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

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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
 

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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.[/b} 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.
 

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Did himself Lincoln ever use the term “military necessity” ?
 

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alexjack said:
Did himself Lincoln ever use the term “military necessity” ?
I believe he invented the term as it relates to executive power at the time he issued the Emancipation Proclamation.

“And upon this act, sincerely believed to be an act of justice, warranted by the Constitution, upon military necessity, I invoke the considerate judgment of mankind, and the gracious favor of Almighty God,” Lincoln said after issuing the Proclamation.
 

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Drew said:
You are mistaken. An American president is bound by a federal court's decision. He may appeal, but this is how it works. He doesn't get to ignore the Court once a decision is rendered.
Oh, except Lincoln.
Interesting idea. So exactly how does the SCOTUS enforce its decision without the Executive Branch?
Worcester[/i]_v._Georgia][style size=18px;]Worcester v. Georgia[/style]


In a popular quotation that is believed to be apocryphal, President Andrew Jackson reportedly responded: "John Marshall has made his decision; now let him enforce it!" This derives from Jackson's comments on the case in a letter to John Coffee, ". . . the decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate."Worcester_v._Georgia#cite_note-4][4][/i][/i]​

The Court did not ask federal marshals to carry out the decision, as had become standard.Worcester[/i]_v._Georgia#cite_note-5][5] Worcester thus imposed no obligations on Jackson; there was nothing for him to enforce.[6][7] This may be seen as a prudential decision, for avoiding the possibility of political conflict between the Court and the Executive, while still delivering what appeared to be a pro-Indian decision.[8]
 

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Lost Cause said:
L
Lincoln being credited with violating the constitution is a positive thing because it was temporary?
First, show that Lincoln violated the Constitution by some SCOTUS decision or reprimand from Congress.
 

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[url=https://civilwartalk.com/goto/post?id=2022788]Copperhead-mi said:[/url]
He did? Please list those steps and the source(s) for them.
Let's try to stay on topic.
[url=https://civilwartalk.com/goto/post?id=2022788]Copperhead-mi said:[/url]
"On great occasions, every good officer must be ready to risk himself in going beyond the strict line of law, when the public preservation requires it."
Thomas Jefferson to Governor William C.C. Claiborne, February 3, 1807
For example
In a weather emergency, laws may be broken to save lives, keep the roads open and save the community. Excessive violations will be addressed after the emergency.
 

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Lost Cause said:
“Executive Mansion, Washington, September 19, 1864

"To General W. T. Sherman.

"Major-General Sherman:

"The State election of Indiana occurs on the 11th of October, and the loss of it, to the friends of the Government would go far toward losing the whole Union cause. The bad effect upon the November election, and especially the giving the State government to those who will oppose the war in every possible way, are too much to risk if it can be avoided. The draft proceeds, not withstanding its strong tendency to lose us the State. Indiana is the only important State voting in October whose soldiers cannot vote in the field. Anything you can safely do to let her soldiers, or any part of them, go home and vote at the State election will be greatly in point. They need not remain for the Presidential election, but may return to you at once. This is in no sense an order, but is merely intended to impress you with the importance to the Army itself of your doing all you safely can, yourself being the judge of what you can safely do.

Yours truly, A. Lincoln “

The soldier vote was very important, but in Lincoln’s case from above the potential loss of Indiana took precedence. In the book





Although the link is more of an implication of Stanton.
 

jgoodguy

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Copperhead-mi said:
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 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. (remember your post re: Marbury v. Madison?)

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 antebellum 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," it most definitely falls within the purview of presidential powers under those circumstances.

Constitutional scholar and historian Harold M. Hyman addressed Lincoln's suspension of the privilege in one of his works on the Constitution and the Civil War:
"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?'"
, Harold M. Hyman, pp. 90-91.
Good analysis.
 

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unionblue said:
To All,

Found the above 1807[/b} case in full at the following website:

http://caselaw.findlaw.com/us-supreme-court/8/75.html

I would note the when, where, and why of the case in it's full context.

