Thanks for your reply, some good information for all of us. But I believe Lincolns hands were in to it a lot deeper than that;
Chief Justice Roger Taney (Maryland) held that Lincoln couldn't suspend the writ of habeas corpus. Lincoln retaliated by invoking nonacquiesnce. Taney later holds a general in contempt of court, again Lincoln invokes N/A. Taney finally claimed "I have exercised all the power which the Constitution and Laws confer on me, but that power has been resisted by a force too strong for me to over come".
Bear with me on my lengthy post. It is about an earlier suspension of the Privilege of the Writ of Habeas Corpus and Taney's involvement.
On December 16, 1814, in expectation of an attack by British forces upon New Orleans, the commanding general of the American military in that city, Andrew Jackson, without the authorization of Congress or the President, declared martial law and suspended the privilege of the writ of habeas corpus:
"Major-General Andrew Jackson, commanding the Seventh United States military district, declares the city and environs
of New Orleans under strict martial law, and orders that in future the following rules be rigidly enforced, viz. Every individual entering the city will report at the adjutant-general's office, and on failure to be arrested and held for examination.
"No person shall be permitted to leave the city without a permission in writing signed by the general or one of his staff.
"No vessels, boats or other crafts, will be permitted to leave New Orleans or Bayou St. John, without a passport in writing from the general or one of his staff, or the commander of the naval forces of the United States on this station.
The street lamps shall be extinguished at the hour of nine at night, after which time persons of every description found in the streets, or not at their respective homes, without permission in writing, as aforesaid, and not having the counter-sign, shall be apprehended as spies and held for examination.
Robert Butler,
Adjutant-General.
December 16, 1814. "
The British eventually arrived and its army was defeated by Jackson's forces on January 8, 1815. By mid-February all remaining British forces had left the New Orleans area having received word that a treaty of peace had been signed between the two countries. With the British threat no longer a concern, citizens of the city expected Jackson to end martial law. The commanding general however refused until he had received official word from Washington that the Treaty of Ghent had been signed.
On March 3, 1815, Louis Louaillier a member of the Louisiana legislature and New Orleans resident, wrote an editorial in the
Louisiana Courier protesting the continuance of martial law and suspension of the Writ. In part Louaillier wrote that it was "high time the laws should resume their empire; that the citizens of this State should return to the full enjoyment of their rights; that, in acknowledging that we are indebted to General Jackson for the preservation of our city and the defeat of the British, we do not feel much inclined, through gratitude, to sacrifice any of our privileges, and, less than any other, that of expressing our opinion of the acts of his administration; that it is time the citizens accused of any crime should be rendered to then- natural judges, and cease to be brought before special or military tribunals, a kind of institution held in abhorrence, even in absolute governments; that, after having done enough for glory, the moment of moderation has arrived; and, finally, that the acts of authority which the invasion of our country and our safety may have rendered necessary are, since the evacuation of it by the enemy, no longer compatible with our dignity and our oath of making the Constitution respected."
Upon reading the editorial Jackson ordered the arrest of Louaillier and had him confined to a military barracks in the city. Louaillier's attorney, Pierre Morel went to Federal District Judge Dominick Hall and obtained a writ of habeas corpus. Upon learning of Judge Hall's issuance of the writ, Jackson ordered the judge arrested for aiding in mutiny of the army and had him lodged in the same barrack as Louaillier. On March 7, 1815 Jackson critic Louaillier was tried before a military tribunal and acquited of the charges against him. Jackson disagreed with the tribunal's acquittal and refused to release Louaillier from confinement. On March 12, 1815, Jackson had Judge Hall escorted 4 miles outside of New Orleans and left to fend for himself. The following day Jackson received word from Washington that the peace treaty had been signed and he proclaimed an end to martial law and ordered Louaillier released. Judge Hall eventually made it back into the city and on March 22, 1815 he issued a summons for General Jackson's appearance before the court to answer why he should not be held in contempt for failing to obey the judge's issued Habeas Corpus writ. Jackson appeared before the judge and following subsequent appearances before the court, an agreement was reached where the general was fined $1000.00 which he paid.
Fast forward to the early 1840s.
In 1842 Congress introduced legislation known as the "A Bill for the Relief of Andrew Jackson," also known as the "Fine Bill" and the "Refund Bill," to pay with interest, Andrew Jackson's 1815 fine.
