Lincoln also made the Dred Scott decision a central theme of his presidential campaign. After the start of the Civil War, President Lincoln ordered General Winfield Scott to suspend habeas corpus near railroad lines that connected Philadelphia to Washington, amid fears of a rebellion in Maryland that would endanger Washington.
On May 25, , federal troops arrested a Maryland planter, John Merryman , on suspicion that he was involved in a conspiracy as part of an armed secessionist group. Merryman was detained at Fort McHenry without a warrant. Taney then tried to notify Cadwalader that he was in contempt of court, but soldiers at Fort McHenry refused the notice.
Finally, on March 3, , nearly two years into the war and twenty months after the special session, Congress passed an act authorizing Lincoln to suspend the writ of habeas corpus. Section 2 required the secretaries of state and of war to provide to the federal courts lists of all prisoners held by the federal government except prisoners of war, and required the courts to order the release of all listed prisoners who were not indicted by the first available grand jury and who took a loyalty oath and, at the court's discretion, posted bond.
As enacted, the suspension act said that the president "is" authorized to suspend the writ, while earlier versions said that the president "shall be" empowered. This evolution in language coupled with the debates in and delay by Congress as it grappled with habeas corpus for twenty months convinced Professor Sellery that Congress's "dominating motive was unquestionably a desire not to deny the President's right to suspend.
Based on the evidence, Sellery fairly assesses congressional motive, but he understates the significance of Section 2. That section imposes a restriction that, if enforced, would severely restrict and even disable the presidential suspension power.
Section 2 effectively time-limits suspensions. By freeing all those not indicted by the first available grand jury, it handed the jailhouse keys to all prisoners who committed subversive but non-criminal acts. This would largely defeat Lincoln's use of military detention, for as he said in the Corning letter, military arrests and detentions allowed him to imprison and hold law-abiding persons who undermined or disrupted the conduct of the war. Under Lincoln's view of the Constitution, Section 2 of the suspension act imposed an unconstitutional restraint on his power to suspend habeas corpus, and he had made it clear in words and acts that he didn't need the authority conferred by Section 1, so he could have vetoed the act.
That, however, would have provoked a congressional confrontation in the dark days following the Battle of Fredericksburg. He did not veto it or even oppose it. Nor did he issue a signing statement questioning the constitutionality of parts of the act, as he had done when he signed the Second Confiscation Act.
Instead, he dealt with Section 2 of the act as he once said an old farmer had dealt with a tree trunk too big and deeply rooted to be dislodged by a breaking plow—he plowed around it.
His plow was stored in the provision of Section 2 requiring the secretaries of state and war to furnish the required lists "as soon as practicable. Because of the September declaration of martial law and the and suspension orders, the prisoners were held throughout the country in military facilities which, in the words of the suspension order, included forts, camps, arsenals, military prisons, and "other places of confinement.
Under the circumstances, it would have been difficult with diligence and good faith to produce the lists with the required data, and the "as soon as practicable" requirement made it easy to relax diligence, if not good faith. When the system had not produced any lists, the Senate passed a resolution directing the secretary of war to report on the lists.
Nicolay and Hay describe the response: "The Secretary promptly replied, transmitting the report of the Judge Advocate General, showing that all possible vigilance had been used in complying with the terms of the law.
The rolls were necessarily incomplete; the offenses with which the prisoners were charged were frequently indefinitely stated; and instead of specifying the particular officers by whom arrests were made the President and Secretary of War assumed the responsibility in all cases Those arrested for military offenses were tried with the greatest possible expedition Several commissions were actively engaged in investigating the cases of prisoners, and releasing them whenever it could be done without prejudice to the public safety.
In the meantime, though, it appears that no lists were forthcoming, and that the prisoners continued to be processed in the military justice system, not the federal courts. Nicolay and Hay give no indication of congressional follow-up or response. The president had successfully evaded the law. John Hay noted that Lincoln, like other great men, was not a modest man.
