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
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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
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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
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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 9th section of the 1st Article of the Constitution.
The 1st 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 2nd Article,
which describes the Executive. And the authorities and civil duties expressively given in the 2nd
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
5th and 6th Amendment to the Constitution protects the trial rights of citizens. The 5th
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
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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 6th 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 6th 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
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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 1st Article in the Constitution and
the 5th, 6th and 7th amendment in the Bill of Rights. In addition to those violations there was
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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
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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.
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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.
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