The Dorr Rebellion in which two competing governments -- Charter and Peoples -- had vied for control of the state of Rhode Island, had taken place and martial law had been declared by the Charter legislature resulting in numerous civilian arrests including that of a member of the rebelling party, Martin Luther. As a result, Luther filed suit in the Federal Circuit Court for the District of Rhode Island against militia commander Luther Borden. US Supreme Court Justice Joseph Story was the presiding judge acting in the capacity of a Federal Circuit judge. One of Luther's issues in the suit was that a state legislature did not have the authority to enact martial law and civilians were exempt from arrest and imprisonment by the military. Justice Story ruled that the state legislature had sufficient authority to declare martial law and that its jurisdiction could extend beyond the military itself:
"Martial law is the law of war. It is a resort to the military authority in cases where the civil authority is not sufficient for the maintenance of the laws, and it gives to legally appointed military officers summary power, for the purpose of restoring tranquility and sustaining the State. . . . They are to judge the degree of force which the necessity of the exigency demands; and there is no limit to their exercise of power conferred upon them by law martial, except the nature and character of the exigency."
In a pre-arrainged agreement with Dorr's counsel, Justice Story agreed to a review of the case by the US Supreme Court.
In the mean time, the Democrat controlled Congress had passed the Fine Bill on February 16, 1844 with no acknowledgment of Judge Hall's authority in 1815 to have issued the writ nor any mention of a constitutional violation having been committed by Jackson. The Congress of the United States had just retroactively justified the enactment of martial law, the suspension of habeas corpus, and the arrest and confinement of civilians by the military under the orders of a general sans any authority from the Congress or President. Taney, who was the Chief Justice of the Supreme Court penned a letter to Jackson where he wrote that "a grosser act of injustice was never perpetrated by any court, than the infliction of that fine upon you."
In 1848 the case of
Luther v. Borden made it before the US Supreme Court with Roger B. Taney as its Chief Justice, and issuing its judgement during the January 1849 term. Taney ruled upheld the decision of the Federal Circuit Court and in regards to martial law stated that the President had authority to make the decision whether to provide Federal protection to a state per the 1795 Militia Act but furthermore, even though the President had not called out the Militia or declared martial law in Rhode Island, the state's Charter legislature had done nothing illegal by its imposition of martial law:
"In relation to the act of the legislature declaring martial law, it is not necessary in the case before us to inquire to what extent, nor under what circumstances, that power may be exercised by a State. Unquestionably a military government, established as the permanent government of the State, would not be a republican government, and it would be the duty of Congress to overthrow it. But the law of Rhode Island evidently contemplated no such government. It was intended merely for the crisis, and to meet the peril in which the existing government was placed by the armed resistance to its authority. It was so understood and construed by the State authorities. And, unquestionably, a State may use its military power to put down an armed insurrection, too strong to be controlled by the civil authority. The power is essential to the existence of every government, essential to the preservation of order and free institutions, and is as necessary to the States of this Union as to any other government. The State itself must determine what degree of force the crisis demands. And if the government of Rhode Island deemed the armed opposition so formidable, and so ramified throughout the State, as to require the use of its military force and the declaration of martial law, we see no ground upon which this court can question its authority. It was a state of war; and the established government resorted to the rights and usages of war to maintain itself, and to overcome the unlawful opposition."
In Luther v. Borden, Chief Justice Roger B. Taney had ruled that the 1795 Militia Act authorized the President to call forth the Militia and the decision to declare martial law was determined by the President. Furthermore Taney opined that martial law could subject civilians to arrest and confinement to control the unrest. But a more interesting comment made in his majority opinion would pit him directly with a future president twelve years later -- Abraham Lincoln (my bold):
"It is said that this power in the President is dangerous to liberty, and may be abused. All power may be abused if placed in unworthy hands. But it would be difficult, we think, to point out any other hands in which this power would be more safe, and at the same time equally effectual. When citizens of the same State are in arms against each other, and the constituted authorities unable to execute the laws, the interposition of the United States must be prompt, or it is of little value. The ordinary course of proceedings in courts of justice would be utterly unfit for the crisis. And the elevated office of the President, chosen as he is by the people of the United States, and the high responsibility he could not fail to feel when acting in a case of so much moment, appear to furnish as strong safeguards against a wilful abuse of power as human prudence and foresight could well provide. At all events, it is conferred upon him by the Constitution and laws of the United States, and must therefore be respected and enforced in its judicial tribunals."
