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Abraham Lincoln and Civil Liberties in Wartime

an Exhibition

February 7, 2006 – December 15, 2006

curated by Timothy Murray

The Writ of Habeas Corpus

A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody. The authority of judges to free prisoners held without legal reason is based on a right that existed in America long before either the Constitution or the Bill of Rights were written. The only mention of the writ of habeas corpus in the Constitution relates to when it can be taken away from judges. In a section limiting the powers of Congress (Art. I, Sec. 9), the Constitution states: “The privilege of the writ of habeas corpus shall not be suspended, unless when in causes of rebellion or invasion of the public safety may require it.” This suspension clause was never activated through the terms of the first 15 presidents. Then during the Civil War, President Lincoln suspended the writ of habeas corpus without consulting Congress.

Lincoln’s first order suspending the writ applied only to Maryland, a border state sympathetic to the South that virtually surrounded Washington, D.C. On September 24, 1862, Lincoln issued a proclamation unprecedented in American history. He suspended the writ of habeas corpus everywhere in the United States. The suspension applied to Confederate spies or to those who aided the rebel cause, interfered with military enlistments, resisted the draft, or were “guilty of any disloyal practice.” This last offense allowed the military to arrest newspaper editors and speakers critical of the Union war effort. Lincoln further ordered that persons arrested under his proclamation were subject to martial law, which meant they would be tried and punished by military courts. Although exact figures are hard to come by, Lincoln’s suspension of the writ of habeas corpus enabled the military to arrest and imprison thousands of civilians during the Civil War. President Lincoln’s unprecedented act created a great deal of controversy and the legal and political community was divided over his action.


Ashland B. Swiggett (b.[ca. 1845]) served in the Union Army during the Civil War as a private in the First Delaware Infantry. He suffered permanent disabilities after sustaining six wounds at the battle of Antietam. In the spring of 1863, the veteran appealed to Delaware politicians William Cannon and John W. Houston to help him obtain a government job. The two men wrote letters on his behalf, which Swiggett personally presented to President Lincoln. Lincoln provided him with a letter of introduction, recommending that he receive a post as a messenger (“messengership”) at a federal bureau or department. The letter proved to be useful, as Swiggett secured a position at the Pension Office.

Autograph pardon, signed “A. Lincoln, March 7, 1865.”

Autograph discharge, signed “A. Lincoln, May 28, 1864.”

Autograph pardon of J.B. Evans, signed “Abraham Lincoln, 14th January 186[4].”

Proclamation to Affix Seal to Treaty with the Chippewa Indians, signed “Abraham Lincoln, April 25, 1864.”

The Vallandigham Case

The term “copperhead” was used during the Civil War to describe Northerners who sympathized with the South or who may simply have opposed the war. Many members of the Democratic Party in the North voiced “copperhead” views. Clement L. Vallandigham, a prominent Democratic congressman from Ohio, persistently called for a negotiated end to the war and reunion with the South. Vallandigham lost his seat in Congress in the election of 1862, but continued to speak out against Lincoln’s war policy. On May 1, 1863, Vallandigham spoke at a large Democratic Party rally at Mount Vernon, Ohio, and attacked Lincoln and lashed out at the “wicked, cruel, and unnecessary war.” He spoke against the draft law, but did not go so far as to encourage men to disobey it. He also charged that “the men in power are attempting to establish a despotism in this country, more cruel and more oppressive than ever existed before.” A few days later, Vallandigham was arrested in his bedroom. A military trial quickly followed and he was found guilty. The tribunal recommended putting Vallandigham in prison for the remainder of the war; however, President Lincoln interceded and ordered him to be banished to the Confederacy. After Vallandigham was banished to the South, his friends went to the U.S. Supreme Court in an attempt to convince the justices to hear the case. On February 15, 1864, the Supreme Court announced it would refuse to hear the case, saying that it had no authority to review the proceedings of a martial law court. The Vallandigham case galvanized loyalists, as well as those in opposition, and inspired scores of pamphlets, speeches, and newspaper articles.

American Bastile: A History of the Illegal Arrests and Imprisonment of American Citizens during the Late Civil War, by John A. Marshall (Philadelphia: Stoddart , 1870).

This post–war compilation includes a detailed account of the arrest and imprisonment of a Whitesly, Delaware, citizen, Warren J. Reed.

Correspondence in Relation to the Public Meeting at Albany, New York (Albany: May 19, 1863).

Members of the New York State Democratic party met and passed resolutions affirming their loyalty to the Union cause, but they also criticized President Lincoln’s suspension of habeas corpus and policy of arbitrary arrests, notably that of Clement L. Vallandigham.

Charles Ingersoll, 1805–1882.

An undelivered speech on executive arrests. (Philadelphia, 1862).

The Philadelphia attorney, Charles Ingersoll, bitterly opposed the Union cause. He was arrested following a speech in August1862, and subsequently published this pamphlet denouncing the President’s policies.

Horace Binney, 1780–1875.

The privilege of the writ of habeas corpus under the Constitution. Philadelphia: C. Sherman & Sons, printers, 1862.

One of the staunchest supporters of the legality of President Lincoln’s suspension of the writ of habeas corpus was the prominent Philadelphia attorney Horace Binney. He produced two pamphlets in which he argued for the legality of the President’s actions. In response, a host of his peers produced their own pamphlets arguing for or against Binney.

Judge Taney and the Merryman Case

On April 27, 1861, about a week after the Fort Sumter surrender, President Lincoln ordered Winfield Scott, then head of the nation’s military, to arrest anyone between Washington and Philadelphia suspected of subversive acts or speech, and his order specifically authorized suspension of the writ of habeas corpus. Scott passed the order down the line, and Southern sympathizers in Maryland were rounded up in batches. One of the arrested was John Merryman, a prominent Baltimorean and an active and vocal secessionist. Merryman was arrested May 25, 1861, and that day his lawyer filed a petition in circuit court, which was overseen by Chief Justice Roger B. Taney. Taney ordered Merryman brought before him on a writ of habeas corpus and commanded the military officer in charge of Merryman to show “the cause, if any, for his arrest and detention.” Taney eventually ruled that Merryman should be set free, denounced the notion of arbitrary military arrest and defended civil liberties, and pointed out that only Congress had the right to suspend the writ of habeas corpus, though he admitted he could do nothing to enforce his ruling in the face of a military force “too strong for me to overcome.” In spite of Taney’s ruling, the high court generally went along with the administration after the Merryman case pointed up its powerlessness to force the administration to obey its decisions. In fact, several of the justices were enthusiastic supporters of the war effort. But the case did inspire numerous pamphlets, speeches, and newspaper articles and was one of the critical judicial moments of the Civil War.

Civil War Loyalists

During the American Revolutionary War the term “loyalist” was used to label British sympathizers. During the Civil War, however, it referred to supporters of the Union cause. Loyalist politicians, journalists, and authors produced scores of pamphlets and speeches invoking unwavering support of the Lincoln administration and condemnation of the Secessionists and their Northern sympathizers.

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