History of the Federal Judiciary

History of the Federal Judiciary

  Ex parte Merryman and Debates on Civil Liberties During the Civil War
Historical Documents

President Abraham Lincoln, message to Congress in special session, July 4, 1861 (excerpt)

On April 15, 1861, in response to the fall of Fort Sumter, Lincoln called for 75,000 troops to defend the Union and used his constitutional authority to convene a special session of the Congress, to meet on July 4. His message to the Congress, read to the members by clerks on July 5, explained the actions he had taken since the outbreak of war. In this excerpt, Lincoln answered the critics who had challenged the legality of his suspension of the writ of habeas corpus. Lincoln argued that the constitutional authority to suspend habeas in cases of rebellion or invasion could be executed by the President, since only the executive branch would be able to respond in an emergency if Congress was in recess. Even more important to Lincoln was his responsibility to preserve the Union, even if that duty required the temporary disregard of a single law protecting habeas.

Here and throughout the message to Congress, Lincoln’s focus on his obligation to preserve the constitutional union of states cast the war as a struggle to ensure the very idea of representative government. “It presents to the whole family of man, the question, whether a constitutional republic, or a democracy—a government of the people, by the same people—can, or cannot, maintain its territorial integrity, against its own domestic foes. It presents the question, whether discontented individuals, too few in members to control administration, according to organic law, in any case, can always, . . . break up their Government, and thus practically put an end to free government upon the earth.”

[Document Source:
The Collected Works of Abraham Lincoln, Roy P. Basler, et al., eds., 9 vols. (New Brunswick, NJ: Rutgers University Press, 1953), 4: 420–44.]

Soon after the first call for militia, it was considered a duty to authorize the Commanding General, in proper cases, according to his discretion, to suspend the privilege of the writ of habeas corpus; or, in other words, to arrest, and detain, without resort to the ordinary processes and forms of law, such individuals as he might deem dangerous to the public safety. This authority has purposely been exercised but very sparingly. Nevertheless, the legality and propriety of what has been done under it, are questioned; and the attention of the country has been called to the proposition that one who is sworn to “take care that the laws be faithfully executed,” should not himself violate them. Of course some consideration was given to the questions of power, and propriety, before this matter was acted upon. The whole of the laws which were required to be faithfully executed, were being resisted, and failing of execution, in nearly one-third of the States. Must they be allowed to finally fail of execution, even had it been perfectly clear, that by the use of the means necessary to their execution, some single law, made in such extreme tenderness of the citizen’s liberty, that practically, it relieves more of the guilty, than of the innocent, should, to a very limited extent, be violated? To state the question more directly, are all the laws,
but one, to go unexecuted, and the government itself go to pieces, lest that one be violated? Even in such a case, would not the official oath be broken, if the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it? But it was not believed that this question was presented. It was not believed that any law was violated. The provision of the Constitution that “The privilege of the writ of habeas corpus, shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it,” is equivalent to a provision—is a provision—that such privilege may be suspended when, in cases of rebellion, or invasion, the public safety does require it. It was decided that we have a case of rebellion, and that the public safety does require the qualified suspension of the privilege of the writ which was authorized to be made. 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, as was intended in this case, by the rebellion.


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