The Suspension of Habeas Corpus
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The Suspension of Habeas Corpus
And Ex parte: Milligan
On our 1997 Olde Colony Civil War Round Table picnic in Fort Warren on Georges island, member Jack Zeletsky, who had researched and studied the Fort for many years, mentioned in his speech that some members of the Maryland legislators, including Baltimore's Mayor and Chief of Police, were arrested without charge, trial and conviction, and were thrown to the jail in Fort Warren. The question that we are going to examine is ------ Did Lincoln overstep his power by suspending the writ of Habeus Corpus? Did Lincoln violate their Constitutional right? Let's examine the facts and issues.
The political situation was extremely grave in early Jan. 1861. Six states from the deep South, leading by South Carolina (12/20/60), Mississippi (1/9/61), Florida (1/10/61), Alabama (1/11/61), Georgia (1/19/61) and Louisiana (1/26/61), seceded from the Union. Texas (3/2/61) followed. President-elect Lincoln were powerless to do anything then, not until after his Presidential sworn-in in March 1861. After the Confederates bombarded Fort Sumter in April 12, 1861, Lincoln called for 75,000 volunteers to save the Union. Virginia (4/17/61), Arkansas (5/6/61), North Carolina (5/20/61) and Tennessee (6/8/61) followed suit to secede. The situation of the Federal Capital, Washington, was very precarious. On its south, Alexandria, the northern part of Virginia, it was packed with rebels. Surrounding the capital, north, east and west was Maryland, a slave state, and full of Confederates and its sympathizers. The 6th Massachusetts regiment answered the call to guard the Capital, while en route Baltimore to change train, the soldiers were attacked by a mob of hostile Marylanders on 4/19/1861. Some Mass. soldiers (6th Mass. regiment) were killed. The Mass. soldiers were forced to defend themselves by returning fire.
The majority of the Maryland legislature fortunately refused to consider a secession ordinance, thus, saved the Capital. In order to take a preventive strike against any probable plots by the Confederate sympathizer, Lincoln ordered the suspension of the writ of habeus corpus, covering the departments in Pennsylvania, Delaware, Maryland and Washington. General Scott ordered General Montgomery Meigs to arrest any suspicious disloyal citizens. Chief Justice Roger B. Taney (a Marylander, and he was the same Supreme Chief Justice who decided the notorious Dred Scott case, which was overturned by the later U.S. Supreme Court cases, after the passing of the 13th Amendment.) protested strongly and argued only Congress had the authority to suspend habeus corpus. In examining the language of the Constitution, it did not address which branch of Government had that authority. Lincoln just assumed that power and ignored Taney's protest. Lincoln believed he had to take bold step to preserve the Union during the emergency of the nation. The Taney Court decided the Dred Scott case (7-2) in favor of the South, voiding the Missouri Compromise, upholding the Fugitive Slave Act, and extending its long arm to the Land of the Free.
When an U.S. President takes his oath, he swears "that he will faithfully execute the office of President of the United States, and will to the best of his ability, preserve, protect and defend the Constitution of the United States." If there were only one choice between saving the Union or upholding the law, I believe Lincoln would not hesitate to take the former, a more important aspect of the Constitution. Habeus corpus should not be suspended, except in war, riot and insurrection. It is clear that Lincoln had such authority under this exception rule. The U.S. Constitution, Article I, Section 9, paragraph 2, says,"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." The delegates to the Constitutional Convention in 1778 voted unanimously on the first clause. Later, Gouverneur Morris introduced a qualifying second exception clause adapted from the Massachusetts state constitution, and the provision were passed by a vote of 7 states to 3 states. So, it is clear that Pres. Lincoln did not violate anybody's Constitutional right by suspending habeus corpus. But the question went further to examine whether or not the conditions in 1861 constituted war, riot and insurrection? Let's look at the facts again. As secession began, many Federal forts fell into the hands of the Confederates; military officers of the southern extraction resigned in drove from the old Army and went South; Gen. David Twiggs of Georgia surrendered his Federal Military Department to the Texans without a fight; Secretary of War Floyd of the Buchannan Administration amassed huge amount of military equipment in the hands of the military authorities with Southern sympathy; and crisis at the two forts, Pickens in Florida and Sumter in S. Carolina of which, nobody knew which one would blow up first at that time. All these facts were pointing to riots, insurrection and act of war. Certainly the conditions satisfied the exception clause to suspend habeus corpus.
