President Abraham Lincoln faced the challenge of preserving security and liberty in a more acute way than any other American President. And his challenge was made all the more difficult by virtue of the fact that he, somehow, had to pursue internal security and liberty when they were at odds with one another, and seemingly irreconcilable, in a Civil War that resulted in the loss of 640,000 lives. Lincoln’s suspension of the Writ of Habeas Corpus lay in the intersection of those two critically important, yet conflicting, goals.
The “Great Writ” was understood by the Framers as essential to liberty. A writ of habeas corpus is a judicial mandate directing a government official to present to the court a person held in custody so that the court, and not the executive detaining the individual, can determine whether the detention is lawful. Without the writ, a President might order the detention of a person, indefinitely and without reason, and courts would lack authority to intervene. That person and, it may be said, justice, would be at the mercy of the executive. The Constitution carves out protection for the write, but contemplates its suspension—in rare, indeed, extraordinary circumstances.
The Constitution provides in Article I, Section 9, 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.” Neither the Quasi-War with France, nor the Whiskey Rebellion nor the War of 1812 had generated the need for suspension of the writ, although General Andrew Jackson, in 1815, had imposed martial law on New Orleans and defied a writ of habeas corpus. Such was the precious nature of the Great Writ –the safeguard of all liberties–that it stood like a mighty oak withstanding the winds of war. But the crisis that engulfed the nation during the Civil War, led Lincoln to suspend the writ of habeas corpus on eight separate occasions. Most of the suspensions, included the initial one along the rail lines, applied locally, and responded to military situations that seemed urgent. From the outset, Lincoln delegated decisions to suspend the writ to local commanders. Some were responsible; others were not. During the war, military officers arrested some 12,000 civilians on a variety of charges and usually released them within a few days after they took an oath to support the Union. In too many cases, however, Lincoln was unable to control the execution of his own orders and, as a consequence, he found himself defending actions that he would never have approved of in advance. At all events, his suspensions of the writ triggered a great national—and historical—debate about the constitutional repository of the authority to suspend the writ.
When President Lincoln assumed office, seven states had already seceded from the Union. Four slave states—Delaware, Maryland, Kentucky and Missouri—had not seceded, and Lincoln was anxious to retain their loyalty. Their secession would increase by 50 percent the manpower of the Confederacy. Maryland presented severe security challenges since it surrounded three sides of the nation’s capitol. On the eve of his inauguration, Lincoln had to travel through Baltimore, which was suffused with confederate sympathizers. Assassination threats forced Lincoln to cancel a speech and sneak through Baltimore.
Soon after the attack on Fort Sumter, the Sixth Massachusetts Volunteers attempted to march through Baltimore en route to Washington. They were attacked by a mob of secessionist sympathizers, resulting in 16 deaths and widespread rioting. As a means of preventing additional Union troops from entering the nation’s capital, the mayor of Baltimore order the destruction of railroad bridges connecting Baltimore with the North, which left Washington isolated and riddled with fear.
Since there was little historical precedent for the suspension of habeas corpus Lincoln, ever solicitous of constitutional concerns, turned to his Attorney General, Edward Bates, for guidance. Bates delegated the assignment to an assistant, who produced rather an inconclusive memorandum, but his research leaned on early authorities include Joseph Story’s magisterial three-volume treatise, Commentaries on the Constitution, which assumed that Congress enjoyed the exclusive authority to suspend the writ. Manifestly, the report was not encouraging and, with Congress still in recess, Lincoln decided to act unilaterally. On April 27, 1861, he issued an executive order suspending the writ in those areas of Maryland in which secessionists might interfere with military access to the nation’s capital.
