Civil Liberties During the Civil War
Two hundred and thirty-four years ago the founders created a nation whose citizens would be afforded certain unalienable rights—rights that remain an integral part of America today. Principles of “Life, Liberty, and the pursuit of Happiness,” shaped the bedrock of our democracy. Later, in the Constitution, the founders guaranteed citizens specific civil liberties. One most well-known of the liberties afforded to citizens – the writ of habeas corpus –often is referred to as the “Great Writ of Liberty.” Habeas corpus is the constitutionally authorized means by which a court may immediately assume jurisdiction and inquire into the legality of an individual’s detention. If a court concludes that an individual has been unlawfully detained, it is empowered to immediately release him or her. Similarly, however, the founders also included in the Constitution numerous protections related to national security. In the end, the representatives of thirteen colonies approved a well-balanced set of guarantees, so that the nation would be safe and secure and so that its citizens would enjoy great liberties.
While all of these guarantees were critically important to the founders of our nation, history has demonstrated that it is not always easy for our nation’s leaders to afford all of these guarantees without any restriction.
In April 1861, on the heels of the bombardment of Fort Sumter in Charleston Harbor by Confederate forces, Lincoln called for reinforcements to protect Washington, D.C. Responding to Lincoln’s call for state militias, the Sixth Massachusetts Regiment arrived in Baltimore, where riots congested the streets and the rioters attempted to prevent troops from reaching Washington. The regiment from Massachusetts forged its way from one railroad station to another, sustaining twelve deaths with several more soldiers being wounded. By then, the Civil War was underway. The nation’s capital was in jeopardy, given that it was bordered by Virginia, a secessionist state, and Maryland, whose threats to secede were widely known. Newspaper headlines loudly proclaimed the horror endured by the soldiers passing through Baltimore. Giving America a glimpse of that horror, The New York Times reported: “It is said there have been 12 lives lost. Several are mortally wounded. Parties of men half frantic are roaming the streets armed with guns, pistols and muskets . . . a general state of dread prevails.” In the days and weeks that followed, the city of Washington was virtually severed from the states of the North. Troops stopped arriving, telegraph lines were slashed, and postal mail from the North reached the city only infrequently.
Lincoln immediately saw the grave danger that the war would be lost if the Confederates seized the capital or caused it to be completely isolated, but he was reluctant to suspend the Great Writ. Finally, prompted by the urging of his Secretary of State, William H. Seward, Lincoln, an attorney, concluded that the suspension of habeas corpus could not wait. Although Congress was in recess, Lincoln, relying on the constitutional authorization that the framers had perceptively included years before, issued a proclamation suspending the writ, believing that his duty to protect the capital and the Union required such an action.
Lincoln’s unilateral suspension of habeas corpus between Washington and Philadelphia was instrumental in securing communication lines to the nation’s capital. The effect was to enable military commanders to arrest and detain individuals indefinitely in areas where martial law had been imposed. Many of those detained were individuals who attempted to halt military convoys. Lincoln saw that immediate action and a declaration of martial law was necessary to divest civil liberties from those who were disloyal and whose overt acts against the United States threatened its survival without the rights explicit in our usual judicial process.
Nevertheless, Lincoln’s actions did not go unchallenged; criticism was not lacking. Despite the urgent situation that warranted Lincoln’s suspension of habeas during the Civil War, his critics bemoaned his decision as an act of civil disobedience, and they deemed his actions illegal. Lincoln himself responded to such criticism in a message to a special session of Congress on July 4, 1861. In Lincoln’s words:
The provision of the Constitution that "the privilege of habeas corpus, shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it," is equivalent to a provision - is a provision - that such privilege may be suspended when, in cases of rebellion, or invasion, the public safety does require it. It was decided 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 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 cannot be believed that 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 explained that his actions were not only justified, but were required of him pursuant to his oath to preserve, protect, and defend the Constitution of the United States. In August 1861, Congress ratified the President’s actions in all respects.
To Lincoln, there was no tolerable middle road. He was very much aware that some citizens would criticize him for suspending the Great Writ. The alternative, however, was far worse in his estimation. In Lincoln’s judgment nothing would be worse than allowing the nation to succumb to Confederate forces. Even some of those who deemed Lincoln’s actions unconstitutional have noted the real-world emergency with which he was faced. Today, many recognize that “Lincoln’s unconstitutional acts during the Civil War show that even legality must sometimes be sacrificed for other values. We are a nation under law, but first we are a nation.”
