President Lincoln and Habeas Corpus (Remarks by Justice O'Connor)

I am honored to have the opportunity to speak with you today, on this anniversary of the Gettysburg Address. But I have to admit that my task is a bit daunting, even for a Supreme Court Justice.

No speaker, I am afraid, can find the words to compete with those spoken here by Abraham Lincoln six score and thirteen years ago (that's 133 years, for those of you without calculators). That goes for me, as well as for Edward Everett, perhaps the greatest orator of the Nineteenth Century. He was commissioned to be the Keynote speaker at the dedication of this cemetery in Gettysburg in 1863. Everett's oration was a two-hour affair, filled with rhetorical flourishes, peppered with allusions to Greek antiquity, and ending with a recitation of every hill and gully where men had fought and fallen at Gettysburg. The speech was considered the masterpiece of Everett's career.

But is was quickly overshadowed when Lincoln rose from his chair and gave, as his secretary modestly described it, a "half dozen words of consecration." Lincoln was indeed a poor prophet when he predicted that "[T]he world will little note nor long remember what we say here."

"Fourscore and seven years ago our fathers brought forth on this continent, a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal. Now we are engaged in a great civil war, testing whether that nation or any nation so conceived and so dedicated can long endure."

In the early days of the Civil War, it looked as though the young American nation, "conceived in liberty" might not "long endure." It faced so many threats. The southern states had broken away. European powers were poised to intervene, to permanently divide the young nation into Union and Confederacy.

The war posed another sort of danger, as well--a danger less obvious, perhaps, than columns of soldiers marching through the countryside, but one far more insidious to a nation "conceived in liberty". It was the danger that government at war might use its extraordinary powers to stamp out political opposition. And when President Lincoln suspended the Writ of Habeas Corpus during the Civil War, there was a good chance of that happening.

Because it is an issue of considerable interest to lawyers and judges, I propose to talk today about Lincoln's suspension of Habeas Corpus. I will make three points. First, I will review a little bit of the history of Habeas Corpus: where it came from, what it means, and how it came to be viewed, by the beginning of the Civil War, as a principle guarantee of political liberty. Second, I will talk about what prompted President Lincoln to suspend the Writ of Habeas Corpus in those first few days of the Civil War, when states were seceding left and right, and our capital, Washington, was threatened with invasion. Finally, I will come to the main question: how did the Lincoln Administration act once Habeas Corpus was suspended, and it was free to take people into custody without arrest warrants issued by courts? I think that history shows that President Lincoln did not arrest civilians during the Civil War to repress political dissent, but only to protect the military and security interests of a nation at war.

But first, a bit of background is in order. Those of you who are not lawyers may recognize the term "Habeas Corpus" as a sort of criminal appeal. You may be following the ongoing debate about how to regulate Habeas Corpus proceedings brought by prisoners, particularly those on death row. Earlier this year, Congress passed a law making it more difficult for prisoners to challenge their convictions or sentences by invoking the Writ of Habeas Corpus. This new law has prompted quite a bit of activity in the courts, and it remains to be seen exactly what effects that law will have. But history shows that constant change is part and parcel of the remedy of Habeas Corpus.

We can trace the Writ Habeas Corpus as far back as the Norman Conquest of England. Back then, William the Conqueror sent royal judges to ride throughout the countryside of his new kingdom dispensing justice. These itinerant judges would, on occasion, order local sheriffs to "have the bodies" of accused criminals brought before their courts. That's where we get the Latin phrase "Habeas Corpus". It means literally, "have the body". And we call it a "writ" because these traveling judges would put their orders into a "written" document.

So Habeas Corpus began as a way of dragging an unwilling suspect into court. But eventually people who were unlawfully imprisoned--say, by a corrupt mayor, or even the king--began asking royal judges to bring them out of jail and into court, where their jailers would have to justify why they were in custody. This explains why today, when a prisoner seeks a Writ of Habeas Corpus, he technically names his prison warden as the defendant.

England grew to regard the Writ of Habeas Corpus as a beacon of individual liberty against the gloom of tyrannical government. It was not a "get out of jail free" card, mind you--but it at least ensured that a prisoner could have his day in court. If you were to ask an Englishman to name the greatest legal documents in English history, right alongside the "Magna Carta" would be the "Habeas Corpus Acts" passed by Parliament in the 1600s, guaranteeing this remedy to all English subjects.

