Within two months of taking office, in the midst of what he termed a “rebellion” and an “insurrection” against the national authority, the President of the United States took an extraordinary action. Sending a letter to the army’s commanding general about the deteriorating situation, the commander-in-chief authorized the suspension of habeas corpus, a legal safeguard that requires a detained citizen to be brought before a judge in a civilian court so that it can be determined if the accused has been lawfully arrested. It is an essential part of due process, protected in the Bill of Rights. A suspension of the “Great Writ,” as it was known, would allow the government to make arbitrary arrests, holding citizens indefinitely, in some cases, without charges or trial.
A suspension had never before occurred in the United States, not even when British forces invaded the country and torched the national capital. Not even when Northern states, during that invasion, threatened to leave the Union rather than support their fellow countrymen then under siege. Neither Mr. Madison, the “Father of the Constitution,” nor the Jeffersonian-led Congress, then without a meeting place since British arsonists had destroyed it, saw fit to take away the civil liberties of the American people.
Unconcerned about whether or not he had the constitutional authority to act, Abraham Lincoln believed it was necessary in light of current events in 1861. Not only had several Southern states left the American Union, and formed their own country, but the state of Maryland was in an uproar and it looked to many as if it might also secede and join the Confederacy, which, along with Virginia, would encircle Washington DC, placing it wholly within enemy territory.
On April 27, 1861, Lincoln sent a letter to General Winfield Scott that included this important paragraph:
You are engaged in repressing an insurrection against the laws of the United States. If at any point on or in the vicinity of the [any] military line, which is now [or which shall be] used between the City of Philadelphia and the City of Washington, via Perryville, Annapolis City, and Annapolis Junction, 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 where the resistance occurs, are authorized to suspend the writ.[i]
So, as the message reveals, not only did Lincoln suspend the writ, he authorized military commanders to suspend it whenever they saw fit to do so, thereby transferring the power to them directly. Eventually Lincoln would suspend habeas corpus across the entire North and arrest tens of thousands of citizens without charges or trial. To do this, Lincoln looked to Article I, Section 9, Clause 2 of the Constitution, which states: “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.”
But an age-old question has persisted for more than 160 years: Can the President take this action or is it a power in the hands of Congress alone? It is a issue that continues to stir debate among historians.
How many were unlawfully arrested during the war? This is another area where historians disagree. The numbers vary greatly. One scholar, Alexander Johnston, writing in the 1880s, estimated it as high as 38,000. Other historians believe this to be exaggerated. Some estimates are around 14,000, which seems a bit low. It was more than likely in the 20,000-30,000 range. Despite the discrepancy, there were, without doubt, thousands of arbitrary arrests over the four-year conflict. And this policy was initiated by a man who, when he lost his bid for the US Senate in 1858 to Stephen Douglas, wrote to a friend, “The fight must go on. The cause of civil liberty must not be surrendered at the end of one, or even one hundred defeats.”[ii]
Why the arrests? Because, contrary to the rosy picture painted by establishment historians, Northerners were never unified behind Lincoln and his war on the South. Lincoln won just 39 percent of the popular vote in the Northern states in 1861, meaning that six out of ten American voters cast their ballot for another candidate. The firing on Fort Sumter might have brought about a more unified region but only momentarily. In the early months of the conflict, antiwar activities began across the North and increased with each passing month. To deal with it, Congress passed new laws, the Conspiracies Act of 1861 and the Second Confiscation Act of 1862, also called the Treason Act, but Lincoln decided the existing statutes were insufficient. He would need to go outside the laws to suppress the actions of those he considered dissidents. As James G. Randall and David Herbert Donald have written, “Instead of enforcing statutes and conducting prosecutions in the courts, Lincoln followed a course which has led to widespread discussion and criticism: he suspended the habeas corpus privilege and resorted to summary arrest by executive authority assumed in disregard of both Congress and the judiciary.”[iii]
Secretary of State William H. Seward, even though his responsibility was foreign affairs, was initially in charge of making the arrests before it was turned over to Edwin M. Stanton and the War Department in 1862. The scale of the operation was “astonishing,” Randall and Donald wrote. “Seward had his secret service organization, with confidential agents placed at strategic points to obtain the arrest of suspected persons.” Under a cloak of secrecy, those arrested “were not told why they were being apprehended. As to many of them Seward’s department ‘never made up its case.’”[iv] With habeas corpus suspended, they didn’t need to. The only thing that mattered was loyalty to the regime.
