Poll - Suspending the Writ

[Glorybound]

On April 27, 1861 after the mob attack on Union troops in Baltimore, Maryland, Abraham Lincoln issued the order suspending the writ of habeas corpus. He based this statement on his belief that the war powers of the president, particularly since Congress was not in session, gave him such authority. Thus, Lincoln allowed the jailing of individuals without court action. What's your opinion, was he justified, within his rights to do this?

 

[brass napoleon]

I voted Yes, although it's not an unqualified Yes. I believe he was within his constitutional rights to suspend habeas corpus up until the time that Congress reconvened. But when Congress was in session, it became Congress' constitutional right, not his. I'm not sure why it took so long for Congress to act, but the fact that it did forced him to act outside the Constitution for a period of time. Nevertheless I believe he was right to do so. As Thomas Jefferson put it, "To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means."

Source: http://press-pubs.uchicago.edu/founders/documents/a2_3s8.html

 

[Lnwlf]

I had to double check my memory before I voted yes. Article 1 section 9 allows for the writ of habeas corpus to be suspended in times of rebellion or invasion. And the general consensus is the Southern War for Independence was a rebellion. So yes Lincoln was within his rights, but a better question is: Was he right in doing so?

 

[jenkingish]

Yes, I believe Lincoln was acting within his powers and he was in the right. These were unconventional times, which called for unconventional measures. Lincoln could not afford to sit back weighing the pro's and con's of every decision. He had to rely on his instinct for the preservation of the national government and the country. It may not be perfect, but he had to have a strong hand to keep things from escalating. Where in our nation's history has a president faced the same situation, and by that I mean rebellion.

 

[Copperhead-mi]

Chief Justice Taney during the 1840s agreed with General (not president) Jackson's suspension of the Writ sans any congressional authority during the War of 1812. The Constitution is far from clear on it. Delegated legislative powers are not the only thing found in Article I. While the limits of Congressional power are spelled out in Article I, sec. 9, neither the habeas corpus clause nor any other clause delegate the power nor prohibit its power to any specific branch. The limitation on the Congressional use of habeas corpus in Article I is not conclusive that it is reserved exclusively as a congressional power. The placement of the habeas corpus clause in the Constitution is ambiguous as to who has the power to use it. The U.S. Congress recognizing this ambiguity, delegated the power to the U.S. president with the Habeas Corpus Act of 1863. If the suspension were clearly an exclusively legislative function, then the Congress would have had no constitutional authority or any need to delegate this power. In Martin v Mott where Taney sided with the majority, the Supremes acknowledged that both the Congress and President possess war-powers but under the Militia Acts Congress had ceded the right to the President to be the sole determiner when an emergency existed due to insurrection and which methods were to be employed to subdue the rebellious faction. Since the suspension of the privilege of the Writ of habeas corpus is constitutionally limited to "cases of rebellion or invasion," it most definitely falls within the purview of presidential powers under those circumstances.

And from a constitutional scholar:

"It is difficult to reconcile Taney's 1861 point that Lincoln enjoyed no discretion to decide when emergency existed adequate to warrant habeas-corpus-writ-privilege suspension, with his contrary emphasis in the earlier Dorr Rebellion case. Supporters of the President's policies argued that Taney had been correct in 1849 but not in 1861; that assumption of jurisdiction by any civil court in an appeal from a military arrest was doubtful according to existing standards. Yale law Professor Henry Dutton typified a library-full of similar queries, in asking: 'What has a general to do with a bench warrant, and who ever heard of such an officer rendering an account of his conduct to a judge?'

"Dutton concluded that the Chief Justice had radically out-reached proper judicial functions. Were judges to tell a President during a war what his soldiers could do? Common sense boggled at the proposition. Dutton resented a suggestion that the framers of the 1787 Constitution had failed to provide posterity with practical ways to cope with rebellion; i.e., that the Constitution was inadequate and defective. Taney's point was laughable that a judicial rein was needed on the President's writ-privilege suspension orders in order to preserve private rights. 'For what purpose is such a strict construction [as Taney required in the Merryman case] to be applied to the suspension of the writ of habeas corpus?' If Taney's construction held, then the Union and the Constitution collapsed; 'If the Constitution is destroyed, of what use is the [writ] privilege?'"
A More Perfect Union, Harold M. Hyman, pp. 90-91.

