The Perils of Executive Power - Civil War Experience

“The Perils of Executive Power: Benjamin R. Curtis, Abraham Lincoln, and the Forgotten Civil War Habeas Experience” During the centennial celebration of the American Civil War in 1961, novelist Robert Penn Warren published a provocative essay on the legacy of the war and its impact on American memory. In it, Warren conceptualized a “Treasury of Virtue” as a legacy of the victorious Union, which he defined as a “psychological heritage” that would enable later generations of Northerners to feel “redeemed by history.”1 To the Northerner, the Civil War was “a consciously undertaken crusade so full of righteousness that there is enough overplus stored in Heaven, like the deeds of the saints, to take care of all small failings and oversights of the descendents of the crusaders, certainly unto the present generation.”2 Today, Warren’s essay remains just as relevant to American memory of the war as it did in 1961. Indeed, given the recent developments of the so-called Global War on Terror, President Abraham Lincoln’s suspension of habeas corpus in the North during the Civil War has reemerged as arguably the most controversial “failing” of the Union war effort. Although scholars and popular writers alike have generally praised Lincoln’s record on habeas, the scope and legitimacy of Lincoln’s exercise of war powers continues to be sharply debated.3 Moreover, the growing volume of scholarship on Civil War habeas reveals the trend of placing a disproportionate emphasis on Lincoln’s own policy defense, the intellectual support of legal pamphleteer Horace Binney, and two habeas cases: Ex parte Merryman (1861) and Ex parte Vallandigham (1863). This overemphasis has tended to overlook or minimize the importance of one critical pamphlet, as well as a number of lesser- 1 known Northern habeas cases, that at once illustrate and challenge the dominance of Lincoln’s unconstrained vision of executive habeas suspension during the Civil War. “All the Laws But One”: Habeas Suspension and Lincoln’s Defense In the weeks following the Confederate bombardment of Fort Sumter, tensions in the crucial border state of Maryland reached a fever pitch as rioting in Baltimore between a mob of Southern sympathizers and Union soldiers on their way to defend the national capital resulted in the first bloodshed of the war on April 19, 1861. On April 27, an alarmed but resolute President Lincoln secretly authorized General Winfield Scott, the commanding general of all Union forces, to suspend the writ of habeas corpus along the “military line” between Philadelphia and Washington. 4 Nearly one month later on May 25, John Merryman, a citizen of Cockeysville, Maryland, was arrested in his own home and whisked away to Fort McHenry in Baltimore harbor for engaging in “various acts of treason” and “avowing his purpose of armed hostility against the Government.” 5 Merryman’s counsel applied to none other than Chief Justice of the United States Supreme Court Roger B. Taney for a writ of habeas corpus, which would command the man responsible for Merryman’s detention, General George Cadwalader, to appear before the court to show cause for his prisoner’s detention. 6 Invoking the authority of the Lincoln administration, Cadwalader refused to make a sufficient return to Taney’s writ, prompting the octogenarian Chief Justice to issue a blistering rebuke against the President. Delivering what one British observer present in the courtroom referred to as “a most eloquent exposition of the law” in Ex parte Merryman, Taney laboriously cited English and American authorities in denying the 2 constitutionality of executive habeas suspension, and admonished Lincoln to “take care that the laws be faithfully executed” in accordance with the will of the judicial authority. 7 Lincoln ignored Taney’s rebuke, but provided his own rebuttal in a message to the special session of Congress on July 5, 1861, justifying his emergency actions following the Sumter attack. Contending that he had acted constitutionally in suspending habeas “very sparingly,” and with “extreme tenderness of the citizen’s liberty,” Lincoln couched his defense in a powerful rhetorical question that has achieved nearly universal approbation in American memory: “[A]re all the laws, but one, to go unexecuted, and the government itself go to pieces lest that one be violated?” 8 This was a “starkly simple question,” wrote the late Chief Justice William Rehnquist, “that seemed to admit of but one answer.” 9 In short, Lincoln justified suspending habeas upon the grounds of a “public necessity,” precipitating an outpouring of pamphlet literature from prominent legal scholars throughout the country who argued both for and against the constitutionality of executive suspension. 10 Of these pamphleteers, Horace Binney, a prominent Philadelphia lawyer, penned an ingenious theoretical defense of executive suspension—entitled The Privilege of the Writ of Habeas Corpus under the Constitution—that has since provided an indispensable intellectual justification for Lincoln’s habeas suspensions among scholars. 11 In a learned, highly-technical constitutional analysis of the conditions of invasion and rebellion specified in the suspension clause, Binney forcefully argued that such conditions were only “of executive cognizance”—in other words, that only the president had the constitutional power to suspend habeas. 12 Although Binney became a critic of Lincoln’s habeas policy later in the war, it is hardly an exaggeration to say that Lincoln’s “most important defender” continues to defend his habeas suspensions from the grave. 13 3 Yet Lincoln’s most powerful and extensive defense of habeas suspension did not come until June 12, 1863. Even though Congress had finally provided express approval of executive suspension in March of that year, the growing number of “arbitrary arrests” behind Union lines had led to widespread disaffection among the Northern public after Lincoln suspended habeas nationwide on September 24, 1862. 