1. The Case of John Merryman
Only a month after Lincoln’s proclamation, Captain Samuel Yohe, empowered by Lincoln’s suspension of habeas, entered the Baltimore home of John Merryman, a discontented American who had spoken out vigorously against President Lincoln and had actively recruited a company of Confederate soldiers. He arrested Merryman for various acts of treason, including his leadership of the secessionist group that conspired to destroy and ultimately did destroy railroad bridges after the Baltimore riots. The government believed that Merryman’s decision to form an armed group to overthrow the government was an act far beyond a simple expression of dissatisfaction, which would be protected under the Constitution.
Merryman’s attorney sought a writ of habeas corpus, directing his petition to Supreme Court Chief Justice Roger Brooke Taney. Lawyers for Merryman suspected that Chief Justice Taney would entertain the petition in Washington, but because he was then assigned to the Circuit Court sitting in Maryland, he took up the matter in Baltimore and granted the writ. Despite Chief Justice Taney’s demand to have Merryman brought before the court, the commander of the fort where Merryman was detained, George Cadwalader, respectfully refused, relying on President Lincoln’s suspension of habeas corpus. Outraged, Chief Justice Taney authored Ex parte Merryman, opining that Congress alone had the power to suspend the writ of habeas corpus.
Unfortunately for Chief Justice Taney, his words carried no precedential value as an in chambers opinion. Chief Justice Taney recognized this but forwarded his in chambers opinion to President Lincoln. Ironically, it was Taney who, only a month before, had administered the President’s oath, which the President now relied upon to justify his actions.
If one thing is certain, it is that Chief Justice Taney’s opinion did not deter Lincoln. Rather, Lincoln turned to Attorney General Edward Bates for confirmation that his decision to suspend habeas corpus was within his authority. Bates responded as follows:
I am clearly of opinion that, in a time like the present, when the very existence of the nation is assailed, by a great and dangerous insurrection, the President has the lawful discretionary power to arrest and hold in custody persons known to have criminal intercourse with the insurgents, or persons against whom there is probable cause for suspicion of such criminal complicity.
Disregarding the “in chambers opinion” of Chief Justice Taney, Lincoln boldly broadened the scope of the suspension of the writ. In the draft of Lincoln’s report to Congress (the only extant copy of his speech of July 4, 1861), he passionately defended his position:
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? . . . [A]re all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?
Lincoln explained that the outbreak of the Civil War made it necessary “to call out the war power of the government and so to resist force employed for the destruction by force for its preservation.” Lincoln further professed that his actions, “whether strictly legal or not, were ventured upon under what appeared to be a popular demand and a public necessity, trusting then, as now, that Congress would readily ratify them.”
Although the Constitution is silent with respect to which branch of government is authorized to exercise the power to suspend habeas, Lincoln’s words reflected his own belief that he had exercised a power that required at least some cooperation and approval from Congress. Whatever confusion remained regarding the legality of Lincoln’s unilateral suspension of habeas was quelled two years later when Congress, in addition to its previous ratification of August 6, 1861, enacted legislation empowering the President to suspend the writ nation-wide while rebellion continued.
2. The Case of Clement L. Vallandigham
On September 24, 1862, Lincoln issued a proclamation, declaring martial law and authorizing the use of military tribunals to try civilians within the United States who are believed to be “guilty of disloyal practice” or who “afford[ed] aid and comfort to Rebels.” This was just the beginning. The following March, Lincoln appointed General Ambrose Burnside as commanding general of the Department of the Ohio. After only one month in that position, Major General Burnside issued General Order No. 38, authorizing imposition of the death penalty for those who aided the Confederacy and who “declared sympathies for the enemy.”
With this order as justification, military officials arrested anti-war Congressman Clement L. Vallandigham of Ohio for a public speech he delivered in Mount Vernon, lambasting President Lincoln, referring to him as a political tyrant, and calling for his overthrow. Specifically, Vallandigham was charged with having proclaimed, among other things, that “the present war was a wicked, cruel, and unnecessary war, one not waged for the preservation of the Union, but for the purpose of crushing out liberty and to erect a despotism; a war for the freedom of the blacks and the enslavement of the whites.”
