Download Abraham Lincoln`s Suspensions of Habeas

“The Perils of Executive Power: Benjamin R. Curtis, Abraham Lincoln, and the Forgotten
Civil War Habeas Experience”
By: Robert O. Faith, Indiana University of Pennsylvania
(Please contact the author at [email protected] before citing)
During the centennial celebration of the American Civil War in 1961, novelist Robert
Penn Warren published a provocative essay on the legacy of the war and its impact on American
memory. In it, Warren conceptualized a “Treasury of Virtue” as a legacy of the victorious Union,
which he defined as a “psychological heritage” that would enable later generations of
Northerners to feel “redeemed by history.”1 To the Northerner, the Civil War was “a consciously
undertaken crusade so full of righteousness that there is enough overplus stored in Heaven, like
the deeds of the saints, to take care of all small failings and oversights of the descendents of the
crusaders, certainly unto the present generation.”2 Today, Warren’s essay remains just as
relevant to American memory of the war as it did in 1961. Indeed, given the recent developments
of the so-called Global War on Terror, President Abraham Lincoln’s suspension of habeas
corpus in the North during the Civil War has reemerged as arguably the most controversial
“failing” of the Union war effort. Although scholars and popular writers alike have generally
praised Lincoln’s record on habeas, the scope and legitimacy of Lincoln’s exercise of war
powers continues to be sharply debated.3 Moreover, the growing volume of scholarship on Civil
War habeas reveals the trend of placing a disproportionate emphasis on Lincoln’s own policy
defense, the intellectual support of legal pamphleteer Horace Binney, and two habeas cases: Ex
parte Merryman (1861) and Ex parte Vallandigham (1863). This overemphasis has tended to
overlook or minimize the importance of one critical pamphlet, as well as a number of lesser1
known Northern habeas cases, that at once illustrate and challenge the dominance of Lincoln’s
unconstrained vision of executive habeas suspension during the Civil War.
“All the Laws But One”: Habeas Suspension and Lincoln’s Defense
In the weeks following the Confederate bombardment of Fort Sumter, tensions in the
crucial border state of Maryland reached a fever pitch as rioting in Baltimore between a mob of
Southern sympathizers and Union soldiers on their way to defend the national capital resulted in
the first bloodshed of the war on April 19, 1861. On April 27, an alarmed but resolute President
Lincoln secretly authorized General Winfield Scott, the commanding general of all Union forces,
to suspend the writ of habeas corpus along the “military line” between Philadelphia and
Washington.4 Nearly one month later on May 25, John Merryman, a citizen of Cockeysville,
Maryland, was arrested in his own home and whisked away to Fort McHenry in Baltimore
harbor for engaging in “various acts of treason” and “avowing his purpose of armed hostility
against the Government.”5 Merryman’s counsel applied to none other than Chief Justice of the
United States Supreme Court Roger B. Taney for a writ of habeas corpus, which would
command the man responsible for Merryman’s detention, General George Cadwalader, to appear
before the court to show cause for his prisoner’s detention.6 Invoking the authority of the Lincoln
administration, Cadwalader refused to make a sufficient return to Taney’s writ, prompting the
octogenarian Chief Justice to issue a blistering rebuke against the President. Delivering what one
British observer present in the courtroom referred to as “a most eloquent exposition of the law”
in Ex parte Merryman, Taney laboriously cited English and American authorities in denying the
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constitutionality of executive habeas suspension, and admonished Lincoln to “take care that the
laws be faithfully executed” in accordance with the will of the judicial authority.7
Lincoln ignored Taney’s rebuke, but provided his own rebuttal in a message to the
special session of Congress on July 5, 1861, justifying his emergency actions following the
Sumter attack. Contending that he had acted constitutionally in suspending habeas “very
sparingly,” and with “extreme tenderness of the citizen’s liberty,” Lincoln couched his defense in
a powerful rhetorical question that has achieved nearly universal approbation in American
memory: “[A]re all the laws, but one, to go unexecuted, and the government itself go to pieces
lest that one be violated?”8 This was a “starkly simple question,” wrote the late Chief Justice
William Rehnquist, “that seemed to admit of but one answer.”9 In short, Lincoln justified
suspending habeas upon the grounds of a “public necessity,” precipitating an outpouring of
pamphlet literature from prominent legal scholars throughout the country who argued both for
and against the constitutionality of executive suspension.10 Of these pamphleteers, Horace
Binney, a prominent Philadelphia lawyer, penned an ingenious theoretical defense of executive
suspension—entitled The Privilege of the Writ of Habeas Corpus under the Constitution—that
has since provided an indispensable intellectual justification for Lincoln’s habeas suspensions
among scholars.11 In a learned, highly-technical constitutional analysis of the conditions of
invasion and rebellion specified in the suspension clause, Binney forcefully argued that such
conditions were only “of executive cognizance”—in other words, that only the president had the
constitutional power to suspend habeas.12 Although Binney became a critic of Lincoln’s habeas
policy later in the war, it is hardly an exaggeration to say that Lincoln’s “most important
defender” continues to defend his habeas suspensions from the grave.13
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Yet Lincoln’s most powerful and extensive defense of habeas suspension did not come
until June 12, 1863. Even though Congress had finally provided express approval of executive
suspension in March of that year, the growing number of “arbitrary arrests” behind Union lines
had led to widespread disaffection among the Northern public after Lincoln suspended habeas
nationwide on September 24, 1862.14 This came to a head after Union soldiers under the
command of General Ambrose Burnside broke into the home of Clement L. Vallandigham, an
Ohio Peace Democrat and stalwart Lincoln critic, and arrested him for “encouraging disloyalty”
and “discouraging enlistments” in a fiery speech condemnatory of the Lincoln administration.15
Vallandigham was tried and found guilty by a military commission, and after applying for a
habeas writ, his case eventually found its way to the Supreme Court in Ex parte Vallandigham,
in which the Court ruled that it did not have jurisdiction to hear a case decided by a military
commission. Responding to the resolutions of an outraged group of Democrats in what Mark E.
Neely, Jr., has recently called “the strongest statement ever made by any American president
asserting the power of the government to restrict civil liberty,” Lincoln boldly asserted his vision
of executive power during the present conflict in his famous letter to Erastus Corning and
others.16 In this letter, Lincoln claimed that Northern traitors and Southern sympathizers
persisted in their design to destroy the government by hiding behind legal cover of freedom of
speech and the press, and habeas corpus—making recourse to judicial proceedings a valuable
tool of the enemy.17 Most importantly, Lincoln denied the common charge that military arrests
made in areas far removed from rebellion were unconstitutional, and enunciated the practical
implications of his “preventive” policy:
I concede that the class of arrests complained of, can be constitutional only when, in
cases of Rebellion or Invasion, the public Safety may require them; and I insist that in
such cases, they are constitutional wherever the public safety does require them—as well
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in places to which they may prevent the rebellion extending, as in those where it may
already be prevailing—as well where they may restrain mischievous interference with the
raising and supplying of armies, to suppress the rebellion, as where the rebellion may
actually be—as well where they may restrain the enticing men out of the army, as where
they would prevent mutiny in the army—equally constitutional at all places where they
will conduce to the public Safety, as against the dangers of Rebellion or Invasion.18
In an emotionally appealing rhetorical passage, Lincoln went on to use the case of Vallandigham
to his own political advantage: “Must I shoot a simple-minded soldier boy who deserts,” he
asked, “while I must not touch a hair of a wiley agitator [here referring to Vallandigham] who
induces him to desert?” In such a case, Lincoln argued, “to silence the agitator, and save the boy,
is not only constitutional, but, withal, a great mercy.”19
Although scholars have rightly emphasized the importance of Merryman, Vallandigham,
and the arguments of Lincoln and Binney in Civil War constitutional history, remarkably little
scholarship has focused on the contemporary intellectual opposition or the habeas experience at
the lower federal court level.20 As a result, many lesser-known Northern habeas cases during the
war have escaped close scrutiny, and Lincoln has been accorded an interpretive deference with
regard to justifying his habeas suspensions by appealing to a “public necessity.” Yet it was
precisely in such courtrooms throughout the North—in Washington, D.C., New York, Vermont,
and Massachusetts, for example—where the theoretical and practical complexities of Civil War
habeas suspension were realized, and here also where the formidability of Lincoln’s argument
was tested in more ways than Merryman or Vallandigham reveal. Moreover, although the
reasoned arguments of Lincoln and Binney feature prominently in our memory of Civil War
habeas, that of former Supreme Court Justice Benjamin R. Curtis is too often unjustly forgotten.
