Although military officials continued to arrest suspected Southern sympathizers, the incident led to a softening of the policy. Concern that Maryland might still secede from the Union forced a more conciliatory stance from Lincoln and the military. Merryman was remanded to civil authorities in July and allowed to post bail.
He was never brought to trial, and the charges of treason against him were dropped two years after the war. But if you see something that doesn't look right, click here to contact us! The mass slaughter of Chinese gold miners by a gang of white horse thieves was one of many hate crimes perpetrated against Asian immigrants in the American West during this The German death toll was more than 2, On February 14, , the foot Bismarck was launched at Hamburg.
Nazi leader Adolf Hitler hoped that the state-of-the-art A boat carrying Jewish refugees fleeing Nazi persecution is turned away from Havana, Cuba, on May 27, Only 28 immigrants are admitted into the country. After appeals to the United States and Canada for entry are denied, the rest are forced to sail back to Europe, where On May 27, , a B carrying U.
After surviving the crash, Zamperini floated on a raft in shark-infested waters for more than a month before being picked up by the Japanese and spending the Petersburg as the new Russian capital. The reign of Peter, who became sole czar in , was characterized by a series of sweeping military, political, He explored the history of the writ of habeas corpus under English law, showing that the House of Commons had limited and then abolished the royal power to suspend the writ, leaving suspension in legislative hands.
The Constitution, he said, embodied this English tradition. Article II, he asserted, gave the president very limited powers that were weakened further by the Bill of Rights. Finally, he cited eminent authority, noting that Chief Justice John Marshall, Thomas Jefferson, and Joseph Story, a luminary as both judge and scholar, had all acknowledged that the power to suspend was a congressional power.
Lincoln ignored Taney, and that was the end of the federal judiciary's involvement with the suspension of habeas corpus. Neither the Supreme Court nor the lower federal courts dealt with the issue again. The action now passed to the president and Congress. On April 15, , twelve days before he first authorized suspension of the writ of habeas corpus, Lincoln called a special session of Congress to convene on July 4. Before Congress convened, Lincoln followed his April 27 order authorizing suspension with a May 10 order authorizing suspension on part of the Florida coast [3] and a July 2 order authorizing suspension between Philadelphia and New York.
On July 4, Lincoln delivered a message to the special session of Congress. He then went on: "Now it is insisted that Congress, and not the Executive, is vested with this power. But the Constitution itself, is silent as to which, or who, is to exercise the power; and as the provision was plainly made for a dangerous emergency, it cannot be believed the framers of the instrument intended, that, in every case, the danger should run its course, until Congress could be called together; the very assembling of which might be prevented No more extended argument is now offered, as an opinion Whether there shall be any legislation upon the subject, and if any, what, is submitted entirely to the better judgment of Congress.
The promised opinion of Attorney General Edward Bates came the next day. Bates argued that the president is authorized to suspend the writ because he is charged with preservation of the public safety, but he then concluded with his personal opinion that the power of suspension flows from the president's power to make warrantless arrests.
While Lincoln's defense of his constitutional power of suspension is stated tentatively in his message to Congress, his actions and later words confirm his belief that he, and he alone, had the constitutional power to suspend the writ of habeas corpus.
On July 2, just two days before Congress convened, Lincoln issued an order authorizing suspension of the writ of habeas corpus between New York and Philadelphia—friendly territory for the administration.
But he didn't suspend the writ, which suggests a lack of urgency. Lincoln could have sought and almost certainly could have obtained congressional authorization before issuing the order, but he didn't do so. He didn't seek suspension authorization in his July 4 message or at any later time. Indeed, when he says in his message that "whether there shall be any legislation on this subject Congress accepted Lincoln's invitation to dawdle.
As we will see, Congress did not enact legislation authorizing suspension of habeas corpus until March 3, In the meantime, Lincoln's orders authorizing suspension remained in force, and on September 24, , he issued a proclamation imposing martial law and suspending the writ of habeas corpus. The proclamation orders that, for the rest of the war, i "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 or comfort to rebels against the authority of the United States, shall be subject to martial law and liable to trial and punishment by courts martial or military commission," and ii "the writ of habeas corpus is suspended in respect to all persons arrested or imprisoned in any fort, camp, arsenal, military prison, or other place of confinement by any military authority or by the sentence of any court martial or military commission.
This proclamation is breathtaking in its scope, hardly the act of a man who feels the need of a congressional crutch. When Congress handed him a crutch with its March 3, , suspension act, he resisted its use and said he didn't need it, and when he finally did use it in September, , he positioned himself to argue that he could walk without it.