In time of war, the laws are silent. (A Latin phrase: inter arma silent leges)
Whenever the case law related to Habeus Corpus is discussed, the landmark case Ex parte: Milligan will be cited. Lambdin P. Milligan moved to Indiana from New Orleans, Louisiana, bringing his slaves with him. When the Civil War started, he got himself involved in an subversive political organization, the Sons of Liberty, and launched an anti-government propaganda movement. In early 1864, Congress passed a law saying that Habeus Corpus could be suspended during war and insurrection. On 10/21/1864, Milligan was arrested by the order of Gen. Alvin P. Hovey, commander of the military district of Indiana. On 10/21/1864, the military commission tried Milligan and found him guilty, and sentenced him to be hanged. Milligan's defending attorneys discussed the case with Lincoln who promised to commute Milligan's sentence. Of course, Lincoln was assassinated before he could pardon Milligan. The appeal dragged on to 1866, and by then, the war and the national emergency were long over. The need to hang traitors did not exist anymore and in fact, people wanted to forget this horrible war episode and it would be politically incorrect to carry out the sentence. What would the Supreme Court do?
Well, the only route that the Supreme Court could do to save Milligan's neck was to declare the law unconstitutional. The decision was a narrow 5 to 4 votes by the 9 Supreme Court Justices. The interesting coincident was that the majority 4 of the 5 votes were Lincoln appointees. The court opinion was written by Justice David Davis, Lincoln's old Eighth Circuit court friend from Illinois and Lincoln's 1860 presidential campaign manager, and concurred by Chief Justice Salmon Chase, Lincoln's ex-Secretary of Treasury, and Justices Noah Swayne, Samuel Miller and James Wayne. Justice Chase was known as the "Attorney General for Runaway Negroes" in his salad days when he was practicing law in Ohio, using habeas corpus as his weapon. It was ironic that Salmon Chase used the same habeas corpus to save slaves and master alike.
Every Supreme Court decision became precedent (stare decisis) and would be cited by the future generation. Therefore, they had to write a "narrow" decision so that the future case would apply only if it fits to all these narrow conditions. They said when the civil courts were open, military commission (court) had no authority to arrest, trial and convict a citizen of the United States. Let me quote part of their opinion:
"It follows, from what has been said on this subject, that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to the law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. The suspension of the privilege of the writ of habeas corpus does not suspend the writ itself. The writ issues as a matter of course; and on return made to it the court decides whether the party applying is denied the right of proceeding any further with it."
During the 1866 era, the decision was considered as a blow to the Republican's attempt to reconstruct the South and cheered by the Democrats and the white southerners.
Today, every law student has to study this case in their Constitutional Law course. Numerous legal scholars had commented about this case. In 1920s Charles Warren's Ex parte Milligan became one of the most widely anthologized decisions of the United States Supreme Court, one of the benchmark of American liberty. John Garraty wrote Quarrels That Have Shaped the Constitution which included an essay by Allan Nevins (a famous Civil War writer who wrote a multi-volume Civil War books) describing the Milligan decision as a great triumph for the civil liberties of America in time of war. In Michael Belknap's American Political Trials (1981), Frank Klement contributed an essay on Ex parte Milligan describing the decision as "a notable victory for civil rights' that "has stood the test of time." Historian Emma Lou Thornbrough stated that Ex parte Milligan has been "long regarded as a landmark in the history of civil liberties."
It is fascinating that our Civil War brought in a few pages of landmark Constitutional Law.
(Written by Gordon Kwok, December 1997, using several Reference books.)
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