Among those arrested and imprisoned was John Merryman, who had allegedly burned bridges and destroyed telegraph lines. Merryman immediately filed a petition for a writ of habeas corpus, seeking his release from military detention. Chief Justice Roger B. Taney, riding circuit, heard the petition. On May 26, 1861, Taney held in Ex parte Merryman that Lincoln’s order was unconstitutional; Congress has the exclusive authority to suspend habeas corpus. To Taney, there was no real question of whether Congress or the President possesses the suspending authority. He “supposed it to be one of those points of constitutional law upon which there was no difference of opinion.” Taney found support in Chief Justice John Marshall’s opinion in Ex parte Bollman, Justice Story’s Commentaries on the Constitution, and President Jefferson’s application to Congress for authority to suspend the writ of habeas corpus when he found it necessary to deal with the Aaron Burr conspiracy. Most compelling, however, was the location of the Suspension Clause in Article I, the constitutional provision that articulates congressional powers. President Lincoln, Chief Justice Taney concluded, “has exercised a power which he does not possess under the constitution.”
Taney issued a writ of habeas corpus to General George Cadwalader, in charge at Fort McHenry, where Merryman was being held. When the federal marshal arrived at Fort McHenry to serve the writ on Cadwalader, he was denied entry to the fort. A confrontation between the judiciary and the executive was at hand. Technically, Taney knew that the federal marshal had the authority to seize Merryman and bring him before the court, but he also recognized that the marshal “will be resisted in the discharge of that duty by a force notoriously superior” to his own and, “such being the case, the Court has no power under the law,” since it relies on the executive branch to enforce its rulings. Taney knew that the judiciary could not afford a direct confrontation with President Lincoln, and so he avoided it. He lamented: “I have 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. . . . I shall, therefore, order all proceedings in this case, with my opinion, to be filed and recorded in the circuit court of the United States for the district of Maryland, and direct the clerk to transmit a copy, under seal, to the president of the United States. It will then remain for that high officer, in fulfillment of his constitutional obligation to “take care that the laws be faithfully executed,” to determine what measures he will take to cause the civil process of the United States to be respected and enforced.”
President Lincoln flatly declined to comply with Taney’s ruling. The Lincoln Administration was certainly wary of taking an appeal to the Supreme Court, over which Chief Justice Taney, the author of the infamous Dred Scott Case, presided, and which was still controlled by southerners. The possibility of another adverse decision, this time by the nation’s High Tribunal, could not be risked.
Taney was undoubtedly correct in his ruling that Congress has the sole constitutional authority to suspend the writ of habeas corpus, as Marshall and Story had indicated. Still, if any President could have mounted a serious argument for an executive power of suspension, under the extraordinary conditions that confronted the nation, it was Lincoln. Given the grave challenges that faced Lincoln in Maryland, it was arguable that the ordinary justice system was overwhelmed and that some greater force had to be executed. Union troops were blocked by mobs in Baltimore. Local officials and courts were unable or unwilling to resolve the situation. Confederate armies were not far from Washington. The nation’s capital was in imminent danger. To think, as Lincoln reasoned, that the nation would have to await the return of Congress from its recess to suspend the writ of habeas corpus, might sink the fortunes of the Union. What was Lincoln to do? In such dire circumstances, may the President violate the Constitution? Lincoln’s initial response was to assert a dual authority to suspend the writ, a shared power—between the Congress and the President. While Lincoln’s argument possessed some appeal, it was not persuasive enough. After all, a concession to his position that the executive might suspend habeas corpus, would ignore the fundamental rationale for creating the writ in the first place: to grant to the court the right to review and determine whether an exercise of executive detention is lawful. History and the preservation of the Constitution worked against President Lincoln. The English had struggled for many years to shift the power to suspend habeas corpus to Parliament. Moreover, the Framers’ deep-seated fear of executive power precluded any possibility of vesting in the President the final, exclusive word on the scope of his authority to suspend the “Great Writ,” and thereby deprive citizens of their liberty without legal process.