In May , New York Democrats adopted resolutions criticizing Lincoln for infringements of civil liberties, including the arrest and detention of Ohio Copperhead politician Clement Vallandigham and others. Erastus Corning forwarded those resolutions to Lincoln, who responded in a well-known June 12 letter to Corning.
Any doubt about Lincoln's confidence in his power is removed by a letter he wrote later in June. Ohio Democrats sent to Lincoln resolutions they had adopted in response to Lincoln's position as set forth in the Corning letter.
Lincoln responded in a June 29 letter to Matthew Birchard. The Ohio resolutions asked what would happen if action was taken to "expunge from the constitution this limitation upon the power of Congress to suspend the writ of habeas corpus. This question, divested of the phraseology calculated to represent me as struggling for an arbitrary personal prerogative, is either simply a question who shall decide, or an affirmation that nobody shall decide, what the public safety does require, in cases of rebellion or invasion.
The constitution contemplates the question as likely to occur for decision, but it does not expressly declare who is to decide it.
By necessary implication, when rebellion or invasion comes, the decision is to be made, from time to time; and I think the man whom, for the time, the people have, under the constitution, made the commander-in-chief, of their Army and Navy, is the man who holds the power In there was widespread resistance to the draft, including rioting and looting in New York City in July. On September 15, , Lincoln, likely seeking political cover that he would not have by enforcing his September suspension order, issued a proclamation suspending the writ of habeas corpus based upon the suspension act.
His September 15 order begins by referring to both the Constitution and the legislation and ends by urging all citizens "to conduct and govern themselves While Lincoln talked and acted, Congress talked without acting. On July 5, , Massachusetts senator Henry Wilson introduced a bill ratifying Lincoln's prior actions in general terms, but he later replaced it with a bill that would have ratified specific acts, including the suspension authorizations.
Lincoln's friend and Illinois senator Lyman Trumbull objected to this approach on the grounds that ratification of past suspension orders might suggest that Lincoln did not have authority to issue similar future orders, and he introduced legislation authorizing Lincoln to suspend habeas corpus.
Neither the Wilson nor the Trumbull bill passed in the special session. Opposition to congressional action was apparently based in part on the concern of some Republicans that legislation would be read as a rejection of presidential power.
Finally, on March 3, , nearly two years into the war and twenty months after the special session, Congress passed an act authorizing Lincoln to suspend the writ of habeas corpus. Section 2 required the secretaries of state and of war to provide to the federal courts lists of all prisoners held by the federal government except prisoners of war, and required the courts to order the release of all listed prisoners who were not indicted by the first available grand jury and who took a loyalty oath and, at the court's discretion, posted bond.
As enacted, the suspension act said that the president "is" authorized to suspend the writ, while earlier versions said that the president "shall be" empowered. This evolution in language coupled with the debates in and delay by Congress as it grappled with habeas corpus for twenty months convinced Professor Sellery that Congress's "dominating motive was unquestionably a desire not to deny the President's right to suspend.
Based on the evidence, Sellery fairly assesses congressional motive, but he understates the significance of Section 2. That section imposes a restriction that, if enforced, would severely restrict and even disable the presidential suspension power. Section 2 effectively time-limits suspensions.
By freeing all those not indicted by the first available grand jury, it handed the jailhouse keys to all prisoners who committed subversive but non-criminal acts. This would largely defeat Lincoln's use of military detention, for as he said in the Corning letter, military arrests and detentions allowed him to imprison and hold law-abiding persons who undermined or disrupted the conduct of the war.
Under Lincoln's view of the Constitution, Section 2 of the suspension act imposed an unconstitutional restraint on his power to suspend habeas corpus, and he had made it clear in words and acts that he didn't need the authority conferred by Section 1, so he could have vetoed the act.
That, however, would have provoked a congressional confrontation in the dark days following the Battle of Fredericksburg. He did not veto it or even oppose it. Nor did he issue a signing statement questioning the constitutionality of parts of the act, as he had done when he signed the Second Confiscation Act.
Instead, he dealt with Section 2 of the act as he once said an old farmer had dealt with a tree trunk too big and deeply rooted to be dislodged by a breaking plow—he plowed around it. His plow was stored in the provision of Section 2 requiring the secretaries of state and war to furnish the required lists "as soon as practicable.
Because of the September declaration of martial law and the and suspension orders, the prisoners were held throughout the country in military facilities which, in the words of the suspension order, included forts, camps, arsenals, military prisons, and "other places of confinement.
Under the circumstances, it would have been difficult with diligence and good faith to produce the lists with the required data, and the "as soon as practicable" requirement made it easy to relax diligence, if not good faith. When the system had not produced any lists, the Senate passed a resolution directing the secretary of war to report on the lists.