According to one often-told story, which generally never finds its way into biographies of Seward, the Secretary of State had a conversation with the British Ambassador, Lord Richard Lyons, and bragged about his new authority. “I can touch a bell on my right hand and order the arrest of a citizen of Ohio. I can touch a bell again, and order the imprisonment of a citizen of New York, and no power on earth, except that of the President of the United States, can release them. Can the Queen of England do as much?”[v]
Most establishment scholars refute the truth of this story. Rick Beard, an independent historian writing in the New York Times in 2011, as part of a series of articles for the sesquicentennial of the war period, called the story “almost certainly an apocryphal invention of administration critics.” One recent Seward biographer claimed it was false, that it did not appear in any reports of Lyons to the British Foreign Secretary, and, apparently, Lyons denied it in 1864. But Ambassador Lyons did write to the Foreign Secretary on a number of occasions in 1861 about the arrests, as well as Seward’s obvious glee in carrying out the administration’s orders. “The Executive government here, and, I am afraid, Mr. Seward not least, seem to enter with gusto upon a system of espionage, persecution and arbitrary arrests. As for American citizens, if they submit to these attacks on their liberties, it is their own affairs.” Seward, he noted, “takes a personal pleasure in spying and arresting.”[vi]
The story of “Mr. Seward’s Little Bell” was mentioned in anti-Lincoln newspapers at the time and a number of Southerners certainly believed it to be true. Writing in her diary on August 29, 1861, Mary Chesnut, speaking of some recent arrests, noted, “Seward’s little bell reigns supreme.” On the same day, she mentioned speaking with General Sam Jones, who said “so many people are leaving Washington. They are afraid. Washington is not considered safe. From us – or from Seward’s little bell?” she wondered.[vii]
After the overthrow of Maryland by Union troops, resulting in the arrest of several members of the state legislature, one representative penned an account entitled The Bastiles of the North. “Seward determined by a coup d’état to extinguish the sovereignty of the State of Maryland, and establish a military government in its stead,” he wrote. He described his imprisonment, and that of his fellow Marylanders, as “brutality, which the authorities at Washington thought proper to exercise towards their “State Prisoners” – a term hitherto happily unknown in this country, the very sound of which instinctively carries us to Italy and Austria, or the blackest period in the history of France.” Seward’s reputation was not a good one.[viii]
Lincoln’s decision to deny habeas corpus, though, created no immediate firestorm of protest until an arrest in Maryland of one John Merryman. In the early morning hours of May 25, 1861, federal troops entered Merryman’s home in Cockeysville, Maryland, and placed him under arrest for allegedly participating in the burning of bridges leading to Baltimore on the night of April 19. Merryman, a known Confederate sympathizer and political leader, was taken to Fort McHenry, near Baltimore, and held under the authority of General George Cadwalader, who commanded that particular military district. From his military prison cell, Merryman petitioned Supreme Court Chief Justice Roger B. Taney, whose circuit included Maryland, for a writ of habeas corpus. Taney issued the writ and set a date for a court hearing.[ix]
On the appointed day, May 27, neither General Cadwalader nor Merryman appeared in court. The general had sent an aide in his stead. Taney asked the aide of Merryman’s whereabouts, to which the aide replied that under the authority of the President of the United States the privilege of the writ had been suspended. Taney then ordered a writ of attachment, sending a federal marshal to Fort McHenry for the purpose of procuring Merryman and returning with him to court the following day. At noon on the May 28, the marshal informed Taney that he had gone to the fort but was turned away. Merryman would not get his day in court.[x]
In response to the obstructionist tactics of the military, Taney wrote a seething opinion, Ex parte Merryman, and had a copy served on Lincoln. The Chief Justice rebuked the President, because, he wrote, he “has exercised a power which he does not possess under the Constitution,” which “authorizes the suspension of the privilege of the writ of habeas corpus” but that power “is devoted to the legislative department of the United States, and has not the slightest reference to the Executive department,” he stated. “I can see no ground whatever,” Taney continued, “for supposing that the President, in any emergency, or in any state of things, can authorize the suspension….”