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The Forgotten Pamphleteer: Benjamin R. Curtis and Executive Power
Benjamin R. Curtis is well-remembered and praised for his eloquent dissenting opinion in
the infamous Dred Scott case (1857); the same is not true, however, of his scathing denunciation
of the war policies of the Lincoln administration. In October 1862, Curtis published the first
edition of his critical pamphlet, Executive Power, in response to Lincoln’s dual September
proclamations regarding emancipation and nation-wide habeas suspension.21 These
proclamations were issued after Lincoln, on September 13, 1862, reportedly told a delegation of
Chicago clergymen in response to their inquiry of issuing a proclamation of emancipation that
“as commander-in-chief of the army and navy, in time of war, I suppose I have a right to take
any measure which may best subdue the enemy.”22 Like the later Corning letter, Lincoln’s
statement to the Chicago clergymen represented a succinct expression of his consistently broad
view of executive power, for he certainly considered a sweeping habeas suspension policy to be
as much a “measure which may best subdue the enemy” as emancipation.
Although Curtis professed to be “a member of no political party,” he emphatically
believed that “[t]he war in which we are engaged is a just and necessary war.” Yet the
ambiguous charge of “disloyalty” often leveled against those critical of Lincoln troubled him
greatly, as did the dangerous implications of delegating wide discretionary powers to subordinate
military officers in carrying out the policy of military arrests. The people of the United States,
wrote Curtis, “know that loyalty is not subserviency to a man, or to a party, or to the opinion of
newspapers,” but “an honest and wise devotion to the safety and welfare of our country, and to
the great principles which our constitution of government embodies, by which alone that safety
and welfare can be secured.”23 In language that would anticipate the post-war Milligan decision
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of the Supreme Court, Curtis addressed the practical consequences of Lincoln’s permission of
military arrests far removed from Union lines, for he could not perceive how those Northern
citizens (including federal judges and legislators)
residing remote from armies and their operations, and where all the laws of the land may
be enforced by constitutional means, should be subjected to the possibility of military
arrest and imprisonment, and trial before a military commission, and punishment for
offences unknown to the law; a possibility to be converted into a fact at the mere will of
the President, or of some subordinate officer, clothed by him with this power. But I do
perceive that this executive power is asserted.24
None of Lincoln’s ablest defenders, Curtis pointed out, had found such a sweeping grant of
power in the habeas clause of the Constitution for the establishment of such a military
“system.”25
The “necessary result” of Lincoln’s expansive constitutional interpretation of executive
power was, therefore, that “in time of war, the President has any and all power,”—including
arrogations of legislative and judicial powers—“which he may deem it necessary to exercise, to
subdue the enemy; and that every private and personal right of individual security against mere
executive control…rests merely upon executive discretion.”26 In other words, if the president has
an “implied constitutional right” to suspend habeas, he would then have “the same right, for the
same reason, to disregard each and every provision of the Constitution, and to exercise all power,
needful, in his opinion, to enable him ‘best to subdue the enemy.’”27 Curtis argued that such
“assertions of transcendent executive power,” if acquiesced in, “must be fatal to a free
government.”28 In short, Lincoln articulated an unconstrained vision of habeas suspension in the
Corning letter, while Curtis offered a constrained vision of habeas suspension in Executive
Power.29
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Although duty-bound to issue a principled, non-partisan constitutional argument against
the dangers of executive usurpation, Curtis was profoundly pessimistic about the prospects of his
pamphlet exerting a positive influence on either the Lincoln administration or the American
public. This pessimism was clearly evident in a letter to his wife from October 6, 1862, in which
Curtis revealed his hesitant motivation for entering the public debate:
“…I have great reluctance to go into the arena. The strife is bitter, and not altogether
safe…That it [Executive Power] will be read and abused, I do not doubt. That it will
greatly influence the country, I more than doubt. But I do not feel at liberty to refuse to
make any attempt to keep things from being turned over, which I can possibly
effect…though there is no danger to me or mine, there is great and pressing danger to the
country,--danger of the loss of ideas,--and this I have tried to encounter or obviate…I
ought to do what I can to subdue the enemy at home.”30
The passage of time has essentially confirmed Curtis’ somber prediction, as his recent biographer
characterizes Executive Power (with much understatement) as “an important though somewhat
neglected document in American constitutional history.”31 Nevertheless, it is clear that Lincoln
had read Executive Power at the time, and he appears to have been worried about the potential
damaging influence of Curtis’ argument on Northern public opinion. In a letter to New York
lawyer Charles P. Kirkland—who had penned a response to Curtis’ argument against executive
emancipation—on December 7, 1862, Lincoln wrote: “I have just received and read your
published letter to the Hon. Benjamin R. Curtis. Under the circumstances, I may not be the most
competent judge, but it appears to me to be a paper of great ability, and for the country’s sake
more than my own, I thank you for it.”32
Ironically, however, Curtis’ pamphlet provides an accurate intellectual context for several
lower federal court habeas cases that played out in the North between the shadows of Merryman
and Vallandigham. Despite their relative scholarly neglect, the circumstances of these cases
reveal how the obstruction of habeas procedure by the Union military authorities was often the
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result of a routine matter of convenience, rather than any legitimate “public necessity”—a
consequence of an over-reaching habeas policy that was perhaps nowhere more clearly
articulated than in Curtis’ Executive Power.
The Forgotten Civil War Habeas Experience: “Public Necessity” or Military Convenience?
Not long after Lincoln defended his first habeas suspensions before Congress, a littleknown case that was to foreshadow much of the Civil War habeas experience in the North
transpired in the Southern District Court of New York. In late July 1861, Judge Samuel R. Betts
issued a habeas writ for one Purcell McQuillon, a British subject imprisoned at Fort Lafayette by
order of the State Department on vague charges of “suspicion of being a spy in the interests of
the rebels” and “some general charge of levying war” against the United States.33 It was even
alleged that McQuillon was “a participant in the attack on Fort Sumter,” and had engaged in
purchasing arms for the Confederacy in New York while plotting to do the same on a return trip
to England.34 Although documentation is rather sparse, it appears that McQuillon was
apprehended as a “prisoner of war” on June 28 and conveniently transferred between military
forts in Washington, D.C. and New York in a deliberate attempt to evade habeas proceedings in
local civilian courts.35 The commander of Fort Lafayette, Martin Burke, declined to obey the
writ, and cited the authority of General Winfield Scott as grounds for doing so. A copy of Scott’s
brief letter, which did not cite any “public necessity” as justification for holding McQuillon, was
later produced in court, but McQuillon’s attorney insisted that the military authority had not
made a proper return to the writ.36 Indeed, McQuillon’s military detention took place in a state
far outside the closest theater of military operations in Confederate Virginia.
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Judge Betts, seeking to avoid a collision with the Union military, decided that “the
military authorities declined to obey the writ as a matter of right, and the civil power was not
sufficient to enforce it.” McQuillon’s attorney protested that the return made on his client did not
sufficiently establish the authority for suspending habeas, but Betts denied a motion to execute
the writ. The question of the constitutionality of habeas suspension “was a very grave one,” and
Betts was well aware that the present case paralleled that of the earlier Merryman case decided
by Chief Justice Taney. Noting that the issues in Merryman had not been resolved, Betts
declined to offer an opinion on executive habeas suspension, as it would be “indecorous” on the
part of Betts “to oppose the chief justice.” Still, “[t]he constitutional law must be upheld,” and
the judge “thought that the judicial and military arms of the Government should support each
other instead of seeking occasion of conflict.”37 Although it appears that McQuillon’s detention
was based on considerations of military convenience rather than “public necessity,” Judge Betts
expressed his hope that the public would “let the matter rest as it is, without throwing open the
habeas corpus to be used by every one during the progress of the war.”38 In the coming months
and years of the war, however, the circumstances in which Northern civilians (and even underage
soldiers) were placed under military arrest without recourse to habeas would alarm even the
warmest supporters of the Lincoln administration.