During 1855, Indians in Washington Territory went to war with local traders and settlers in what became known as the Yakama Indian war. The governor of Washington Territory, Isaac Stevens, had declared martial law and as a result, Indians were removed to reservations throughout the West. Based on complaints of lost trade from Hudson Bay Co. personnel, the US Attorney General, Caleb Cushing, issued an 1856 opinion that the governor's imposition of martial law had been unconstitutional because that was a function of only the Federal government. However he interjected a bizarre opinion that although martial law was constitutional when properly declared by the proper Federal authority, a declaration was not necessary if in fact the civil authorities were unable to suppress the disorder and the military was required to restore authority. In other words if it got that bad, a formal declaration was not required. The imposition of martial law was justified by the exigency AND the suspension of habeas corpus was a natural consequence of its imposition:
"When martial law is proclaimed under circumstances of assumed necessity, the proclamation must be regarded as the statement of an existing fact, rather than the legal creation of that fact. In a beleaguered city, for instance, the state of siege lawfully exists, because the city is beleaguered; and the proclamation of martial law, in such case, is but notice and authentication of a fact,—that civil authority has become suspended, of itself, by the force of circumstances, and that by the same force of circumstances the military power has had devolved upon it, without having authoritatively assumed, the supreme control of affairs, in the care of the public safety and conservation. Such, it would seem, is the true explanation of the proclamation of martial law at New Orleans by General Jackson.
How intimate the relation is, or may be, between the proclamation of martial law and the suspension of the writ of habeas corpus, is evinced by the particular facts of the case before me, — it appearing, as well by the report of the Governor as by that of Chief Justice Lander, that the very object, for which martial law was proclaimed, was to prevent the use of the writ in behalf of certain persons held in confinement by the military authority, on the charge of treasonable intercourse with hostile Indians. That, however, is but one of the consequences of martial law, and by no means the largest or gravest of those consequences; since according to every definition of martial law, it suspends, for the time being, all the laws of the land, and substitutes in their place no law, that is, the mere will of the military commander."
In April 1861, Confederate forces had fired on Ft. Sumter prompting Abraham Lincoln to call for 75,000 troops from the states remaining in the Union to suppress the rebellion. As a result of this call-up Virginia voted on April 17th to secede which in effect left only the state of Maryland as a route for troops and supplies to reach Washington. On April 19th, Union troops passing through Baltimore enroute to Washington were attacked by a large mob resulting in injuries an deaths which brings us to the arrest of John Merryman and Supreme Court Chief Justice's ruling against Lincoln in ex-parte Merryman.
Merryman, a rebel sympathizer, had been caught burning key railroad bridges to Washington D.C. There had already been riots in Baltimore and Northern troops entering the city had been fired upon. Lincoln suspended the Privilege of the Writ of Habeas Corpus fearing that civilian courts could not function properly and that juries would be tainted with rebels and sympathizers. Confederate President Davis would later suspend the Writ in eastern Tennessee, for the same reasons; the difference being that Union sympathizers who burned bridges, were hanged. In the Merryman case --
ex-parte Merryman --Taney was acting in his capacity of a Federal Circuit Court judge that included as part of his jurisdiction, the state of Maryland, and ruled that neither Lincoln nor any military officer subordinate to the president could suspend the Privilege of the Writ. This is the same judge Taney who through prior US Supreme Court decisions in effect supported Andrew Jackson's 1815 suspension of the Writ.
I will conclude my somewhat lengthy comments and suggest that Justice Roger B. Taney was incorrect in his Merryman ruling and that President Abraham Lincoln had prior precedents as well as prior Supreme Court rulings justifying his suspension of the Writ . Additionally, the limits of Congressional power are spelled out in Article I, sec. 9 but 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 recognized this ambiguity and 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 Supreme Court 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. It is the President's duty to execute the laws of the land and the ante-bellum Court most certainly acknowledged his power to do so. Since the suspension of the privilege of the Writ of habeas corpus is constitutionally limited to "cases of rebellion or invasion," IMHO, it most definitely falls within the purview of presidential powers -- especially when the Congress is not in session -- under those circumstances.
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