On July 4, 1861, Lincoln convened a joint session of Congress, which he called back to Washington from a recess since the beginning of the Civil War. His address remains one of the greatest moments in American constitutional history, where a sitting President concedes that he has violated the Constitution, but seeks its preservation in his words and deeds in asking Congress to ratify his illegal acts. Lincoln first acknowledged that some of his actions in combating the Confederacy—calling up an army and navy, spending money from the treasury, among other acts—had exceeded his authority, but that “his actions were not beyond the constitutional competency of Congress.” He said that his actions were carried out “under what appeared to be a popular demand and a public necessity, trusting then, as now that Congress would ratify them.” As we earlier observed, Lincoln was invoking the doctrine of retroactive ratification, the Framers’ solution to emergency. The virtue of the doctrine is that it maintains a semblance of constitutional government. Congress did “ratify” Lincoln’s actions after a lengthy debate, on the explicit assumption that his acts were illegal. When Congress granted the retroactive authority, it did so by passing legislation “approving, legalizing , and making valid all the acts, proclamations, and orders of the President, etc., as if they had been issued and done under the authority and direction of Congress.”
In his address, Lincoln replied to Chief Justice Taney’s opinion in Merryman, but without mentioning his name or the case. Lincoln said that “some consideration was given to the questions of power, and propriety, before this matter was acted upon.” Then he asked, rhetorically, “are all the laws but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” But he quickly retreated from his theoretical exploration, saying, “But it was not believed that this question was presented. It was not believed that any law was violated.” The Constitution, Lincoln asserted, “is silent as to which [branch], or who, is to exercise the powers” of suspension, “and as the provision was plainly made for a dangerous emergency, it cannot be believed the Framers . . . intended, that in every case, the danger should run its course, until Congress could be called together.” In a more elaborate opinion, Attorney General Edward Bates rejected Taney’s holding that Lincoln had violated his constitutional duty to “faithfully” execute the laws. The executive, he said, was not subordinate to the judiciary, but was one of three coordinate departments of government. The President’s oath to “preserve, protect and defend the Constitution” made it particularly his duty to put down the rebellion since the courts were too weak to do so. Thus, if the President, in the case of rebellion or insurrection considers the suspension of habeas corpus necessary for the public safety, he may order it on his own authority.
On March 3, 1863, Congress enacted the Habeas Corpus Act, legalizing Lincoln’s suspensions of the writ of habeas corpus and authorizing future suspensions. A chief congressional aim in passing this law was to reassert its authority on this war-related issue, and to modify the President’s control of political prisoners so that the authority of the courts would be respected without overly restricting the executive and military authorities. The statute did not greatly alter the internal security practices already in operation. Commissions appointed by the Secretary of War had been reviewing cases of civilians detained on suspicion of disloyal actions and releasing those against whom there was insufficient evidence for civil or military prosecution, and who expressed allegiance to the Union. But controversy arose when the Habeas Corpus Act Judge Advocate General Joseph Holt ruled that the statute did not apply to prisoners triable by military commissions. This ruling left the executive unrestrained in areas where martial law was instituted.
The institution of martial law and the limited use of military commissions for the trial of civilians in the loyal states represented the most serious departure from constitutional norms and procedures in the government’s internal security program. Since portions of all the border states were at various times during the war occupied by Confederate troops or hostile guerillas, martial law was employed there as an essential means of military security. Moreover, disloyalty to the Union in those areas was so widespread and so violent that the President considered martial law necessary for the preservation of peace and order. Typically, martial law was applied in specific limited districts where the situation seemed most serious, but in July 1864, President Lincoln placed the entire state of Kentucky under martial law. At the time of General Robert E. Lee’s invasion of Pennsylvania in 1863, Lincoln, in response to the petitions of many citizens, had put that area under martial law. In all of these instances, however, there was little interference with the civil authorities, and the power over citizens entrusted to military authorities was sparingly used. At bottom, the federal government made no effort to carry martial law beyond certain specified areas considered necessary for the successful prosecution of the war.