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Lincoln and the Writ of Habeas Corpus

(Was the Constitution violated?)

By Jay Bellamy

For the past one hundred and fifty two years much debate has arisen over President Abraham Lincolns decision to suspend habeas corpus during the Civil War and whether or not that decision violated the Constitution. It is important to first understand just what habeas corpus is and why Lincoln chose to suspend it. The writ of habeas corpus is a legal device designed to protect an individual citizen from being detained or imprisoned indefinitely without specific charges being brought against that individual. The term habeas corpus translates from the Latin you shall have the body and allows for judges to have imprisoned persons brought before the court to determine if they are being held unlawfully. It is difficult to determine the exact origin of habeas corpus, but many point to Articles 38 and 39 of the Magna Carta signed in 1215 as the foundation for our own particular form of habeas corpus. Article 38 reads:In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it, and Article 39: No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land. Although nowhere in the Constitution is the right of habeas corpus specifically guaranteed, many believe that the founding fathers found this to be such a basic individual right that there was no need to address in writing. The Constitution does, however, mention in Article 1, Section 9, when the writ could be suspended: The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion of the public safety may require it. On April 27, 1861, responding to deadly rioting in Baltimore, Maryland, President Abraham Lincoln suspended the writ of habeas corpus along the rail line that extended between Philadelphia and Washington D.C. The president took this action after troops from Massachusetts were attacked

while traveling through Baltimore on their way to defend the nations capital following the attack on Fort Sumter. Four soldiers and twelve civilians were killed during the riots that followed, prompting Lincoln to seek advice from Attorney General Edward Bates on the legality of the suspension of the writ. Although Bates approved of the suspension - writing that when the nation is under attack the president has the authority to arrest and hold in custody, persons known to have criminal intercourse with the insurgents - he would later oppose the presidents use of martial law. Lincoln further justified his actions in his first address to Congress by reminding those in attendance that as president it was his responsibility to make sure that all the laws of the land were being observed. He explained, The whole of the laws which I was sworn to execute were being resisted in nearly one third of the states. He then asked somewhat rhetorically, Are all the laws but one [habeas corpus] to go unexecuted, and the government itselfgo to pieces, lest that one be violated. One year later, Lincoln described it this way: All the roads and avenues to this city were obstructed, and the capital was put into the condition of a siege. The mails in every direction were stopped and the lines of the telegraph cut off by the insurgents, and military and naval forces which had been called out by the government for the defense of Washington were prevented from reaching the city by organized and combined treasonable resistance in the State of MarylandIt became necessary for me to choose whether, using only the existing meansI should let the government fall at once into ruin or whether, availing myself of the broader powers conferred by the Constitution in cases of insurrection, I would make an effort to save it with all its blessing for the present age and for posterity. This attack alone most likely would have been enough to satisfy those who would eventually come to criticize the presidents actions; after all, the public safety was at stake. However, Lincoln also feared that the border state of Maryland might secede, leaving Washington, D.C, surrounded and unprotected from what would then be the rebel states of Maryland to the North and Virginia to the South. As a result, on September 17, 1861, those members of the Maryland legislature considered to be pro-Confederate were arrested before they could vote for secession at the next legislative session. Lincoln was certainly aware of how his actions might be perceived by much of the public, but he felt his first obligation was to save the Union, even if that meant suspending some basic liberties.

On May 25, 1861, John Merryman - a wealthy Maryland landowner and secessionist - was arrested and accused of treason for his part in a plot to destroy bridges and cut telegraph wires north of Baltimore, preventing Union troops from passing through the city. While imprisoned at Ft. McHenry in Baltimore, Merryman petitioned Supreme Court Chief Justice Roger Taney - who at the time was also serving as the judge for the United States Circuit Court for the District of Maryland - for a writ of habeas corpus. The arresting officer, George Cadwallader, refused to release Merryman, citing the presidents suspension of habeas corpus as the reason for his decision. After pointing out that the provision regarding habeas corpus appeared in the section of the Constitution dealing with legislative powers, Taney claimed that only Congress had the right to suspend the writ. (The late historian Richard Nelson Current believed the provision was put in this section simply because the Committee on Style could think of nowhere else to put it.) Lincoln responded that although his decision hadnt come easily, certain events that threatened both the country and the military compelled him to take this action. He further stated that no laws regarding the suspension had been violated since the Constitution did not specify as to who actually had the authority to suspend the writ. Since the Constitution allowed for suspension under certain emergency situations, and because it did not state who was to make that decision, Lincoln felt that as chief executive he had the right to use his own discretion in the matter. After Cadwallader refused to release Merryman, Taney stated that although US marshals had the legal right to arrest Cadwallader, he would not risk sending them in against military personnel acting on orders of the president. Taney instead called on Lincoln to perform his constitutional duty to enforce the laws, and accused the president of not having a proper respect for the high office he fills. Receiving no response from Lincoln, Taney then said that he had done all he could. It has become so notorious that military power is superior to the judicial, he wrote. He further claimed that he had exercised all the power which the Constitution and laws confer upon me, but that power has been resisted by a force too strong for me to overcome. After being indicted by a grand jury in July of 1861, a group of supporters managed to raise the $40,000 required for bail, allowing Merryman to return home until the next session of the circuit court began. Taney, who had insisted on presiding at trial, became ill and was unable to attend any