On October 19, 1861, Judge William M. Merrick of the District of Columbia Circuit
Court received an application for a habeas writ from the father of one James Murphy, an
underage soldier who was being illegally detained by the Union army.39 Since the summer of that
year, Merrick, a Democrat, had become an embarrassment to the Lincoln Administration by
issuing approximately twenty writs for soldier minors, although he only issued them and ordered
release as the tendered evidence suggested. In some cases, Merrick found that parental consent
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was evident and ruled against discharge.40 Not surprisingly, Merrick’s actions led to charges of
“disloyalty” by the Republican press.41 To Republican Senator Henry Wilson of Massachusetts,
Merrick’s heart was “sweltering with treason.”42 Additionally, the Official Records contains an
anonymous letter to General Winfield Scott, dated January 1861, alleging that Merrick had been
involved in a secessionist plot for an invasion of Washington that was to have taken place by
Lincoln’s inauguration on March 4, 1861.43 With these strikes against him, Merrick issued a writ
of habeas corpus to be served on Brigadier General Andrew Porter, the Provost-Marshal of the
District of Columbia under whose authority the young Murphy was detained.44
Two days later, Merrick was informed that Dennis Foley, Murphy’s attorney who had
petitioned the judge for the writ, had been arrested after attempting to serve the writ upon Porter
himself. That same day, Secretary of State William Seward, then in charge of the Union internal
security system, directed Porter to “establish a strict military guard over the residence of William
M. Merrick.”45 When Porter asked if this meant placing the judge under house arrest, Seward
demurred, conveniently reasoning that “it may be sufficient to make [Merrick] understand that at
a juncture like this when the public enemy is as it were at the gates of the capital the public
safety is deemed to require that his correspondence and proceedings should be observed.”46
When Merrick returned home that evening, he found “an armed sentinel” posted at his door for
the purpose of “insult[ing] and intimidate[ing] by its presence the Judge who ordered the writ to
issue [against Porter]…in defiance and contempt of the justice of the land”—or so Merrick
claimed in a letter written to his brother judges later that night.47 In addition, Seward ordered that
Merrick’s judicial salary be suspended—in blatant violation of Article III of the Constitution,
which stipulates that the salaries of life-tenured judges “shall not be diminished during their
Continuance in Office.”48
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The Merrick incident received wide press coverage (even in England), which occurred at
the height of the Lincoln administration’s suppression of disloyal Northern newspapers.49
Republican newspapers, such as the New York Times, praised Merrick’s military surveillance as
a “prudential” measure, while a well-known critical British observer derided Merrick’s “military
arrest and surveillance” as the “heaviest blow which has yet to be inflicted on the administration
of justice in the United States.”50 Although the nature of Merrick’s “military surveillance”
remains a matter of debate and is universally attributed to Seward’s discretion, it is now clear
that Lincoln was at least intimately aware of the proceedings against Merrick.51 John Hay,
Lincoln’s personal secretary, recounts in his diary that Deputy Marshal George W. Philips—
whom the court, in Merrick’s absence, had ordered to serve a rule upon Porter—approached Hay
and Seward on October 22 to ask what should be done with the court-ordered rule for Porter. In
defiance of the court’s orders, Seward replied: “The President instructs you that the Habeas
Corpus is suspended in this city [Washington] at present, and forbids you to serve any process
upon any officer here.” Hay then confirmed that those were “Precisely his [Lincoln’s] words.”52
Despite the contention that “Seward was more confrontational than Lincoln on such questions,”
the fact that Hay was clearly knowledgeable about the proceedings of Murphy suggests that the
orders issued against Merrick may very well have emanated from Lincoln himself.53 At the very
least, Lincoln tacitly approved Merrick’s “house arrest” and salary suspension.
After reading Merrick’s letter explaining his absence from the court on October 22, 1861,
an incensed Associate Judge James Morsell condemned the actions of the Lincoln administration
against his brother judge as “a palpable and gross obstruction of the administration of justice.”
Likewise, Chief Judge James Dunlop declared the case “without a parallel in the judicial history
of the United States.”54 Neither judge denied the power of the president to suspend habeas or
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declare martial law. Yet at the time Merrick issued a writ for Murphy—a time in which the court
was open and functioning properly, and in which “the public enemy” was not “at the gates of the
capital,” as Seward claimed—Lincoln had not even issued a proclamation suspending habeas in
the capital.55 Therefore, Dunlop ruled, “it will hardly be maintained that [Lincoln’s] suspension
could be retrospective.” Nevertheless, he continued, “[t]he issue ought to be and is with the
President, and we have no physical power to enforce the lawful process of the Court on his
military subordinates against the President’s prohibition.”56 There the case ended, but its
immediate constitutional importance did not, for Lincoln’s October 1861 suspensions became the
first of several without Congressional authorization between July 4, 1861 and the passage of the
Habeas Corpus Act on March 3, 1863.57
Judge Merrick returned to the bench on November 18, with his salary resumed in
December.58 Remarkable in many respects, the aggressive actions of the Lincoln administration
in Murphy demonstrate the far-reaching extent to which habeas and the power of the federal
judiciary could be rendered impotent by executive authority during the Civil War. Yet, it is
difficult to justify Lincoln’s intimidation of Merrick upon any ground of “public necessity,” for
the nine-month-old anonymous letter alleging Merrick’s disloyalty is spurious evidence, at best.
