign his present position in the Army of the United States, we call the immediate attention of our State to him, as an able, brave, experienced officer—no man his superior in all that constitutes a soldier, and the gentleman no man more worthy to head our forces and lead our army. There is no one who can command more of the confidence of the people of Virginia, than this distinguished officer. His reputation, his acknowledged ability, his character, his honor and—may we add, his christian life and conduct—make his very name a tower of strength. It is a name surroundered by revolutionary and patriotic associations and reminiscences.”(original italics.)

(Approximately 350 West Point graduates, and 97 cadets, entered Confederate service of these, five served as army commanders, ten as corps commanders, and fifty as division commanders. Seventy-three were killed in action.)

In the same newspaper edition, Lee would have read this, too:

The following form of oath of allegiance has been prepared with a view to its being administered to all the employees of the Government. The form was prepared by the Attorney General:

“I_____________, at this present time in the United States service as_____________, do solemnly swear that I will support, protect, and defend the Constitution and the Government of the United States against all enemies, whether domestic or foreign, and that I will bear true faith and allegiance to the same. . . “

Burning of the Harper’s Ferry Armory

“A force of 2,500 troops has been ordered by Governor Letcher to take possession of Harper’s Ferry. Lieut Jones, U.S. Army, under directions of the War Department, attempted to burn the buildings but was chased away before much damage was done. A large number of 2,500 cannon, of all kinds and sizes, fell into the hands of the State.”

The Navy Yard at Norfolk

The whole yard, with a collection of ship building and outfitting material, large and valuable, including a number of steel plates and iron castings, was found. Old Fort Norfolk, used as a magazine, was taken without resistence. Three thousand barrels of powder was captured, along with a large amount of shells. The ship Pennsylvania was set on fire by Federal troops, and burnt. The other vessels near the Navy Yard, the Merrimac, Columbus, Delaware, and Raritan were scuttled and sunk. The Cumberland is now at the Naval anchorage, below Norfolk. She draws too much water to pass over the obstructions, but the Pawnee can pass over without trouble.”

Northern Troops Conveyed to Fort Monroe

“By the arrival of the steamer Louisiana yesterday we learn that the steamer Spaulding, of Boston, made Old Point Comfort Saturday morning and threw about 600 troops into Fortress Monroe.”

Reading this newspaper on April 20th, at Arlington, a reasonable person in Lee’s shoes would have certainly recognized that not only had the war already begun, but also that Lincoln’s new oath of allegiance would have to be signed soon.

The Lincoln Government’s Oath of Allegiance is the best evidence available to show the truth about secession, as an abstract political idea. For the new oath materially changed the existing oath, which was the oath Lee had executed in 1855, when he accepted his commission as Lt-Colonel.

The Government’s official 1855 oath reads, “I, Robert E. Lee, do solemnly swear that I will bear true allegiance to the United States of America, and that I will serve them honestly and faithfully against all their enemies. . . .” The language of this oath tracks the language of the Constitution in Article III, Section 3: Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies.”

Note: The language of the oath of allegiance that Lee executed, in 1855, came from the language of the congressional act of 1790 which reads thus:

The difference between the two versions of the oath is too plain to ignore: The Federal Government understood in 1855, as most certainly the founders did in 1787, that it did not govern a single nation, but, in matters of their mutual affairs, a group of States. Lincoln’s election, in 1860, changed that forever: from hence forth the Government was the Nation and Lee, regardless of his ties to Virginia, would be expected to accept the change without a mutter.

Alan T. Nolan, in his 1991 book, Lee Considered, writes, “conflict of interest exists when an agent attempts faithfully to represent two principals whose interests are adverse.” Pretty simple concept: and what must an agent do in such a situation? He must extricate himself from the conflict, by shedding his representation of one or the other, or, in certain circumstances, of both.

In 1855, the States were, in fact, united, and thus Lee, in serving them, had no conflict to resolve. But, in April 1861, the States were in conflict with themselves and Lee could no longer serve them, and, by the Lincoln Government’s new oath of allegiance, he was about to be called upon to serve it—the Federal Government against one of them, his native state, Virginia. So, then, Lee had no choice but to choose between principals with conflicting interests. But which one, Lincoln’s Government, or Virginia’s? (The Nature of American Citizenship)

Note: It appears that there remains one Justice sitting on the Supreme Court today, who accepts the concept that, in 1861, Virginia possessed the Constitutional right to resist by force of arms the Union's invasion of its territory. In his dissent in Arizona v. United States 2012 U.S. Lexis 4872, Justice Scalia wrote this:

"Today's opinion. . . deprives States of. . . the power to exclude from the sovereign's territory people who have no right to be there. There is no doubt that `before the adoption of the constitution of the United States, each State had the authority to prevent itself from being burdened by an influx of persons.' (Citation.) And the Constitution did not strip the States of that authority.