sessions once court reconvened, resulting in all charges against Merryman eventually being dropped. Surprising those who were already critical of Lincolns limited suspension of habeas corpus the pre-ceding year, the president suspended the writ nationwide in September of 1862. Proclamation 94 applied to all rebels and insurgents; those who aided the rebels; those who resisted the militia draft or discouraged volunteer enlistments; and anyone guilty of any disloyal practice affording aid and comfort to rebels against the authority of the United States. Anyone charged with any of these offenses would be tried before a military commission. Possibly recognizing that the Constitution was ambiguous at best in regards to the habeas corpus provision, Congress took up the issue in March of 1863. After serious deliberation the Habeas Corpus Act of 1863 was passed. It stated that for the duration of the war the president would have the authority to suspend the writ whenever he deemed the public safety was at risk. It did, however, limit the amount of time that a prisoner could be held by requiring the secretaries of War and State to provide federal judges with the names of anyone arrested within their districts, and anyone not indicted by a certain date was to be set free. On May 5, 1863, former Ohio Congressman Clement Vallandigham was arrested at his home by federal forces acting on orders of General Ambrose Burnside, who was serving as the commander of the Department of Ohio. Vallandigham was a strong opponent of the war, who believed the government had no right to interfere with the practice of slavery. During his time in Congress Vallandigham had opposed every possible military spending bill, giving the impression to many that he was a strong supporter of the Confederacy. Vallandigham lost his seat in Congress in 1862 but continued to be an outspoken critic of the Lincoln administration. A few days earlier, on May 1, Vallandigham had delivered a speech critical of Lincoln and calling for his removal from office, sarcastically referring to the president as King Lincoln. In his speech he encouraged soldiers to desert, telling them that this was the only way to bring an end to the war. He claimed that saving the Union was no longer the governments reason for prosecuting the war, that freedom for the slaves was now Lincolns top priority.

Several soldiers under the command of General Burnside - who earlier had issued General Order 38 warning against expressing any form of sympathy toward the enemy - were present that day, but Vallandigham chose to ignore them and deliberately set out to criticize the president and his actions. The soldiers in attendance reported back to Burnside what they had heard, resulting in Vallandighams arrest less than a week later. Vallandigham wasted no time in announcing that he would not be entering a plea since a military commission had no jurisdiction in his case. The trial proceeded nonetheless, and Vallandigham was quickly found guilty by a military panel and sentenced to two years in a military prison. When Vallandigham applied for a writ of habeas corpus, arguing that his Constitutional right to free speech had been violated, he was denied by the United States Circuit Court at Cincinnati. On May 19, 1863, Lincoln, who was exhausted by the entire affair (Burnside had acted on his own but the president felt it necessary to support him), commuted Vallandighams sentence and had him banished behind Confederate lines. When the issue came before the Supreme Court in February of 1864, they refused to hear the case, stating they had no authority to reverse the decision of a military commission. Lincoln defended his actions in a letter to New York Democrats by explaining that during times of rebellion the civilian courts were not adequate to hear cases such as Vallandighams. He wrote that those who opposed the Union cause were a threat against the public safety and - as outlined in the Constitution - those were grounds enough for the suspension of the writ. Although he agreed that vocal critics of the government would not ordinarily be arrested during peacetime, he argued that these were trying times and the nation was faced with a rebellion undocumented in the annals of American history. Valladigham, Lincoln stressed, was attempting to encourage desertion among the ranks and prevent the raising of new troops. Therefore, according to Lincoln, the only choice was to suspend the writ and imprison those who would interfere with the Union war effort. He asked, Must I shoot a simple minded soldier boy who deserts, while I must not touch a hair of a 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. On October 5, 1864, Lambdin P. Milligan, a member of a paramilitary outfit in Indiana, was captured and tried for plotting to steal weapons from federal