Moreover, the conditions prevailing in the capital in October 1861 did not parallel the emergency
conditions of the previous April in Baltimore and, unlike Merryman, the issue confronting
Merrick was not one of using habeas to inquire into the detention of a suspected traitor in
military prison. The issue that provoked the obstruction of the Lincoln administration was not
treason, but the possible release of a soldier minor too young to serve in the army according to
law—a problem that even disturbed U.S. relations with England during the early months of the
war.59
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If Murphy represents Lincoln’s attempt to warn federal judges throughout the Union
against interfering with military authority, it may also suggest the president’s curious higher
concern for the “simple-minded soldier boy who deserts” than for those underage soldiers
illegally detained in the ranks. Ironically, this was precisely the issue that turned Horace Binney,
Lincoln’s “most important defender,” against the President’s habeas policy later in the war. In
the “Third Part” of his influential pamphlet, Binney wrote: “…I do not understand how it can be
a constitutional exercise of the power of suspension, to suspend [a soldier minor’s] privilege of
the writ of Habeas Corpus, to leave him with the military power, and prevent his submitting to a
competent court the question whether he was lawfully drafted or enlisted.”60 Although little
noted among scholars, it is significant that Binney and several of Lincoln’s most prominent early
supporters of executive habeas suspension—including Democratic Senator Reverdy Johnson and
Harvard law professor Joel Parker—had withdrawn their support after Lincoln’s habeas policy
expanded far beyond their own conceptions of “public necessity” later in the war.61
The next two cases arose at a time in which military arrests north of the Border States
grew markedly between August and September 1862. The first, Ex parte Benedict, transpired in
New York nearly a year after Murphy in early September 1862, and bore a striking resemblance
to Merryman. Judson D. Benedict, a pacifist minister in Aurora, New York, was arrested at his
home on September 2 and confined to Fort Porter.62 Benedict was arrested for discouraging
enlistments, after reportedly admonishing those members of his congregation opposed to the war
to avoid conscription peacefully only if they were willing to accept the legal penalties for doing
so. Deputy Marshal A.G. Stevens arrested Benedict and four other men under the convenient
authority of a newspaper slip with a “purported” order from the War Department of August 8,
1862, which authorized all local civil and military authorities to “arrest and imprison any person
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or persons who may be engaged, by act, speech, or writing, in discouraging volunteer
enlistments, or in any way giving aid and comfort to the enemy, or in any other disloyal practice
against the United States.”63 Although designed to stifle draft evasion and enforce conscription,
the broad mandate of the War Department orders inevitably led to the military arrests of many
allegedly disloyal Northerners.64
Presiding over this case was Nathan K. Hall, District Judge of the United States for the
Northern District of New York in Buffalo. In his opinion, Judge Hall recalled reading another
order from the War Department in a newspaper of the same date (August 8), entitled “Persons
discouraging enlistments, to be arrested,” which declared in part that “[t]he writ of habeas
corpus is hereby suspended in respect to all prisoners [arrested for evading the draft]…and in
respect to all persons arrested for disloyal practices.” Like Taney, Hall was determined to
consider the scope and effect of the suspension order—which included confronting the
constitutionality of executive suspension. Like Curtis, Hall was greatly disturbed by Lincoln’s
notion of granting thousands of individuals, in some capacity of police authority, the convenient
and dangerous power to arbitrarily arrest citizens far out of sight of any battlefield. “Was it
intended,” Hall asked, “that every policeman and every military officer throughout the loyal
States, and in localities far removed from the seat of military operations, should be authorized to
arrest and imprison any citizen” without recourse to habeas? It was clear that such a grave
question transcended partisan bickering:
My personal confidence in the integrity, patriotism and good sense of the President, as
well as the respect due to the high office he holds, compels me to require the most
conclusive evidence upon the point before adopting the conclusion that he has ever
deliberately sanctioned so palpable a violation of the constitutional rights of the citizens
of the loyal States, as the order of the war department, thus construed, would justify and
require.65
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The judge maintained that as the circumstances stood in loyal New York, “all the laws of the
State and Union can be administered by the ordinary Courts of justice as freely, as fully, and as
efficiently, as in time of profound peace.” Significantly, Hall also pointed out that Congress had
not, as of that date, legally granted the president authorization to suspend habeas, and Lincoln
had yet to issue his sweeping September 24 proclamation suspending habeas throughout the
North.66
Throughout his opinion, Judge Hall repeatedly emphasized the corrosive problem of
“disloyalty,” which had become a much greater cause for concern among Northerners by the fall
of 1862. He pointed out that by this point in the war, hundreds of thousands of New Yorkers had
volunteered to sacrifice themselves for the preservation of the Union; how, then, could the
government justify imperiling the liberties of such a loyal people? Hall echoed Curtis in pointing
to the dangerous ambiguity pervading the charge of “disloyal practices.” For example, one
military officer may arrest a person for criticizing General McClellan and thereby somehow
discouraging enlistment, while another officer—who might believe criticism of McClellan to be
a virtue—may imprison another person critical of General Fremont for the same arbitrary reason.
Such a construction of the War Department order “would go far towards making a government a
despotic instead of a constitutional government.” Indeed, it stretched credulity to contend that
“American citizens are left at the mercy of the will of an individual, who may, in certain cases,
the necessity of which is to be judged of by himself, assume a supreme, overbearing, unbounded
power! The idea is not only repugnant to the principles of a free government, but subversive of
the very foundations of our own.” After an exhaustive citation of English and American
precedents reminiscent of Taney’s Merryman opinion, the New York judge ruled that “the
President, without the authority of Congress, has no constitutional power to suspend the privilege
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of the writ of habeas corpus in the United States,” and issued a writ for Benedict.67 Hall’s
opinion was far from unusual, however, as even judges sympathetic to the Lincoln
administration at the time continued to issue habeas writs because of the legal uncertainty
surrounding the August 8 War Department orders.68
Creating something of a sensation at the time, Judge Hall’s opinion in Ex. parte Benedict
was later published and widely circulated in pamphlet form, and was also featured in the first
edition of John A. Marshall’s bitter history of military arrests in the North, American Bastile. Yet
in stark contrast to Merryman and Vallandigham, and despite the contemporary prominence and
constitutional importance of the case, Benedict has received scarce mention among historians.
This is likely accounted for by the “Copperhead” reputation of Marshall’s book, which has been
given the unflattering epitaph of “the Book of Martyrs” and is often discredited for its evident
bias against the Lincoln administration.69
A federal district judge in Vermont would render a different constitutional argument on
executive suspension just two weeks later in a similar case. Anson Field, a Democratic politician
in his sixties from Vermont, was arrested along with two other men under authority of the
August 8 War Department orders on the basis of “vaguely disloyal conduct” in discouraging
enlistment.70 On October 7, Judge David Smalley delivered his opinion on the case in Ex. parte
Field. He began by noting the legal grey area accorded to the ambiguous charge of “disloyal
practices,” and admitted that the abuse of such a charge posed a great danger to the constitutional
liberties of even the most loyal citizens. Directly referencing Judge Hall’s earlier opinion in Ex
parte Benedict, Smalley denounced the “despotic and illegal order of the war department” and
asserted that “either the constitution or the order must fall.” Concurrent with Curtis, and
antagonistic to Lincoln, he then argued that under the Constitution, the president did not have the
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authority to delegate habeas suspension to others, for “even if the president possessed the
delicate and dangerous power of suspending the writ of habeas corpus, it will hardly be claimed
that he could delegate it to all or any of his subordinates, to be exercised when, in their
discretion, the ‘public safety’ might require it, any more than he could delegate the veto
power.”71 Here was a clear judicial denunciation of the tendency of military subordinates to
brush aside habeas procedure out of mere convenience under the presumed authority of the
Lincoln administration.
Smalley expressed his outrage against another War Department order, signed by Judge
Advocate General L.C. Turner, which ordered the U.S. marshal charged with Field’s detention to
resist any return of the writ by any judicial authority—with force if necessary. “A more flagrant
disregard of the constitution of the United States can hardly be conceived,” the judge remarked
bitterly. Perhaps speaking for the judges of the D.C. Circuit Court, Judge Hall, and other
“obstructionist” judges throughout the Union, Smalley declared:
In issuing this writ of habeas corpus, and in passing on questions raised upon it, I have
simply performed an imperative judicial duty. If I had shrunk from it, or in any way
avoided it, I should have proved recreant to the great trusts reposed in me. A judge who
will not faithfully and fearlessly perform every duty imposed upon him by the
constitution and the laws, as much merits disgrace and punishment, as does the soldier
who deserts his colors on the battlefield.72
At the time Smalley delivered his opinion, the writ of habeas corpus was suspended throughout
the entire North. But because the marshal had been ordered to bring Field before the court on
September 1, three weeks before Lincoln’s September 24 proclamation, Field “was legally
entitled to the privilege of the writ.” This was a procedural ruling in line with that of Judges
Dunlop and Morsell in the earlier Murphy case. The marshal was found guilty of contempt of
court and fined one hundred dollars.73
18
Having upheld the integrity of the judicial authority, Judge Smalley confronted the
constitutionality of executive habeas suspension, arguing “with great hesitancy” that the Militia
Act of 1795 sufficiently conferred upon the president the lawful power to declare martial law and
suspend habeas.74 While offering an original argument that was technically at variance from
Binney’s discovery of executive suspension power in the habeas clause of the Constitution itself,
some recent scholars have seized upon Smalley’s argument to buttress their defense of Lincoln’s
habeas record.75 What these scholars have failed to point out, however, is that Smalley’s opinion
was at best a qualified endorsement of executive suspension, for he went on to address the
practical consideration of “public necessity” in a way similar to Judge Hall: “But it may be
argued that Vermont is a loyal state, more than five hundred miles from the seat of war; that the
people are patriotic and law abiding; that the enforcement of civil law has not been interfered
with within her borders; and that, therefore, there is nothing to justify martial law.” Nevertheless,
Smalley admitted that “we have already seen that this is a question for the president, not for the
courts, to determine.”76 The Field case thus reveals that even a federal judge supportive of the
legality of executive habeas suspension could not fail to point out its inherent practical dangers
in areas far north of any battlefield or imminent danger, an argument no less important than the
theoretical one involving the legality of executive suspension.