When English settlers moved to the New World, they brought with them more than hammers and saws to build new homes, plows and shovels to till new fields. They also brought with them the English Common Law to build their new legal system. That included habeas corpus. When tensions mounted between the colonies and the crown, royal governors were known to lock up "troublemakers." And local courts were known to issue Writs of Habeas Corpus to release those troublemakers.

One of the guiding principles of the American Revolution, of course, was that governments should not be able to lock up citizens arbitrarily, or simply because they raised their voices against the government. The founding fathers took this concern to heart at the Constitutional Convention. Like their ancestors, they saw the Writ of Habeas Corpus as a bulwark against tyranny. So, to safeguard the writ, our new constitution provided that "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."

There was only one brief incident during the early days of the republic when "public safety" led to suspension of the writ. During the War of 1812, General Andrew Jackson imposed martial law in New Orleans. At one point, he locked up a newspaper editor who had been fiercely critical of the General. When a judge issued a Writ of Habeas Corpus to free the editor, Jackson not only ignored the writ--he arrested the judge, too! Only a few days later, when a peace treaty had been signed and the British fleet sailed away from the coast, did Jackson release both editor and jurist.

This proved to be an isolated incident. After that brief wartime interlude, courts went on issuing the writ as justice demanded.

As time went on, the Writ of Habeas Corpus took on new dimensions. For a time, the writ became a lightning rod for people on both sides of the slavery issue. When runaway slaves were apprehended by slave catchers in Northern states, abolitionist lawyers helped them secure their freedom with Writs of Habeas Corpus from sympathetic courts. Perhaps the most successful lawyer in this regard was Salmon P. Chase, Secretary of the Treasury under Lincoln and later Justice of the Supreme Court. Chase extracted so many slaves from jail that he earned the moniker "Attorney General for Fugitive Slaves."

While abolitionists interposed the writ as a shield to protect freed slaves, some pro-slavery forces tried to use it as a sword. Some Northern states let slavemasters use the Writ of Habeas Corpus to force local sheriffs to bring back runaway slaves. But this fight over the soul of Habeas Corpus--a longstanding instrument of freedom--was interrupted by the Civil War.

1861 was a difficult time, to say the least. Barely a month after Lincoln's inauguration, Washington was abuzz with rumors that Confederate soldiers, gathering near Harper's Ferry in Virginia, might move against the capital. The Southern states had been seceding, one by one, and it looked as though Maryland--south of the Mason-Dixon Line and still a slave state--might be next. Lincoln himself had traveled incognito through Baltimore, at night, to avoid assassination plots on his way to his own inauguration.

In April, in the midst of all this confusion, a trainload full of Union soldiers passed through Baltimore en route to Washington. They were fresh recruits from Massachusetts, outfitted with polished boots and belt buckles, satin-trimmed coats and hats. They had been summoned to man the defensive fortifications around the capital.

These soldiers were not greeted by brass bands and waving flags, but by an angry mob of Southern sympathizers who were spoiling for a fight. The soldiers literally had to fight their way across the town of Baltimore to reach another station, where their train to Washington waited. Four of them did not make it out of town alive. Later that night, local authorities--whose sympathies clearly ran in a southerly direction--burned the bridges and cut the telegraph lines between Baltimore and Washington, claiming that Union soldiers might come back, looking for revenge after the riot. But as one commentator has put it, "Bridge-burning looked more like plain treason to the government in Washington, which was now defenseless and cut off from the rest of the North."

Washington had a rebel army to its south and a secession-minded mob to its north. Congress was out of session. Lincoln felt the need to take things into his own hands. Invoking his power as Commander-in-Chief, he authorized local military commanders to suspend the Writ of Habeas Corpus along the railroad line from Washington to Philadelphia. Essentially, this meant that the Army could arrest civilians without getting a warrant from a court or without probable cause to believe a crime had been committed by the person arrested, and without providing the speedy jury trial that the Constitution guarantees in times of peace.

Enter Mr. John Merryman, a member of the Maryland legislature. Merryman had been recruiting local men to march south and join the rebel army. When a Union General found out, he ordered Merryman's arrest and packed him of to Fort McHenry in Baltimore Harbor (of Star-Spangled Banner fame) for the rest of the war. Merryman, in turn, applied for a Writ of Habeas Corpus from his local federal circuit judge.