14 This came to a head after Union soldiers under the command of General Ambrose Burnside broke into the home of Clement L. Vallandigham, an Ohio Peace Democrat and stalwart Lincoln critic, and arrested him for “encouraging disloyalty” and “discouraging enlistments” in a fiery speech condemnatory of the Lincoln administration. 15 Vallandigham was tried and found guilty by a military commission, and after applying for a habeas writ, his case eventually found its way to the Supreme Court in Ex parte Vallandigham, in which the Court ruled that it did not have jurisdiction to hear a case decided by a military commission. Responding to the resolutions of an outraged group of Democrats in what Mark E. Neely, Jr., has recently called “the strongest statement ever made by any American president asserting the power of the government to restrict civil liberty,” Lincoln boldly asserted his vision of executive power during the present conflict in his famous letter to Erastus Corning and others. 16 In this letter, Lincoln claimed that Northern traitors and Southern sympathizers persisted in their design to destroy the government by hiding behind legal cover of freedom of speech and the press, and habeas corpus—making recourse to judicial proceedings a valuable tool of the enemy. 17 Most importantly, Lincoln denied the common charge that military arrests made in areas far removed from rebellion were unconstitutional, and enunciated the practical implications of his “preventive” policy: I concede that the class of arrests complained of, can be constitutional only when, in cases of Rebellion or Invasion, the public Safety may require them; and I insist that in such cases, they are constitutional wherever the public safety does require them—as well 4 in places to which they may prevent the rebellion extending, as in those where it may already be prevailing—as well where they may restrain mischievous interference with the raising and supplying of armies, to suppress the rebellion, as where the rebellion may actually be—as well where they may restrain the enticing men out of the army, as where they would prevent mutiny in the army—equally constitutional at all places where they will conduce to the public Safety, as against the dangers of Rebellion or Invasion. 18 In an emotionally appealing rhetorical passage, Lincoln went on to use the case of Vallandigham to his own political advantage: “Must I shoot a simple-minded soldier boy who deserts,” he asked, “while I must not touch a hair of a wiley agitator [here referring to Vallandigham] who induces him to desert?” In such a case, Lincoln argued, “to silence the agitator, and save the boy, is not only constitutional, but, withal, a great mercy.” 19 Although scholars have rightly emphasized the importance of Merryman, Vallandigham, and the arguments of Lincoln and Binney in Civil War constitutional history, remarkably little scholarship has focused on the contemporary intellectual opposition or the habeas experience at the lower federal court level. 20 As a result, many lesser-known Northern habeas cases during the war have escaped close scrutiny, and Lincoln has been accorded an interpretive deference with regard to justifying his habeas suspensions by appealing to a “public necessity.” Yet it was precisely in such courtrooms throughout the North—in Washington, D.C., New York, Vermont, and Massachusetts, for example—where the theoretical and practical complexities of Civil War habeas suspension were realized, and here also where the formidability of Lincoln’s argument was tested in more ways than Merryman or Vallandigham reveal. Moreover, although the reasoned arguments of Lincoln and Binney feature prominently in our memory of Civil War habeas, that of former Supreme Court Justice Benjamin R. Curtis is too often unjustly forgotten. 5 The Forgotten Pamphleteer: Benjamin R. Curtis and Executive Power Benjamin R. Curtis is well-remembered and praised for his eloquent dissenting opinion in the infamous Dred Scott case (1857); the same is not true, however, of his scathing denunciation of the war policies of the Lincoln administration. In October 1862, Curtis published the first edition of his critical pamphlet, Executive Power, in response to Lincoln’s dual September proclamations regarding emancipation and nation-wide habeas suspension. 21 These proclamations were issued after Lincoln, on September 13, 1862, reportedly told a delegation of Chicago clergymen in response to their inquiry of issuing a proclamation of emancipation that “as commander-in-chief of the army and navy, in time of war, I suppose I have a right to take any measure which may best subdue the enemy.” 22 Like the later Corning letter, Lincoln’s statement to the Chicago clergymen represented a succinct expression of his consistently broad view of executive power, for he certainly considered a sweeping habeas suspension policy to be as much a “measure which may best subdue the enemy” as emancipation. Although Curtis professed to be “a member of no political party,” he emphatically believed that “[t]he war in which we are engaged is a just and necessary war.” Yet the ambiguous charge of “disloyalty” often leveled against those critical of Lincoln troubled him greatly, as did the dangerous implications of delegating wide discretionary powers to subordinate military officers in carrying out the policy of military arrests. The people of the United States, wrote Curtis, “know that loyalty is not subserviency to a man, or to a party, or to the opinion of newspapers,” but “an honest and wise devotion to the safety and welfare of our country, and to the great principles which our constitution of government embodies, by which alone that safety and welfare can be secured.” 