History of the Federal Judiciary

Ex parte Merryman and Debates on Civil Liberties During the Civil War

Biographies

Abraham Lincoln (1809–1865)

By the time of his inauguration on March 4, 1861, President Abraham Lincoln faced an unprecedented threat to the constitutional union of states. Seven states had seceded and formed a separate Confederate government, determined to control federal property within its borders. Lincoln’s decision to provision and defend Fort Sumter in South Carolina prompted an attack from Confederate forces and led to the secession of four more states. As he prepared the nation for war, Lincoln confronted the threat of disloyal citizens in states that remained in the Union. Nowhere was that threat greater than in the border states of Missouri, Kentucky, and, especially, Maryland, with its strategic location surrounding the northern side of the nation’s capital, which already faced a Confederate Virginia across the Potomac.

Lincoln’s initial authorization of the suspension of habeas corpus was part of his strategy to secure Maryland for the Union. Lincoln rejected the military’s advice to arrest Maryland legislators before they convened to consider secession, but he authorized the commanding general of the Army to take the necessary measures to counteract any armed threat from Maryland, including “the bombardment of their cities—and in the extremest necessity, the suspension of the writ of habeas corpus.” Although the state assembly did not vote to secede, the mob attacks on federal troops in Baltimore and the sabotage of railroad and communication lines convinced Lincoln to authorize explicitly the suspension of habeas corpus along the route traveled by federal troops on their way from Philadelphia to Washington. Under this authority, Army officers arrested and detained John Merryman.

Lincoln never directly responded to Chief Justice Taney’s challenge to “respect” and “enforce” the civil process of the courts, but in several public messages, Lincoln explained that in the midst of a rebellion, defending the viability of a constitutional government based on the consent of the governed was a more important presidential responsibility than scrupulously observing specific protections of civil liberties. Lincoln insisted that the Constitution, as reflected in its provision for suspension of habeas during invasions or insurrections, authorized different kinds of governmental power during a rebellion than it would permit in times of peace and domestic security. Lincoln would authorize the suspension of habeas corpus in eight orders during the Civil War, at one point extending the suspension over the entire nation. Lincoln also authorized military trials for civilians and some restrictions on freedom of speech and the press.

At the opening of Congress in July 1861, Lincoln said the rebellion of Southern states presented the question: “Must a government, of necessity be too strong for the liberties of its own people, or too weak to maintain its own existence?” Throughout the Civil War, Lincoln sought to discern which limits on liberties were necessary to maintain the Union, without which he believed the Constitution would be meaningless. His resistance to the initial suspension of habeas, his call for caution in “arbitrary” military arrests, and his frequent rebuke of what he considered the excesses of his military commanders indicated Lincoln’s continual struggle to balance citizens’ liberty and the government’s strength in the midst of a Civil War that the framers could never have anticipated. Lincoln’s willingness to restrict or ignore civil liberties exposed him to intense criticism, even from many Northern supporters. Those who opposed the war effort were often scathing in their attacks on a man they saw as a proto-dictator. But however much Lincoln stretched the boundaries of executive authority, it was seldom without reflection on history and constitutional law.

As revealed in the July 4, 1861, message to Congress and the 1863 letter to Erastus Corning and other critics in Albany, New York, Lincoln’s defense of wartime restrictions on civil liberties elicited some of his most powerful writing and some of his most original thinking about the Constitution and the bonds of Union. His almost mystical notion of the Constitution as the embodiment of the founding generation’s trust in popular government guided and restrained his own policy toward civil liberties, even as that policy inevitably denied justice to innocent individuals and failed to establish clear legal guidelines for civil liberties in times of national crisis.