 

[trice]

On the whole, I believe I would be somewhat close to the Supreme Court decision in Ex Parte Milligan at the end of the Civil War (July, 1866). Only extreme necessity justifies the suspension of civil liberties and the protections to them, such as the writ of Habeas Corpus. Once the emergency recedes, the rights and protections must be restored sooner rather than later. Such actions must always be judged critically, and on an individual basis, to prevent abuse.

From the sylabus to the Ex Parte Milligan case:
=====
1. Circuit Courts, as well as the judges thereof, are authorized, by the fourteenth section of the Judiciary Act, to issue the writ of habeas corpus for the purpose of inquiring into the cause of commitment, and they have jurisdiction, except in cases where the privilege of the writ is suspended, to hear and determine the question whether the party is entitled to be discharged.

2. The usual course of proceeding is for the court, on the application of the prisoner for a writ of habeas corpus, to issue the writ, and, on its return, to hear and dispose of the case; but where the cause of imprisonment is fully shown by the petition, the court may, without issuing the writ, consider and determine whether, upon the facts presented in the petition, the prisoner, if brought before the court, would be discharged.

3. When the Circuit Court renders a final judgment refusing to discharge the prisoner, he may bring the case here by writ of error, and, if the judges of the Circuit Court, being opposed in opinion, can render no judgment, he may have the point upon which the disagreement happens certified to this tribunal.

4. A petition for a writ of habeas corpus, duly presented, is the institution of a cause on behalf of the petitioner, and the allowance or refusal of the process, as well as the subsequent disposition of the prisoner is matter of law, and not of discretion.

5. A person arrested after the passage of the act of March 3d, 1863, "relating to habeas corpus and regulating judicial proceedings in certain cases," and under the authority of said act, was entitled to his discharge if not indicted or presented by the grand jury convened at the first subsequent term of the Circuit or District Court of the United States for the District.

6. The omission to furnish a list of the persons arrested to the judges of the Circuit or District Court as provided in the said act did not impair the right of said person, if not indicted or presented, to his discharge.

7. Military commissions organized during the late civil war, in a State not invaded and not engaged in rebellion, in which the Federal courts were open, and in the proper and unobstructed exercise of their judicial functions, had no jurisdiction to try, convict, or sentence for any criminal offence, a citizen who was neither a resident of a rebellious State nor a prisoner of war, nor a person in the military or naval service. And Congress could not invest them with any such power.

8. The guaranty of trial by jury contained in the Constitution was intended for a state of war, as well as a state of peace, and is equally binding upon rulers and people at all times and under all circumstances.

9. The Federal authority having been unopposed in the State of Indiana, and the Federal courts open for the trial of offences and the redress of grievances, the usages of war could not, under the Constitution, afford any sanction for the trial there of a citizen in civil life not connected with the military or naval service, by a military tribunal, for any offence whatever.

10. Cases arising in the land or naval forces, or in the militia in time of war or public danger, are excepted from the necessity of presentment or indictment by a grand jury, and the right of trial by jury in such cases is subject to the same exception.

11. Neither the President nor Congress nor the Judiciary can disturb any one of the safeguards of civil liberty incorporated into the Constitution except so far as the right is given to suspend in certain cases the privilege of the writ of habeas corpus.

12. A citizen not connected with the military service and a resident in a State where the courts are open and in the proper exercise or their jurisdiction cannot, even when the privilege of the writ of habeas corpus is suspended, be tried, convicted, or sentenced otherwise than by the ordinary courts of law.

13. Suspension of the privilege of the writ of habeas corpus does not suspend the writ itself. The writ issues as a matter of course, and, on its return, the court decides whether the applicant is denied the right of proceeding any further.

14. A person who is a resident of a loyal State, where he was arrested, who was never resident in any State engaged in rebellion, nor connected with the military or naval service, cannot be regarded as a prisoner of war.
=====
Tim

 

[trice]

From the majority opinion in Ex parte Milligan, written by Justice Davis:
=====
This nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have wise and humane rulers sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln, and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate. If our fathers had failed to provide for just such a contingency, they would have been false to the trust reposed in them. They knew -- the history of the world told them -- the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued human foresight could not tell, and that unlimited power, wherever lodged at such a time, was especially hazardous to freemen. For this and other equally weighty reasons, they secured the inheritance they had fought to maintain by incorporating in a written constitution the safeguards which time had proved were essential to its preservation. Not one of these safeguards can the President or Congress or the Judiciary disturb, except the one concerning the writ of habeas corpus.