23 In language that would anticipate the post-war Milligan decision 6 of the Supreme Court, Curtis addressed the practical consequences of Lincoln’s permission of military arrests far removed from Union lines, for he could not perceive how those Northern citizens (including federal judges and legislators) residing remote from armies and their operations, and where all the laws of the land may be enforced by constitutional means, should be subjected to the possibility of military arrest and imprisonment, and trial before a military commission, and punishment for offences unknown to the law; a possibility to be converted into a fact at the mere will of the President, or of some subordinate officer, clothed by him with this power. But I do perceive that this executive power is asserted. 24 None of Lincoln’s ablest defenders, Curtis pointed out, had found such a sweeping grant of power in the habeas clause of the Constitution for the establishment of such a military “system.” 25 The “necessary result” of Lincoln’s expansive constitutional interpretation of executive power was, therefore, that “in time of war, the President has any and all power,”—including arrogations of legislative and judicial powers—“which he may deem it necessary to exercise, to subdue the enemy; and that every private and personal right of individual security against mere executive control…rests merely upon executive discretion.” 26 In other words, if the president has an “implied constitutional right” to suspend habeas, he would then have “the same right, for the same reason, to disregard each and every provision of the Constitution, and to exercise all power, needful, in his opinion, to enable him ‘best to subdue the enemy.’” 27 Curtis argued that such “assertions of transcendent executive power,” if acquiesced in, “must be fatal to a free government.” 28 In short, Lincoln articulated an unconstrained vision of habeas suspension in the Corning letter, while Curtis offered a constrained vision of habeas suspension in Executive Power. 29 7 Although duty-bound to issue a principled, non-partisan constitutional argument against the dangers of executive usurpation, Curtis was profoundly pessimistic about the prospects of his pamphlet exerting a positive influence on either the Lincoln administration or the American public. This pessimism was clearly evident in a letter to his wife from October 6, 1862, in which Curtis revealed his hesitant motivation for entering the public debate: “…I have great reluctance to go into the arena. The strife is bitter, and not altogether safe…That it [Executive Power] will be read and abused, I do not doubt. That it will greatly influence the country, I more than doubt. But I do not feel at liberty to refuse to make any attempt to keep things from being turned over, which I can possibly effect…though there is no danger to me or mine, there is great and pressing danger to the country,--danger of the loss of ideas,--and this I have tried to encounter or obviate…I ought to do what I can to subdue the enemy at home.” 30 The passage of time has essentially confirmed Curtis’ somber prediction, as his recent biographer characterizes Executive Power (with much understatement) as “an important though somewhat neglected document in American constitutional history.” 31 Nevertheless, it is clear that Lincoln had read Executive Power at the time, and he appears to have been worried about the potential damaging influence of Curtis’ argument on Northern public opinion. In a letter to New York lawyer Charles P. Kirkland—who had penned a response to Curtis’ argument against executive emancipation—on December 7, 1862, Lincoln wrote: “I have just received and read your published letter to the Hon. Benjamin R. Curtis. Under the circumstances, I may not be the most competent judge, but it appears to me to be a paper of great ability, and for the country’s sake more than my own, I thank you for it.” 32 Ironically, however, Curtis’ pamphlet provides an accurate intellectual context for several lower federal court habeas cases that played out in the North between the shadows of Merryman and Vallandigham. Despite their relative scholarly neglect, the circumstances of these cases reveal how the obstruction of habeas procedure by the Union military authorities was often the 8 result of a routine matter of convenience, rather than any legitimate “public necessity”—a consequence of an over-reaching habeas policy that was perhaps nowhere more clearly articulated than in Curtis’ Executive Power. The Forgotten Civil War Habeas Experience: “Public Necessity” or Military Convenience? Not long after Lincoln defended his first habeas suspensions before Congress, a littleknown case that was to foreshadow much of the Civil War habeas experience in the North transpired in the Southern District Court of New York. In late July 1861, Judge Samuel R. Betts issued a habeas writ for one Purcell McQuillon, a British subject imprisoned at Fort Lafayette by order of the State Department on vague charges of “suspicion of being a spy in the interests of the rebels” and “some general charge of levying war” against the United States. 33 It was even alleged that McQuillon was “a participant in the attack on Fort Sumter,” and had engaged in purchasing arms for the Confederacy in New York while plotting to do the same on a return trip to England. 34 Although documentation is rather sparse, it appears that McQuillon was apprehended as a “prisoner of war” on June 28 and conveniently transferred between military forts in Washington, D.C. and New York in a deliberate attempt to evade habeas proceedings in local civilian courts. 35 The commander of Fort Lafayette, Martin Burke, declined to obey the writ, and cited the authority of General Winfield Scott as grounds for doing so. A copy of Scott’s brief letter, which did not cite any “public necessity” as justification for holding McQuillon, was later produced in court, but McQuillon’s attorney insisted that the military authority had not made a proper return to the writ. 36 Indeed, McQuillon’s military detention took place in a state far outside the closest theater of military operations in Confederate Virginia. 