Now, as you may remember, I mentioned earlier that royal judges in medieval England used to "ride circuit," holding court throughout the countryside. Well, the Supreme Court worked much the same way until late in the Nineteenth Century. Justices of the Supreme Court sat together only part of the year. During their plentiful spare time the justices would hop onto their horses and serve as federal circuit judges around the country. When Merryman filed his request with his local circuit judge, he went to none other than Roger Taney, Chief Justice of the Supreme Court.

The Chief Justice was no friend of the Republican administration, having written the Dred Scott Decision only four years before. When he received Merryman’s petition, Taney ordered the commander of Fort McHenry to bring Merryman to his court in Baltimore. Instead of sending Merryman, the Colonel, sent back an aide bearing a polite message. The President had authorized the Colonel, in this time of war, to suspend the Writ of Habeas Corpus. Merryman would stay at Fort McHenry. This, as you can imagine, incensed the Chief Justice. He wrote a fiery opinion arguing that only Congress had the power to suspend Habeas Corpus. The President could not. The President’s job, he said, was merely to see that the laws be faithfully executed.

Lincoln did not publicly respond to Taney's opinion until Congress met a month later, on July 4. Lincoln said that, had he not suspended Habeas Corpus immediately, Washington itself might be now be in Southern hands. That, of course, would have prevented Congress from meeting, let alone from responding to the rebellion. Lincoln then took aim at Taney's claim that the President's job was to sit back and ensure that the laws be faithfully executed, even in the face of Merryman's recruiting soldiers for the Confederate cause. In the Confederacy, fully one-third of the country, the Constitution itself was being ignored. Should Lincoln's hands be tied by the writ of Habeas Corpus in such a national emergency? He asked; "[A]re all the laws, but one, to go unexecuted and the government itself go to pieces, lest that one be violated?"

Merryman stayed in jail. Now, Merryman was only one of many people arrested, without benefit of Habeas Corpus relief, in the early days of the war for providing military aid to the young Confederacy. Lincoln later said that he regretted not arresting even more traitors to the Northern cause--particularly the Robert E. Lees who had abandoned the Union Army to lead its Southern enemy to victory after victory.

Scholars still debate whether Lincoln had the authority to invoke the Constitutional provision suspending Habeas Corpus during the early days of the war. I will not wade into the muddy waters of that debate. I am more interested in talking about what Lincoln did after March of 1863--for that is when Congress gave Lincoln legislative authority to suspend the writ. From that point forward, Lincoln faced no constitutional obstacles. He could arrest whomever he chose, without courts interfering with Writs of Habeas Corpus. What did Lincoln do at this point? Did he attempt to stifle political debate, by imprisoning his opponents? In short, did he trample on the civil liberties the Writ of Habeas Corpus was meant to protect?

A recent historical study, entitled The Fate of Liberty, says "no." The author, Mark Neely, combed through the musty boxes of arrest records from the Civil War "to find out who was arrested when the Writ of Habeas Corpus was suspended and why." Neely concludes that, throughout the war, Lincoln was guided by a "steady desire to avoid political abuse under the Habeas-Corpus policy."

According to the best estimates, about 38,000 civilians were arrested by the military during the Civil War. Who were they? Almost all fell within a few categories: "draft dodgers, suspected deserters, defrauders of the government, swindlers of recruits, ex-Confederate soldiers, and smugglers." And strikingly, most of these were Confederate citizens, caught behind Northern lines. The numbers show that very few civilians were taken from their homes and arrested. And of those few arrests, only a handful were colored by political considerations.

Indeed, Lincoln issued his most sweeping proclamation suspending Habeas Corpus not to silence political dissent, but to stop judicial interference in the draft. Early in the war, patriotic zeal was so strong that volunteers flooded into the Army. But as the war dragged on, public enthusiasm ebbed. Eventually, the government was reduced to instituting a draft. Conscription was rather unpopular, to say the least. If any of you remember the burning of draft cards during the Vietnam War, imagine that unrest multiplied several times over in the New York City Draft Riots in 1863. The problem was especially bad in Pennsylvania. Coal miners attacked men thought to be "in sympathy with the draft." State and federal courts added to the problem. They were churning out Writs of Habeas Corpus, freeing soldiers as soon as they were drafted. Lincoln observed that "[T]he course pursued by certain judges is defeating the draft."