The Chief Justice also rebuked the military authority, which he believed “has gone far beyond the mere suspension… [but] by force of arms, thrust aside the judicial authorities and officers to whom the Constitution has confided the power and duty of interpreting and administering the laws, and substituted a military government in its place, to be administered and executed by military officers.” Because of this abuse of power, “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.”[xi]
Taney’s opinion agitated Lincoln. The President was further irritated when the Chief Justice sent the written opinion to him by courier, an unheard-of practice. His anger was so great that Lincoln wrote out an order to have Taney arrested. The Chief Justice of the United States Supreme Court was now a threat to the Union. Lincoln gave the arrest order to the United States Marshal for the District of Columbia, Ward Hill Lamon. Obviously perplexed over such an assignment, Lamon decided not to carry out the arrest unless specifically ordered to do so. Those orders never came. Instead, Lincoln decided to simply ignore the Chief Justice and his ruling. Lincoln had professed that he was making war on the South, in this case on “rebellious states,” in order to enforce the laws of the land, one of the President’s main functions. Yet now he was ignoring a legal ruling from the Chief Justice of the Supreme Court of the United States in circuit court. Without a functioning civilian court system, constitutional government now hung by a thread.[xii]
On July 4, in his special message to Congress, Lincoln addressed the uproar over his suspension of habeas corpus.
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.[xiii]
But the Constitution is not silent on the matter. As Taney ruled, such powers are granted to Congress, not the President.
Article I created the legislative branch, with a House and Senate, and enumerated the powers of the new Congress, in Article I, Section 8. The following section, Section 9, deals specifically with prohibitions, or limitations, on the powers of Congress. There are eight clauses in all, including Clause 2, which allows for the suspension of habeas corpus. In the very first clause, for example, the Framers specifically stated that Congress is prohibited from interfering with the slave trade for the next twenty years. They used this specific language in the first clause and similar language in the second, the one governing the suspension of the writ of habeas corpus – “shall not be suspended.” There is also similar language in other clauses – “no tax or duty shall be laid” etc.
So, the message is very clear: These powers reside in Congress, representing the people and the states, and not the President, and only Congress can suspend the writ of habeas corpus, and then only in very special and extenuating circumstances.
Eventually, though, Congress retroactively approved Lincoln’s measures. And his suspension of habeas corpus would have no boundaries, as it was extended to every corner of the North without limits in September 1862. Military commanders were free to deny the right to anyone they believed was a threat to the Union cause. No one was safe if they opposed the Lincoln Regime – ministers, judges, members of Congress, doctors, editors, and even women. Yet academic historians, especially those in the North, have attempted to lessen the severity of Lincoln’s actions by claiming that most of those arrested were pro-Confederate sympathizers from the Border States, that all was well during the war for the vast majority of Northern citizens. But such was not the case. Nor was there wholehearted agreement with Lincoln’s actions.
