Is ‘Military Necessity’ Enough? Lincoln’s Conception of Executive Power in Suspending Habeas Corpus in 1861

USS ALASKA

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#1
Seton Hall University
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Seton Hall University Dissertations and Theses
(ETDs) Seton Hall University Dissertations and Theses
Winter 12-15-2017

Is ‘Military Necessity’ Enough? Lincoln’s Conception of Executive Power in Suspending Habeas Corpus in 1861
by Evan McLaughlin

Seton Hall University, evanmclaughlin15@gmail.com
Part of the Constitutional Law Commons, Legal History Commons, Political History Commons, and the United States History Commons

Abstract
In May 1861, President Abraham Lincoln's decision to suspend habeas corpus in Baltimore following an attack on Federal troops as they marched through Baltimore on April 19th to answer Lincoln’s call to defend the Capitol. To complicate matters further, Congress was still in recess, so they could not legislate a solution to the growing insurgency. In order to check these actions, Abraham Lincoln authorized General Scott to suspend Habeas Corpus between Baltimore and Philadelphia. When John Merryman was arrested, detained, and denied habeas corpus, Chief Justice Roger B. Taney issued an in-chambers decision, Ex Parte Merryman, to voice his belief that Lincoln’s actions violated the Constitution. Conversely, Lincoln answered this critique in his July 4 Address to Congress as he explained that the dire situation in Baltimore required the suspension in order to restore order and “faithfully execute” the laws of the United States. In other words, “military necessity” empowered Lincoln to authorize the suspension of habeas corpus.

The historiography regarding Lincoln’s decision to suspend habeas corpus revealed many interpretations regarding how Lincoln understood executive power and how this understanding influenced his decision to suspend habeas corpus. Currently, both Lincoln biographers including David Donald, Doris Kearns Goodwin, and Phillip Paludan, as well as works of legal historians including Laura Edwards and William Duker reached consensus regarding one significant reason motivating Lincoln’s decision: military necessity. The sources may not all use the same terminology; however, they each cited the complex and threatening situation in 1861 Maryland as the key factor that motivated Lincoln’s suspension of habeas corpus. Interestingly, many of the works in this segment of the Lincoln canon referenced Lincoln’s understanding of the Constitution in a general sense. They did not offer a nuanced and balanced legal analysis of Lincoln’s Constitutional understanding with regard to the suspension of habeas corpus.

This thesis synthesizes mainstream history's biographical perspective on Lincoln’s presidency and legal history's emphasis on habeas corpus jurisprudence to better understand how Lincoln understood his actions in light of the executive powers granted in the Constitution. Additionally, my work utilized 3 key primary sources that hadn't been fully considered and integrated in previous works. These sources include a letter sent from John Hamilton to Lincoln explaining the Framers’ intent regarding executive power and the government’s Constitutional ability to coerce compliance, Congress’s forgiveness of Andrew Jackson’s fine following his declaration of martial law in the defense of New Orleans, and a letter from Lincoln to Matthew Birchard in which Lincoln recognizes the executive’s ability to suspend habeas corpus: yet his power is checked by the American people.

President Lincoln was indeed Constitutionally empowered to suspend habeas corpus via the doctrine of military necessity. Furthermore, this power stems from the Framers’ intent regarding the powers of executive under the Constitution they created.


https://scholarship.shu.edu/cgi/viewcontent.cgi?article=3610&context=dissertations

Cheers,
USS ALASKA
 

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ebg12

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Seton Hall University
eRepository @ Seton Hall
Seton Hall University Dissertations and Theses
(ETDs) Seton Hall University Dissertations and Theses
Winter 12-15-2017

Is ‘Military Necessity’ Enough? Lincoln’s Conception of Executive Power in Suspending Habeas Corpus in 1861
by Evan McLaughlin

Seton Hall University, evanmclaughlin15@gmail.com
Part of the Constitutional Law Commons, Legal History Commons, Political History Commons, and the United States History Commons

Abstract
In May 1861, President Abraham Lincoln's decision to suspend habeas corpus in Baltimore following an attack on Federal troops as they marched through Baltimore on April 19th to answer Lincoln’s call to defend the Capitol. To complicate matters further, Congress was still in recess, so they could not legislate a solution to the growing insurgency. In order to check these actions, Abraham Lincoln authorized General Scott to suspend Habeas Corpus between Baltimore and Philadelphia. When John Merryman was arrested, detained, and denied habeas corpus, Chief Justice Roger B. Taney issued an in-chambers decision, Ex Parte Merryman, to voice his belief that Lincoln’s actions violated the Constitution. Conversely, Lincoln answered this critique in his July 4 Address to Congress as he explained that the dire situation in Baltimore required the suspension in order to restore order and “faithfully execute” the laws of the United States. In other words, “military necessity” empowered Lincoln to authorize the suspension of habeas corpus.