Although he was a United States citizen who would ordinarily be tried for criminal offenses in the civilian court system, Vallandigham was tried before a military tribunal a day after his arrest. Vallandigham, an attorney, objected that trial by a military tribunal was unconstitutional, but his protestations to the Lincoln administration fell on deaf ears. The military tribunal found the Ohio Copperhead in violation of General Orders No. 38 and ordered him imprisoned until the war’s end. Subsequent to this sentence, Vallandigham petitioned the United States Circuit Court sitting in Cincinnati for a writ of habeas corpus, which, perhaps much to Chief Justice Taney’s dismay, was denied. In a final attempt, Vallandigham petitioned the United States Supreme Court for a writ of certiorari, but his petition to the Court was unsuccessful, the court ruling that it was without jurisdiction to review the military tribunal’s proceedings.
Not surprisingly, the trial of Vallandigham by a military tribunal subjected Lincoln to yet more criticism. His critics bemoaned his decision, deeming it “a palpable violation of the . . . Constitution.” Lincoln insisted, however, that civilians captured away from the battlefield could lawfully be tried by a military tribunal because the whole country, in his opinion, was a war zone. Lincoln further defended his suspension of habeas corpus:
If I be wrong on this question of constitutional power, my error lies in believing that certain proceedings are constitutional when, in cases of rebellion or Invasion, the public Safety requires them . . . The constitution itself makes the distinction; and I can no more be persuaded that the government can constitutionally take no strong measure in time of rebellion, because it can be shown that the same could not be lawfully taken in time of peace, than I can be persuaded that a particular drug is not good medicine for a sick man, because it can be shown to not be good food for a well one.
President Lincoln, concerned about the harshness of Vallandigham’s punishment and the potential criticism over Vallandigham’s arrest, detention, and trial by military tribunal, commuted his sentence to banishment to the Confederacy.
3. The Case of Lambdin P. Milligan
In 1866, the war having ended, the Supreme Court was called upon to consider the legality of Lincoln’s suspension of habeas corpus and his use of military tribunals. The Supreme Court, upon which Taney no longer sat, as he had died in 1864, proceeded to conclude, as Taney had in Merryman, that the President could not unilaterally suspend the writ of habeas corpus.
On October 5, 1864, Lambdin P. Milligan, a lawyer and Indiana citizen, had been arrested by the military commander for that military district on the basis of his belief that Milligan was plotting to overthrow the government. Although Milligan was not captured on the battlefield, he was tried by a military commission and sentenced to death even though the civilian courts were functioning in Indiana. Before the sentence was carried out, Milligan petitioned the Circuit Court of the United States for the District of Indiana for a writ of habeas corpus. The Circuit Court certified the question to the Supreme Court, which assumed jurisdiction and issued the writ.
In so concluding, the Supreme Court reasoned that the suspension of habeas corpus was permissible, but that such a suspension did not apply to Milligan’s case because he had not joined the Confederate forces and was captured away from the battlefield in an area where civilian courts were still operating. According to the Court, Milligan was simply a person who was ideologically aligned with the Confederates and not an enemy combatant who should be tried by a military tribunal. Therefore, Milligan could only be properly tried in a civilian court and not by a military tribunal. This post-war, post-Taney Court also impliedly validated Chief Justice Taney’s opinion in Merryman as it agreed that only Congress may authorize the suspension of habeas corpus.
Milligan did make clear, however, that the right of American citizens to seek a writ of habeas corpus may be suspended during wartime so long as those citizens have joined enemy forces or have been captured on the battlefield. Indeed, without such a ruling, “the Union could not have fought the Civil War, because the courts would have ordered President Lincoln to release thousands of Confederate POWs and spies.”
That Lincoln emerges from the perennial controversy that afflicted his Administration over civil liberties with a reputation for statesmanship may be the most powerful argument for his judicious application of executive authority during a national emergency. As historian Don E. Fehrenbacher has noted, "Although Lincoln, in a general sense, proved to be right, the history of the United States in the twentieth century suggests that he brushed aside too lightly the problem of the example that he might be setting for future presidents."
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The Lincoln Forum.
Annual conclave at Gettysburg for the study of Abraham Lincoln and the Civil War era.
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