“The legal power to suspend the writ of habeas corpus has been recently claimed for the President, but I am convinced that by the plain meaning of the Constitution, Congress alone must determine cases in which the public safety requires its suspension…. I could not say they were strictly legal or within his designated powers,” said Senator John Sherman of Ohio, younger brother to William Tecumseh. Senator Sherman admitted that he voted to approve Lincoln’s action, and agreed with it, but fully understood that the President had no such authority to do so himself.[xiv]
Francis P. Blair, a former Jacksonian Democrat and advisor to Lincoln, wrote, “Under no possible emergency, not even an insurrection, or amid the terrors of Civil War, can this government justify interference with the freedom of speech or of the press, any more than it can with the freedom of the ballot. The licentiousness of the tongue and of the pen is a minor evil compared with the licentiousness of arbitrary power.” As a journalist and newspaper man, Lincoln’s actions obviously irked him greatly. But Lincoln simply brushed such complaints aside.[xv]
At four o’clock in the morning on August 14, 1862, Dennis A. Mahony and his wife were awakened by a pounding on the front door of their Dubuque, Iowa home. Standing on the front porch was a federal marshal and several soldiers. They were there to arrest Mahony for a vicious crime: As editor of the Dubuque Herald, he wrote an editorial criticizing the administration, was judged to be disloyal to the government, and branded a Copperhead. He was denied his right to see the arrest order, was taken from Iowa to Washington, DC, and confined in the Old Capitol Prison, where many political prisoners were kept, held there until November 10.[xvi]
The Old Capitol Prison, as it was known, sat on the present site of the Supreme Court building, near the US Capitol. It was a brick structure that served as a temporary home for Congress after the British burned much of Washington during the War of 1812. A number of famous Southerners would call the prison home, including Rose O’Neal Greenhow, Belle Boyd, Henry Wirz, members of Mosby’s Rangers, and hundreds of Confederate officers after the war. Mary Surratt and other Lincoln assassination conspirators were also held there before their execution. It came to be known as the “American Bastille.”
Mahony penned an account of what he termed his “kidnapping” and time in prison, entitled Prisoner of State: The Journal of a Victim of the Lincoln Regime. Published during the war, he first wrote a two-page dedication to Edwin M. Stanton, concluding with these words: “I am, sir, one of the many hundreds of victims of the despotism of the arbitrary power of which you have become the willing, servile and pensioned tyrant.” Like many other victims, Mahony was given a choice: Sign a loyalty oath or remain in prison, incarcerated in a dark, damp, and dreary cell. He also had to promise not to seek legal action against his captors.
Henry Clay Dean was born in Pennsylvania in 1822, before moving to Iowa in 1850. He was a Methodist Episcopal preacher who was the chaplain of the US Senate from 1855 to 1856. He was also featured in Mark Twain’s book, Life on the Mississippi, and authored his own work, an 1869 book entitled The Crimes of the Civil War.
In his account, Dean described his detention in very colorful detail: “My arrest had been agreed upon as soon as my name was registered at the Billings House. I could see the Puritans and Roundheads gathering in squads of four or five, talking in a low excited whisper. The fiendish smile was playing on their cheek; the self-satisfied smirk on the lip, and thirst for vengeance was pictured on their countenances. These small gatherings of men embraced the shouting Methodist and witch-burning Puritan, the Universalist and Unitarian, with every intervening class of Fanatics.”[xvii]
Other prominent arrests included Frank Key Howard, grandson of Francis Scott Key, who penned the “Star-Spangled Banner,” and Congressman Clement L. Vallandigham, who was eventually exiled to the Confederacy.
Key wrote his own account of the ordeal, Fourteen Months in American Bastiles, and specifically his incarceration at Fort McHenry. “When I looked out in the morning, I could not help being struck by an odd and not pleasant coincidence. On that day forty-seven years before my grandfather, Mr. Francis Scott Key, then prisoner on a British ship, had witnessed the bombardment of Fort McHenry. When on the following morning the hostile fleet drew off, defeated, he wrote the song so long popular throughout the country, ‘The Star-Spangled Banner.’ As I stood upon the very scene of that conflict, I could not but contrast my position with his, forty-seven years before. The flag which he had then so proudly hailed, I saw waving at the same place over the victims of as vulgar and brutal a despotism as modern times have witnessed.”[xviii]
A major account of Lincoln’s prisoners was published in 1881, written by John A. Marshall, entitled American Bastile. In his work, he recounts dozens of stories of victims of these arbitrary arrests, including some of the most prominent targets of the Lincoln administration. It includes many from across the North, not just those residing in Border States.[xix]
Even the British press, much of it in sympathy with the South, took notice and reacted accordingly. “[The Lincoln administration] has destroyed a vast mass of property and happiness, and scattered to the winds the best hopes of the American people,” wrote the London Times. “The Republican majority in Congress … deserve a foremost place among those representatives of the people who from time to time have made themselves notorious in the history of the world by surrendering the liberties of their country into the hands of a dictator or tyrant…. The office of President, plain and republican as it came from the hands of the founders … is hardly recognizable beneath the mass of powers with which it is overlaid. The first citizen of the republic, the servant of the people, the head of an executive, exercising certain few and clearly defined powers, has become, by the treason of a legislature … the most absolute autocrat on earth.”[xx]
Of the situation in the North, Dean Sprague, author of Freedom Under Lincoln, wrote, “The laws were silent, indictments were not found, testimony was not taken, judges did not sit, juries were not impaneled, convictions were not obtained and sentences were not pronounced. The Anglo-Saxon concept of due process, perhaps the greatest political triumph of the ages and the best guardian of freedom, was abandoned.”[xxi]
It was Cicero who once said, “In times of war, the law falls silent.” After the guns fell silent, the US Supreme Court, which consisted of five Lincoln appointees, including Chief Justice Salmon P. Chase, heard arguments on an important case, Ex parte Milligan, in March 1866. The issue was military tribunals, the very commissions who handled some of these arbitrary arrests, determining the fate of American citizens.
