The Suspension of Habeas Corpus
And Ex parte: Milligan
On our 1997 Olde Colony Civil War Round Table picnic in Fort Warren on Georges island, member Jack Zeletsky, who had researched and studied the Fort for many years, mentioned in his speech that some members of the Maryland legislators, including Baltimore's Mayor and Chief of Police, were arrested without charge, trial and conviction, and were thrown to the jail in Fort Warren. The question that we are going to examine is ------ Did Lincoln overstep his power by suspending the writ of Habeus Corpus? Did Lincoln violate their Constitutional right? Let's examine the facts and issues. The political situation was extremely grave in early Jan. 1861. Six states from the deep South, leading by South Carolina (12/20/60), Mississippi (1/9/61), Florida (1/10/61), Alabama (1/11/61), Georgia (1/19/61) and Louisiana (1/26/61), seceded from the Union. Texas (3/2/61) followed. President-elect Lincoln were powerless to do anything then, not until after his Presidential sworn-in in March 1861. After the Confederates bombarded Fort Sumter in April 12, 1861, Lincoln called for 75,000 volunteers to save the Union. Virginia (4/17/61), Arkansas (5/6/61), North Carolina (5/20/61) and Tennessee (6/8/61) followed suit to secede. The situation of the Federal Capital, Washington, was very precarious. On its south, Alexandria, the northern part of Virginia, it was packed with rebels. Surrounding the capital, north, east and west was Maryland, a slave state, and full of Confederates and its sympathizers. The 6th Massachusetts regiment answered the call to guard the Capital, while en route Baltimore to change train, the soldiers were attacked by a mob of hostile Marylanders on 4/19/1861. Some Mass. soldiers (6th Mass. regiment) were killed. The Mass. soldiers were forced to defend themselves by returning fire. The majority of the Maryland legislature fortunately refused to consider a secession ordinance, thus, saved the Capital. In order to take a preventive strike against any probable plots by the Confederate sympathizer, Lincoln ordered the suspension of the writ of habeus corpus, covering the departments in Pennsylvania, Delaware, Maryland and Washington. General Scott ordered General Montgomery Meigs to arrest any suspicious disloyal citizens. Chief Justice Roger B. Taney (a Marylander, and he was the same Supreme Chief Justice who decided the notorious Dred Scott case, which was overturned by the later U.S. Supreme Court cases, after the passing of the 13th Amendment.) protested strongly and argued only Congress had the authority to suspend habeus corpus. In examining the language of the Constitution, it did not address which branch of Government had that authority. Lincoln just assumed that power and ignored Taney's protest. Lincoln believed he had to take bold step to preserve the Union during the emergency of the nation. The Taney Court decided the Dred Scott case (7-2) in favor of the South, voiding the Missouri Compromise, upholding the Fugitive Slave Act, and extending its long arm to the Land of the Free. When an U.S. President takes his oath, he swears "that he will faithfully execute the office of President of the United States, and will to the best of his ability, preserve, protect and defend the Constitution of the United States." If there were only one choice between saving the Union or upholding the law, I believe Lincoln would not hesitate to take the former, a more important aspect of the Constitution. Habeus corpus should not be suspended, except in war, riot and insurrection. It is clear that Lincoln had such authority under this exception rule. The U.S. Constitution, Article I, Section 9, paragraph 2, says,"The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." The delegates to the Constitutional Convention in 1778 voted unanimously on the first clause. Later, Gouverneur Morris introduced a qualifying second exception clause adapted from the Massachusetts state constitution, and the provision were passed by a vote of 7 states to 3 states. So, it is clear that Pres. Lincoln did not violate anybody's Constitutional right by suspending habeus corpus. But the question went further to examine whether or not the conditions in 1861 constituted war, riot and insurrection? Let's look at the facts again. As secession began, many Federal forts fell into the hands of the Confederates; military officers of the southern extraction resigned in drove from the old Army and went South; Gen. David Twiggs of Georgia surrendered his Federal Military Department to the Texans without a fight; Secretary of War Floyd of the Buchannan Administration amassed huge amount of military equipment in the hands of the military authorities with Southern sympathy; and crisis at the two forts, Pickens in Florida and Sumter in S. Carolina of which, nobody knew which one would blow up first at that time. All these facts were pointing to riots, insurrection and act of war. Certainly the conditions satisfied the exception clause to suspend habeus corpus. In time of war, the laws are silent. (A Latin phrase: inter arma silent leges) Whenever the case law related to Habeus Corpus is discussed, the landmark case Ex parte: Milligan will be cited. Lambdin P. Milligan moved to Indiana from New Orleans, Louisiana, bringing his slaves with him. When the Civil War started, he got himself involved in an subversive political organization, the Sons of Liberty, and launched an anti-government propaganda movement. In early 1864, Congress passed a law saying that Habeus Corpus could be suspended during war and insurrection. On 10/21/1864, Milligan was arrested by the order of Gen. Alvin P. Hovey, commander of the military district of Indiana. On 10/21/1864, the military commission tried Milligan and found him guilty, and sentenced him to be hanged. Milligan's defending attorneys discussed the case with Lincoln who promised to commute Milligan's sentence. Of course, Lincoln was