Lincoln, the Constitution, and Habeus Corpus, part 2

The suspension of habeas corpus was an untested measure in Constitutional history. As such, Lincoln had to decide how, in the division of powers, he could ease through the Constitutional question.  This involved either soothing, or ignoring, calls to account from the legislative and judicial branches of government.

Lincoln's circumstances might justly be called an emergency, and I think fit the definition of the stakes required for suspending habeas corpus. His response to the emergency waited neither for Congress nor the federal courts in a. calling for militia without a declaration of war from Congress, and b. the suspension of habeas corpus. Lincoln made them both an Executive function, but not without dissent.

On the same day that Lincoln called for militia, he called for special session:

Congress Convenes its Special Session, July 4, 1861

Lincoln's Special Message to Congress is long. (Sixteen pages worth in my book, too long to summarize in full.) In it, Lincoln refers to the extraordinary measures he has taken, explaining his reasoning and asking for their approval. In today's parlance, we might say he presented it to them as a colleague, alone on watch, who had done what he thought they would do.

As to habeas corpus specifically, and the stretching of Executive Powers in general, he first gives his reasoning for taking that power as President. Then he asks:

  . . .. are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?

In Lincoln's mind, the answer was no. His purpose then, as always, was preservation of the Union in full.

"Our popular government has often been called an experiment. Two points in it, our people have already settled--the successful establishing, and the successful administering of it. One still remains--its successful maintenance against a formidable internal attempt to overthrow it.

Then he gives assurances:

"Lest there be some uneasiness in the minds of candid men as to what is to be the course of the government, towards Southern states, after the rebellion shall have been suppressed, the Executive deems it proper to say, it will be his purpose then, as ever,  to be guided by the Constitution . . . 

But the Courts did not see it this way. Or perhaps it would be more accurate to say that judges were individuals, with individual opinions as to the question of slavery, secession, and executive power. Any one of those three might garner opposition to Lincoln's assumption of authority.

Ex parte Merryman

What followed, most famously, was Lincoln's complete and total disregard of judicial orders to free prisoners, a legal suit called ex parte Merryman. In this suit, Judge Taney ordered that Mr. Merryman, a Baltimore citizen taken up by General Winfield Scott, be released. This was on the grounds that Congress was the proper party to issue writs of suspension of habeas corpus. Taney was afraid of military rule:

"I can only say that if the authority under which the constitution has confided to the judicial department and judicial officers, may thus, upon any pretext or under any circumstances, be usurped by the military power, at its discretion, the people of the United States are no longer living under a government of laws but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found."

In a letter (June 12, 1861)  48 days after Lincoln bestowed this power on Scott,  Taney wrote: 

"The paroxism of passion into which the country has suddenly been thrown -- appears to me to amount almost to delirium. I hope that it is too violent to last long -- and that calmer and more sober thoughts will soon take its place -- and that the north as well as the south will see that a peaceful separation with free institutions in each section -- is far better -- than the union of all the present states under a military government & a reign of terror -- preceded too by a civil war with all its horror & which[,] end as it may[,] will prove ruinous to the victors as well as the vanquished."

Lincoln ignored Taney's order. All of this was, in insurrectionist circles and to Jefferson Davis' government, a rallying cry against that monster in the White House. 

Finally, in November 1862, Congress passed a law indemnifying Lincoln in the matter. It passed both houses in early 1863. With the legislative body giving Lincoln permission, it tended to take the Constitutional question of who could issue such a writ, off the table. Lincoln lifted the suspension and granted amnesty on February 12, 1862.

But on and off, Lincoln would suspend the writ of habeas corpus in the war, when things were going badly in particular areas. He had promised Congress a limited application of suspension, and a fidelity to the Constitutional measure: rebellion, insurrection, and public safety. Nevertheless, to constitutional scholars or those who remained concerned over human rights, this on-and-off application was still a measure of grave concern.  Lincoln may have been a stickler to the criteria, but he, and military officers, were the ones to decide. It lends itself to the charge of capricious measures. And we were hell-bent to avoid capricious dictators when we made this country.

The Valladigham Case

Clement Valladigham was running for the office of  Ohio governor. He had outsized Southern sympathies, and his campaign could be a huge rally for anti-Union activity. He was incarcerated. Upon applying for a writ of habeas corpus, the local judge declined, saying that he was not empowered to overthrow decisions made by military tribunals.

On June 12, 1863, Lincoln wrote to a Committee of Unionists who decried the suspension of civil liberties, especially in regard to Valladigham. The letter is another long one, (almost ten pages in my book). I think Lincoln wished to carefully explain, and make them realize, every point at which he was beset. He could not trust a jury, with possible confederate sympathizers, for one thing. Moreover:

. . .in [the insurgent's] own unrestricted efforts to destroy Union, Constitution, and law, all together, the Government would, in great degree, be restrained by the same Constitution and law from  arresting their progress. Their sympathizers pervaded all departments of the Government and nearly all communities of the people. From this material, under cover of "liberty of speech" "liberty of the press", and "habeus corpus", they hoped to keep on foot among us a most efficient corps of spies, informers, suppliers, and aiders and abettors of their cause in a thousand ways. (p. 456).

He also wrote:

"Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert? . . . I think that in such a case, to silence the agitator, and save the boy, is not only constitutional, but, withal, a great mercy."

First Conclusion 

Suspending habeas corpus interfered with freedom of speech and freedom of association, freedom of movement--and maybe even who had the right to bear arms. Where on this list of priorities comes national security? Lincoln said it came first: would you have every other law broken save this one? 

He did not make this opinion from nothing. Thomas Hobbes wrote, early in the philosophy of political science, that the function of a state is to create security within, displacing anarchy to its borders. Before that, Thucydides wrote in the Melian Dialogue that loss and occupation are the miserable fates for nations that do not defend themselves. Lincoln was already aware that the confederacy was seeking outside help. In a worst-case scenario, the United States could have been rent to pieces, not just by inside agitation but interference by foreign powers. The first defense against this was organized force against insurrection and interference.

It is important to view Lincoln's circumstances, and his thinking, before passing judgement one way or the other. I believe Lincoln considered this measure as one specialized power among those he had to preserve the Union. This means he was careful but not reluctant. I do think he was a stickler for applying the Constitutional imperative. So caprice does not apply, nor does dictatorship. He built his reasoning on philosophical antecedents, Constitutional prescription, and practical concern, and he made those part of public record.

Letters such as these may have changed nothing about the Constitutional question. They did tend to reinforce that Lincoln was a careful man, thoughtful but adamant. Such a letter would have been, very quickly, a public property, an open letter to the public. By explaining his reasoning, he made what you might call a personal guarantee that dictatorship was not about to ensue. 

Next I am going to take on how habeas corpus was a weapon for diplomacy and moderation in Lincoln's consistent and agonizing diplomacy with individual states.