The historiography regarding Lincoln’s decision to suspend habeas corpus revealed many interpretations regarding how Lincoln understood executive power and how this understanding influenced his decision to suspend habeas corpus. Currently, both Lincoln biographers including David Donald, Doris Kearns Goodwin, and Phillip Paludan, as well as works of legal historians including Laura Edwards and William Duker reached consensus regarding one significant reason motivating Lincoln’s decision: military necessity. The sources may not all use the same terminology; however, they each cited the complex and threatening situation in 1861 Maryland as the key factor that motivated Lincoln’s suspension of habeas corpus. Interestingly, many of the works in this segment of the Lincoln canon referenced Lincoln’s understanding of the Constitution in a general sense. They did not offer a nuanced and balanced legal analysis of Lincoln’s Constitutional understanding with regard to the suspension of habeas corpus.

This thesis synthesizes mainstream history's biographical perspective on Lincoln’s presidency and legal history's emphasis on habeas corpus jurisprudence to better understand how Lincoln understood his actions in light of the executive powers granted in the Constitution. Additionally, my work utilized 3 key primary sources that hadn't been fully considered and integrated in previous works. These sources include a letter sent from John Hamilton to Lincoln explaining the Framers’ intent regarding executive power and the government’s Constitutional ability to coerce compliance, Congress’s forgiveness of Andrew Jackson’s fine following his declaration of martial law in the defense of New Orleans, and a letter from Lincoln to Matthew Birchard in which Lincoln recognizes the executive’s ability to suspend habeas corpus: yet his power is checked by the American people.

President Lincoln was indeed Constitutionally empowered to suspend habeas corpus via the doctrine of military necessity. Furthermore, this power stems from the Framers’ intent regarding the powers of executive under the Constitution they created.

https://scholarship.shu.edu/cgi/viewcontent.cgi?article=3610&context=dissertations

Cheers,
USS ALASKA
We must remember that the Supreme Court does not have the power of writ (an order),
but only has the power of review.

The Supreme Court is not a referee over legislative & executive branches...it cannot "make"
either government branches do something according to the will of the justices.

All three branches have equal power to interpret the constitution as to what should
be the "law of the land."

President Lincoln having equal power to interpret the constitution did not have to explain himself
to Supreme Court Justice Taney.

So what, if Supreme Court Justice Taney in-chamber decision was that Lincoln violated the constitution
(no power of writ). This is the same Chief Justice in the Dred Scott Case (worst decision ever!).

The executive branch does not need to cite past cases of courtroom authority to
invoke its constitution right to determine the "law of the land". President Lincoln did not need
the approval of the Supreme Court to act upon his interpretation.

"The privilege of the writ of habeas corpus shall not be suspended, unless in case of rebellion..."
To paraphrase Lincoln: "that is why the Confederate Government is careful to say they are Secessionists, not Rebels."
 
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#3
I think as far as whether he had the right in Baltimore, I question his right to EXPAND it from Washington to Maine. That is what created arrest and turning the entire Union into a Federal Police state. Friends on Friends, Neighbors on Neighbors, ran by the Army at the Presidents will.
 

ebg12

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I think as far as whether he had the right in Baltimore, I question his right to EXPAND it from Washington to Maine. That is what created arrest and turning the entire Union into a Federal Police state. Friends on Friends, Neighbors on Neighbors, ran by the Army at the Presidents will.
https://www.smithsonianmag.com/history/lincoln-as-commander-in-chief-131322819/

Yes, Lincoln as Commander in Chief did achieve his political objective of Preserving the Union by Marshal Law against Rebels.
Yes, The Constitution did give him the right to suspend habeas corpus by "his will" in "time of Rebellion".
 
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#5
There was no rebellion, it was secession.
"Marshal Law against Rebels"
It was marshal Law against the Union!! He purposely violate the 1st Amendment. And others.

add-
1st Amendment
4th Amendment
9th Amendment
10th Amendment

Basically, he shunned the US Constitution all together.
 
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ebg12

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#6
There was no rebellion, it was secession.
"Marshal Law against Rebels"
It was marshal Law against the Union!! He purposely violate the 1st Amendment. And others.

add-
1st Amendment
4th Amendment
9th Amendment
10th Amendment

Basically, he shunned the US Constitution all together.
Yes, he did suspend all those amendment in the North and South.
But the Constitutional question is "was it necessary in a time of rebellion for the more important aim of Preserving the Union?"
And the Constitution does give him the right to do so in time of rebellion.
Edited.
 

O' Be Joyful

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#7
All three branches have equal power to interpret the constitution as to what should
be the "law of the land."

President Lincoln having equal power to interpret the constitution did not have to explain himself
to Supreme Court Justice Taney.
And, in my view, with Congress concurring with Lincoln, any argument was over, for the duration of "the rebellion."

