Presidents and the Supreme Court: Abraham Lincoln Suspends Habeas Corpus
In yesterday's entry in this series I mentioned Abraham Lincoln's clash with Chief Justice Roger B. Taney over the suspension of the writ of habeas corpus. Today's post will look at that in more detail. Habeas corpus is a legal action or "writ" which allows a person to seek relief from unlawful imprisonment. The person can challenge the right of the state to keep him or her in custody by asking the court the review the process by which the person was taken into custody. Habeas corpus is Latin for "you shall have the body". Under Article One, Section 9, clause 2 of the United States Constitution, "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." The Civil War was one of those times when President Abraham Lincoln was of the opinion that suspension of the writ was required and was justified under the Constitution. Chief Justice Roger B. Taney did not agree.
After Virginia seceded from the Union on April 17, 1861, the only lines by land for supplies, troop movements, transportation, and communication to Washington, D.C., ran through Maryland. The railroads ran through Baltimore. At the time Union support was mixed in Baltimore and it was not known if Maryland would join the Union cause, support the Confederate States, or remain neutral. Two months earlier, in February of 1861, a Baltimore mob forced President-elect Lincoln to sneak through the city in disguise. Another mob attacked the Sixth Massachusetts Regiment as it marched through Baltimore on its way to Washington. Confederate sympathizers in Maryland were numerous, organized, and capable of violence. Within the Maryland legislature there were a number of Confederate sympathizers. Lincoln had agents monitor the April 26, 1861 session of the legislature, and based on information he obtained, he later ordered the arrest of a number of its members.
Lincoln was determined to keep the Maryland lines open. On April 27, 1861, Lincoln issued an order to General Winfield Scott authorizing him to suspend the writ of habeas corpus, at or near any military line between Philadelphia and Washington if Scott was of the opinion that the public safety required it. Lincoln issued his order pursuant to the provision in Article I, Section 9 of the Constitution. This is generally called the suspension clause.
On May 25, federal troops arrested John Merryman in Cockeysville, Maryland. Merryman was arrested for recruiting, training, and leading a drill company for Confederate service. Merryman's lawyer promptly petitioned Chief Justice Roger Taney (who was infamous for penning the Dred Scott decision) for a writ of habeas corpus. Following a hearing in the matter, Taney ordered delivery of a writ of habeas corpus to General George Cadwallader directing him to appear before Taney on May 28 and to bring Merryman with him. When Cadwallader refused to accept service of the writ, Taney later ruled on the same day that the president did not have the power to suspend the writ. Taney announced that he later would issue an opinion in support of his ruling.
Several days later, Taney issued his opinion in a case reported as Ex Parte Merryman. (The phrase "ex parte" means that only one side was heard by the court, in this case Merryman.) Taney held that only Congress could suspend the writ of habeas corpus, the President acting alone could not. He reached this conclusion because the suspension clause appeared in Article I of the Constitution, dealing with legislative powers, not in Article II, which established executive power.
Lincoln ignored Taney. He had called a special session of Congress to convene on July 4, but before Congress convened, Lincoln followed his April 27th order with another order on May 10 order authorizing suspension of the writ on part of the Florida coast. On July 2 he issued a third order authorizing suspension between Philadelphia and New York.
On July 4, Lincoln delivered a message to the special session of Congress. He quoted the suspension clause, and justified the suspensions on the ground that "we have a case of rebellion, and the public safety does require" suspension of the writ. He also said:
"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 cannot 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 by the rebellion. No more extended argument is now offered, as an opinion will probably be presented by the Attorney General. Whether there shall be any legislation upon the subject, and if any, what, is submitted entirely to the better judgment of Congress."
Attorney General Edward Bates delivered his opinion the following day. Bates argued that the president is authorized to suspend the writ because he is charged with preservation of the public safety. At Lincoln's Lincoln's invitation, Congress did not enact legislation authorizing suspension of habeas corpus until March 3, 1863. In the meantime, Lincoln's 1861 orders authorizing suspension remained in force, and on September 24, 1862, he issued a proclamation imposing martial law and suspending the writ of habeas corpus. That proclamation ordered that, for the rest of the war:
(i) 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 or 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, and (ii) the writ of habeas corpus is suspended in respect to all persons arrested or imprisoned in any fort, camp, arsenal, military prison, or other place of confinement by any military authority or by the sentence of any court martial or military commission."