Nicolay and Hay describe the response: "The Secretary promptly replied, transmitting the report of the Judge Advocate General, showing that all possible vigilance had been used in complying with the terms of the law. The rolls were necessarily incomplete; the offenses with which the prisoners were charged were frequently indefinitely stated; and instead of specifying the particular officers by whom arrests were made the President and Secretary of War assumed the responsibility in all cases Those arrested for military offenses were tried with the greatest possible expedition Several commissions were actively engaged in investigating the cases of prisoners, and releasing them whenever it could be done without prejudice to the public safety.
In the meantime, though, it appears that no lists were forthcoming, and that the prisoners continued to be processed in the military justice system, not the federal courts. Nicolay and Hay give no indication of congressional follow-up or response.
The president had successfully evaded the law. John Hay noted that Lincoln, like other great men, was not a modest man. In his handling of habeas corpus suspension, he was at his immodest best. He was typically self-assured, decisive, adept, and politically astute. He acted forcefully at the outset, but then, in his July 4, , message to Congress he seemed to acknowledge a congressional role in habeas corpus even as he advanced a soft defense of his power to suspend the Great Writ and suggested that there was no urgent need for Congress to act.
A less confident president would have welcomed congressional support, but Lincoln knew that the implications of congressional authority to suspend the writ would erode his constitutional power, and he was probably concerned that Congress might hedge his authority with burdensome restrictions as, in the event, it did. When Congress accepted Lincoln's invitation to inaction, he continued to act without congressional authority, most decisively in his September order imposing martial law and suspending habeas corpus throughout the country.
In his response to Birchert, he abandoned the diffidence in his special session message and forcefully expressed the opinion that he, and he alone, held the power of suspension, but since this was a private letter rather than an official communication, Congress could ignore it.
Faced with disabling restrictions in the suspension act, he ignored the restrictions without roiling Congress. In sum, in an area generally thought at the time to be within the congressional domain, he manipulated Congress, challenged its powers, ignored its laws, and imposed his authority and will without ruffling congressional feathers or provoking congressional response. The next section addresses how Lincoln's use of the suspension clause played with the men of the schools.
In the final part of this article, an examination of the Constitution will reveal who holds the constitutional power to suspend the writ of habeas corpus, allowing us to see whether on this issue Adams fairly compares Lincoln and his doubters among the men of the schools. In early , Horace Binney published an article that provided strong scholarly support for Lincoln's claim to a constitutional power to suspend the writ of habeas corpus.
Binney was an eighty-two-year-old Philadelphia lawyer, politician, statesman, and author who had trained in the law under Jared Ingersoll, one of the members of the Constitutional Convention. His article remains the most penetrating analysis of the constitutional power to suspend the privilege of the writ of habeas corpus. Binney's article is long and repetitive, but it can be distilled to a few points. Contrary to what Taney says in the Merryman opinion, Binney claims that presidential suspension of the writ of habeas corpus is consistent with, rather than a departure from, English practice.
Under English practice, only the House of Commons can authorize suspension of the writ, but when it does so, it leaves the actual suspension to the chief executive, since only the chief executive can determine whether the conditions of suspension are met.
Reading the suspension clause as both a limit on and a grant of authority to suspend the writ, Binney argues that the Constitution itself authorizes suspension, and that, as with the English chief executive, the president is the only one who can determine when suspension is called for.
His position gives him the capacity to determine whether suspension is required, and he has the power to do so under his Article II powers to preserve, protect, and defend the Constitution and to take care that the laws be faithfully executed.
President Lincoln, believing that the existence of the United States was in danger, suspended writs of habeas corpus. The suspension only applied within Maryland and parts of Midwestern states. Congress was not in session. But Lincoln believed that his authority to suspend the writs came from his power as Commander in Chief of the military.
If at any point on or in the vicinity of the military line…you find resistance which renders it necessary to suspend the writ of habeas corpus for the public safety, you personally or through the officer in command at the point where resistance occurs are authorized to suspend that writ.
Merryman wanted to be removed from prison and charged in open civilian court. The Supreme Court was not in session. First, only Congress, and not the President, had the power to suspend habeas corpus.
Secondly, even if the privilege of the writ of habeas corpus had been suspended by act of Congress, only someone in the military could be held and tried by a military commission.
Instead, the conditions for its suspension were isted in Article I, which deals with the powers of Congress. Taney quoted past Supreme Court Justices who had written that the power to suspend habeas corpus belonged to Congress.
He claimed that his oath to preserve, protect, and defend the Constitution required him to take these actions.
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