This article will address President
Abraham Lincoln’s wartime suspension of the Writ of Habeas Corpus
and recount the cases of John Merryman, Clement Vallandigham, and
Lambdin Milligan. The cast of characters includes many Ohioans.
Suspension of the Writ of Habeus
and the Milligan Case
Following his election in the face
of Southern opposition, Abraham Lincoln had to travel through
Baltimore by train secretly under threat of assassination to take
office as president in a badly divided county in 1861. Following the
firing on Fort Sumter on April 12, 1861 and the secession of
Virginia on April 17, he faced the possibility of the nation’s
capital being isolated from the North if the neighboring border
state of Maryland would secede and join the Confederacy. Given the
small size and scattered location of the United State army, Lincoln
called for help from Northern governors to defend Washington, D.C.
On April 19, when the 6th
Massachusetts regiment took to the streets of Baltimore (known as
“Mob City” and home to many secession sympathizers) to switch trains
enroute to Washington City, a mob attacked it. In the ensuing fracas
known as the “Pratt Street riot”, four soldiers were killed and 36
wounded and 12 civilians died. In the wake of this bloodshed,
Baltimore Mayor George Brown and Maryland Governor Thomas Hicks
requested that Lincoln send no more Northern troops by train through
Baltimore. Lincoln responded: “Union soldiers are neither birds to
fly over Maryland nor moles to burrow under it”. While Hicks was
pro-Union, he authorized Maryland militia to prevent the passage of
more Union troop trains by disabling railroad bridges and cutting
telegraph wires. Answering the call was the Baltimore County Horse
Guards, including Lieutenant John Merryman, a farmer.
Its origins in the Magna Carta, the
Founding Fathers in the Constitution enshrined the right to a Writ
of Habeas Corpus to ensure that Americans who were arrested by the
government had the right to go before judges to be informed of the
charges against them. Article I, Section 9, Clause 2 of the
Constitution states in what is called the suspension clause: “The
Privilege of Writ of Habeas Corpus shall not be suspended, unless
when in Cases of Rebellion or Invasion the public Safety may require
it”. With a rebellion underway and Washington threatened by the
formation of a Confederate army across the Potomac river and with
Congress not in session, on April 27 Lincoln authorized Winfield
Scott, commander of the army, to suspend Habeas Corpus if necessary
to ensure the safety of the military supply lines between
Philadelphia and Washington. Before Congress convened on July 4,
Lincoln would also suspend the writ on the Florida coast and between
Philadelphia and New York.
Meanwhile, on April 29, the
Maryland Legislature voted 53-13 against secession. On May 13,
Massachusetts politician and now General Ben Butler (later known as
“Beast” to Southerners because of his occupation policies in a
captured New Orleans) marched his troops from the Maryland capital
of Annapolis to Baltimore, where he declared martial law. Butler
then imprisoned the mayor, city council, and police commissioner in
Ft. McHenry (birthplace of the Star Spangled Banner during the
British bombardment of the city during the War of 1812). James Ryder
Randall, a native Marylander living in Louisiana, responded to these
events by composing “Maryland, My Maryland” (adopted as the state
song in 1939). Its opening verse begins: “The despot’s heel is on
thy shore, Maryland! His torch is at thy temple door, Maryland!
Avenge the patriotic gore that flecked the streets of Baltimore and
be the battle queen of yore”. Its ninth and concluding verse shouts:
“Huzza! She spurns the Northern scum”. The bands of Lee’s Army of
Northen Virginia played “Maryland, My Maryland” as his army invaded
the state in September, 1862 and Maryland regiments fought for the
South, as well as for the North. But Maryland did not secede (and
Lincoln would later imprison pro-secessionist state legislators).
On May 25, John Merryman was
arrested and imprisoned in Ft. McHenry on suspicion of treason. His
lawyers petitioned Roger Taney, Chief Justice of the United States
and federal Circuit Court Judge for Maryland, for a Writ of Habeas
Corpus. The elderly Taney obliged within a day. Taney, a Maryland
slaveholder, was President Andrew Jackson’s Attorney General and
Secretary of the Treasury. Jackson appointed him the U.S. Supreme
Court in 1836. Taney was notorious for his opinion in the 1857 Dred
Scott case, which inflamed abolitionist opinion in the North. Taney
dispatched a U.S. marshal to Ft. McHenry to bring Merryman to court.
Ft. McHenry’s commander General Cadwallader refused to obey, citing
President Lincoln’s suspension of the writ.