I also note the following paragraph in the ruling:

" But when in times of quiet, and in cases calculated to excite no improper feelings, precedents have been established in favor of liberty and humanity, they become the most sacred as well as the most valuable parts of the law, the finest bulwark for the rights of citizens, and the surest guardian for the consciences and reputation of judges."

I would think that an all-out civil war might just be one of those "factious times."

Sincerely,
Unionblue
War changes everything.
 

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demiurge said:
I also love that this ruling explicitly said that the act of levying war against the United States is treason.

"When war is levied, all those who perform any part, however minute or however remote from the scene of action, and who are actually leagued in the general conspiracy, are traitors.

Any assemblage of men for the purpose of revolutionizing by force the government established by the United States in any of its territories, although as a step to or the means of executing some greater projects, amounts to levying war. The traveling of individuals to the place of rendezvous is not sufficient, but the meeting of particular bodies of men and their marching from places of partial to a place of general rendezvous is such an assemblage as constitutes a levying of war."

This means that anyone who aided or abetted actions detrimental to the war effort could have been charged for treason. This is a VERY broad brush, more so than Lincoln actually used.

And of course Merryman didn't actually enjoin Lincoln to release Merryman. Only that he really shouldn't have done that. SCOTUS has never taken it up, and Congress itself provided political cover for Lincoln later on.
Ex parte Merryman - Federal Judicial Center

Chief Justice Taney in court P3
Chief Justice Taney’s appearance in Baltimore immediately heightened the drama of the likely contest between the federal courts and the military. The eighty-four-year-old Chief Justice was by 1861 so closely linked with the sectional conflict that drove the nation into Civil War that few could view him as impartial. Taney, a native Marylander, had sat on the Supreme Court as Chief Justice since 1836, but he was now most closely associated with a single decision that had divided the nation. In Dred Scott v. Sandford in 1857, Taney had declared that legislation prohibiting slavery from western territories was unconstitutional and that African Americans, whether free or slave, had no standing as citizens under the Constitution. The decision regarding territories made political compromise of the sectional crisis nearly impossible, while the disfranchisement of all African Americans convinced many in the North that the “Slave Power” controlled the federal government. As many in Maryland knew, [style color=#3b50a4]Taney had privately sympathized with the Southern states in the spring of 1861. He appeared deliberately to raise the profi le of the Merryman case with suggestions that he was acting in his capacity as Chief Justice rather than as a judge on the circuit court of Maryland and with his announcement, with no apparent evidence, that he might well be imprisoned in Fort McHenry himself for carrying out his judicial duties.
 

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leftyhunter said:
What's wrong with post 1861 legal scholarship? Suspension of habeus corpus was not an issue prior to the ACW.
Leftyhunter
It was not a big issue at the Constitutional convention which removed the Legislature limitation.
 

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WJC said:
Thanks for your response.
The key words are "Congress did allow President Lincoln to suspend habeas corpus". With the new laws, Congress authorized his actions.
Indeed that happened, 2 years after Lincoln did suspend habeas corpus. The correct historical assertion is IMHO is Congress affirmed President Lincoln's action to suspend habeas corpus in 1863 2 years after Lincoln first asserted the right.

Much like the Prize Cases affirmed Lincoln's right to establish a blockade.
 

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WJC said:
Our constitution was intended, among other things, to anticipate issues and provide means to resolve them equitably when they arise. The Founders anticipated that Habeas Corpus might come under attack and intentionally restricted the power to suspend it to Congress.
The Founders based this decision on long-standing British precedent that suspension was solely the prerogative of Parliament.
Further, the issue did come up before 1861. John Marshall clearly stated in Ex Parte Bollman and Ex Parte Swartwout, 8 U. S. 75 (1807):
If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so.
"Post 1861 legal scholarship" which denies that under our Constitution, Habeas Corpus can only be suspended by Congress is historically wrong.
Lincoln knew he was wrong. Congress certainly knew he was wrong and passed laws retroactively authorizing his actions. As I stated before, the issue we ought to be dealing with- whether we are historians, legal scholars or civil War 'buffs', is whether saving our Union justified the actions he took.
Another view. Note the assertion that the first suspension under the Consitution was in the Civil War Era meaning a lack of prior adjudication in this Authors' opinion. The article is in a law journal suggesting some expertise.

