Primary Source: Lincoln’s National Emergency

The sore subject of the suspension of habeas corpus

espite the checks and balances built into the structure of America’s government, the president has incredible power to override them. Declaring a national emergency is one such method of bypassing the normal channels of decision making. Presidents have declared official states of emergency fifty-nine times, of which thirty-two are still active.

Abraham Lincoln didn’t technically have a national emergency at the start of his presidency in 1861, but a civil war is about as close to one as you can get. We dive now into his suspension of habeas corpus at the onset of the war.

Virginia had seceded from the Union on April 17, 1861, which meant that Washington D.C.’s only rail lines to the north (for communication and troop movements) ran through Maryland, specifically Baltimore. But in Maryland were numerous Confederate sympathizers, organized and violent, and in the capital of Annapolis an untrustworthy legislature. Just two months earlier, an alleged plot to assassinate the president-elect (of which scholars have debated the veracity) forced Lincoln’s planned train through Baltimore to reroute through Pittsburgh and for him to arrive, secretly and in disguise, in Washington D.C.

For President Lincoln and the survival of Washington D.C., it was imperative that the Maryland rail lines remain open.

The Constitution allows limited suspension of habeas corpus.

Article 1 of the Constitution pertains to the powers of Congress.

Article 1 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.

President Lincoln issues an order to General Winfield Scott.

To the Commanding General, Army of the United States

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 be 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 that writ.

Abraham Lincoln.

Washington, April 27, 1861

President Abraham Lincoln in 1861. (Smithsonian)

Supreme Court Chief Justice Roger Taney vehemently disagrees.

On May 25, federal troops arrested John Merryman in Cockeysville, Maryland, for recruiting and training a Confederate secessionist group. His lawyer petitioned Chief Justice Roger Taney for a writ of habeas corpus — commanding the jailer to come to court with Merryman and explain why the prisoner was being held. The jailer refused. Three days later, Taney issued his opinion.

The constitution provides, as I have before said, that “no person shall be deprived of life, liberty or property, without due process of law.” It declares that “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” It provides that the party accused shall be entitled to a speedy trial in a court of justice.

These great and fundamental laws, 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. Such is the case now before me, and I can only say that if the authority which the constitution has confided to the judiciary department and judicial officers, may thus, upon any pretext or under any circumstances, be usurped by the military power, at its discretion, the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found.

In such a case, my duty was too plain to be mistaken. 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. . . . It will then remain for that high officer [the president], 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.

Supreme Court Chief Justice Roger Taney. (Library of Congress)

The president defends his actions in a special session of Congress.

President Lincoln ignored Chief Justice Taney’s decision. In a special session of Congress, on July 4, he addressed the controversy.

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 privilege of 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. This authority has purposely been exercised but very sparingly.

Nevertheless, the legality and propriety of what has been done under it are questioned, and the attention of the country has been called to the proposition that one who is sworn to “take care that the laws be faithfully executed” should not himself violate them. 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 were being resisted and failing of execution in nearly one-third of the States. Must they be allowed to finally fail of execution, even had it been perfectly clear that by the use of the means necessary to their execution some single law, made in such extreme tenderness of the citizen’s liberty that practically it relieves more of the guilty than of the innocent, should to a very limited extent be violated? To state the question more directly, Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated? Even in such a case, 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? . . .

It was decided that we have a case of rebellion and that the public safety does require the qualified suspension of the privilege of the writ which was authorized to be made. Now it is insisted that Congress, and not the Executive, is vested with this power; but the Constitution itself is silent as to which or who is to exercise the power; and as the provision was plainly made for a dangerous emergency, it can not be believed the framers of the instrument intended that in every case the danger should run its course until Congress could be called together, the very assembling of which might be prevented, as was intended in this case, by the rebellion.

Lincoln visits the House of Representatives. (Albert Shaw)

The Attorney General stands by his man.

Congress asked Attorney General Edward Bates to weigh in. Having predicted a legal battle, Bates had already prepared his opinion.