It is essential to the safety of every government that, in a great crisis like the one we have just passed through, there should be a power somewhere of suspending the writ of habeas corpus. In every war, there are men of previously good character wicked enough to counsel their fellow-citizens to resist the measures deemed necessary by a good government to sustain its just authority and overthrow its enemies, and their influence may lead to dangerous combinations. In the emergency of the times, an immediate public investigation according to law may not be possible, and yet the period to the country may be too imminent to suffer such persons to go at large. Unquestionably, there is then an exigency which demands that the government, if it should see fit in the exercise of a proper discretion to make arrests, should not be required to produce the persons arrested in answer to a writ of habeas corpus. The Constitution goes no further. It does not say, after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by the course of the common law; if it had intended this result, it was easy, by the use of direct words, to have accomplished it. The illustrious men who framed that instrument were guarding the foundations of civil liberty against the abuses of unlimited power; they were full of wisdom, and the lessons of history informed them that a trial by an established court, assisted by an impartial jury, was the only sure way of protecting the citizen against oppression and wrong. Knowing this, they limited the suspension to one great right, and left the rest to remain forever inviolable. But it is insisted that the safety of the country in time of war demands that this broad claim for martial law shall be sustained. If this were true, it could be well said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation. Happily, it is not so.
=====
Tim

 

[Ellsworth avenger]

Good stuff Tim,thanks for the posts.

 

[trice]

Good stuff Tim,thanks for the posts.

Thanks.

My general opinion is that Lincoln was certainly justified in his April 1861 action because of the unprecedented emergency of the time. This was eventually withdrawn by Lincoln (January 1862?) and issued again in various times and places because of real or supposed emergencies. I do believe the President has the power to do this in those situations. The question of whether or not he was correct in doing so in any particular instance must be judged individually, because each decision must stand on its' own merits.

Tim

 

[davepi2]

interesting poll results, that is where i thought he violated the constitution.

 

[Lithuanian]

J.Davis suspended it too

 

[kevikens]

Inter arma, leges silent.

 

[Drew]

Inter arma, leges silent.

God help us, one and all.

 

[brass napoleon]

Inter arma, leges silent.

What I find interesting about this, is that during war-time, Lincoln suspended the writ of habeas corpus, and some people excoriate him for doing that. Yet most of these same people have absolutely NO objection to the federal government denying the writ of habeas corpus to black people accused of being fugitive slaves under the fugitive slave law. And this in peacetime.

The victims of Lincoln's suspension of the writ spent a few weeks or months, some maybe even a few years, in prison. The victims of the slaveholders' suspension of the writ spent the rest of their lives in bondage, along with all of their descendants (until Lincoln's suspension of the writ eventually helped emancipate them, that is).

 

[Drew]

What I find interesting about this, is that during war-time, Lincoln suspended the writ of habeas corpus, and some people excoriate him for doing that. Yet most of these same people have absolutely NO objection to the federal government denying the writ of habeas corpus to black people accused of being fugitive slaves under the fugitive slave law.

Brass, who are "these same people?" You know that many Republican members of Congress had reservations about suspension of the Writ and that it took them almost two years to authorize it? And that the authorization was effectively gutted by the bill language that President Lincoln signed into law?

 

[huskerblitz]

The victims of Lincoln's suspension of the writ spent a few weeks or months, some maybe even a few years, in prison. The victims of the slaveholders' suspension of the writ spent the rest of their lives in bondage, along with all of their descendants (until Lincoln's suspension of the writ eventually helped emancipate them, that is).

I understand your sentiment here but if I steal a few bucks from a store is that really better than taking the entire cash register? Both are wrong and a wrong cannot be defended by another wrong.

As much as I admire Lincoln, suspending the writ was a black mark on his career as well as ignoring Supreme Court decisions. In our type of government those are things that should never be done.

 

[ole]

What we have here is extraordinary powers if not explicitly granted to the chief executive during a time of war, they were at least implied.