The final case, In re Winder, although decided in October 1862, had its origins in the fall
of the previous year.77 Like Benedict, Winder has long been neglected by scholars, again most
likely because of its inclusion in Marshall’s American Bastile.78 William H. Winder of
Philadelphia was arrested on September 11, 1861, on vague charges of writing disloyal
correspondence and confined to Fort Warren in Boston Harbor. Winder suspected that his arrest
was based on false charges of corresponding with his Confederate brother, Richmond Provost
19
Marshal John H. Winder, whom he denied having written to since January of 1861. Although
admitting his outspoken hostility to Northern abolitionists, Winder affirmed that his devotion to
the Constitution and the Union was “breathed in every line” of his writings. “[U]nless a
difference of opinion from the Administration in regard to the best mode of securing the
perpetuity of the Union be cause of offense,” Winder argued, “there exists no ground upon which
to base a charge [against me].”79
Convinced that responsibility for his arrest lay with an inept subordinate of Secretary of
State Seward or Secretary of War Simon Cameron, Winder demanded vindication by an
unconditional release, for Union authorities had failed to find “a scintilla of evidence” against
him and he believed that to take a loyalty oath would “indorse my arrest and imprisonment as
being deserved.” In fact, both Seward and Cameron had each unknowingly issued a separate
order for Winder’s arrest on the same day, and there ensued a confusing and protracted drama in
which Winder and his attorney, George Biddle, relentlessly petitioned the War and State
Departments for Winder’s release. On at least two occasions during this period, Winder was
offered and declined taking an oath of allegiance to the Union Government. His refusals were
evidently based on a genuine fear that to take a loyalty oath would place him in danger after
returning home to vengeful partisan masses in Philadelphia. As he expressed his concern to
Colonel Justin Dimick, commander at Fort Warren: “…to take it [the loyalty oath] as a condition
of release would be to make an invidious distinction between me and all other citizens not
required to take it; it would make me a target for the shafts of the maliciously disposed” and
acknowledge “the necessity of an oath to restrain me from committing treason.” Even an
indefinite or general parole, Winder believed, “would equally render my stay in Philadelphia
intolerable.”80
20
Finally on October 25, 1862, Winder’s counsel applied to Associate Supreme Court
Justice Nathan Clifford, presiding over the United States Circuit Court in Boston, for a writ of
habeas corpus. By this point, Winder had been detained in Fort Warren for nearly fourteen
months without knowledge of any charges against him. Finding no just cause for Winder’s
detention, Clifford proceeded as the law dictated and issued the writ, but the deputy sheriff
tasked with serving the writ upon Colonel Dimick was forcibly prevented from landing at Fort
Warren by “a body of about fifty armed men drawn up in military array.”81
Following this obstruction, William B. Reed, part of Winder’s counsel, echoed the
arguments of Curtis, Hall, and Smalley by illustrating the Union military’s routine of
conveniently brushing aside habeas procedure for reasons clearly non-essential to any “public
necessity”:
In the case decided by the chief justice of the United States, that of Merriman, the
military officer to whom the process was directed, made a return in form respectful; and
this, too, at a time of local disturbance and on the edge of actual war. But here in
Massachusetts, many hundred miles away from any scene of war, where perfect peace
reigns, and every peaceful relation of life is maintained, and the court is regularly
transacting the ordinary and profitable business of the government, here in
Massachusetts, the writ which your Honor granted is both evaded and resisted, and an
imprisoned American citizen is denied the common right of knowing who are his
accusers and of what he is accused.82
His options exhausted, Justice Clifford acknowledged that deliverance of the writ for Winder
was prevented by force. “The court deeply regrets that officers of the United States should
obstruct process out of a court of the United States, especially of this [habeas] process.”
Reflecting the impotence of judicial authority in the face of an over-reaching military authority,
Clifford pointed out that “those [military] officers are at present beyond the control of the law,
and the court has not the command of the physical force needful to effect a service of this writ at
the present time.” Without addressing the constitutional issue of executive habeas suspension, he
21
then ordered the writ placed on file, “to be served when and where service may become
practicable.”83
Conclusion: The Civil War Habeas Experience and American Memory
To the extent that McQuillon, Murphy, Benedict, Field, and Winder are represented in
Civil War memory, the comparative prominence of Merryman and Vallandigham illustrates the
dominance of Lincoln’s unconstrained vision of executive habeas suspension among both
scholars and the general public. In much the same way, Horace Binney’s pamphlet is often
remembered as a definitive intellectual justification for Lincoln’s habeas suspensions despite the
ironic fact that Binney eventually opposed the abuses of habeas suspension by the end of the
war, while Benjamin R. Curtis’ reasoned and nonpartisan critical pamphlet is often forgotten. As
a consequence of the general deference to which Lincoln is accorded with regard to habeas
suspension, our memory of McQuillon, Murphy, Benedict, Field, Winder, and much of the Civil
War habeas experience in the lower courts remains buried deep within the Treasury of Virtue.
Upon closer scrutiny, however, these cases reveal the troubling practical consequences of a
policy which is often venerated for the “limited” intentions of its author. When measured against
Lincoln’s policy rationale in the Corning letter and the practical considerations of Curtis’
Executive Power, it is difficult to argue that the circumstances of the above cases meet the litmus
test of any “public necessity” for brushing aside habeas (and the judges involved certainly did
not think so, either). Rather, these cases reveal how Lincoln’s habeas policy in the North
established a pattern whereby the Union military brushed aside habeas procedure as a routine
matter of convenience, and in a way, historians have since followed this lead by routinely
overlooking or minimizing the importance of these cases in the narrative of Civil War habeas.
22
A final important point which has escaped scholarly attention is that both Curtis’
argument against transcendent executive power and the cases herein discussed chart an
unmistakable judicial progression toward the Supreme Court’s landmark 1866 decision in Ex.
parte Milligan.84 On October 21, 1864, Lambdin P. Milligan was brought before a military
commission and found guilty of vague charges of disloyalty and conspiracy. Milligan’s trial by
military commission took place in Indiana, a state far removed from any battlefield. In a five-tofour majority, the Court ruled that the military commission had no legal jurisdiction to try and
sentence Milligan. Delivering the opinion of the Court, Justice David Davis, an old friend of
Abraham Lincoln, famously declared that “The Constitution of the United States is a law for
rulers and people, equally in war and in peace, and covers with the shield of its protection all
classes of men, at all times and under all circumstances.” Although stopping well short of a total
vindication of habeas corpus,85 the Court emphatically rejected the plea of “public necessity”
conveniently appealed to by Union military authorities far removed from any theater of war in
implementing Lincoln’s habeas and martial law policies. In sweeping language, Davis
proclaimed:
No doctrine involving more pernicious consequences was ever invented by the wit of
man than that any of its provisions can be suspended during any of the great exigencies of
government. Such a doctrine leads directly to anarchy or despotism, but the theory of
necessity on which it is based is false, for the government, within the Constitution, has all
the powers granted to it which are necessary to preserve its existence, as has been happily
proved by the result of the great effort to throw off its just authority.86
Moreover, because the courts in Indiana were “open and their process unobstructed,” and
because Milligan was in no way “connected with the military service,” he could not legally be
tried by a military commission.87 “Martial law,” Davis proclaimed, “cannot arise from a
threatened invasion. The necessity must be actual and present, the invasion real, such as
23
effectually closes the courts and deposes the civil administration.”88 Therefore, “Martial rule”
must be “confined to the locality of actual war,” for it “can never exist where the courts are open
and in the proper and unobstructed exercise of their jurisdiction.”89
Even if one accepts the pretenses of “public necessity” or “national security” as valid
justifications for curtailing civil liberties in times of war, we should not confine discussion of the
Civil War habeas experience to the purely theoretical. In the Civil War North, as shown by these
lower federal court habeas cases, the practical consequences of Lincoln’s habeas suspensions on
civilians, judges, and soldiers were surely no less significant than the theoretical arguments
advanced then and since to justify them. But if Lincoln’s Corning letter continues to be
remembered as a model for conditional expansion of executive power in times of war, Curtis’
Executive Power likewise should not be forgotten as a potent warning against the natural
consequences and potential abuses of such power. “Amidst the great dangers that encompass us,”
wrote Curtis, in words no less applicable to the twenty-first century U.S. experience in the socalled Global War on Terror, “in our struggles to encounter them, in our natural eagerness to lay
hold of efficient means to accomplish our vast labors, let us beware how we borrow weapons
from the armory of arbitrary power. They cannot be wielded by the hands of a free people. Their
blows will finally fall upon themselves.”90
1
Robert Penn Warren, The Legacy of the Civil War (Lincoln: University of Nebraska Press, 1998), 59.