Lambdin P. Milligan, an Indiana lawyer, believed the South had every right to secede from the Union. The government accused him of joining an anti-government secret society, the “Knights of the Golden Circle,” which Washington claimed wanted to overthrow the government, and charged him with several offenses – “conspiracy against the government of the United States; affording aid and comfort to rebels against the authority of the United States; inciting insurrection; disloyal practices; and violation of the laws of war.” More specifically, Milligan had communicated with the enemy, conspired to seize munitions of war stored in the arsenals and liberate Confederate prisoners held in military prisons in Indiana, and resisted the draft. The military commander arrested Milligan in the fall of 1864 and brought him before a military commission, where he was convicted and sentenced to hang. The military had a presence in Indiana, as the war was still ongoing but the civil courts were still in operation.
Echoing Cicero, the government’s lawyers, in discussing the Bill of Rights and whether or not those protections restrain the President’s war-making authority, stated, “These, in truth, are all peace provisions of the Constitution and, like all other conventional and legislative laws and enactments, are silent amidst arms, and when the safety of the people becomes the supreme law.”[xxii]
One of the attorneys arguing on behalf of Milligan was James A. Garfield, future President of the United States. During his oral presentation before the Court, Garfield compared Lincoln’s policy with that in the Confederate States, where nearly all of the war had been fought. Despite the South’s “rebellion,” said Garfield,
there was still in the minds of those men, during all the struggle, so deep an impression on this great subject, that, even during their rebellion, the courts of the Southern States adjudicated causes, like the one now before you, in favor of the civil law, and against courts-martial established under military authority for the trial of citizens. In Texas, Mississippi, Virginia, and other insurgent States, by the order of the rebel President, the writ of habeas corpus was suspended, martial law was declared, and provost marshals were appointed to administer military authority. But when civilians, arrested by military authority, petitioned for release by writ of habeas corpus, in every case, save one, the writ was granted, and it was decided that there could be no suspension of the writ or declaration of martial law by the executive, or by any other than the supreme legislative authority.
In their April 1866 decision, the US Supreme Court ruled 9-0 in favor of Milligan. Though they did not rule directly on the suspension of habeas corpus issue, in an opinion written by Justice David Davis, appointed by Lincoln in the fall of 1862, the Court held that civilians could not be tried in military tribunals where the civilian courts were open and operating. Lincoln’s system of military commissions created by presidential fiat were ruled unconstitutional. The military tribunal that tried Milligan had no jurisdiction to do so, therefore he should be discharged. And he was.
The United States of America was supposed to be different, a land of freedom, or as Jefferson envisioned, an empire of liberty, not following in the tyrannical footsteps of Europe. In times of war the law should never fall silent, as it has throughout history. But Lincoln made sure the vision of the Founders was destroyed by setting a precedent used by future leaders in times of war and upheaval.
A great line from the 2012 film, The Conspirator, about the trial and execution of Mary Surratt, sums up perfectly why we have a Bill of Rights. The recently deceased Tom Wilkinson, portraying Senator Reverdy Johnson, one of Mary Surratt’s lawyers, thundered at the arrogant generals overseeing the trial about the abuse of power by the federal government. “If our Founding Fathers had desired tyranny to prevail, the President and his War Secretary would have been granted such indiscriminate powers, but they drafted a Constitution with laws against such powers. They did so precisely for times like this!”
