What Would Lincoln Do?

America's Civil War began April 12, 1861. Immediately, one of President Lincoln's most pressing concerns was how to protect the capital, located perilously between Maryland and Virginia. Both states were thinking hard about secession.

On April 19, secessionists in Baltimore tried to prevent federal troops from passing through the city. A riot ensued. Bridges were burned. Shots were fired. The next week, on April 27, Lincoln suspended habeas corpus, authorizing his commanding general "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." For the rest of the war, military officers could arrest U.S. citizens and hold them indefinitely without presenting evidence against them.

Let Me Go!

Lincoln soon faced legal challenge. On May 25, federal troops under General George Cadwalader arrested John Merryman of Baltimore, charged him with aiding secessionists, and imprisoned him at Maryland's Fort McHenry. Merryman immediately petitioned Roger Brooke Taney, chief justice of the Supreme Court, for a writ of habeas corpus compelling Cadwalader to bring Merryman before the court for a hearing.

Taney--a southern gentleman notorious for his slavery-supporting opinion in the Dred Scott case--issued the writ on May 27. Cadwalader, however, refused to comply, noting that President Lincoln had empowered him to suspend habeas corpus in the interest of public safety.

While Merryman waited in jail, Taney wrote an opinion, Ex Parte Merryman, condemning Lincoln's suspension of habeas corpus as unconstitutional. He pointed out that the clause authorizing suspensions shows up in the Constitution's first article, which is "devoted to the Legislative Department of the United States, and has not the slightest reference to the Executive Department." Reasoning that the power to suspend habeas corpus belongs to Congress, Taney argued Lincoln had usurped legislative and judicial power in a single stroke.

No, We Will Not Let You Go!

Lincoln presented two counterarguments when he addressed a special session of Congress on July 4. First, without responding directly to Taney's opinion (which he ignored for the duration of the war), Lincoln pointed out that, in times of crisis, the president might need to defend the nation before the Congress could even assemble. In fact, Congress had been out of session when the crisis began.

Next, in responding to the charge that "one who is sworn to 'take care that the laws be faithfully executed' should not himself violate them," Lincoln asked a question that still echoes in debates about civil liberties and national security: "Are all the laws, but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated?"

In 1863, Congress passed the Habeas Corpus Act, effectively endorsing Lincoln's earlier suspension of the "Great Writ." People have debated whether Lincoln's decision was necessary and appropriate ever since.