Ibid, 64.
3
Although the volume of scholarship on Lincoln and Civil War habeas is vast, a number of classic works stand out
as significant contributions to the literature. See James G. Randall, Constitutional Problems Under Lincoln (Urbana:
University of Illinois Press, 1964); Harold M. Hyman, A More Perfect Union: The Impact of the Civil War and
Reconstruction on the Constitution (New York: Knopf, 1973); and Mark E. Neely, Jr., The Fate of Liberty:
Abraham Lincoln and Civil Liberties (New York: Barnes & Noble, 2007). For useful introductions to the literature,
see Herman Belz, “The Dictatorship Question Reconsidered”, in Abraham Lincoln, Constitutionalism, and Equal
Rights During the Civil War (New York: Fordham University Press, 2008); and David Donald’s essay, “Reverence
for the Laws”, in Lincoln Reconsidered: Essays on the Civil War Era, 3 rd Ed. (New York: Random House, Inc.,
2001) . For recent contributions to the topic, see Daniel Farber, Lincoln’s Constitution (Chicago: University of
Chicago Press, 2003); James F. Simon, Lincoln and Chief Justice Taney: Slavery, Secession, and the President’s
War Powers (New York: Simon & Schuster, 2006); James A. Dueholm, “Lincoln’s Suspension of the Writ of
2
24
Habeas Corpus: An Historical and Constitutional Analysis.” Journal of the Abraham Lincoln Association 29, no. 2
(Summer 2008): 47-66; John Yoo, President Lincoln, Civil Liberties, and the Constitution (New York: Kaplan,
2010); Brian McGinty, The Body of John Merryman: Abraham Lincoln and the Suspension of Habeas Corpus
(Cambridge: Harvard University Press, 2011); Mark E. Neely, Jr., Abraham Lincoln and the Triumph of the Nation:
Constitutional Conflict During the Civil War (Chapel Hill: The University of North Carolina Press, 2011); and
Jonathan W. White, Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman (Baton Rouge:
Louisiana State University Press, 2011). For a recent and groundbreaking study on the history of American habeas
development, see Justin J. Wert, Habeas Corpus in America: The Politics of Individual Rights (Lawrence:
University Press of Kansas, 2011).
4
Collected Works of Abraham Lincoln (hereafter cited as CWL), Vol. IV, First suspension order.
5
General George Cadwalader to Chief Justice Roger B. Taney, 26 May 1861, reprinted in War of the Rebellion:
Official Records of the Union and Confederate Armies (hereafter cited as O.R.), Series II, Vol. II, 576. The “various
acts of treason” which have been attributed to Merryman included burning railroad bridges to Washington, D.C.,
cutting telegraph wires, and training secessionist militia for the purpose of overthrowing the Union government. As
Jonathan W. White aptly notes, however, “[t]he military’s justifications for holding Merryman exhibited a surprising
level of ambiguity and lack of specificity as to what exactly John Merryman stood accused of having done.” White,
The Trials of John Merryman, 29.
6
The habeas clause is found in the second paragraph of Article I, Section 9 of the U.S. Constitution, as follows:
“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.” Taney was at the time serving in his capacity as circuit court judge for the District
of Maryland Circuit Court. For incisive analyses of the Merryman case, see Harold M. Hyman, A More Perfect
Union, 81-98; Simon, Lincoln and Chief Justice Taney: Slavery, Secession, and the President’s War Powers; Mark
E. Neely, Jr., “Abraham Lincoln and Civil Liberties” in Eric Foner, ed., Our Lincoln: New Perspectives on Lincoln
and His World (New York: W.W. Norton, 2008); Wert, Habeas Corpus in America, 80-85; and White, The Trials of
John Merryman.
7
Letter of Frederic Bernal to the Editor of the Times, The Times, Monday, February 23, 1914 ; Ex parte Merryman,
as reprinted in Official Records, Series II, Vol. II, 585; White, The Trials of John Merryman, 30-32. Frederic Bernal,
the British consul in Baltimore, later denounced the “fresh acts of despotism” by the military authorities in
Baltimore during the late summer of 1861, which included the arrest of British subjects for allegedly agreeing to join
the Confederate army. See Frederic Bernal, Despatches from Baltimore 1861-1865, September 10, 1861.
8
CWL, Address to Emergency Session of Congress, IV, 429-30.
9
William Rehnquist, All the Laws But One: Civil Liberties in Wartime (New York: Knopf, 1998), 42.
10
Lincoln had suspended habeas twice more after his initial April 27 suspension. For an early survey and list of this
pamphlet literature, see Sydney George Fisher, “Suspension of Habeas Corpus during the War of the Rebellion.”
Political Science Quarterly, III (1888), 454-488.
11
Horace Binney, The Privilege of the Writ of Habeas Corpus under the Constitution (Philadelphia, 1862). For
extensive emphasis on Binney’s defense of Lincoln, see Randall, Constitutional Problems Under Lincoln, 124-28,
138; Neely, Lincoln and the Triumph of the Nation, 63-111; McGinty, The Body of John Merryman, 127-131; James
A. Dueholm, “Lincoln’s Suspension of the Writ of Habeas Corpus: An Historical and Constitutional Analysis,”
Journal of the Abraham Lincoln Association 29 (Summer 2008): 47-66.
12
Neely, Lincoln and the Triumph of the Nation,; Horace Binney, “The Privilege of the Writ of Habeas Corpus,” 8.
13
Neely, Lincoln and the Triumph of the Nation, 71, 94-5.
14
Lincoln, “Proclamation Suspending the Writ of Habeas Corpus,” September 24, 1862, in CWL, V, 436-37; see
also “Order Authorizing Arrests of Persons Discouraging Enlistments,” August 8, 1862, in O.R., ser. 3, vol. 2, 32122; and “Order to Prevent Evasion of Military Duty and for the Suppression of Disloyal Practices,” August 8, 1862,
in O.R., ser. 2, vol. 4, 358-59. This proclamation, which came only two days after Lincoln announced his
Preliminary Emancipation Proclamation, subjected “all rebels and insurgents, their aiders and abettors, within the
United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal
practice, affording aid and comfort to the rebels” to martial law, and suspended the writ of habeas corpus “in respect
to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fort, camp,
arsenal, military prison, or other place of confinement by any military authority…” Reprinted in Frank Freidel, ed.,
Union Pamphlets of the Civil War, 1861-1865, vol. I (Cambridge: The Belknap Press of Harvard University Press,
1967), 451-52.
25
15
For extensive treatments of the Vallandigham case, see James G. Randall, Lincoln the President: Midstream (New
York: Dodd, Mead & Company, 1952), 212-38; Frank L. Klement, The Limits of Dissent: Clement L. Vallandigham
and the Civil War (Lexington: University Press of Kentucky, 1970); and Simon, Lincoln and Chief Justice Taney,
233-68.
16
CWL, Letter to Erastus Corning and Others, VI, 260-69; Neely, Lincoln and the Triumph of the Nation, 86-87.
Neely asserts that in his Corning Letter, Lincoln “virtually criminalized silence and demanded a noisy patriotism as
proof of loyalty.” In sum, the letter was “an example of nationalism unleashed” in which Lincoln “moved
rhetorically to threaten the loyal opposition.”
17
CWL, VI, 263.
18
Ibid., 265-66.