Lincoln's response was to suspend the Writ throughout the North in any case that involved military arrest of deserters or draft dodgers. And for good measure, he threw in prisoners of war, spies, and those giving assistance to the enemy--say, by smuggling goods to the Confederate government. But his focus was always on military necessity. Lincoln never tried to suppress political dissent. He understood that a democracy only grows stronger by allowing people to voice their opposition to the government, even in the midst of war. He understood that the strength of the Union lay not only in force of arms, but in the liberties that were guaranteed by the open, and sometimes heated, exchange of ideas. And as one historian has put it, "[T]he opposition press in the North was vibrant, vigorous, and often vicious."

This point is illustrated by the most sensational arrest of the Civil War: the arrest of Clement Vallandigham, a former democratic congressman from Ohio. Vallandigham was an out-spoken Confederate sympathizer, a man who minced no words expressing his contempt for the Lincoln administration. He was one of the “Peace Democrats,” or “Copperheads,” who originally earned their name from “the poisonous snake that attacks without notice.” The Copperheads co-opted the title, wearing the head of the goddess Liberty cut from a copper penny as lapel pins, to broadcast their opposition to the war. Its a nice irony, I think, to remember whose head appears on the penny today! The Copperheads must be turning in their graves.

In May 1863, General Ambrose Burnside was in charge of the Department of The Ohio. Burnside, it turned out, is a man bettered remembered for his long whiskers--or "sideburns"--than for his political acuity. The general announced that anyone within his jurisdiction who was in the "habit of declaring sympathies for the enemy" would be arrested as a traitor.

Vallandigham took Burnside's proclamation as a challenge. At a public rally opening his campaign for the Governor of Ohio, Vallandigham gave a vitriolic speech. He denounced the President as "King Lincoln," accused Burnside of being a heavy-handed tyrant, and called for a negotiated peace with the south. Burnside read the speech, arrested Vallandigham, and shipped him off to jail in Boston.

This, of course, was exactly what Vallandigham wanted. Overnight, he became a martyr for the Copperhead cause. The papers called him "Valiant Val." Democrats triumphantly announced that Lincoln had finally shown his true colors: he was nothing more than a petty tyrant.

Lincoln, for his part, was not pleased by the General's actions. To be sure, he was not fond of Vallandigham. The former Congressman had been stirring up sentiments against the war, and Lincoln suspected that was purposely fanning the flames of street violence in opposition to the draft. But Lincoln realized that the arrest was valuable ammunition for his political opponents.

Burnside, ever the zealous soldier, had one more blunder to make. Turning his attention to Illinois, the General decided that the Chicago Times was getting too loud in criticizing the war effort. It was time to shut the paper down. So he sent out two companies of infantry, and they stopped the presses.

This was too much. Lincoln had to engage in what today might be called "damage control." Burnside had proclaimed that traitors would either be put on trial or sent "into the lines of their friends." Lincoln decided to take the second option. Early one morning, Union troops escorted a bewildered Vallandigham to the Confederate lines in Tennessee and, there, they set him free. After some confusion, he made his way to Charleston, South Carolina. He exchanged some awkward pleasantries with his Confederate hosts, and eventually caught a slow boat to Canada.

The next order of business was to get the Chicago Times back in circulation. Lincoln rescinded Burnside's order, called back the troops guarding the presses, and warned his overzealous general not to arrest any more civilians or shut down any more newspapers without express approval from Washington.

Although Lincoln undid most of the damage, he still wanted to make a point. He explained to a group of New York Democrats that he would not allow civilians to be arrested merely for "damaging the political prospects of the administration or the personal interests of the commanding general." Arrests would be made only to protect national security. Now, national security is always a difficult line to draw, especially during a civil war. But the line had to be drawn somewhere, if the Union was to be preserved.

"Must I shoot a simple-minded boy who deserts, while I must not touch a hair of 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."

In sum, the Vallandigham episode is emblematic of Lincoln's approach to political liberties during the Civil War. The President was not out to trample on the First Amendment. He was not out to crush his political opposition. He suspended the writ of Habeas Corpus in response to perceived military threats to the Union. After he, and later Congress, removed that Constitutional safeguard, the Lincoln Administration did not use its power selfishly or arbitrarily. It arrested only those people who actively supported the Confederate war machine--people like Merryman, who recruited troops to march south. And when people walked this fine line between political dissent and treason, as Vallandigham did, Lincoln tried to err on the side of free speech.