In his handling of habeas corpus suspension, he was at his immodest best. He was typically self-assured, decisive, adept, and politically astute. He acted forcefully at the outset, but then, in his July 4, , message to Congress he seemed to acknowledge a congressional role in habeas corpus even as he advanced a soft defense of his power to suspend the Great Writ and suggested that there was no urgent need for Congress to act.
A less confident president would have welcomed congressional support, but Lincoln knew that the implications of congressional authority to suspend the writ would erode his constitutional power, and he was probably concerned that Congress might hedge his authority with burdensome restrictions as, in the event, it did.
When Congress accepted Lincoln's invitation to inaction, he continued to act without congressional authority, most decisively in his September order imposing martial law and suspending habeas corpus throughout the country. In his response to Birchert, he abandoned the diffidence in his special session message and forcefully expressed the opinion that he, and he alone, held the power of suspension, but since this was a private letter rather than an official communication, Congress could ignore it.
Faced with disabling restrictions in the suspension act, he ignored the restrictions without roiling Congress. In sum, in an area generally thought at the time to be within the congressional domain, he manipulated Congress, challenged its powers, ignored its laws, and imposed his authority and will without ruffling congressional feathers or provoking congressional response.
The next section addresses how Lincoln's use of the suspension clause played with the men of the schools. In the final part of this article, an examination of the Constitution will reveal who holds the constitutional power to suspend the writ of habeas corpus, allowing us to see whether on this issue Adams fairly compares Lincoln and his doubters among the men of the schools.
In early , Horace Binney published an article that provided strong scholarly support for Lincoln's claim to a constitutional power to suspend the writ of habeas corpus.
Binney was an eighty-two-year-old Philadelphia lawyer, politician, statesman, and author who had trained in the law under Jared Ingersoll, one of the members of the Constitutional Convention. His article remains the most penetrating analysis of the constitutional power to suspend the privilege of the writ of habeas corpus. Binney's article is long and repetitive, but it can be distilled to a few points.
Contrary to what Taney says in the Merryman opinion, Binney claims that presidential suspension of the writ of habeas corpus is consistent with, rather than a departure from, English practice. Under English practice, only the House of Commons can authorize suspension of the writ, but when it does so, it leaves the actual suspension to the chief executive, since only the chief executive can determine whether the conditions of suspension are met. Reading the suspension clause as both a limit on and a grant of authority to suspend the writ, Binney argues that the Constitution itself authorizes suspension, and that, as with the English chief executive, the president is the only one who can determine when suspension is called for.
His position gives him the capacity to determine whether suspension is required, and he has the power to do so under his Article II powers to preserve, protect, and defend the Constitution and to take care that the laws be faithfully executed.
Binney dismisses Taney's appeal to the views of Marshall, Story, and Jefferson. In Ex Parte Bollman , 8 U. Binney points out that Marshall's statement is dictum, was not given during times of rebellion or invasion, was made without consideration of or argument on behalf of executive power, and refers to congressional limitation of judicial power to issue writs of habeas corpus, not to suspension of the privilege of individuals to have recourse to the writ.
Story considers the suspension clause only briefly in the capacity of a commentator, not as a judge. His contribution is limited to a statement that "it would seem, as the power is given to Congress to suspend the writ of habeas corpus in cases of rebellion or invasion, that the right to judge whether an exigency had arisen, must exclusively belong to that body.
Under those circumstances, Jefferson's request for congressional authority was an attempt to round up a gang for an assault on the Constitution, not a bow to superior constitutional authority.
Binney finds no significance in the location of the suspension clause. It is in Article I of the Constitution, which confers power on Congress, but it was moved there from the judiciary article by the Constitutional Convention's Committee on Style, suggesting that location was a matter of convenience or style, and it evolved from an earlier proposal that specifically limited legislative power of suspension.
If anything, Binney says, the dropped reference to the legislature indicates that the suspension clause as adopted is not a limit on congressional power. Not surprisingly, Binney's article prompted responses. In his article, S. Fisher summarizes these responses, with particular emphasis on the serial responses of George Wharton, another Philadelphia lawyer.