An outraged Taney then wrote an
opinion on June 1 calling Lincoln’s action unconstitutional. Taney’s
primary reasoning in Ex Parte Merryman was that the placement of the
suspension clause in the Constitution’s section on the powers of the
Congress meant that only the Congress and not the President could
suspend Habeas Corpus. In the face of Taney’s opinion, Lincoln
simply ignored it. Given Taney’s age and pro-slavery views and the
dangers that his new administration faced, it is understandable that
Lincoln would not bow to Taney’s view of the Constitution. Taney
would die on October 13, 1864, the same day that Maryland outlawed
slavery. Lincoln called Congress into session and his Attorney
General issued an opinion justifying his action to address the
emergency. Lincoln wrote to Congress: “Are all the laws but one to
go unexecuted, and the government itself go to pieces, lest that one
Under an amnesty proclamation
issued by Lincoln, nevertheless, on July 13, Merryman was turned
over to the civilian authorities and released. However, in July,
1863 the U.S. Attorney for Baltimore re-indicted Merryman for
treason. However, his trial was postponed and the charges eventually
dismissed in April, 1867. In May, 1863, the North Central Railroad
sued Merryman for damages for his participation in the 1861 railroad
bridge burnings but nothing came of this. In turn, Merryman sued
General Cadwallader for unjust imprisonment but his suit was
dismissed by a federal court in April, 1864. In July of that year,
Merryman entertained Maryland Confederate general Bradley Johnson at
his farm during Jubal Early’s incursion into Maryland that led to
the confrontation at Fort Stevens outside Washington with President
Lincoln present. Merryman was a prosperous farmer and prominent
citizen after the war, dying in 1881.
Extension of Habeas Corpus
On September 24, 1862 (following
the battle of Antietam), Lincoln expanded the suspension of the writ
of Habeas Corpus:
“All Rebels and Insurgents, their
aiders and abettors within the United States, and all persons
discouraging volunteer enlistments, resisting militia drafts, or
guilty of any disloyal practice, affording aid and comfort to Rebels
against the authority of the United States, shall be subject to
martial law and liable to trial and punishment by Courts Martial or
Lincoln initially delegated
implementation of this policy to Secretary of State William Seward
but then transferred this responsibility to Ohioan Edwin Stanton,
the Secretary of War. It was been estimated that between 14,000 and
38,000 were imprisoned and denied access to Habeas Corpus during the
In March, 1863, the Congress passed
the Habeas Corpus Act, effectively authorizing its suspension.
However, this law required the government to provide lists of those
imprisoned to civilian judges and to have them charged by grand
juries when they next met. Non-compliance required their release.
This legislation reflected growing opposition to the military draft,
culminating a few months later in the New York City draft riots.
Again, Lincoln simply ignored the conditions that Congress attached
to the suspension of the writ.
“Peace Democrats” (known as
“Copperheads”) opposed the war policy of the Lincoln administration,
arguing instead for a negotiated peace with the Confederacy (which
Lincoln refused to recognize). Their opposition grew in tandem with
Union military setbacks and the draft. This was heightened by
discontent among many Northerners at Lincoln’s issuance of the
Emancipation Proclamation in Fall, 1862. The Peace Democrats enjoyed
considerable electoral success that Fall in reaction to these
A prominent voice among the Peace
Democrats was Ohio Congressman Clement Vallandigham, a lawyer from
Dayton, even though he lost his seat in the Fall, 1862 election. He
was sympathetic to the South and an outspoken critic of Lincoln.
General Ambrose Burnside, following his disastrous defeat at
Fredericksburg in December, 1862, was re-assigned to the Ohio
department. On April 13, 1863, Burnside issued an order which stated
that “Treason, express or implied, would not be tolerated”. On May
1, Vallandigham spoke in Mt. Vernon, where he denounced “King”
Lincoln, in the presence of a federal agent. He was arrested by the
army on May 5, imprisoned in Cincinnati, tried before a military
tribunal despite his request for a jury trial, and sentenced to
imprisonment for the remainder of the war. Vallandigham protested a
denial of due process and demanded a writ of Habeas Corpus. His
appeal to the U.S. Supreme Court would be rejected in Ex Parte
Vallandigham in February, 1864 because the court ruled that it had
no jurisdiction over military commissions.
However, rather than allow his
sentence to be carried out and make him a Copperhead martyr, Lincoln
instead exiled him to the Confederacy. He was turned over to General
Braxton Bragg’s Army of the Tennessee on May 25. This exile didn’t
last long because within 24 days he was sent out to sea, making his
way to Canada via Bermuda. Vallandigham than ran for governor of
Ohio on the Democratic ticket from Windsor, Ontario but lost in a
landslide to pro-Union War Democrat John Brough that Fall.
Undeterred and allowed by Lincoln to travel freely back in the
United States, Vallandigham attended the Democratic convention in
Chicago in the summer of 1864 and drafted its peace platform
(although the party’s candidate George McClellan, twice dismissed by
Lincoln, refused to accept its demand for an immediate end of the
war). After the war, Vallandigham ran unsuccessfully for seats in
the U.S. Senate and House of Representatives on an
anti-Reconstruction platform. His practice as a lawyer ended with
his death in 1871 in Lebanon when he accidentally shot himself while
defending an accused murderer.
Despite Vallandigham’s 1863 defeat
in Ohio, there was considerable Copperhead support in southern Ohio
and neighboring Indiana. Union authorities feared that a secret
underground group of pro-Confederate sympathizers - the Knights of
the Golden Circle or the Sons of Liberty - might actually stage an
uprising aimed at freeing Confederate prisoners and leading
disaffected Midwestern states to secede. This was despite the lack
of support for General John Hunt Morgan when his Confederate cavalry
passed through southern Indiana and Ohio from July 8, 1863 until the
capture of his remaining raiders on July 26.