Midway through the war, Lincoln predicted that Habeas Corpus would quickly be re-instituted after the war was over. He could not bring himself to believe that Americans would allow the wartime suspension of Habeas Corpus to extend into peacetime, he said, "Any more than I am able to believe that a man could contract so strong an appetite for emetics during temporary illness as to persist in feeding upon them during the remainder of his healthful life." Lincoln died before he could see the writ of habeas corpus restored.

In one of his most famous debates with Stephen Douglas, Lincoln spoke about how a society that tolerates slavery corrodes the very foundations of its own liberty. These words, I think, reveal Lincoln's awareness that he wasn't battling for territory on a map. He was battling to preserve a nation "conceived in Liberty."

"What constitutes the bulwark of our own liberty and independence? It is not our frowning battlements, our bristling sea coasts, the guns of our war steamers, or the strength of our gallant and disciplined army. These are not our reliance against a resumption of tyranny in our fair land. All of them may be turned against our liberties, without making us stronger or weaker for the struggle. Our reliance is in the love of liberty which God has planted in our bosoms. Our defense is in the preservation of the spirit which prizes liberty as the heritage of all men, in all lands, everywhere. Destroy this spirit, and you have planted the seeds of despotism around our doors. Familiarize yourselves with the chains of bondage, and you are preparing your own limbs to wear them. Accustomed to trample on the rights of those around you, you have lost the genius of your own independence, and become the fit subjects of the first cunning tyrant who rises."

So today, let us heed the wisdom of a man who led our nation to a "new birth of freedom." Let us always be, first and foremost, lovers of liberty.

You failed that exam. I see no charges of tyranny. Nothing in Whigfalls words indicate any sort of tyranny.

That part was elsewhere in the speech:

"But if, in the mean time, you can bring the power of the Federal Government to coercion, and before the Treasury is drained of its last dollar, you can make soldiers out of your operatives and your sailors, you expect then, amid the heat of the contest, the confusion of ideas, as well as everything else, that you can conceal the facts, and denounce us for the calamities that are on this people; and you expect not to lead, but to send them to battle...Their own citizens have sworn faith and allegiance to the State, and obedience to the Constitution of the United States; but the oath is allegiance and fealty to the State of South Carolina. Now, you tell those men that, if they obey their oath, if they violate their allegiance, if they become not traitors to the country that has nourished and nursed them, then they are to be shot down like dogs or hanged like felons. This is the manner in which their remonstrances are met. This is the language of Senators who talk about ?our glorious Union,? and our being a race of freemen. This is the language used to free Americans! This is in a land of liberty! This is among a people who boast that they have the right of self-government! Well, you will have an opportunity of making the experiment."

He simply seems to not care for the results of an election.

No. He's outlining how the northerners controlled all of congress plus the presidency, allowing them to do whatever they wanted to the south. You and many others have denied this to have been so, yet it is a simple fact of history.

He's outlining how the northerners controlled all of congress plus the presidency, allowing them to do whatever they wanted to the south. You and many others have denied this to have been so, yet it is a simple fact of history.

Just as the South had controlled the congress and the presidency, and the judiciary and the military and the foreign service for most of the nation's 80 years of existence before that. Exactly what is it that they thought the "North" was going to do to the South? The only campaign promise Lincoln made was to stop the expansion of slavery. That is not a violation of the Constitution. The founding fathers did the exact same thing! Is that expansion issue what Wigfall had his panties in a wad about?

BTW. Wigfall was a nut case and even his fellow Confederates couldn't stand the guy. Here's what a much more level headed Southerner said. It's a damn shame they didn't listen to him. Note especially to last paragraph on page 2 and the top of page 3 to put Wigfall's hystrical ran in perspective.

Source: http://www.hti.umich.edu/cgi/t/text/pageviewer-idx?c=moa;cc=moa;sid=947bad6ac3e07d05a145160c105db6da;idno=abt5971.0001.001;view=image;seq=0001;

But neither you nor Wigfall show any oppression or tyranny on the part of Lincoln or the Federal Government that would justify revolution. Taking a big fat hissy fit because you lose your Committee chairmanship is not "intolerable oppression". But then again, the slavers were Democrats and not much different than Little Tommy Dashole is today. Some things never change.

Exactly what is it that they thought the "North" was going to do to the South?