19
Ibid., 266-67. Also noteworthy of the Corning letter was Lincoln’s confidence that the security measures resorted
to by his administration during the war would not prevail during times of peace—an assertion likely made to allay
fears of permanent dictatorship: “…Nor am I able to appreciate the danger, apprehended by the meeting, that the
American people will, by means of military arrests during the rebellion, lose the right of public discussion, the
liberty of speech and the press, the law of evidence, trial by jury, and Habeas corpus, throughout the indefinite
peaceful future which I trust lies before them, 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 through the remainder of his
healthful life.” Ibid, citation needed.
20
An outstanding exception is the work of Mark E. Neely, Jr. See his Fate of Liberty and Lincoln and the Triumph
of the Nation. As Neely recently observes: “Day to day, the real constitutional history of the Civil War in the North
was fought at levels far below the appellate. Indeed, it was fought at the level of actual military service where
nationalism tested the citizen’s willingness to fight for his country.” Neely, Lincoln and the Triumph of the Nation,
167.
21
Preliminary Emancipation Proclamation of September 22, 1862; Proclamation of September 24, 1862; and Orders
of the Secretary of War Promulgated September 26, 1862.
22
Benjamin R. Curtis, Executive Power (1862), reprinted in Frank Freidel, ed., Union Pamphlets of the Civil War, I,
460.
23
Ibid., 455-56.
24
Ibid., 457. See the Supreme Court decision in Ex parte Milligan (1866)
25
Ibid., 457.
26
Ibid., 460-61, 463.
27
Ibid., 461.
28
Ibid., 453, 456.
29
Here I borrow the phraseology, but not the ideological substance, of Thomas Sowell’s discussion of the
constrained and unconstrained visions in Thomas Sowell, A Conflict of Visions: Ideological Origins of Political
Struggle (New York: Basic Books, 2002).
30
Quoted in Benjamin R. Curtis, Jr. and George T. Curtis, ed. A Memoir of Benjamin Robbins Curtis. (Clark, NJ:
The Lawbook Exchange, 2002), 351. For a time after Executive Power was distributed, at least, the pamphlet “made
it exceedingly obnoxious to the excited partisans of the [Lincoln] Administration.” Ibid. Indeed, coming from such
an eminent source, Curtis’ pamphlet could not be ignored by Lincoln’s defenders. Its publication presented a
significant (but overlooked) irony in the history of the Civil War era: Curtis, who provided the Republican Party
with indispensable intellectual capital for opponents of slavery in his dissenting opinion in Dred Scott in 1857, also
penned a damning criticism of Republican policies inimical to civil liberties during the Civil War.
31
Stuart Streichler, Justice Curtis in the Civil War Era: At the Crossroads of American Constitutionalism
(Charlottesville: University of Virginia Press, 2005), 152.
32
The Abraham Lincoln Papers at LOC, Abraham Lincoln to Charles P. Kirkland, 12/07/1862; Charles P. Kirkland,
A Letter to the Hon. Benjamin R. Curtis, Late Judge of the Supreme Court of the United States, in Review of His
Recently Published Pamphlet on the “Emancipation Proclamation” of the President (New York: 1862). As the title
of his pamphlet suggests, Kirkland confined his rebuttal to Curtis’ argument regarding emancipation, and did not
offer a cogent response to Curtis’ argument regarding habeas suspension and martial law.
33
Daily Evening Bulletin, September 7, 1861; New York Herald, July 27, 1861.
34
The Daily Dispatch, August 6, 1861; The National Republican, June 29, 1861.
35
New York Herald, July 27, 1861; The National Republican, June 29, 1861.
26
36
Ex. parte McQuillon, ; see also Neely, Lincoln and the Triumph of the Nation, 176-77.
Ibid.; New York Times, July 30, 1861.
38
Ex. parte McQuillon
39
The United States ex. rel John Murphy v. Andrew Porter, Provost Marshal, D.C. Circuit Court of the District of
Columbia, County of Washington. 2 Hay. & Haz. 394; 1861 U.S. App. Lexis 475 (accessed via LexisNexis
Academic, http://www.lexisnexis.com.navigatoriup.passhe.edu on September 12, 2010). For a discussion of the
problem of underage soldiers, see Neely, Lincoln and the Triumph of the Nation, 164-172.
40
Howard C. Westwood, “Questioned Loyalty in the District of Columbia Government,” Georgetown Law Journal
75 (April: 1987), 1461. For the Merrick case generally, see Jonathan W. White, “Sweltering with Treason,”
Prologue; Neely, Lincoln and the Triumph of the Nation, 172-73. Merrick’s rulings on such cases were also noted in
contemporary newspapers. On 15 October 1861, The New York Times reported Merrick as refusing a habeas corpus
petition from one Richard A. Lucas, a soldier minor, for discharge on account of circumstantial evidence of parental
consent. See The New York Times, Tuesday, October 15, 1861, page 1. The actual case—as well as others from the
same summer-fall 1861 period—may be found in Segregated Habeas Corpus Papers, RG 21, National Archives.
41
See, for example, the Janesville Daily Gazette, Janesville, Wisconsin, Saturday, October 26, 1861, page 5.
The few historians who have written about the case tend to echo this denunciation of Merrick’s conduct. See, for
example, Brian McGinty, Lincoln and the Court (Cambridge: Harvard University Press, 2008), 99. Neely has
recently written that Merrick “was not much bothered by the notion of causing trouble for the army or the
administration even during this great war.” Neely, Lincoln and the Triumph of the Nation, 172.
42
Quoted in White, “Sweltering with Treason.”
43
Confidential anonymous letter to General Scott in O.R., II, II, 1021; Westwood, 1465.
44
The United States ex. rel John Murphy v. Andrew Porter
45
Seward to Porter, O.R., II, II, 1022.
46
Porter to Seward and Seward to Porter, Ibid.
47
Taken from Merrick’s letter to the court in United States ex. rel Murphy v. Porter.
48
Seward to Comptroller General, O.R., II, II, 1022; United States Constitution, Article III, Section 1. The
Constitution does not provide for the reduction or suspension of a judge’s salary, although he “shall be removed
from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
49
Jeffrey Manber and Neil Dahlstrom, Lincoln’s Wrath: Fierce Mobs, Brilliant Scoundrels and a President’s
Mission to Destroy the Press (Naperville: Sourcebooks, Inc.), 61; Jennifer Weber, Copperheads: The Rise and Fall
of Lincoln’s Opponents in the North (New York: Oxford University Press, 2006), 224, n47.
50
The New York Times, Oct 24, 1861; William Howard Russell, My Diary, North and South (New York: Harper,
1954), 559-60. Edward Ingersoll refers to “the military assault upon Judge Merrick” in his 1862 pamphlet, Personal
Liberty and Martial Law: A Review of Some Pamphlets of the Day in Friedel, Union Pamphlets, I, 293. Tellingly,
this case was well publicized in London newspapers, such as The Times, The Press, and The Nonconformist.
51
With regard to speculation over the nature of Merrick’s “house arrest,” Jonathan W. White suggests that Merrick
may have “considered himself under house arrest” as a sort of publicity stunt. See White, “Sweltering with
Treason.” Similarly, Howard C. Westwood maintains that the judge stayed away from the court “in protest”. See
Westwood, 1464. Conversely, Matthew F. McGuire contends that Merrick was “not a man to sit by and waste time,”
and would not have stayed away from his seat on the bench unless the Lincoln administration had intended for such
a scenario. See Matthew F. McGuire, An anecdotal history of the United States District Court for the District of
Columbia, 1801-1976 (The Court: 1977), 43.
52
The United States ex. rel John Murphy v. Andrew Porter; John Hay, Letters of John Hay and Extracts from Diary,
vol. 1 (New York: Gordian Press, 1969), 47.
53
For emphasis on Lincoln’s subordinates regarding internal security matters, see Dean Sprague, Freedom Under
Lincoln (Boston: Houghton Mifflin, 1965); and Brian McGinty, The Body of John Merryman. Specific to the
Murphy case, Neely refers to “Seward’s harassment of Merrick,” and accepts at face value the text of Seward’s
order stating that the “armed guard” at Merrick’s residence was strictly for the purpose of “observation.” See Neely,
Lincoln and the Triumph of the Nation, 172-73.