Another outspoken Copperhead
opponent of the Lincoln administration’s war policy was Ohio-born
lawyer and farmer Lambdin Milligan (a law classmate of Edwin
Stanton). Suspected of conspiring against the Union, he and some
other Indiana Copperhead leaders were arrested by the military under
the direction of General Alvin Hovey on October 5, 1864 and tried by
a military tribunal beginning on October 21. Milligan was convicted
of treason (along with four others). He was sentenced on December 10
to be executed by hanging, His execution date was set for May 19,
1865. Following Lincoln’s assassination and apparently at the behest
of War Secretary Stanton, President Andrew Johnson postponed
Milligan’s execution until the civilian courts could hear his
On March 6, 1866, the U.S. Supreme
Court began six days of argument on the issue of the validity of his
trial and conviction by the military, led by Ohioan and Chief
Justice Salmon Chase, formerly Lincoln’s wartime Secretary of the
Treasury. The government’s case was presented by Attorney General
James Speed, aided by Ben Butler and former Ohio Attorney General
Henry Stansbury. Milligan was represented by a legal team that
included Ohioan Civil War hero, Congressman, and future president
James Garfield and David Dudley Field, a prominent attorney and the
older brother of sitting U.S. Supreme Court Justice Stephen Field.
The court issued its opinion and
the writ of Habeas Corpus on December 17, 1866 in Ex Parte Milligan.
It ruled unanimously that under the 1863 Habeas Corpus Act Milligan
should have been tried in the open civilian courts in Indiana,
rather than by military commission. The author of the lead opinion
was Justice David Davis. Maryland-born Davis attended Kenyon College
in Ohio and began a law practice in Illinois. He became a state
judge. Befriending attorney Abraham Lincoln, Davis became his
campaign manager at the 1860 Chicago Republican convention that
nominated him. In 1862, Lincoln (by recess appointment) named Davis
to the U.S. Supreme Court. With Lincoln now dead and the Civil War
over, Davis famously wrote:
“The Constitution of the United
States is a law for rulers and people, equally in war and peace, and
covers with the shield of its protection all classes of men, at all
times and under all circumstances. 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 to anarchy or
Davis not only recognized the
operation of the civilian courts in Indiana in 1864 but also the
denial of the Sixth Amendment right of Milligan to a trial by jury.
On behalf of four justices, Chief Justice Chase wrote that Congress
did have the power to create military commissions, something not
recognized by Davis in his opinion. In March 2, 1867, in the first
Reconstruction Act, Congress empowered military commanders in the
occupied South to use military commissions, which were used until
its end when Ohioan and President Rutherford Hayes withdrew Federal
troops from the South and ended its occupation after his
controversial election in 1876..
Released in April, 1866, Milligan
inveighed publicly the next month against the martyred president and
the wartime pro-Union governors of Indiana and Ohio. He then sued
those involved in his jailing for $500,000 in damages for trespass
and false imprisonment. Milligan was represented by Thomas
Hendrickson, a future Vice-President. The general who ordered his
arrest was represented by Ohio-born future president Benjamin
Harrison. In 1871, the jury awarded a verdict for Milligan but only
$5 in damages. Milligan died in 1899.
My conclusions are these: 1.
Lincoln was entirely justified in his initial suspension of Habeas
Corpus with Congress not in session under unprecedented wartime
conditions caused by the secession of the Southern states. 2.
Taney’s interpretation of the Constitution as to whether only
Congress could suspend the Writ of Habeas Corpus was debatable. 3.
Lincoln’s refusal to comply with the procedural provisions of the
1863 Habeas Corpus Act and the use of military commissions in Ohio
in 1863 and Indiana in 1864 when civilian courts were available for
the prosecution of Vallandigham and Milligan were also debatable,
although his actions were not successfully challenged in the courts
during the war. 5. Lincoln’s refusal to make Copperhead martyrs of
Peace Democrats Vallandigham and Milligan during the war was
The Milligan opinion still
resonates today as the legal and political debates continue over the
treatment of “enemy combatants” imprisoned in Guantanamo Bay, Cuba,
their trials before military commissions, and the Patriot Act
provisions for the arrest of those Americans accused of being
associated with “terrorism”.
Kelley, Darwin. 1973. Milligan's Fight Against Lincoln. Exposition Press.
Neely, Mark. 1991. The Fate of Liberty: Abraham Lincoln and Civil Liberties. Oxford University Press.
Rehnquist, William. 2000. All the Laws but One: Civil Liberties in Wartime. Knopf.
Weber, Jennifer. 2006. Copperheads: The Rise and Fall of Lincoln's Opponents in the North. Oxford University Press.
White, Jonathan W. 2011. Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman (Conflicting Worlds: New Dimensions of the American Civil War).
Williams, Frank. 2004 (May 5).
Abraham Lincoln and Civil Liberties in Wartime. The Heritage
Foundation (Lecture #834)