assassinated before he could pardon Milligan. The appeal dragged on to 1866, and by then, the war and the national emergency were long over. The need to hang traitors did not exist anymore and in fact, people wanted to forget this horrible war episode and it would be politically incorrect to carry out the sentence. What would the Supreme Court do? Well, the only route that the Supreme Court could do to save Milligan's neck was to declare the law unconstitutional. The decision was a narrow 5 to 4 votes by the 9 Supreme Court Justices. The interesting coincident was that the majority 4 of the 5 votes were Lincoln appointees. The court opinion was written by Justice David Davis, Lincoln's old Eighth Circuit court friend from Illinois and Lincoln's 1860 presidential campaign manager, and concurred by Chief Justice Salmon Chase, Lincoln's ex-Secretary of Treasury, and Justices Noah Swayne, Samuel Miller and James Wayne. Justice Chase was known as the "Attorney General for Runaway Negroes" in his salad days when he was practicing law in Ohio, using habeas corpus as his weapon. It was ironic that Salmon Chase used the same habeas corpus to save slaves and master alike. Every Supreme Court decision became precedent (stare decisis) and would be cited by the future generation. Therefore, they had to write a "narrow" decision so that the future case would apply only if it fits to all these narrow conditions. They said when the civil courts were open, military commission (court) had no authority to arrest, trial and convict a citizen of the United States. Let me quote part of their opinion: "It follows, from what has been said on this subject, that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to the law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. The suspension of the privilege of the writ of habeas corpus does not suspend the writ itself. The writ issues as a matter of course; and on return made to it the court decides whether the party applying is denied the right of proceeding any further with it." During the 1866 era, the decision was considered as a blow to the Republican's attempt to reconstruct the South and cheered by the Democrats and the white southerners. Today, every law student has to study this case in their Constitutional Law course. Numerous legal scholars had commented about this case. In 1920s Charles Warren's Ex parte Milligan became one of the most widely anthologized decisions of the United States Supreme Court, one of the benchmark of American liberty. John Garraty wrote Quarrels That Have Shaped the Constitution which included an essay by Allan Nevins (a famous Civil War writer who wrote a multi-volume Civil War books) describing the Milligan decision as a great triumph for the civil liberties of America in time of war. In Michael Belknap's American Political Trials (1981), Frank Klement contributed an essay on Ex parte Milligan describing the decision as "a notable victory for civil rights' that "has stood the test of time." Historian Emma Lou Thornbrough stated that Ex parte Milligan has been "long regarded as a landmark in the history of civil liberties." It is fascinating that our Civil War brought in a few pages of landmark Constitutional Law. (Written by Gordon Kwok, December 1997, using several Reference books.)
(Unexpectedly, this little article had created a storm. I will assign a psudo-name to protect the identity of the protestor. Let's call the person John Doe of the XYZ Civil War Organization.) 1/28/98
Dear Joe (Geden) {Joe is a Chartered member and '97 Research Chairman of the Olde Colony Civil War Round Table (OCCWRT)} As you know I always read your Newsletter and since I have a particular interest in the writ of Habeas Corpus, I paid close attention to Gordon Kwok's article. Tell him as gently as possible that he is wrong. Lincoln had no right to suspend the writ of habeas corpus. Why? Take out a copy of the Constitution, article I, section 9, paragraph 2, deals with "Limitations upon powers of Congress." The President usurped this power. It's a good thing he did but he clearly violated the Constitution. Why am I interested in this? Many of the Baltimore Officials wound up at Fort Lafayette in Brooklyn ------ and I discussed this problem in every speech I gave in Brooklyn! John Doe
XYZ Civil War Organization
Notes from the Editor of OCCWRT:
Habeas Corpus, legal term for a writ issued by a judge commanding that a person be brought into court at a given time and place. A petition for such writ is usually made before a judge by an attorney on behalf of a client detained on a charge. Failure of a police officer or other official to comply is punishable by the court. Habeas Corpus was formalized in England in the Habeas Corpus Act, 1679, in the reign of Charles II to prevent persons being held in prison indefinitely without trial ----- then a common practice in some European countries. Habeas Corpus was also a right in the American colonies, and violation of it became one of the grievances leading to the American Revolution. It is guaranteed to U.S. citizens and residents under the Constitution (Art. I, Sec. 9, Par. 2) but for public safety may be suspended in time of rebellion or invasion. President Lincoln suspended it during the Civil War. All state constitutions guarantee habeas corpus, but some permit suspension after martial law has been declared. A state court cannot issue a writ for a prisoner held by the Federal Government. Dave J. Kenney
To: Editor OCCWRT's "The Campaign" Our friend, John Doe, of the XYZ Civil War Organization, sent me a copy of Gordon Kwok's article in the February Issue of our NL (Newsletter). John made a margin comment and wrote a separate note stating that Pres. Lincoln had no right to suspend the writ of Habeas Corpus. This has the markings of a debate. Perhaps Bud could present his case at an OCCWRT meeting or Gordon could state his at a meeting in John's hometown. If not, may be a debate by mail would be possible.