9 Judge Betts, seeking to avoid a collision with the Union military, decided that “the military authorities declined to obey the writ as a matter of right, and the civil power was not sufficient to enforce it.” McQuillon’s attorney protested that the return made on his client did not sufficiently establish the authority for suspending habeas, but Betts denied a motion to execute the writ. The question of the constitutionality of habeas suspension “was a very grave one,” and Betts was well aware that the present case paralleled that of the earlier Merryman case decided by Chief Justice Taney. Noting that the issues in Merryman had not been resolved, Betts declined to offer an opinion on executive habeas suspension, as it would be “indecorous” on the part of Betts “to oppose the chief justice.” Still, “[t]he constitutional law must be upheld,” and the judge “thought that the judicial and military arms of the Government should support each other instead of seeking occasion of conflict.” 37 Although it appears that McQuillon’s detention was based on considerations of military convenience rather than “public necessity,” Judge Betts expressed his hope that the public would “let the matter rest as it is, without throwing open the habeas corpus to be used by every one during the progress of the war.” 38 In the coming months and years of the war, however, the circumstances in which Northern civilians (and even underage soldiers) were placed under military arrest without recourse to habeas would alarm even the warmest supporters of the Lincoln administration. On October 19, 1861, Judge William M. Merrick of the District of Columbia Circuit Court received an application for a habeas writ from the father of one James Murphy, an underage soldier who was being illegally detained by the Union army. 39 Since the summer of that year, Merrick, a Democrat, had become an embarrassment to the Lincoln Administration by issuing approximately twenty writs for soldier minors, although he only issued them and ordered release as the tendered evidence suggested. In some cases, Merrick found that parental consent 10 was evident and ruled against discharge. 40 Not surprisingly, Merrick’s actions led to charges of “disloyalty” by the Republican press. 41 To Republican Senator Henry Wilson of Massachusetts, Merrick’s heart was “sweltering with treason.” 42 Additionally, the Official Records contains an anonymous letter to General Winfield Scott, dated January 1861, alleging that Merrick had been involved in a secessionist plot for an invasion of Washington that was to have taken place by Lincoln’s inauguration on March 4, 1861. 43 With these strikes against him, Merrick issued a writ of habeas corpus to be served on Brigadier General Andrew Porter, the Provost-Marshal of the District of Columbia under whose authority the young Murphy was detained. 44 Two days later, Merrick was informed that Dennis Foley, Murphy’s attorney who had petitioned the judge for the writ, had been arrested after attempting to serve the writ upon Porter himself. That same day, Secretary of State William Seward, then in charge of the Union internal security system, directed Porter to “establish a strict military guard over the residence of William M. Merrick.” 45 When Porter asked if this meant placing the judge under house arrest, Seward demurred, conveniently reasoning that “it may be sufficient to make [Merrick] understand that at a juncture like this when the public enemy is as it were at the gates of the capital the public safety is deemed to require that his correspondence and proceedings should be observed.” 46 When Merrick returned home that evening, he found “an armed sentinel” posted at his door for the purpose of “insult[ing] and intimidate[ing] by its presence the Judge who ordered the writ to issue [against Porter]…in defiance and contempt of the justice of the land”—or so Merrick claimed in a letter written to his brother judges later that night. 47 In addition, Seward ordered that Merrick’s judicial salary be suspended—in blatant violation of Article III of the Constitution, which stipulates that the salaries of life-tenured judges “shall not be diminished during their Continuance in Office.” 48 11 The Merrick incident received wide press coverage (even in England), which occurred at the height of the Lincoln administration’s suppression of disloyal Northern newspapers. 49 Republican newspapers, such as the New York Times, praised Merrick’s military surveillance as a “prudential” measure, while a well-known critical British observer derided Merrick’s “military arrest and surveillance” as the “heaviest blow which has yet to be inflicted on the administration of justice in the United States.” 50 Although the nature of Merrick’s “military surveillance” remains a matter of debate and is universally attributed to Seward’s discretion, it is now clear that Lincoln was at least intimately aware of the proceedings against Merrick. 51 John Hay, Lincoln’s personal secretary, recounts in his diary that Deputy Marshal George W. Philips— whom the court, in Merrick’s absence, had ordered to serve a rule upon Porter—approached Hay and Seward on October 22 to ask what should be done with the court-ordered rule for Porter. In defiance of the court’s orders, Seward replied: “The President instructs you that the Habeas Corpus is suspended in this city [Washington] at present, and forbids you to serve any process upon any officer here.” Hay then confirmed that those were “Precisely his [Lincoln’s] words.” 52 Despite the contention that “Seward was more confrontational than Lincoln on such questions,” the fact that Hay was clearly knowledgeable about the proceedings of Murphy suggests that the orders issued against Merrick may very well have emanated from Lincoln himself. 53 At the very least, Lincoln tacitly approved Merrick’s “house arrest” and salary suspension. After reading Merrick’s letter explaining his absence from the court on October 22, 1861, an incensed Associate Judge James Morsell condemned the actions of the Lincoln administration against his brother judge as “a palpable and gross obstruction of the administration of justice.” Likewise, Chief Judge James Dunlop declared the case “without a parallel in the judicial history of the United States.” 