1-1-2008
Suspension as an Emergency Power
Amanda L. Tyler
Berkeley Law PP 637-638


A. The First Suspension Under the U.S. Constitution: Suspending the Writ
During the Civil War


In response to the initial wave of states seceding from the Union, President
Abraham Lincoln acted quickly, authorizing his military leaders to suspend the
writ as needed to protect geographic areas that were critical to the early defense
of the Union.17 ' His first suspension came during a period when Congress was
not in session;176 subsequent proclamations of suspension made over the next
two years did not fall into this category. 17 Indeed, Congress actively debated
for two years whether formally to authorize the President to suspend the
writ.178 During this period, under Lincoln's orders, military officials arrested
thousands of prisoners, many on nothing more than suspicion of disloyalty.
Thus, as Lincoln historian James G. Randall noted, "The arrests were made on
suspicion. Prisoners were not told why they were seized .... [T]he purpose of
the whole process was temporary military detention.179 As Randall also
observed, "That all this procedure was arbitrary, that it involved the
withholding of constitutional guarantees normally available, is of course
evident. 180 Meanwhile, there was widespread public debate over the
President's authority to suspend without approval of Congress.181
Lincoln defended his actions as fully compliant with the law. In his words,
he had authorized his officers to "arrest, and detain, without resort to the
ordinary processes and forms of law, such individuals as he might deem
dangerous to the public safety. " "2 In so doing, Lincoln asserted to Congress,
"t was not believed that any law was violated."8 ' Lincoln defended his
actions not only on the basis that he believed the President had power to
declare a suspension; as David Currie has noted, Lincoln also believed that a
suspension was "tantamount to authorization to make arrests that otherwise
would be illegal. '',s4



Notes

175. See Letter from Abraham Lincoln to Winfield Scott, U.S. Lieutenant Gen. (Apr. 27, 1861), in
4 THE COLLECTED WORKS OF ABRAHAM LINCOLN 347, 347 (Roy P. Basler ed., 1953)
[hereinafter COLLECTED WORKS] (authorizing suspension of the privilege in the face of
"resistance" encountered between Philadelphia and Washington); Letter from Abraham
Lincoln to Winfield Scott, U.S. Commanding Gen. (Apr. 25, 1861), in 4 COLLECTED WORKS,
supra, at 344, 344 (authorizing suspension of the privilege in Maryland in situations of the
"extremest necessity").
176. See supra note 175.
177. See, e.g., Proclamation No. 1, 13 Star. 730 (Sept. 24, 1862) (providing that "the writ of habeas
corpus is suspended in respect to all persons arrested, or who are now, or hereafter during
the rebellion shall be, imprisoned in any fort, camp, arsenal, military prison, or other place
of confinemont [sic] by any military authority or by the sentence of any court-martial or
military commission"); Exec. Order (Aug. 8, 1862), in 7 A COMPILATION OF THE MESSAGES
AND PAPERS OF THE PRESIDENTS 3322 (James D. Richardson ed., New York, Bureau of Nat'l
Literature, Inc. 1897) [hereinafter MESSAGES AND PAPERS] (suspending the privilege with
respect to all draft evaders); Proclamation No. 7, 12 Stat. 126o (May 1o, 1861) (suspending
the privilege in Florida); Letter from Abraham Lincoln to Henry W. Halleck, U.S. Major
Gen. (Dec. 2, 1861), in 5 COLLECTED WORKS, supra note 175, at 35 (authorizing suspension of
the privilege in Missouri); Letter from Abraham Lincoln to Winfield Scott, U.S. Lieutenant
Gen. (Oct. 14, 1861), in 4 COLLECTED WORKS, supra note 175, at 554 (suspending the
privilege as far north as Maine); Letter from Abraham Lincoln to Winfield Scott, U.S.
Commanding Gen. (July 2, 1861), in 4 COLLECTED WORKS, supra note 175, at 419
(authorizing suspension of the privilege between Washington and New York where
resistance was encountered); Letter from Abraham Lincoln to Winfield Scott, U.S.
Commanding General (June 20, 1861), in 4 COLLECTED WORKS, supra note 175, at 414, 414
(authorizing suspension of the privilege with respect to Major General William Henry
Chase Whiting of the Engineer Corps of the Army, whom Lincoln "alleged to be guilty of
treasonable practices").
178. JAMES G. RANDALL, CONSTITUTIONAL PROBLEMS UNDER LINCOLN 128-30 (1926); see id. at 149
(noting that during the early days of the war alone, "hundreds of prisoners were
apprehended"). These suspicions were sometimes aroused by speech. See Geoffrey R. Stone,
Abraham Lincoln's First Amendment, 78 N.Y.U. L. REv. 1, 28 (2003) [hereinafter Stone, First
Amendment] (suggesting that "most individuals who were arrested for their expression were
quickly released"); Geoffrey R. Stone, Freedom of the Press in Time of War, 59 SMU L. REv.
1663, 1665 (2006).
179. RANDALL, supra note 178, at iSo; see also id. (observing that the object of these detentions
was "precautionary"). Randall noted that it was with great reluctance that Lincoln
suspended "the citizen's safeguard against arbitrary arrest." Id. at 121.
i8o. Id. at 152.
181. For a list of the numerous pamphlets on this subject published during this period, consult
DUKER, supra note 72, at 178 n.189 (collecting citations); and Fisher, supra note 28, at 485-88
(same). As is well known, Chief Justice Taney concluded in Ex parte Merryman, 17 F. Cas.
 