The argument may be briefly stated, thus: It is the President's bounden duty to put down the insurrection . . . If the insurgents assail the nation with an army, he may find it best to meet them with an army, and suppress the insurrection in the field of battle. If they seek to prolong the rebellion and gather strength by intercourse with foreign nations, he may choose to guard the coasts and close the ports with a navy, as one of the most efficient means to suppress the insurrection. And if they employ spies and emissaries, to gather information, to forward secret supplies, and to excite new insurrections in aid of the original rebellion, he may find it both prudent and humane to arrest and imprison them. And this may be done either for the purpose of bringing them to trial and condign punishment for their crimes, or they may be held in custody for the milder end of rendering them powerless for mischief until the exigency is past. . . .

Why should this power be denied to the President, on the ground of its liability to abuse, and not denied to the other departments on the same grounds? Are they more exempt than he is from the frailties and vices of humanity? Or are they more trusted by the law than he is trusted in their several spheres of action? If it be said that a President may be ambitious and unscrupulous, it may be said with equal truth that a legislature may be factious and unprincipled, and a court may be venal and corrupt. But these are crimes never to be presumed, even against a private man, and much less against any high and highly-trusted public functionary. They are crimes, however, recognized as such, and made punishable by the Constitution, and whoever is guilty of them, whether a President, a senator, or a judge, is liable to impeachment and condemnation.

Attorney General Edward Bates. (Library of Congress)

A pro-Confederate newspaper seethes at the president.

On August 24, Francis Key Howard, editor of the Baltimore Daily Exchange and grandson of “The Star Spangled Banner” author Francis Scott Key, wrote an editorial lambasting Lincoln’s actions. After the article ran, Howard was arrested and detained without a warrant.

We were yesterday informed that the Federal Government had prohibited the Postmaster in this city from receiving this journal at his office, and several copies which had been mailed late in the afternoon were returned to us a few hours afterwards. When we had occasion to discuss the action of the Administration in connection with similar proceedings in New York, we expressed so fully and freely the opinions which we then entertained, that little or nothing is left us to say, now that a like wrong is inflicted upon us. There can be upon this subject, however, but little room for discussion. So gross a violation of the written law — so infamous a disregard of the spirit of the Constitution — so flagrant an infringement of the rights of citizens — can find no apologists anywhere among honest men. We are content, therefore, to leave the rulers who have sanctioned this outrage, the tools who perpetrated it, and the knaves who advised it, to the contempt and retribution which inevitably await them. . . .

As we have violated no law, we can afford to despise Mr. LINCOLN’S warnings or menaces. We have but defended our own rights and the honor and welfare of our State, and we do not propose to erase to do so merely because our views are distasteful to the people of the North. We have written nothing which we have reason to be ashamed of or regret, and we therefore have nothing to retract. We are not unconscious of the risks to person and property which those must incur who dare to oppose an Administration so unprincipled and fanatical as that which rules at Washington. But we at the same time comprehend fully the sacred nature of the duties which devolve upon us in this dread crisis, and we shall try to discharge them.

Baltimore Daily Exchange editor Francis Key Howard. (North Carolina War Between the States Sesquicentennial Commission)

Congress quashes the conversation.

On March 3, 1863, after fierce debate, filibusters and procedural wranglings, Congress provided cover to President Lincoln by passing the Habeas Corpus Suspension Act. The president immediately signed it into law.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That during the present rebellion, the President of the United States, whenever in his judgment the public safety may require it, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United States or any part thereof. And whenever and wherever the said privilege shall be suspended, as aforesaid, no military or other officer shall be compelled, in answer to any writ of habeas corpus, to return the body of any person or persons detained by him by authority of the President; but upon a certificate, under oath, of the officer having charge of any one so detained, that such person is detained by him as a prisoner under the authority of the President, further proceedings under the writ of habeas corpus shall be suspended by the judge or court having issued the writ so long as said suspension by the President shall remain in force and said rebellion continue.

Representative Thaddeus Stevens of Pennsylvania introduced the bill.

I am currently working on a book about Ah Toy, the first Chinese brothel madam in gold rush San Francisco.

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Noel C. Cilker

I’m a writer, interested in history’s stories and the links between then and now.