54 Neither judge denied the power of the president to suspend habeas or 12 declare martial law. Yet at the time Merrick issued a writ for Murphy—a time in which the court was open and functioning properly, and in which “the public enemy” was not “at the gates of the capital,” as Seward claimed—Lincoln had not even issued a proclamation suspending habeas in the capital. 55 Therefore, Dunlop ruled, “it will hardly be maintained that [Lincoln’s] suspension could be retrospective.” Nevertheless, he continued, “[t]he issue ought to be and is with the President, and we have no physical power to enforce the lawful process of the Court on his military subordinates against the President’s prohibition.” 56 There the case ended, but its immediate constitutional importance did not, for Lincoln’s October 1861 suspensions became the first of several without Congressional authorization between July 4, 1861 and the passage of the Habeas Corpus Act on March 3, 1863. 57 Judge Merrick returned to the bench on November 18, with his salary resumed in December. 58 Remarkable in many respects, the aggressive actions of the Lincoln administration in Murphy demonstrate the far-reaching extent to which habeas and the power of the federal judiciary could be rendered impotent by executive authority during the Civil War. Yet, it is difficult to justify Lincoln’s intimidation of Merrick upon any ground of “public necessity,” for the nine-month-old anonymous letter alleging Merrick’s disloyalty is spurious evidence, at best. Moreover, the conditions prevailing in the capital in October 1861 did not parallel the emergency conditions of the previous April in Baltimore and, unlike Merryman, the issue confronting Merrick was not one of using habeas to inquire into the detention of a suspected traitor in military prison. The issue that provoked the obstruction of the Lincoln administration was not treason, but the possible release of a soldier minor too young to serve in the army according to law—a problem that even disturbed U.S. relations with England during the early months of the war. 59 13 If Murphy represents Lincoln’s attempt to warn federal judges throughout the Union against interfering with military authority, it may also suggest the president’s curious higher concern for the “simple-minded soldier boy who deserts” than for those underage soldiers illegally detained in the ranks. Ironically, this was precisely the issue that turned Horace Binney, Lincoln’s “most important defender,” against the President’s habeas policy later in the war. In the “Third Part” of his influential pamphlet, Binney wrote: “…I do not understand how it can be a constitutional exercise of the power of suspension, to suspend [a soldier minor’s] privilege of the writ of Habeas Corpus, to leave him with the military power, and prevent his submitting to a competent court the question whether he was lawfully drafted or enlisted.” 60 Although little noted among scholars, it is significant that Binney and several of Lincoln’s most prominent early supporters of executive habeas suspension—including Democratic Senator Reverdy Johnson and Harvard law professor Joel Parker—had withdrawn their support after Lincoln’s habeas policy expanded far beyond their own conceptions of “public necessity” later in the war. 61 The next two cases arose at a time in which military arrests north of the Border States grew markedly between August and September 1862. The first, Ex parte Benedict, transpired in New York nearly a year after Murphy in early September 1862, and bore a striking resemblance to Merryman. Judson D. Benedict, a pacifist minister in Aurora, New York, was arrested at his home on September 2 and confined to Fort Porter. 62 Benedict was arrested for discouraging enlistments, after reportedly admonishing those members of his congregation opposed to the war to avoid conscription peacefully only if they were willing to accept the legal penalties for doing so. Deputy Marshal A.G. Stevens arrested Benedict and four other men under the convenient authority of a newspaper slip with a “purported” order from the War Department of August 8, 1862, which authorized all local civil and military authorities to “arrest and imprison any person 14 or persons who may be engaged, by act, speech, or writing, in discouraging volunteer enlistments, or in any way giving aid and comfort to the enemy, or in any other disloyal practice against the United States.” 63 Although designed to stifle draft evasion and enforce conscription, the broad mandate of the War Department orders inevitably led to the military arrests of many allegedly disloyal Northerners. 64 Presiding over this case was Nathan K. Hall, District Judge of the United States for the Northern District of New York in Buffalo. In his opinion, Judge Hall recalled reading another order from the War Department in a newspaper of the same date (August 8), entitled “Persons discouraging enlistments, to be arrested,” which declared in part that “[t]he writ of habeas corpus is hereby suspended in respect to all prisoners [arrested for evading the draft]…and in respect to all persons arrested for disloyal practices.” Like Taney, Hall was determined to consider the scope and effect of the suspension order—which included confronting the constitutionality of executive suspension. Like Curtis, Hall was greatly disturbed by Lincoln’s notion of granting thousands of individuals, in some capacity of police authority, the convenient and dangerous power to arbitrarily arrest citizens far out of sight of any battlefield. “Was it intended,” Hall asked, “that every policeman and every military officer throughout the loyal States, and in localities far removed from the seat of military operations, should be authorized to arrest and imprison any citizen” without recourse to habeas? It was clear that such a grave question transcended partisan bickering: My personal confidence in the integrity, patriotism and good sense of the President, as well as the respect due to the high office he holds, compels me to require the most conclusive evidence upon the point before adopting the conclusion that he has ever deliberately sanctioned so palpable a violation of the constitutional rights of the citizens of the loyal States, as the order of the war department, thus construed, would justify and require. 