History of the Federal Judiciary

History of the Federal Judiciary

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Historical Documents

Abraham Lincoln to Erastus Corning and others, June 12, 1863 (excerpts)

One of Lincoln’s most celebrated writings was a response to the resolutions approved by a meeting of Democrats in Albany, New York. The meeting, led by Erastus Corning, the president of the New York Central Railroad, criticized Lincoln for his infringements on constitutional liberties in general, and the arrest and trial of former Representative Clement Vallandigham in particular. The President said that he composed the letter from scattered notes he kept in his desk drawer, and he vetted the letter with his cabinet before sending it to Corning and to the New York Tribune for publication. The letter was widely reprinted.

Deep in the midst of a war with no certain outcome, Lincoln emphasized the imperative of limiting certain civil liberties to protect the public safety and the federal military. Relying on the limited provision for the suspension of habeas, Lincoln asserted that in the face of a rebellion the Constitution permitted various governmental powers that would be impermissible in times of peace and domestic security. Here he also argued that supporters of the seceded states deliberately manipulated public support for civil liberties in an effort to subvert the defense of the Union.

The Albany Democrats were unmoved. Their reply to Lincoln referred to his “gigantic and monstrous heresy put forth in your plea for absolute power,” and warned “that the American people will never acquiesce in this doctrine.” Thanks to the efforts of the Loyal Publication Society and its free distribution of the letter, Lincoln’s reply to Corning became one of his most widely read writings.

[Document Source: The Collected Works of Abraham Lincoln. Roy P. Basler, et al., eds., 9 vols. (New Brunswick, NJ: Rutgers University Press, 1953), 6: 260–69.]

It undoubtedly was a well pondered reliance with them [the Southern rebels] that in their own unrestricted effort to destroy Union, constitution, and law, all together, the government would, in great degree, be restrained by the same constitution and law, from arresting their progress. Their sympathizers pervaded all departments of the government, and nearly all communities of the people. From this material, under cover of “Liberty of speech” “Liberty of the press” and “Habeas corpus” they hoped to keep on foot amongst us a most efficient corps of spies, informers, supplyers, and aiders and abettors of their cause in a thousand ways. They knew that in times such as they were inaugerating, by the constitution itself, the “Habeas corpus” might be suspended; but they also knew they had friends who would make a question as to who was to suspend it; meanwhile their spies and others might remain at large to help on their cause. Or if, as has happened, the executive should suspend the writ, without ruinous waste of time, instances of arresting innocent persons might occur, as are always likely to occur in such cases; and then a clamor could be raised in regard to this, which might be, at least, of some service to the insurgent cause. It needed no very keen perception to discover this part of the enemies’ programme, so soon as by open hostilities their machinery was fairly put in motion. Yet, thoroughly imbued with a reverence for the guarranteed rights of individuals, I was slow to adopt the strong measures, which by degrees I have been forced to regard as being within the exceptions of the constitution, and as indispensable to the public Safety. . . .

If I be wrong on this question of constitutional power, my error lies in believing certain proceedings are constitutional when, in cases of rebellion or Invasion, the public Safety requires them, which would not be constitutional when, in absence of rebellion or invasion, the public Safety does not require them—in other words, that the constitution is not in it’s application in all respects the same, in cases of Rebellion or invasion, involving the public Safety, as it is in times of profound peace and public security. The constitution itself makes the distinction; and I can no more be persuaded that the government can constitutionally take no strong measure in time of rebellion, because it can be shown that the same could not be lawfully taken in time of peace, than I can be persuaded that a particular drug is not good medicine for a sick man, because it can be shown to not be good food for a well one. 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.


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