The suspension clause is manifestly not a grant of authority, and Binney didn't need to argue that it was in order to make his case; he could have argued that the president's executive powers under Article II of the Constitution include the limited power to suspend recognized, but not granted, by the suspension clause. By finding a grant in the suspension clause, he created a weak point that his opponents exploited to great effect. Since the suspension clause was not a grant, the opponents correctly argued, the power of suspension had to be elsewhere in the Constitution, and Wharton found it in a number of congressional powers in Article I, including the powers to declare war, raise and support armies, make rules concerning captures, call out the militia, and make all laws that may be necessary and proper to carry out these enumerated powers.
Fisher, who was sympathetic to Lincoln's exercise of power, concludes that Wharton's responses, and particularly his reliance on the necessary and proper clause, were unanswerable.
Even though they were sparring years ago, Binney and his opponents give us the only hard look at the meaning and implications of the suspension clause. Fisher's article is substantial, but it is largely a summary of the positions of Binney and his opponents, with little independent analysis.
Randall's Constitutional Problems Under Lincoln generally plumbs the legal depths of the constitutional issues raised by Lincoln's conduct, but he doesn't examine the suspension clause. Without offering his own analysis or opinion, he surveys the views of Binney, other commentators, Taney, and a number of state judges, and then concludes that "the weight of opinion would seem to incline to the view that Congress has the exclusive suspending power.
Randall's is the last extended discussion of the suspension clause. Most accounts of Lincoln's presidency address the habeas corpus suspension in a few paragraphs or pages, with little examination of the underlying legal issues.
Lincoln's defenders tend to find justification for his actions in the need for quick response to crisis, not in the words of the Constitution. Duker, Farber, and Amar make some attempt to explore the suspension clause, but their attempts are brief, buried in books on larger topics, short on analysis, and unpersuasive.
Duker, Farber, and Amar all argue for a dominant power of suspension in Congress with a presidential power in emergencies when Congress is not is session, [28] but they find little support for their argument, and they don't explore its implications. For example, does presidential power die when Congress assembles, to rise again if it adjourns without taking action, or does the president have a power that dies forever once Congress convenes?
What if a sitting Congress sits with no action during an "emergency"? What language in the Constitution can be read to give the president a power that exists in fits and starts? Amar goes even further than Duker and Farber, claiming that the president is a spear-carrier for Congress. Lincoln, he said, viewed himself "as America's chief officer, always on deck and oath-bound to keep the constitutional ship afloat," with a power "to suspend habeas corpus The scholars who have considered the suspension clause since the Civil War have failed to examine that clause in its constitutional context.
It is important to look at the suspension clause in its constitutional setting, and in that context consider Lincoln's brief on his own behalf. In his paper, Horace Binney effectively countered Taney's arguments based upon English history, the location of the suspension clause, and the wisdom of the elders.
We could embellish these points a little, but that would simply buttress a strong case. With those issues swept away, the only remaining issue is whether Congress or the president holds the power to suspend the privilege of the writ of habeas corpus when the public safety requires it during times of rebellion or invasion. Section 1 of Article I of the Constitution says that Congress has only the powers "herein granted. Given the limit in Section 1, Congress does not have the authority to suspend the writ of habeas corpus unless it can be found in one of the powers listed in Section 8.
George Wharton found congressional authority to suspend the writ of habeas corpus in the congressional powers to declare war, make rules concerning captures, raise and support armies, call out the militia, and make all laws necessary and proper to implement these powers. William Duker points to the power to call out the militia. The language of the provisions on which Wharton and Duker rely is critical for purposes of analysis.
They rely on the provisions of Article I, Section 8 of the Constitution giving Congress the power: To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; To provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions; To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.
None of these powers gives Congress authority to suspend the privilege of the writ of habeas corpus. Congress has the power to declare war, but the president has the power to wage war. If the power to suspend the writ of habeas corpus arises from a war power, it arises from a power to wage, rather than a power to declare, war. The power to raise armies is subject to the same analysis; Congress raises armies, but the president commands them.
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