65 15 The judge maintained that as the circumstances stood in loyal New York, “all the laws of the State and Union can be administered by the ordinary Courts of justice as freely, as fully, and as efficiently, as in time of profound peace.” Significantly, Hall also pointed out that Congress had not, as of that date, legally granted the president authorization to suspend habeas, and Lincoln had yet to issue his sweeping September 24 proclamation suspending habeas throughout the North. 66 Throughout his opinion, Judge Hall repeatedly emphasized the corrosive problem of “disloyalty,” which had become a much greater cause for concern among Northerners by the fall of 1862. He pointed out that by this point in the war, hundreds of thousands of New Yorkers had volunteered to sacrifice themselves for the preservation of the Union; how, then, could the government justify imperiling the liberties of such a loyal people? Hall echoed Curtis in pointing to the dangerous ambiguity pervading the charge of “disloyal practices.” For example, one military officer may arrest a person for criticizing General McClellan and thereby somehow discouraging enlistment, while another officer—who might believe criticism of McClellan to be a virtue—may imprison another person critical of General Fremont for the same arbitrary reason. Such a construction of the War Department order “would go far towards making a government a despotic instead of a constitutional government.” Indeed, it stretched credulity to contend that “American citizens are left at the mercy of the will of an individual, who may, in certain cases, the necessity of which is to be judged of by himself, assume a supreme, overbearing, unbounded power! The idea is not only repugnant to the principles of a free government, but subversive of the very foundations of our own.” After an exhaustive citation of English and American precedents reminiscent of Taney’s Merryman opinion, the New York judge ruled that “the President, without the authority of Congress, has no constitutional power to suspend the privilege 16 of the writ of habeas corpus in the United States,” and issued a writ for Benedict. 67 Hall’s opinion was far from unusual, however, as even judges sympathetic to the Lincoln administration at the time continued to issue habeas writs because of the legal uncertainty surrounding the August 8 War Department orders. 68 Creating something of a sensation at the time, Judge Hall’s opinion in Ex. parte Benedict was later published and widely circulated in pamphlet form, and was also featured in the first edition of John A. Marshall’s bitter history of military arrests in the North, American Bastile. Yet in stark contrast to Merryman and Vallandigham, and despite the contemporary prominence and constitutional importance of the case, Benedict has received scarce mention among historians. This is likely accounted for by the “Copperhead” reputation of Marshall’s book, which has been given the unflattering epitaph of “the Book of Martyrs” and is often discredited for its evident bias against the Lincoln administration. 69 A federal district judge in Vermont would render a different constitutional argument on executive suspension just two weeks later in a similar case. Anson Field, a Democratic politician in his sixties from Vermont, was arrested along with two other men under authority of the August 8 War Department orders on the basis of “vaguely disloyal conduct” in discouraging enlistment. 70 On October 7, Judge David Smalley delivered his opinion on the case in Ex. parte Field. He began by noting the legal grey area accorded to the ambiguous charge of “disloyal practices,” and admitted that the abuse of such a charge posed a great danger to the constitutional liberties of even the most loyal citizens. Directly referencing Judge Hall’s earlier opinion in Ex parte Benedict, Smalley denounced the “despotic and illegal order of the war department” and asserted that “either the constitution or the order must fall.” Concurrent with Curtis, and antagonistic to Lincoln, he then argued that under the Constitution, the president did not have the 17 authority to delegate habeas suspension to others, for “even if the president possessed the delicate and dangerous power of suspending the writ of habeas corpus, it will hardly be claimed that he could delegate it to all or any of his subordinates, to be exercised when, in their discretion, the ‘public safety’ might require it, any more than he could delegate the veto power.” 71 Here was a clear judicial denunciation of the tendency of military subordinates to brush aside habeas procedure out of mere convenience under the presumed authority of the Lincoln administration. Smalley expressed his outrage against another War Department order, signed by Judge Advocate General L.C. Turner, which ordered the U.S. marshal charged with Field’s detention to resist any return of the writ by any judicial authority—with force if necessary. “A more flagrant disregard of the constitution of the United States can hardly be conceived,” the judge remarked bitterly. Perhaps speaking for the judges of the D.C. Circuit Court, Judge Hall, and other “obstructionist” judges throughout the Union, Smalley declared: In issuing this writ of habeas corpus, and in passing on questions raised upon it, I have simply performed an imperative judicial duty. If I had shrunk from it, or in any way avoided it, I should have proved recreant to the great trusts reposed in me. A judge who will not faithfully and fearlessly perform every duty imposed upon him by the constitution and the laws, as much merits disgrace and punishment, as does the soldier who deserts his colors on the battlefield. 