2 co-equal powers against 1; check-mate.
 

jgoodguy

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#9
Still Too Close to Call-Rethinking Stampp's the Concept of a Perpetual Union Emphasis mine.
This is not to say that legal historians of the Civil War are predominantly presentist, or that they are only interested in whether Lincoln was right. This is to say that there is in much Civil War history a central presentist preoccupation that does not loom as large in any other era, namely, whether particular legal and constitutional actions were justified in some absolute sense. We historians do not generally ask whether Lord Grenville was right to issue the Stamp Act, or whether Jackson was right to crush the Bank of the United States or whether Wilson was right to sign the Treaty of Versailles. We do not, in other words, usually ask whether a historical actor was right or wrong by our lights. Yet we cannot resist asking this about legal actors during the Civil War, particularly Lincoln. I simply do not know if Lincoln was right to suspend the writ of habeas corpus, and I maintain we cannot answer this question historically. We might be able to explain why he suspended the writ, or the effects of its suspension then and afterwards. We can also bring to light the competing legal arguments made at the time, and explain why some won and others lost. But we cannot survey the sources and come to a definitive ruling on the merits on these central legal questions any more than we can come to definitive understanding of the original meaning of the due process clause. We will never know if Lincoln was right or justified in his legal actions any more than we will know whether Cromwell and his supporters were right to execute Charles I.
 

uaskme

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#12
Should War powers extend to your Political opponents? If he could of captured them, he would of thrown them in Prison. Breckenridge is a good example. Also Unionist who weren’t Republicans were treated as Traitors. He didn’t just attack Secessionist.

Many Historians are Lincoln Apologist. That won’t last forever.
 

jgoodguy

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#13
All we are left with is the nation Lincoln helped to preserve, the country we all were born, raised, and lived in all of our lives.

"Out of the many, one."

We could have been left with a lost worse.

Unionblue
I agree. The marvel of Civil War America is that it mobilized for war, instituted reasonable war time restrictions, had elections with vicious attacks by Lincoln opponents, no mass executions and then returned to normal politics.
 

ebg12

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#15
Still Too Close to Call-Rethinking Stampp's the Concept of a Perpetual Union Emphasis mine.
This is not to say that legal historians of the Civil War are predominantly presentist, or that they are only interested in whether Lincoln was right. This is to say that there is in much Civil War history a central presentist preoccupation that does not loom as large in any other era, namely, whether particular legal and constitutional actions were justified in some absolute sense. We historians do not generally ask whether Lord Grenville was right to issue the Stamp Act, or whether Jackson was right to crush the Bank of the United States or whether Wilson was right to sign the Treaty of Versailles. We do not, in other words, usually ask whether a historical actor was right or wrong by our lights. Yet we cannot resist asking this about legal actors during the Civil War, particularly Lincoln. I simply do not know if Lincoln was right to suspend the writ of habeas corpus, and I maintain we cannot answer this question historically. We might be able to explain why he suspended the writ, or the effects of its suspension then and afterwards. We can also bring to light the competing legal arguments made at the time, and explain why some won and others lost. But we cannot survey the sources and come to a definitive ruling on the merits on these central legal questions any more than we can come to definitive understanding of the original meaning of the due process clause. We will never know if Lincoln was right or justified in his legal actions any more than we will know whether Cromwell and his supporters were right to execute Charles I.
No, that's not true. The Civil war, or history for that matter, is not the exclusive domain of Historians, or those gathering "just the facts." Philosophy & Ethics has no historic boundaries. Jurisprudence has no time limit. Jurisprudence is understanding what is "written" and "what is meant."

To say we can never understand the "meaning" of any past legal action because we don't know the true thoughts of the people involed is like saying "We cannot understand the meaning of the Declaration of Independence written over 200 years ago because Thomas Jefferson isn't alive to explain to us what he really was thinking."

The United States Supreme Court brief is the US Constitution written over 200 years ago....and without being historians, or having the founding fathers to tell them their thoughts, today's Supreme Court Justices are able to interpret the "meaning" of the constitution on their own.

We must not view the Founding Fathers as Gods; or they being the only people able to determine right from wrong, or the meaning of life, liberty, and happiness.

The Principles of the Constitution construed in Lincoln's mind may never be truly known, but the Principles of the Constitution applied and spoken about by Lincoln is open to ethical, moral, and legal discussion.
 
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jgoodguy

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#17
Philosophy & Ethics
are not history. Ethics is a subset of philosophy.

Ethics or moral philosophy is a branch of philosophy that involves systematizing, defending, and recommending concepts of right and wrong conduct. ... Ethics seeks to resolve questions of human morality by defining concepts such as good and evil, right and wrong, virtue and vice, justice and crime.​
Ethics - Wikipedia

Thought provoking comments--thanks. I would love to see a philosophical discussion of Ex parte Merryman.
 
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#18
Yes, he did suspend all those amendment in the North and South.
But the Constitutional question is "was it necessary in a time of rebellion for the more important aim of Preserving the Union?"
And the Constitution does give him the right to do so in time of rebellion.
Edited.
He had Congress at his inauguration and failed to call them together in an emergency.
 

ebg12

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#19
are not history. Ethics is a subset of philosophy.

Ethics or moral philosophy is a branch of philosophy that involves systematizing, defending, and recommending concepts of right and wrong conduct. ... Ethics seeks to resolve questions of human morality by defining concepts such as good and evil, right and wrong, virtue and vice, justice and crime.​
Ethics - Wikipedia

Thought provoking comments--thanks. I would love to see a philosophical discussion of Ex parte Merryman.
Then it's ok to discuss the jurisprudence of President Lincoln suspending habeas corpus, or the morality of slavery in the South?
 
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