Christine Pattison MC 373B Final Paper Supreme Law of the Land Abraham Lincoln is one of the most celebrated Presidents in American history. At a time where the country was threating to tear itself apart, a great leader stepped in and held the tattered pieces together. Not only did Lincoln win the Civil War but he abolished slavery as well. He is often immortalized as one of the greatest American Presidents. Yet Abraham Lincoln did not have a perfect term. He violated the Constitution in a way that no other President had, he suspended the right to habeas corpus. In wartime atmosphere Lincoln did what he thought was necessary and proper to save the union. There are very few people who see these actions as legal and there are two Supreme Court cases, Ex parte Merryman and Ex parte Milligan, which declared the suspension unconstitutional. They both very clearly stated that the power of suspension of habeas corpus was specifically assigned to Congress in the Constitution, not the Executive power. Yet, Abraham Lincoln did not find his actions illegal and in a way he was supported by the court and other officials. The Supreme Court did not make a ruling on one of these cases until after the civil war, almost as if to allow Abraham Lincoln to continue with such actions but rejecting the precedent it may have set. The President has unique powers during a time of crisis and there are minimal restrictions on the Executive Office. Lincoln s suspension of habeas corpus was unconstitutional but during war time it is almost impossible to limit the expansion of executive power. The Civil War thrashed the country from 1861-1865 and the end result answered two historical dilemmas. The United States became a collection of states with a strong federal power rather than a confederation. And the second horrible problem was the existence of slavery in a 1
country that was founded on the idea that all men are created equal. There were several other factors leading up to the Civil War but a basic summary is that state s rights were the main issue. And that general problem covered a vast area of socioeconomic disputes. Did the national government have the right to outlaw slavery in specific states? Did states have a right to determine their own economic industries? The north was mainly urban industrial and the south maintained its tradition of rural agriculture. Were the state governments allowed to ignore federal taxes they did not agree with? The question of state s rights has been indeterminate since the creation of the United States and has helped distinguish between the two political parties. The struggle between the two regions became too much and on December 20, 1860 the first state succeeded and 10 other states followed in the next year. The war was long and brutal. To put into context, there were more casualties in the Civil War than World War II. Abraham Lincoln was the presiding President throughout the entire war. He kept the country together but used questionable tactics to accomplish that goal. President Lincoln saw his actions as just and as a means to end a bloody war. On September 24, 1862 he gave a proclamation of justification for his suspension of habeas corpus. He saw this period as a time of crisis and it was his duty as President to do whatever was necessary and proper to ensure the security of the nation. He went on in his speech to point out that the persons being arrested were suspected of committing treason and hindering the union war efforts. They are now considered the enemy and will be treated as thus: Now, therefore, be it ordered, first, that during the existing insurrection and as a necessary measure for suppressing the same, 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 and comfort to 2
Rebels against the authority of United States, shall be subject to martial law and liable to trial and punishment by Courts Martial or Military Commission (Lincoln 1862): Abraham Lincoln was adamant that his obligations as commander in chief allowed for him to suspend constitutional rights to maintain public safety. He makes a good argument for the legality of his actions but in the end he violated the Constitution. He set a precedent that would allow for future defilements, warranted or not. As the President of the United States, Lincoln swore to uphold the Constitution. But by ignoring a right explicitly detailed in the document he broke his promise to the nation. Despite safety factors, a President must obey the laws of the Constitution. There are no exceptions. Abraham Lincoln s suspension of habeas corpus during the Civil War was unconstitutional. There were two Supreme Court decisions that guarded the Constitution and declared Abraham Lincoln s suspension unlawful. The first case to disagree with Lincoln s notion of expanding executive powers was Ex parte Merryman. On the 25 of May in 1861, John Merryman was taken into custody from his house by military personals. He was taken to Fort McHenry and imprisoned without warrant from the court or any other legal process. He was not told of his charges or council. Merryman was not military personal but was held by the orders of Brigadier-General George Cadawaller, military commander of the fort, who professed that he was following the orders of President Lincoln. Merryman appealed to the court that the writ of habeas corpus was at issue. He was not presented with charges, not allowed to face a witness, denied council and detained illegally. The Supreme Court voted to uphold the appeal and declared the executive suspension of habeas corpus unconstitutional. Chief Justice Taney wrote the opinion and made several arguments against Lincoln s actions. The problem as he recognized 3