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Ex Parte Bollman and Ex Parte Swartwout, 8 u. S. 75 (1807):

If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so.

Note the key words "vested by this act", This becomes important as the Consitution says
SECTION 1
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
All federal courts save the Supreme Court are created by Congress and subject to its legislation. The issue at court seems to be related to the Judiciary Act of 1789 and not Presidential powers.

One more
Just Because John Marshall Said it, Doesn't Make it
So: Ex Parte Bollman and the Illusory Prohibition
on the Federal Writ of Habeas Corpus for State
Prisoners in the Judiciary Act of 1789
Eric M. Freedman
Maurice A. Deane School of Law at Hofstra University
 

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WJC said:
Regardless of the language of that act, it was a retroactive approval of the various questionable actions Lincoln had taken because of the threat to the Union.
leftyhunter said:
As the Wikipedia article pointed out there is no full US Supreme Court decision on the subject of Presidential suspension of habeus corpus. Currently a President can at least under certain circumstances suspend habeus corpus.
Leftyhunter
If SCOUTS punts on the issue what are mere mortals to do?

The fact that one thing was believed and then something took its place reminds me of slavery before the Civil War, it was believed that slaveholders could never be separated from their slave property. Then Ben Butler uttered contraband and the understanding changed fundamentally.
 

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Personally, I'd trash the search for precedents and look at antecedents.
[style size=18px;]Ex parte Milligan[/style]

[style size=18px;]Ex parte Milligan[/style], 71 U.S. (4 Wall.) 2 (1866), was a U.S. Supreme Courtcase that ruled the application of military tribunals to citizens when civilian courts are still operating is unconstitutional. In this particular case, the Court was unwilling to give President Abraham Lincoln's administration the power of military commission jurisdiction, part of the administration's controversial plan to deal with Union dissenters during the American Civil War. Justice David Davis, who delivered the majority opinion, stated that "martial rule can never exist when the courts are open" and confined martial law to areas of "military operations, where war really prevails", and when it was a necessity to provide a substitute for a civil authority that had been overthrown. Chief Justice Chase and three associate justices filed a separate opinion concurring with the majority in the judgment, but asserted that Congress had the power to authorize a military commission, although it had not done so in Milligan's case.
Just as the Civil War changed everything, so did the end of the War.
 
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