[i] Abraham Lincoln to Winfield Scott, April 27, 1861, in Roy P. Basler, ed., The Collected Works of Abraham Lincoln (New Brunswick, New Jersey: Rutgers University Press, 1953), Vol. IV, 347.
[ii] J. G. Randall and David Donald, The Civil War and Reconstruction, Second Edition (Lexington, MA: D.C. Heath and Company, 1969), 301; Lincoln to Henry Asbury, November 19, 1858, in Basler, Collected Works, Vol. III, 339.
[iii] Randall and Donald, 300-301.
[v] Jeffrey Rogers Hummel, Emancipating Slaves, Enslaving Free Men: A History of the American Civil War (Chicago: Open Court, 1996), 255.
[vi] During a Study Abroad trip to Britain in 2004, I read all of Lord Lyons letters to John Russell from 1859 to 1861 while in London working at the Public Record Office, the resulting paper eventually published: See Ryan Walters, “Lord Lyons and the Sectional Conflict, 1859-1861,” Part 1 & 2, Abbeville Institute Blog. The specific letter at the PRO is Lord Richard Lyons to Lord John Russell, September 6, 1861, in Lord John Russell Papers, British Public Record Office, London, England. As for the Seward biographer: William Stahr, Seward: Lincoln’s Indispensable Man (Simon and Schuster, 2004). Rick Beard, “Mr. Seward’s Little Bell,” New York Times, October 27, 2011.
[vii] C. Vann Woodward, ed., Mary Chesnut’s Civil War (New Haven: Yale University Press, 1981), diary entry of August 29, 1861, 171-179.
[viii] Lawrence Sangston, The Bastiles of the North by a Member of the Maryland Legislature (Baltimore: Kelly, Hedian, and Piet, 1863), 3.
[ix] William H. Rehnquist, All The Laws But One: Civil Liberties in Wartime (New York: Knopf Doubleday, 1998), 26-33; Charles Adams, When in the Course of Human Events: Arguing the Case for Southern Secession (Lanham, MA: Rowman & Littlefield Publishers, Inc., 2000), 46; Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States (New York: Oxford University Press, 1992), 153.
[xi] Taney’s opinion in Ex parte Merryman appeared in the Baltimore American on June 3, 1861. It is located in 17 Federal Case 148.
[xii] Adams, When in the Course, 48; Thomas J. DiLorenzo, Lincoln Unmasked: What You’re Not Supposed to Know About Dishonest Abe (New York: Crown Forum, 2006). DiLorenzo has an entire chapter dedicated to this episode.
[xiii] Abraham Lincoln, Special Message to Congress, July 4, 1861, Basler, Collected Works, Vol. IV, 430-431.
[xiv] New York Times, August 25, 1861.
[xv] Lawrence Sangston, The Bastiles of the North by a Member of the Maryland Legislature (Baltimore: Kelly, Hedian, and Piet, 1863).
[xvi] Dennis A. Mahony, Prisoner of State: The Journal of a Victim of the Lincoln Regime (New York: Carleton, Publisher, 1863), 117, 404.
[xvii] Henry Clay Dean, The Crimes of the Civil War, And the Curse of the Funding System (Baltimore: J. Wesley Smith & Bro., 1869), 15.
[xviii] Frank Key Howard, Fourteen Months in American Bastiles (London: Henry F. Mackintosh, 1863), 9.
[xix] John A. Marshall, American Bastile (Philadelphia: Thomas W. Hartley & Co., 1881).
[xx] Frederick Hatch, Protecting President Lincoln: The Security Effort, the Thwarted Plots and the Disaster at Ford’s Theater (Jefferson, NC: McFarland & Company, Inc, Publishers, 2011), 30.
[xxi] Dean Sprague, Freedom Under Lincoln, as quoted in Thomas J. DiLorenzo, The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War (New York: Three Rivers Press, 2002), 161.
[xxii] Ex parte Milligan, 71 US 2 (1866).