it was the fact that not only did the President claim to have the right to suspend but could delegate the power to a military officer, who could use that control at his personal discretion. The first complaint that Taney had was that Lincoln gave no official notice to the courts or to the public that he was going to suspend this constitutional right. Taney then proceeded to make several points to why Lincoln s actions were illegal and who actually had the right of suspension. His first contention comes from the 9 th section of the 1 st Article of the Constitution. The 1 st Article pertains to the Legislative Branch and does not make a single reference to the Executive. And the only branch that had the powers of suspension was the legislation: And the great importance which the framers of the Constitution attached to the privilege of the writ of habeas corpus to protect the liberty of the citizen, is proved by the fact that its suspension, except in cases of invasion and rebellion, is first in the list of prohibited powers and even these cases, the power is denied, and its exercise prohibited, unless the public safety shall require it (Taney 1861). The suspension may be allowed only if the Legislative Branch makes the decision based on public safety. Those powers were not given to the executive for obvious tyrannical fears. The ability to suspend was only detailed in the first article and is explicitly left out of the 2 nd Article, which describes the Executive. And the authorities and civil duties expressively given in the 2 nd Article do not authorize any type of arrest or allow a military delegate to exercise such power. The unconstitutionality of Lincoln s actions does not end with the first two articles. The 5 th and 6 th Amendment to the Constitution protects the trial rights of citizens. The 5 th Amendment of the Constitution expressively provides that no person shall be deprived of life, liberty or property without due process of law. Taney makes clear that the judicial process was 4
violated and even if Congress was the one to suspend habeas corpus there is no possibility that a civilian can be detained in military prison or brought to trial before a military tribunal because of the 6 th Amendment. It is clearly stated that: In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committee, which district shall have been previously ascertained by law, and to be informed of all the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process of obtaining witnesses in his favor and to have the assistance of counsel for his defense. The 6 th amendment was a precaution against tyranny. Lincoln ordered military men to ignore due process of law and judicial rulings and suspend those rights. The last point that Taney makes is in response to Lincoln s defense that as the Executive he has the power to do whatever is necessary to secure the nation. Taney recognizes that there may be some circumstances in which the violation of rights is warranted but only with the aid of judicial power. There can be no argument drawn from the necessities of government for self-defense. The President cannot ignore the Constitution and expand his powers unless there was a congressional act or judicial ruling. And in the case of suspension of habeas corpus, an Amendment is the only avenue for the President to gain such a power. Without the Constitution and the checks of the other two branches, the Executive would have too many similarities to the tyrannical King of England. Years ago the revolutionaries experienced life without due process and judicial protection and it was expressively written into the American laws. One man simply cannot ignore the law. It was a unanimous decision that the Supreme Court made in Ex parte Merryman. President Lincoln s 5
suspension of habeas corpus violated the United States Constitution and expanded the Executive power illegally. Ex Parte Milligan was another case in which Lincoln s suspension of habeas corpus was tested. It was a similar circumstance, in May 1865, Lambdin P. Mlligan presented a petition to the Circuit Court of the United States for the District of Indiana to be discharged from an alleged unlawful imprisonment. A year previously he was arrested from his home by the order of General Alvin P. Hovey, imprisoned and then brought before a military commission. He was tried on certain charges, found guilty and sentenced to hang May 19, 1865. Because Milligan was a citizen of the United Sates and a resident of Indiana for 20 years, he insisted that the military commission had no jurisdiction to arrest and try him for any charges. He was not a member of the rebellion, or a resident of a succeeded state and he had the right to trial by jury. Justice Davis delivered the opinion of the court that ruled in Milligan s favor. There were three questions that the Supreme Court answered in the ruling. First, was a writ of habeas corpus needed in this circumstance? Secondly, should Milligan