72 At the time Smalley delivered his opinion, the writ of habeas corpus was suspended throughout the entire North. But because the marshal had been ordered to bring Field before the court on September 1, three weeks before Lincoln’s September 24 proclamation, Field “was legally entitled to the privilege of the writ.” This was a procedural ruling in line with that of Judges Dunlop and Morsell in the earlier Murphy case. The marshal was found guilty of contempt of court and fined one hundred dollars. 73 18 Having upheld the integrity of the judicial authority, Judge Smalley confronted the constitutionality of executive habeas suspension, arguing “with great hesitancy” that the Militia Act of 1795 sufficiently conferred upon the president the lawful power to declare martial law and suspend habeas. 74 While offering an original argument that was technically at variance from Binney’s discovery of executive suspension power in the habeas clause of the Constitution itself, some recent scholars have seized upon Smalley’s argument to buttress their defense of Lincoln’s habeas record. 75 What these scholars have failed to point out, however, is that Smalley’s opinion was at best a qualified endorsement of executive suspension, for he went on to address the practical consideration of “public necessity” in a way similar to Judge Hall: “But it may be argued that Vermont is a loyal state, more than five hundred miles from the seat of war; that the people are patriotic and law abiding; that the enforcement of civil law has not been interfered with within her borders; and that, therefore, there is nothing to justify martial law.” Nevertheless, Smalley admitted that “we have already seen that this is a question for the president, not for the courts, to determine.” 76 The Field case thus reveals that even a federal judge supportive of the legality of executive habeas suspension could not fail to point out its inherent practical dangers in areas far north of any battlefield or imminent danger, an argument no less important than the theoretical one involving the legality of executive suspension. The final case, In re Winder, although decided in October 1862, had its origins in the fall of the previous year. 77 Like Benedict, Winder has long been neglected by scholars, again most likely because of its inclusion in Marshall’s American Bastile. 78 William H. Winder of Philadelphia was arrested on September 11, 1861, on vague charges of writing disloyal correspondence and confined to Fort Warren in Boston Harbor. Winder suspected that his arrest was based on false charges of corresponding with his Confederate brother, Richmond Provost 19 Marshal John H. Winder, whom he denied having written to since January of 1861. Although admitting his outspoken hostility to Northern abolitionists, Winder affirmed that his devotion to the Constitution and the Union was “breathed in every line” of his writings. “[U]nless a difference of opinion from the Administration in regard to the best mode of securing the perpetuity of the Union be cause of offense,” Winder argued, “there exists no ground upon which to base a charge [against me].” 79 Convinced that responsibility for his arrest lay with an inept subordinate of Secretary of State Seward or Secretary of War Simon Cameron, Winder demanded vindication by an unconditional release, for Union authorities had failed to find “a scintilla of evidence” against him and he believed that to take a loyalty oath would “indorse my arrest and imprisonment as being deserved.” In fact, both Seward and Cameron had each unknowingly issued a separate order for Winder’s arrest on the same day, and there ensued a confusing and protracted drama in which Winder and his attorney, George Biddle, relentlessly petitioned the War and State Departments for Winder’s release. On at least two occasions during this period, Winder was offered and declined taking an oath of allegiance to the Union Government. His refusals were evidently based on a genuine fear that to take a loyalty oath would place him in danger after returning home to vengeful partisan masses in Philadelphia. As he expressed his concern to Colonel Justin Dimick, commander at Fort Warren: “…to take it [the loyalty oath] as a condition of release would be to make an invidious distinction between me and all other citizens not required to take it; it would make me a target for the shafts of the maliciously disposed” and acknowledge “the necessity of an oath to restrain me from committing treason.” Even an indefinite or general parole, Winder believed, “would equally render my stay in Philadelphia intolerable.” 80 20 Finally on October 25, 1862, Winder’s counsel applied to Associate Supreme Court Justice Nathan Clifford, presiding over the United States Circuit Court in Boston, for a writ of habeas corpus. By this point, Winder had been detained in Fort Warren for nearly fourteen months without knowledge of any charges against him. Finding no just cause for Winder’s detention, Clifford proceeded as the law dictated and issued the writ, but the deputy sheriff tasked with serving the writ upon Colonel Dimick was forcibly prevented from landing at Fort Warren by “a body of about fifty armed men drawn up in military array.” 81 Following this obstruction, William B. Reed, part of Winder’s counsel, echoed the arguments of Curtis, Hall, and Smalley by illustrating the Union military’s routine of conveniently brushing aside habeas procedure for reasons clearly non-essential to any “public necessity”: In the case decided by the chief justice of the United States, that of Merriman, the military officer to whom the process was directed, made a return in form respectful; and this, too, at a time of local disturbance and on the edge of actual war. But here in Massachusetts, many hundred miles away from any scene of war, where perfect peace reigns, and every peaceful relation of life is maintained, and the court is regularly transacting the ordinary and profitable business of the government, here in Massachusetts, the writ which your Honor granted is both evaded and resisted, and an imprisoned American citizen is denied the common right of knowing who are his accusers and of what he is accused. 