Joe H. Geden "Great Presidential Decisions: p.18 Lincoln moved and obtained Congressional sanctions afterward. When the C.W. came, he met the issue with a series of purely executive measures, for Congress was not convened until July 1861. "Lincoln --- His Words & His World" p.50. His suspension of habeas corpus was used more as a preventive precaution than as a punitive weapon. "Political History of USA During the Great Rebellion" p.160 Opinion of Atty. Gen. Edward Bates in a letter 5th July 1861 to President Lincoln: ------ supports suspension of writ of habeas corpus as temporary to meet a pressing emergency. "President Lincoln's Third largest City" (written by John Doe) p.135 On 27 Apr 1861, fearful that Maryland would be lost to secessionists, President Lincoln ordered Lieutenant General Winfield Scott to announce the suspension of the writ of habeas corpus there.
Joe H. Geden OCCWRT
From John's letter 5th March, 1998
"Bear in mind that I am not arguing that Lincoln was wrong. All I am saying is that he certainly did violate the Constitution."
John Doe
XYZ Civil War Organization
Letter to the Editor
Referring to John Doe's comment.
Dear Dave,
I understand John Doe of the XYZ Civil War Organization believes that Pres. Lincoln had no right to suspend the writ of Habeas Corpus, and Lincoln had usurped this power and violated the Constitution. I'll make my reply short. The reply is meant to be a friendly discussion, and hopefully we could all learn something from one another, no matter which viewpoint one takes. There are several methods to interpret a legal document: (a) by strict interpretation (b) by looking at its implication (c) by examining the intent of the parties, or, in this case, (d) the legislative history. If we use the strict interpretation method, Bud's view may be right. Article I applies exclusively to the Congress. On Art. I, section 9, it talks about limitations of powers of Congress. But if we look at the four corners of the Constitution, and examine the implication, we could find that the President surly has such a right to suspend Habeas Corpus. Our country is built on the foundation of balance of power. The Congress made laws. The President executed laws. The Judiciary interpreted laws. No one branch of Government is more powerful than the other, and thus our system maintains the proper checks and balances. If we examine the decisions of the U.S. Supreme Court, we will find that the Court used method (b) and (c) more often than method (a). Please note that Lincoln got Congressional sanctions and ratification of his order after July 1861. I could find a case law (example) to support the President's authority to suspense Habeas Corpus, with the acquiescence of the D.C. Supreme Court. When Mary Surratt was convicted on conspiring to assassinate Lincoln, her lawyer, John Clampitt, filed the writ of Habeas Corpus to stop her execution. Pres. Andrew Johnson ordered the suspension of the writ of Habeas Corpus, and directed Gen. Winfield Scott Hancock, commander of the military district covering that jurisdiction, to deliver the order to the presiding Judge Andrew Wylie, who allowed the execution of Mary Surratt to be carried out. The law of suspending Habeas Corpus in cases of rebellion or invasion was already in the Constitution. The President simply enforced the existing law. It is the President's duty to execute the laws of the land and he certainly has the power to do so. The only question left to be answered is, whether the political situation in the Spring of 1861 constituted a Rebellion, so that it would qualify the condition of the exception rule in Art I, sect. 9, par. 2. If the political condition of the country in 1861 Spring was a rebellion, then Lincoln had the power to suspend Habeas Corpus. If not, then Lincoln would have no right to do so. This is a question of fact, and you the juror would have to decide the matter for yourself. I believe any "reasonable" person would conclude that during 1861 to 1865, Civil War did exist in America. Rebellion did occur in America. Therefore, the President of the United States, who is responsible on the Executive Branch of the Government, has full authority to execute the law, using the exception rule in Art I, sect. 9, par. 2, to suspend the writ of Habeas Corpus, for the purpose of suppressing the Rebellion, and save the Nation from disintegration. Sincerely,
Gordon Kwok
3/14/1998 |