 

[brass napoleon]

I understand your sentiment here but if I steal a few bucks from a store is that really better than taking the entire cash register? Both are wrong and a wrong cannot be defended by another wrong.

But suspension of the writ of habeas corpus is not wrong, in and of itself. It is fully sanctioned by the United States Constitution "when in Cases of Rebellion or Invasion the public Safety may require it." The Civil War was a Rebellion. The Fugitive Slave Law came nowhere near meeting this defintion.

As much as I admire Lincoln, suspending the writ was a black mark on his career as well as ignoring Supreme Court decisions. In our type of government those are things that should never be done.

What Supreme Court decisions are you referring to?

 

[brass napoleon]

Brass, who are "these same people?"

Forum rules prevent me from naming names explicitly. But there are many CSA supporters on this forum who have expressed contempt for Lincoln suspending the writ of habeas corpus, while at the same time expressing contempt for Northern states passing personal liberty laws that guaranteed the writ of habeas corpus to alleged fugitive slaves.

You know that many Republican members of Congress had reservations about suspension of the Writ and that it took them almost two years to authorize it? And that the authorization was effectively gutted by the bill language that President Lincoln signed into law?

EVERYBODY should have reservations about suspension of the writ of habeas corpus. Nevertheless there are times when it's necessary. Congress never condemned Lincoln for it, and ultimately they sanctioned his actions.

 

[unionblue]

To All,

Found a review of a couple of books that relate to the topic of this thread.

Review Essay: Placing Merryman at the Center of Merryman
Cynthia Nicoletti

Brian McGinty. The Body of John Merryman: Abraham Lincoln and the Suspension of Habeas Corpus.
Cambridge: Harvard University Press, 2011. Pp. 253.

Jonathan W. White. Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman.
Baton Rouge: Louisiana State University Press, 2011. Pp. 191.

"Brian McGinty's The Body of John Merryman: Abraham Lincoln and the Suspension of Habeas Corpus and Jonathan W. White's Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman explore the same well-trodden ground: President Abraham Lincoln's clash with Chief Justice Roger Taney over Lincoln's suspension of the writ of habeas corpus during the Civil War. The story is a familiar one to students of Civil War legal and political history. The U.S. Constitution permits the suspension of the writ of habeas corpus--an ancient legal protection designed to ensure that a prisoner's detention can always be reviewed by a judge--in times of national crisis. Although the Suspension Clause is located in Article I of the Constitution, which lays out the powers belonging to the United States Congress, the Constitution is otherwise silent on the question of where the power of suspension resides. During the Civil War, President Lincoln suspended the writ on his own authority, without prior congressional authorization. Lincoln contended that the president's authority as commander in chief necessarily included the power to suspend the writ, as only the executive branch could move quickly enough to act decisively in times of national emergency. Congress eventually sanctioned the president's suspension of the writ, but Chief Justice Roger Taney condemned Lincoln's self-aggrandizing interpretation of the Suspension Clause in Ex parte Merryman in May 1861. After General George Cadwalader, honoring Lincoln's order suspending the writ, refused to respond to Taney's command to produce the body of accused traitor John Merryman in federal court, Taney denied the legitimacy of Lincoln's actions, arguing that the president had violated the Constitution, both in usurping legislative powers and in denying Merryman due process of law. Lincoln, in his infinite wisdom, chose not to engage Taney on the habeas issue, pointedly ignoring the chief justice's decision.

As White points out, Lincoln's confrontation with Taney over the suspension of habeas corpus has hardly been ignored by historians. White and McGinty both promise new insights through the mining of new sources. Instead of "rel[ying] almost entirely on the published reports of the case," these new works base their conclusions "on the original manuscript court records" (White, 2). In some respects, Civil War legal history has remained insulated from the trends that have gripped the larger field of legal history in recent years. Although there are some exceptions in this regard, the legal history of the Civil War still focuses almost exclusively on the perspective of those in political power and on the decision-making of the elite. White correctly insists that looking more thoroughly at the archival records can shed new light on old questions and correct misimpressions that result from telling the legal history of the Civil War from a "top down" perspective (White, 117)."

The rest of the article may be viewed here:

http://quod.lib.umich.edu/j/jala/2629860.0034.209?view=text;rgn=main

Unionblue