82 His options exhausted, Justice Clifford acknowledged that deliverance of the writ for Winder was prevented by force. “The court deeply regrets that officers of the United States should obstruct process out of a court of the United States, especially of this [habeas] process.” Reflecting the impotence of judicial authority in the face of an over-reaching military authority, Clifford pointed out that “those [military] officers are at present beyond the control of the law, and the court has not the command of the physical force needful to effect a service of this writ at the present time.” Without addressing the constitutional issue of executive habeas suspension, he 21 then ordered the writ placed on file, “to be served when and where service may become practicable.” 83 Conclusion: The Civil War Habeas Experience and American Memory To the extent that McQuillon, Murphy, Benedict, Field, and Winder are represented in Civil War memory, the comparative prominence of Merryman and Vallandigham illustrates the dominance of Lincoln’s unconstrained vision of executive habeas suspension among both scholars and the general public. In much the same way, Horace Binney’s pamphlet is often remembered as a definitive intellectual justification for Lincoln’s habeas suspensions despite the ironic fact that Binney eventually opposed the abuses of habeas suspension by the end of the war, while Benjamin R. Curtis’ reasoned and nonpartisan critical pamphlet is often forgotten. As a consequence of the general deference to which Lincoln is accorded with regard to habeas suspension, our memory of McQuillon, Murphy, Benedict, Field, Winder, and much of the Civil War habeas experience in the lower courts remains buried deep within the Treasury of Virtue. Upon closer scrutiny, however, these cases reveal the troubling practical consequences of a policy which is often venerated for the “limited” intentions of its author. When measured against Lincoln’s policy rationale in the Corning letter and the practical considerations of Curtis’ Executive Power, it is difficult to argue that the circumstances of the above cases meet the litmus test of any “public necessity” for brushing aside habeas (and the judges involved certainly did not think so, either). Rather, these cases reveal how Lincoln’s habeas policy in the North established a pattern whereby the Union military brushed aside habeas procedure as a routine matter of convenience, and in a way, historians have since followed this lead by routinely overlooking or minimizing the importance of these cases in the narrative of Civil War habeas. 22 A final important point which has escaped scholarly attention is that both Curtis’ argument against transcendent executive power and the cases herein discussed chart an unmistakable judicial progression toward the Supreme Court’s landmark 1866 decision in Ex. parte Milligan. 84 On October 21, 1864, Lambdin P. Milligan was brought before a military commission and found guilty of vague charges of disloyalty and conspiracy. Milligan’s trial by military commission took place in Indiana, a state far removed from any battlefield. In a five-tofour majority, the Court ruled that the military commission had no legal jurisdiction to try and sentence Milligan. Delivering the opinion of the Court, Justice David Davis, an old friend of Abraham Lincoln, famously declared that “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances.” Although stopping well short of a total vindication of habeas corpus, 85 the Court emphatically rejected the plea of “public necessity” conveniently appealed to by Union military authorities far removed from any theater of war in implementing Lincoln’s habeas and martial law policies. In sweeping language, Davis proclaimed: No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false, for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority. 86 Moreover, because the courts in Indiana were “open and their process unobstructed,” and because Milligan was in no way “connected with the military service,” he could not legally be tried by a military commission. 87 “Martial law,” Davis proclaimed, “cannot arise from a threatened invasion. The necessity must be actual and present, the invasion real, such as 23 effectually closes the courts and deposes the civil administration.” 88 Therefore, “Martial rule” must be “confined to the locality of actual war,” for it “can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction.” 89 Even if one accepts the pretenses of “public necessity” or “national security” as valid justifications for curtailing civil liberties in times of war, we should not confine discussion of the Civil War habeas experience to the purely theoretical. In the Civil War North, as shown by these lower federal court habeas cases, the practical consequences of Lincoln’s habeas suspensions on civilians, judges, and soldiers were surely no less significant than the theoretical arguments advanced then and since to justify them. But if Lincoln’s Corning letter continues to be remembered as a model for conditional expansion of executive power in times of war, Curtis’ Executive Power likewise should not be forgotten as a potent warning against the natural consequences and potential abuses of such power. “Amidst the great dangers that encompass us,” wrote Curtis, in words no less applicable to the twenty-first century U.S. experience in the socalled Global War on Terror, “in our struggles to encounter them, in our natural eagerness to lay hold of efficient means to accomplish our vast labors, let us beware how we borrow weapons from the armory of arbitrary power. They cannot be wielded by the hands of a free people. Their blows will finally fall upon themselves.” 90 24