Senator Robert Hunter of Virginia answered that question on February 14, 1861:

" "But pass this bill, and you send a blight over that land [Virginia]; the tide of emigration will commence - I fear to flow outward - once more, and we shall begin to decline and retrograde instead of advancing, as I had fondly hoped we should do. And what I say of my own State I may justly say of the other southern States. But, sir, I do not press that view of the subject. I know that here [in Congress] we are too weak to resist or to defend ourselves; those who sympathize with our wrongs are too weak to help us; those who are strong enough to help us do not sympathize with our wrongs, or whatever we may suffer under it. No, sir this bill will pass. And let it pass into the statute-book; let it pass into history, that we may know how it is that the South has been dealt with when New England and Pennsylvania held the power to deal with her interests."

The only campaign promise Lincoln made was to stop the expansion of slavery.

The only one? No. He also promised a protectionist tariff among other things. Besides, had that been The Lincoln's only promise, no better way to prevent slavery in the territories existed than to allow the south to voluntarily cut itself away from those very same territories.

BTW. Wigfall was a nut case and even his fellow Confederates couldn't stand the guy.

He was a loose cannon to be sure, but historical records of the day indicate that he was well liked within the south. He became a hero to the cause of secession by being its chief voice in Washington. Shortly after the southern states seceded, he was travelling with Davis and the confederate government's cabinet as the president made speeches to audiences in the south. In one case the audience knew Wigfall was with the group and demanded to hear him and Toombs.

As for his dislike in Congress, it was certainly well known among the radicals in the north. They couldn't stand the guy largely because not one of them could outmaneuver him on the Senate floor. One remarked that it was simply impossible to "out-wigfall Wigfall." His staunch secessionist and pro-southern positions also rubbed them horribly as did his attacks on their positions in debate, and yet he would converse in a cordial manner when it was over. In once incident after a heated debate, Stephen Douglas approached him and suggested that the course of that debate may have damaged any remnants of friendship between the two. Wigfall responded, not at all and that debate was debate. Such actions make a guy difficult to hate in person, yet as frustrating as they come. And that frustration is exactly what the yankees felt whenever he took to the floor.

As for Stephens' speech, it is the pitch of a unionist desparately trying to halt the inevitable. His characterizations of the Senate are in direct conflict with those offered by the men who were actually there, namely Toombs, Hunter, and Wigfall. All three, including the more moderate Hunter, concluded as eyewitnesses that it was impossible to stop the northern tariff.

I still don't see Hunter claiming tyranny. All he said is that he didn't like a bill that was passing congress. Tough s**t! That is not tyranny. It's the Constitutional process. Pennsylvania and Ohio sure didn't like the Fugitive Slave Act which was a direct violation of States Rights by the Federal Government. Would they have been justified in rebellion? Show me the tyranny. Show me what the Federal Government did to any southern state that justified rebellion.

Besides, had that been The Lincoln's only promise, no better way to prevent slavery in the territories existed than to allow the south to voluntarily cut itself away from those very same territories.

And how long before the slaveocrats started uprisings in California, Oregon, Utah, and New Mexico territories just as they had done in Maryland, Missouri and Kentuckey? The record is clear. They did attempt local uprisings in every one of the Western states and territories. They were totally committed to expanding their slave empire through any means possible. They openly boased about their intention to invade Mexico and annex Cuba.

For you to claim that it was somehow tariffs that caused the secession movement while denying that expansion was what drove the confederacy shows either ignorance or self delusion. I know you are not ignorant.

And how long before the slaveocrats started uprisings in California, Oregon, Utah, and New Mexico territories just as they had done in Maryland, Missouri and Kentuckey?

California and Oregon were states, not territories. So were Maryland, Missouri and Kentucky. Those last three especially had large numbers of secessionists, including among them many elected officials, who wanted to join the confederacy. It is therefore absurd to suggest that the confederacy came in and tried to make them unwilling participants. If nothing else, Abe Lincoln held many of the people of these states unwillingly in the union by use of unconstitutional arrests, military force, and disruption of their local governments. New Mexico seceded on its own after The Lincoln's government virtually abandoned them. The confederates were actually very reluctant to take them in, but eventually did so when they offered to help in the war.

Merryman did commit treasonous acts.

That may be your belief, but the fact remains he was not convicted of anything of the sort.

He was indicted for treason.

Not at the time of his arrest! They held him at length without filing any charges against him. That made his arrest unconstitutional.

He could easily have been tried and hanged for treason.

To be constitutional, that would have first entailed filing charges before him and bringing him before a court of law. But matters like the constitutional right to due process were of little concern to The Lincoln. Instead he simply declared his own powers supreme and ordered widespread arrests without any charges.

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