Mises Wire

There Was a Time When the Feds Took Habeas Corpus Seriously

Mises Wire Chris Calton

In 1215, in the Borough of Runnymede, a group of English nobles met with King John. During the meeting, they pressured the monarch into surrendering some of his autocratic powers. Among the kingly prerogatives that King John relinquished was the authority to confiscate property and detain nobles without cause. King John signed the famous Magna Carta, and the right of citizens to be protected from arbitrary arrests was first enshrined in this famous document (though it originally did not apply to all English people).

The clause protecting people from arbitrary arrests expanded into judicial review of imprisonment to protect from unlawful detainment of citizens, and this became the concept of habeas corpus. A writ of habeas corpus obligates the government to bring a prisoner in front of a court to determine whether or not the detainment is lawful, and the right to petition for this writ was guaranteed in Clause 36 of the 1297 Magna Carta. In 1305, habeas corpus was invoked for the first time, and the right to petition for the writ was eventually expanded to apply to all English citizens and became a staple of Anglo-Saxon law.

But over the next few centuries, the right was increasingly ignored by courts and jailers, so in 1679, the English Parliament reinforced the writ with the Judiciary Act, the official title being “An Act for the Better Securing the Liberty of the Subject and for the Prevention of Imprisonment Beyond the Seas,” aiming the enforce the guarantee for prisoners detained in overseas penal colonies. A little more than a century later, the newly separated American colonies – now sovereign states – passed their own version of the act, the Judiciary Act of 1789, to recognize their English common law heritage and uphold the writ of habeas corpus.

Just prior to the 1789 Judiciary Act, the United States Constitution had been ratified, and it included a clause in Article I, Section 9 that reads, "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 Judiciary Act merely established the statute regarding, among other things, how habeas corpus was to be upheld.

As historian Milton Cantor reminds us, the right to petition for a writ of habeas corpus was never considered a natural right; it was a product of English common law. It thus became the only common-law process referenced in the United States Constitution, which indicates how monumentally important the framers of the constitution believed the writ to be in protecting American liberties. 1

Abraham Lincoln and the Suspension of the Writ

When Abraham Lincoln made the decision to suspend the writ of habeas corpus at the onset of the Civil War, it wasn’t the first time the writ had been defied in the United States. During the war of 1812, Andrew Jackson ignored habeas corpus in New Orleans in his capacity as a major general in the army. But Jackson’s decision did not go unpunished, and he was fined for his defiance of this constitutionally guaranteed right.

Thus, Abraham Lincoln’s decision to suspend the writ was unprecedented, as he suspended the writ in his capacity as president of the country. On April 19th, after the Pratt Street Riot in Baltimore in which a mob of citizens attempted to block the movement of Union troops, Lincoln asked his Attorney General, Edward Bates, to provide an opinion on the legality of declaring martial law in Maryland. Bates passed the task to his assistant, Titian Coffey.

The memorandum that Coffey wrote was not a strong defense of Lincoln’s decision to impose martial law. As commander-in-chief, Coffey said, the president could invoke military law, but this could only apply to members of the military, according to the 1806 Articles of War, whereas martial law applies to private citizens. So martial law was a different story. William Blackstone, author of the Commentaries on the Laws of England that was used to guide American jurisprudence even after independence, did not believe martial law to be valid at all. The executive powers, Coffey concluded, were not entirely clear, but they certainly appeared to be limited.

Regarding the suspension of habeas corpus, which was implied in the declaration of martial law (and repeatedly specified by Lincoln throughout the war, even when military officers never asked about the writ when inquiring as to their authority to impose martial law), Justice Joseph Story’s Commentaries on the Constitution of the United States, which has guided American constitutional jurisprudence, asserts that only Congress had the authority to suspend the writ. Some historians have, with almost satirical credulity, pointed out that Joseph Story never justifies his opinion – Mark Neely, Jr., for instance, writes that Justice Story “did not explain exactly why” the power resided with Congress, as if the application of Article I to the powers of Congress is a matter of constitutional ambiguity.2

Regardless, given Coffey’s opinion, it is impossible not to recognize that, when Lincoln made the decision to first suspend the writ on May 10, 1861, it was at least legally questionable (if I’m being generous). The first defense of his authority to suspend the writ was based on Gouverneur Morris’s last-minute addition that the writ could be suspended “when in Cases of Rebellion or Invasion the public Safety may require it,” which was not in the original draft. This, of course, relates to the extant debate over whether or not seceding states properly qualify as “rebellious” or not, but this was only one legal question regarding Lincoln’s decision. The fact that the power to suspend the writ resides with Congress was, at the time, the more relevant and unambiguous factor.

Lincoln offered a defense of his decision to suspend the writ that essentially recognized that suspending the writ was a congressional, rather than presidential, prerogative. Lincoln argued: “It cannot be believed the framers of the instrument intended, that in every case [of rebellion], the damage should run its course, until Congress could be called together.” In other words, because Congress wasn’t in session, the authority to suspend the writ deferred to him. But even Neely observes that “Nothing had kept Congress from assembling before July 4 except Lincoln’s decision not to call them into session.”3

Even if we accept that Lincoln’s decision to suspend the writ can be justified as a matter of expediency, which was the thrust of his defense, it becomes harder to defend the legality or the expediency of the vast expansion of the suspension throughout Union territory. In October of 1861, Lincoln wrote to General Winfield Scott that “the military line of the United States for the suppression of the insurrection may be extended so far as Bangor in Maine” and that Scott or any officer under him had the authority “to suspend the writ of habeas corpus” anywhere between Bangor, Maine and Washington D.C.4 This included some of the most staunchly Unionist areas of the country, and hardly any place where the rare supporter of secession could be said to pose any genuine threat to public safety.

The arrests and detainments upheld in defiance of the writ alienated many people that Lincoln would otherwise have enjoyed support from. After the arrest of dozens of Maryland’s legislators, several counties ran opposition candidates calling themselves members of the “habeas corpus party.”

Most importantly, when Lincoln was defending his authority to suspend the writ prior to Congress assembling, he expressed confidence that the legislature would retroactively approve of his decision. This was not the case. Senator Lyman Trumbull, from Lincoln’s own state of Illinois, said that he supported the war, but “I am not disposed to say that the Administration has unlimited power and can do what it pleases, after Congress meets.” Others Republicans agreed, including Senators Lot Morrill and John Sherman, brother of General William Sherman. After debate, Joint Resolution No. 1 that would have retroactively approved of Lincoln’s suspension of the writ, failed to obtain Senate approval. The House of Representatives did not even consider the matter.5

  • 1Milton Cantor, “The Writ of Habeas Corpus: Early American Origins and Development,” in Harold M. Hyman and Leonard W. Levy, eds., Freedom and Reform: Essays in Honor of Henry Steele Commager (New York: Harper & Row, 1967), 74.
  • 2Mark E. Neely, The Fate of Liberty: Abraham Lincoln and Civil Liberties (New York: Oxford University Press, 1991), 5.
  • 3Ibid., 12.
  • 4Quoted from ibid., 14.
  • 5Dean Sprague, Freedom Under Lincoln (Boston: Houghton Mifflin Company, 1965), 119-20.
Note: The views expressed on Mises.org are not necessarily those of the Mises Institute.
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