be cleared of all charges and thirdly, whether or not the military commission had jurisdiction to legally try and sentence a citizen such as Milligan. This case was similar to Merryman because it questioned the necessity of a writ of habeas corpus but it was different in the fact that this case answered separate questions. The decision of Merryman addressed the constitutionality of the suspension and the Presidential delegation of such powers. Here they are questioning the need for a writ but also the constitutionality of a presidentially commissioned military trial and sentencing. Much of the Milligan opinion is similar to Merryman like the explanation of the violation of the 1 st Article in the Constitution and the 5 th, 6 th and 7 th amendment in the Bill of Rights. In addition to those violations there was 6
unfair congressional legislation, like the act of 1802, and unfair judicial actions. The main problem is that Indiana was a civilian territory and had civilian courts and the courts were still functioning despite the revolution. Therefore the civilian, Milligan, should be allotted his rights as a citizen no matter the war-time atmosphere. A writ of habeas corpus is necessary for an arrest and it is unlawful to hold a citizen in a military prison and try him before a military court: It is not easy to see how he can be treated as a prisoner of war, when he lived in Indiana for the past 20 years, was arrested there, and had not been during the late troubles, a resident of any of the states in rebellion. If in Indiana he conspired with bad men to assist the enemy, he is punishable for in in the courts of Indiana (Davis 1866); Milligan was illegally arrested, imprisoned and sentenced. A citizen must be arrested with the court s permission, detained by the region s facilities and must be allowed a speedy trial in front of a jury of his peers. Martial law, even if supported by the President, cannot exist where civil courts are operating. Abraham Lincoln saw it as his duty as the President of the United States to protect the county as he saw fit. If that includes the suspension of one of the most fundamental rights, habeas corpus, then that is the cost it would take to keep the United States alive. And although officially the courts disagreed with their Executive, it was impossible to stop the expansion of the Presidential powers. In war time the Executive was designed to be the energetic response. It is hard to control such a figure and his claim to power when such limitations could be disastrous to public safety. The first Supreme Court case, Merryman was actually decided during the Civil War and Lincoln ignored the rulings, made his proclamation of justification of the suspension and continued with his actions. However, there were no repercussions to his further violations of 7
the Constitution. There were no proceedings of impeachment and the Supreme Court waited until the war was over to make a ruling on a second case in regarding the suspension powers. And although Lincoln did have his critics, I have to assume the people were not displeased with their President because not only was he re-elected but he has famously gone down in history as one of the greatest, if not the greatest, American President. All of these things lead to the belief that during war time the expansion of Presidential powers is not only inevitable but condoned. And the outcome was incredibly favorable; Lincoln saved the Union and abolished slavery all within his time in office. Those are amazing actions could only happen with a growth of Presidential powers. The deeds he accomplished should not be discredited because they are unconstitutional; many infamous Presidents broke the laws to defend the nation. It doesn t make their acts less inspiring, it just sets an ugly precedent for the future. These actions pave the way for less honorable men to take advantage of these powers. President Abraham Lincoln accomplished wondrous goals but in the process ignored several Articles and Amendments in the Constitution. The Supreme Court was right to strike down these actions to prevent future men from flirting with the dangerous line between individual rights and public safety. The Constitution is the Supreme Law of the land; it protects our liberties and ensures us a free government. It was written so that no one person or group could rise above it. However, during crisis periods much of the text is forgotten and the Executive power grows without limitations. In fact some of the most remembered Presidents took many liberties against the Constitution and accomplished great things, some terrible, but great. Abraham Lincoln saved the Union and abolished slavery during his terms in office. It is often forgotten that he took illegal measures to accomplish those goals. 8
Bibliography Lincoln, Abraham. Proclamation. Washington D.C. 20 Sept. 1862. Speech. United States. Supreme Court. Chief Justice. Abraham Lincoln Suspension of Habeas Corpus and Supreme Court Cases Ex Parte Merryman and Ex Parte Milligan. By Taney. Washington, D.C.: United States, 1961. Print. United States. Supreme Court. Supreme Court Justice. Decision of the U.S. Supreme Court on Military Commissions: (case, Ex-Parte Lambdin P. Milligan Et Al.) Delivered at December Term, 1866. By Davis. Washington: W.H. & O.H. Morrison, 1867. Print. 9