arsenals that were to be used in freeing rebel soldiers being held in prisoner of war camps. The plan also called for the overthrow of state governments in Indiana, Ohio, and Michigan, but Milligan and his four co-conspirators were caught before their plan could be put into action. They were subsequently tried before a military commission, found guilty, and sentenced to hang. With his execution scheduled for May of the following year, Milligan was able to have his case heard before a circuit court once the Civil War had come to a close. With the judges unable to reach an agreement, the case was sent on to the Supreme Court for review. The court heard testimony from all those involved before ruling that the government had erred in trying Milligan before a military commission. Although they agreed that Lincolns suspension of habeas corpus was lawful during war time, it did not apply to states that were loyal to the Union and were not under direct attack. Because Milligan was not connected to the Confederate army, and because the Indiana civilian courts were in operation during the war, he should have never been tried before a military court. They further ruled that citizens could only be held - not tried - during the suspension of habeas corpus. This decision resulted in the release of Milligan and his co-defendants and technically reversed the Vallandigham decision. Interestingly enough, the courts opinion was written by Justice David Davis, an old friend of Lincolns and his campaign manager during the 1860 presidential race. So did Lincoln violate the Constitution with his suspension of habeas corpus? According to Roger Taney only Congress had the right to do so. But Lincoln truly believed he had the authority based on the provision set forth in Article 1, Section 9; when in cases of rebellion or invasion of the public safety may require it, and that the Constitution was vague as to who had the power to suspend it. Survival of the Union was foremost on Lincolns mind, and although he had always believed in the principles set forth in the Constitution, he felt that a strict interpretation could be dangerous. The country was truly in a state of rebellion, and there were certainly public safety issues at stake. Lincoln believed that it was not only his responsibility to take action but his duty as well. When issuing his ruling during the Merryman case, Taney argued that it was doubtful that the framers of the Constitution would have put the power of habeas corpus solely in the hands of the president. But he also failed to take into consideration that the founding fathers probably never envisioned a

rebellion taking place within the borders of their own country. This produced a whole new set of problems never before faced by an American president, calling for immediate action in many cases. Lincoln felt that certain acts, such as the attack on the troops from Massachusetts, necessitated prompt response and there was no time to call Congress - which was in recess - back into session. Perhaps Lincoln could have argued - just as former Attorney General Alberto Gonzales did before a Senate Judiciary committee in 2007 - that the Constitution did not specifically grant the right of habeas corpus to any citizen; therefore he could not have been in violation of it. But then, just as with Gonzales, he would have had to explain why there would be a provision to suspend a right that didnt exist. Or maybe he could have claimed as Theodore Roosevelt did many years later in his own autobiography: I did not usurp power, but I did greatly broaden the use of executive power. In any event, the question was not whether the right of habeas corpus existed but who could suspend it and under what terms. Many would argue that Lincoln did not have the right to interpret the Constitution when he claimed to have the authority to suspend the writ - that only the Supreme Court could interpret Constitutional issues. But there would have been no reason for Lincoln to seek a Supreme Court interpretation if he truly believed he was granted the authority based on the fact that there was no branch of government specifically mentioned as the deciding party. Having always referred to what was taking place in the country as a rebellion rather than a war, Lincoln was able to make certain - and sometimes controversial decisions himself since suppression of rebellion has always been left up to the executive branch of government. Although the Habeas Corpus Act of 1863 granted Lincoln the authority to suspend habeas corpus for the duration of the war, it did not address the question of final authority in future cases. In fact, that issue still remains unclear. Historian Mark E. Neely writes in his 1991 Pulitzer prize winning book The Fate Of Liberty, If a situation were to arise again in the Unites States when the writ of habeas corpus were suspended, government would probably be as ill-prepared to define the legal situation as it was in 1861. The clearest lesson is that there is no clear lesson in the Civil War no neat precedents, no ground rules, no map. War and its effect on civil liberties remains a frightening unknown.

Being that there was no clear answer as to whose authority it was to decide when habeas corpus could be suspended, and if what Richard Nelson Current says about the suspension provision being put where it was simply because it was not known where else to put it, Lincoln cannot be accused of violating the Constitution. But even if one chooses to believe that Lincoln was in fact guilty, history has shown that he made the right decisions. As the Honorable Frank J. Williams points out in his article Abraham Lincoln and Civil Liberties in Wartime, Far harsher would have been his denunciation if the whole American experiment of a democratic Union had failedas seemed possible given the circumstances. If such a disaster occurred, what benefit would have been gained by adhering to a fallen Constitution? It was a classic example of the age old conflict in democracy: how to balance individual rights with security for a nation.