To the contrary, two of the Constitution's provisions were designed to enable the States to prevent `the intrusion of obnoxious aliens through other States.' (Citation.) The Articles of Confederation had provided that `the free inhabitants of each of these States shall be entitled to all privileges and immunities of free citizens in the several States.' (Citation.) This meant that an unwelcome alien could obtain all the rights of a citizen of one State simply by first becoming an inhabitant of another. To remedy this, the Constitution's Privileges and Immunities Clause provided that `the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.' (Art. IV, §2, cl.1)

[Another] provision of the Constitution is an acknowledgement of the State's sovereign interest in protecting its borders. Art. I, §10, cl. 3 provides that `no State shall, without the consent of Congress, engage in war, unless actually invaded. . . .' This limits the States' sovereignty but leaves intact their inherent power to protect their territory."

Which one would you have chosen, under the circumstances? Virginia,where your family, black and white, had lived for over two hundred years? Or Lincoln’s Government, bent on invading it? (The country that had given your family, wealth and prestige: how could you abandon her?)

On Saturday, April 20, 1861, Lee sat alone in a room at Arlington the newspaper read, he set it down and decided. He wrote out his resignation and caused it that day to be delivered to Cameron’s office.

At the same time, he wrote to his sister, Anne, who was living with her husband and son in Baltimore.

We are in a state of war which will yield to nothing. The whole South is in a state of revolution, into which Virginia has been drawn and though I recognize no necessity for this state of things, yet in my own person I had to meet the question whether I should take part against my native state. With all my devotion to the Union and the feeling of loyalty and duty of an American citizen, I have not been able to make up my mind to raise my hand against my relatives, my children, my home.

Your devoted brother, R.E. Lee

His decision would leave him without a pension, and his wife without the home she had lived in her entire life. Though all their wealth would be gone, this was beside the point. It came down in his mind to his three sons and to his name. He could not leave them to fight alone and he could not allow his family name to be stigmatized with his abandoning the land that had given it such great standing. What would you think of him, had he done that?

Romancoke, a 4,000 acre plantation in King William County, Virginia,

passed to Robert E. Lee Jr., in 1864, when he turned twenty-one

The White House, also 4,000 acres, passed to Rooney Lee, who was working the place at the time the war broke out. It was burned to the ground when McClellan’s army passed it.

Arlington, larger than the others, was occupied by the Union Army in late April 1861. In 1863, the Lincoln Government turned it into a military cemetery. In 1884, the United States Supreme Court ruled it belonged to General Lee’s eldest son, George Washington Custis Lee, who then sold it to the United States.

Still, there is something more to be confronted about Lee’s decision. As Gamaliel Bradford put it, in his 1912 book, Lee, The American: We might almost look upon Lee as one of the great martyrs of liberty, one of the heroic champions of free democracy and popular government. And then we reflect a moment and say to ourselves, was not this man fighting for negro slavery? It cannot be disputed that he was.”

But Lee would not have thought he was. He was too astute a soldier not to know at the outset that slavery was doomed by the war certainly doomed in Virginia, which everyone living in the times understood would be the crucible of the war. When he decided, Lee must have known that the whole infrastructure of Virginia would be destroyed in the endeavor, and that, as the inevitable consequence, slavery would perish too. That Lee fought for Virginia, not slavery, is recognized in the fact that, on more than one occasion, when offered command of armies outside Virginia, he refused to leave the defense of his native state to anyone else. (See, the story General Lee and the Drummer Boy)

Early in the afternoon of Monday, April 22, a month earlier than the scheduled people’s vote on the Virginia Convention’s proposed ordinance of secession, and two days after he had tendered the resignation of his commission in the U.S. Army, Robert E. Lee came out of the Richmond train station and made his way by carriage to the State Capitol, where he went into a private conference with Governor John Letcher. Some time later, Lee emerged from the meeting as commander of the military forces of Virginia with the rank of major-general.

Entries in Governor Letcher’s Diary


And now at the last,

Comes Traveller and his master.

How to humanize

That solitary gentleman

Hidden behind the deadly oratory

Of twenty thousand Lee Memorial days,

The man was loved, the man was idolized,

And nothing helps us yet to read the man,

Nor will help us while he has the strength,

To keep his heart his own.

(Stephen Vincent Benet)

( Lee's actions help us read the man )

It’s time that the remains of Lee and his family be interred in Arlington.


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