On March 3, 1863, nearly two years into the war and twenty months after the special session, Congress passed an act authorizing Lincoln to suspend the writ of habeas corpus. Section 1 of the act provided that the president "is" authorized to suspend the writ when, in his opinion, public safety requires it. The suspension of habeas corpus remained in effect until Andrew Johnson revoked it on December 1, 1865.
After Virginia seceded from the Union on April 17, 1861, the only lines by land for supplies, troop movements, transportation, and communication to Washington, D.C., ran through Maryland. The railroads ran through Baltimore. At the time Union support was mixed in Baltimore and it was not known if Maryland would join the Union cause, support the Confederate States, or remain neutral. Two months earlier, in February of 1861, a Baltimore mob forced President-elect Lincoln to sneak through the city in disguise. Another mob attacked the Sixth Massachusetts Regiment as it marched through Baltimore on its way to Washington. Confederate sympathizers in Maryland were numerous, organized, and capable of violence. Within the Maryland legislature there were a number of Confederate sympathizers. Lincoln had agents monitor the April 26, 1861 session of the legislature, and based on information he obtained, he later ordered the arrest of a number of its members.
Lincoln was determined to keep the Maryland lines open. On April 27, 1861, Lincoln issued an order to General Winfield Scott authorizing him to suspend the writ of habeas corpus, at or near any military line between Philadelphia and Washington if Scott was of the opinion that the public safety required it. Lincoln issued his order pursuant to the provision in Article I, Section 9 of the Constitution. This is generally called the suspension clause.
On May 25, federal troops arrested John Merryman in Cockeysville, Maryland. Merryman was arrested for recruiting, training, and leading a drill company for Confederate service. Merryman's lawyer promptly petitioned Chief Justice Roger Taney (who was infamous for penning the Dred Scott decision) for a writ of habeas corpus. Following a hearing in the matter, Taney ordered delivery of a writ of habeas corpus to General George Cadwallader directing him to appear before Taney on May 28 and to bring Merryman with him. When Cadwallader refused to accept service of the writ, Taney later ruled on the same day that the president did not have the power to suspend the writ. Taney announced that he later would issue an opinion in support of his ruling.
Several days later, Taney issued his opinion in a case reported as Ex Parte Merryman. (The phrase "ex parte" means that only one side was heard by the court, in this case Merryman.) Taney held that only Congress could suspend the writ of habeas corpus, the President acting alone could not. He reached this conclusion because the suspension clause appeared in Article I of the Constitution, dealing with legislative powers, not in Article II, which established executive power.
Lincoln ignored Taney. He had called a special session of Congress to convene on July 4, but before Congress convened, Lincoln followed his April 27th order with another order on May 10 order authorizing suspension of the writ on part of the Florida coast. On July 2 he issued a third order authorizing suspension between Philadelphia and New York.
On July 4, Lincoln delivered a message to the special session of Congress. He quoted the suspension clause, and justified the suspensions on the ground that "we have a case of rebellion, and the public safety does require" suspension of the writ. He also said:
"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 cannot 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 by the rebellion. No more extended argument is now offered, as an opinion will probably be presented by the Attorney General. Whether there shall be any legislation upon the subject, and if any, what, is submitted entirely to the better judgment of Congress."
Attorney General Edward Bates delivered his opinion the following day. Bates argued that the president is authorized to suspend the writ because he is charged with preservation of the public safety. At Lincoln's Lincoln's invitation, Congress did not enact legislation authorizing suspension of habeas corpus until March 3, 1863. In the meantime, Lincoln's 1861 orders authorizing suspension remained in force, and on September 24, 1862, he issued a proclamation imposing martial law and suspending the writ of habeas corpus. That proclamation ordered that, for the rest of the war:
(i) 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 or 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, and (ii) the writ of habeas corpus is suspended in respect to all persons arrested or imprisoned in any fort, camp, arsenal, military prison, or other place of confinement by any military authority or by the sentence of any court martial or military commission."
On March 3, 1863, nearly two years into the war and twenty months after the special session, Congress passed an act authorizing Lincoln to suspend the writ of habeas corpus. Section 1 of the act provided that the president "is" authorized to suspend the writ when, in his opinion, public safety requires it. The suspension of habeas corpus remained in effect until Andrew Johnson revoked it on December 1, 1865.