54
The United States ex. rel John Murphy v. Andrew Porter
55
See William Marvel, Mr. Lincoln Goes to War (Boston: Houghton Mifflin, 2006), 34, 257. On October 14,
Lincoln issued a suspension proclamation (in Seward’s hand) that extended the geographical reach between
37
27
Washington and Bangor, Maine, although this suspension did not explicitly cover soldier minors within the District
of Columbia.
56
The United States ex. rel John Murphy v. Andrew Porter.
57
Despite aggressive Republican pressure in the Senate for Congressional endorsement of a joint resolution
approving Lincoln’s suspensions by Senator Henry Wilson of Massachusetts and others, many senators could not
bring themselves to validate executive suspension (even with a Republican majority) and the only resolution
endorsing executive suspension power during the session was allowed to die. Illinois Senator Lyman Trumbull, an
old friend of the president, admitted that “I am not disposed to say that the Administration has unlimited power and
can do what it pleases, after Congress meets.” Likewise, Senator John Sherman declared: “I do not believe the
President of the United States has the power to suspend the writ of habeas corpus, because the power is expressly
given to Congress, and to Congress alone.” Sherman could not “as a Senator, under oath, declare that what [Lincoln]
did do [suspending habeas] was legal.” By the close of the session on August 6, 1861, the Senate did pass a
resolution approving “all the acts, proclamations, and orders of the President of the United States…respecting the
Army and Navy” following March 4, 1861, but contrary to assertions by recent scholars, it was made explicitly clear
that this resolution did not include validating Lincoln’s earlier suspensions or sanctioning executive habeas
suspension as a principle. In defending the resolution from critics, Senator William Pitt Fessendon of Maine assured
his colleagues that the bill “avoids all questions with regard to the habeas corpus and other matters, and refers
simply to the military appropriations” and the calling out of volunteers. Fessendon’s efforts succeeded in addressing
the reservations of other senators such as Willard Saulsbury, Sr., of Delaware, who warned that “If there is anything
in this bill that looks to the toleration of the suspension of the writ of habeas corpus, I never will, under any
circumstances, vote for it,” for the writ was “the bulwark of the freedom of the citizen.” See Congressional Globe,
37th Congress, 392-93, 442. On the curious scholarly distortion of this point, see McGinty, The Body of John
Merryman, 119; and Thomas L. Krannawitter, Vindicating Lincoln: Defending the Politics of Our Greatest
President (Lanham: Rowman & Littlefield Publishers, Inc., 2010), 327. Even the most authoritative scholar on
Congress and habeas during the Civil War, George Clarke Sellery, interprets Congressional inaction on the habeas
issue during the special session of Congress as tacit approval of Lincoln’s right to suspend habeas. See George
Clarke Sellery, Lincoln’s Suspension of Habeas Corpus as Viewed by Congress (Whitefish: Kessinger Publishing
Company, 2010), 11-26.
58
Westwood,1465.
59
On May 27, 1861, Frederic Bernal, the British consul at Baltimore, reported two underage British subjects who
were recruited off of a merchant vessel into the Union army. When they attempted to leave the service, the military
authorities at Fort McHenry refused to give them up, and kept them under detention without recourse to habeas.
Given its dangerous implications on U.S.-British relations, this incident very well may have prompted Bernal to be
present in the courtroom to hear Taney deliver his opinion in Ex parte Merryman. See Frederic Bernal, Despatches
from Baltimore 1861-1865, May 27, 1861.
60
Horace Binney, The Privilege of the Writ of Habeas Corpus…:Third Part, 61-62.
61
White, The Trials of John Merryman, 8484-85; Neely, Lincoln and the Triumph of the Nation, 92-95, 164.
62
Neely, Fate of Liberty, 62; Ex parte Benedict, 3 Fed. Cas. 159 (No. 1292) (D.C.N.Y., 1862), as reproduced in
Opinion of Judge N.K. Hall, of the United States District Court for the Northern District of New York, on Habeas
Corpus in the Case of Rev. Judson D. Benedict; and Documents and Statement of Facts Relating Thereto. (Buffalo:
Joseph Warren & Co., Printers, Courier Office, 1862).
63
Ibid, 5-6, 21.
64
Neely, Fate of Liberty, 60, 64.
65
Opinion of Judeg N.K. Hall…, 7.
66
Ibid., 12, 18.
67
Ibid.
68
Neely, 57.
69
New York World, Oct. 30, 1862. Scarce mention of Benedict is provided in Neely, Fate of Liberty, 202; McGinty,
The Body of John Merryman, 134; and Carl Brent Swisher, History of the Supreme Court of the United States: The
Taney Period, 1836-64 (New York: Macmilan Publishing Co., Inc., 1974), 920. See John A. Marshall, American
Bastile: A History of Illegal Arrests and Imprisonments during the Civil War (Philadelphia, 1869), which has gone
through at least twenty-four editions since its original publication; and discussion in Neely, Lincoln and the Triumph
of the Nation, 84-85.
28
70
Ex parte Field, 9 Fed. Cas. 1; 1862 U.S. App. LEXIS 569; McGinty, The Body of John Merryman, 136.
Ex parte Field, 6, 11, 14.
72
Ibid., 15-16.
73
Ibid., 31-32.
74
Ibid, 19-32.
75
See for example McGinty, The Body of John Merryman, 136-37; Michael Burlingame, Abraham Lincoln: A Life,
II,; and Stephen I. Vladeck, “The Field Theory: Martial Law, the Suspension Power, and the Insurrection Act.”
Temple Law Review 80 (2007):391-439.
76
Ex parte Field
77
In re Winder, 30 F. Cas. 288 (1862) U.S. App. MA.
78
Brief discussion of Winder may be found in Randall, Lincoln the President: Midstream, 204-5; Swisher, The
Taney Period, 921; and McGinty, The Body of John Merryman, 134-35.
79
O.R., II, II, 721-30.
80
Ibid., 729, 730, 740-41.
81
In re Winder, as reproduced in Reports of Cases Determined in the Circuit Court of the United States for the First
Circuit, From October Term, 1861, to October Term, 1867, By Hon. Nathan Clifford, LL.D, Associate Justice of the
Supreme Court, Assigned to Said Circuit (Boston: Little, Brown, 1870), 99, 106.
82
Ibid., 107.
83
Ibid.
84
Ex. parte Milligan, 71 U.S. 2 (4 Wall.) (1866).
85
For an incisive analysis of the role of Milligan in American habeas development, see Wert, 90-96.
86
Ibid., 120-21. Although the Court did not offer a direct ruling on executive habeas suspension, Davis went further
in enunciating the dangers inherent in a broad application of martial law: “It is claimed that martial law covers with
its broad mantle the proceedings of this military commission. The proposition is this: that, in a time of war, the
commander of an armed force (if, in his opinion, the exigencies of the country demand it, and of which he is to
judge) has the power, within the lines of his military district, to suspend all civil rights and their remedies and
subject citizens, as well as soldiers to the rule of his will, and, in the exercise of his lawful authority, cannot be
restrained except by his superior officer or the President of the United States. If this position is sound to the extent
claimed, then, when war exists, foreign or domestic, and the country is subdivided into military departments for
mere convenience, the commander of one of them can, if he chooses, within his limits, on the plea of necessity, with
the approval of the Executive, substitute military force for and to the exclusion of the laws, and punish all persons as
he thinks right and proper, without fixed or certain rules.” If such a proposition were true, said Davis, “republican
government is a failure, and there is an end of liberty regulated by law…Civil liberty and this kind of martial law
cannot endure together; the antagonism is irreconcilable, and, in the conflict, one or the other must perish.” Ibid.,
124-25.
87
Ibid., 121-22.
88
Ibid., 127.
89
Ibid.
90
Curtis, Executive Power, 470.
71
29