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.

From Lincoln's Second Inaugural address, which many historians have called the greates speech ever given in America:

"...If we shall suppose that American slavery is one of those offenses which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South this terrible war as the woe due to those by whom the offense came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to Him? Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsman's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said 'the judgments of the Lord are true and righteous altogether.'

"With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation's wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations."

No doubt Sandra Day O'Connor is now on the neo-confederate's lists of "marxists" for daring to claim Lincoln is not evil incarnate.

Most of these "conservative" neo-confederates have shown their true colors and come out in favor of giving the local southern Democrat state politicians UNLIMITED power to do whatever they want, so you tell me who's endorsing biggest government. If they really wanted to condemn Presidents for expanding government, they might consider posting ONE thread exposing what their fellow neo-confederate Woody Wilson. He was 20X worse than Abe but I have never seen one thread "educating" the public about "the real Wilson".

It's been three years and counting since I brought that up and the silence is deafening.

"Must I shoot a simple-minded boy who deserts, while I must not touch a hair of a 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." [...] The President was not out to trample on the First Amendment.

"Silencing the agitator" IS trampling on the First Amendment, Madam Justice O'Connor. Your own watery fidelity to that provision of the Constitution has, however, long been evident already.

Quite apart from this, no discussion is made of the many newspapermen who were arrested for opposing the war, and the other critical voices that were suppressed with "express approval from Washington." (O'Connor glosses over how Lincoln could ever have been reasonably construed as having that power, which went far beyond the issue of habeas corpus.)

Nor is any mention made of how suppressing the riots, over a draft that was never authorized by the Constitution (and intended to be prohibited later by the 13th Amendment), also involved the wrecking of local newspapers and a federalizing of the state militias without sanction of law.

Lincoln trampled constantly on the First Amendment. Let's not sugar-coat it.

A huge Republican Lincoln BUMP!

Thank you for this post. Just today my anti-cop, anti-Bush, pro-Castro, anti-Ashcroft criminal procedure professor was bitching about Lincoln doing this. She made the comment, "Most everybody will now say that this was a huge mistake my Lincoln." Sometimes I think she and others don't look back at the situation President Lincoln and the Union was facing.

The End justifies the Means, Sandra Day O'Connor says so. And people still hope that the Supreme Court will hand out Justice...sigh..

The fact remains that these united States joined in a voluntary union, and the ultimate defence against centralized tyranny was seccesion. The Confederacy chose to secede, and Lincoln destroyed the voluntary union by tyranically preventing that seccesion. So, thanks to "honest" Abe, we have the federal gov't on our backs today.

That may be a new world record. Three blatant misstatement of Constitutional facts in only one sentence. Congratulations.

So, thanks to "honest" Abe, we have the federal gov't on our backs today.

Better that than the whip of the bondsman. It wasn't Lincoln that forced the South to make slaves of men and women whose skins were dark. It wasn't Lincoln that forced secession. It wasn't Lincoln that fired on Fort Sumpter. It wasn't Lincoln that presided over the injustices of Reconstruction. It wasn't Lincoln that fled in a dress.

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