Suspending the writ of Habeas Corpus: The 1861 Rolling Barrage Part III
Part 3 of 3. Read Part 2 here.
President Abraham Lincoln understood when and how he could suspend the writ of Habeas Corpus. He spoke to Congress in a special session on July 4, 1861:
“The provision of the Constitution that ‘the privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion [and] the public safety may require it’ . . . It was decided that we have a case of rebellion and that the public safety does require the qualified suspension of the privilege of the writ which was authorized to be made.”[1]
In short, once shots were fired at Fort Sumter, there was a case of rebellion and the law of war applied – not civil law. Lincoln could thus wield the suspension of the writ of habeas corpus as a political-military weapon.
Suspension played a pivotal role in 1861. Lincoln first employed it to thwart Maryland legislators from working with the Confederacy and from voting to secede and joining the other Southern states. On April 25, 1861, Lincoln wrote to Lieutenant General Winfield Scott.
“I therefore conclude that it is only left to the commanding general [Scott] to watch and wait their [Maryland State legislatures actions], which if it shall be to arm their people against the United States, he [Scott] is to adopt the most prompt and efficient means to counteract, even, if necessary, to the bombardment of their cities, and, in the extremest [sic] necessity the suspension of the writ of habeas corpus.”[2]
Scott felt there was a sufficient threat and made an arrest in May 1861. Several months later, in September of that year, he arrested more Maryland politicians.
The writ of habeas corpus was also suspended to protect vital “military line[s]” of communications throughout the northeast.
- April 27, 1861: Lincoln allowed Scott to suspend habeas corpus in order to keep the railroads running from Philadelphia to Washington.
- July 2, 1861: Lincoln allowed Scott to suspend habeas corpus in order to keep the railroads running from New York to Washington City.[3]
- 14, 1861 Lincoln granted General Scott authority to expand suspension of habeas corpus in order to keep the railroads running from Bangor, Maine, and Washington City.[4]
After the Union army occupied parts of Florida, Lincoln permitted the military to suspend habeas corpus there on May 10, 1861. The suspension came because there was an insurgency in that state, and for the protection of the pro-Union citizens.[5]
It took two more years until the writ of Habeas Corpus was suspended by the Federal Congress throughout the Union and re-occupied southern territory on September 15, 1863.[6] This provided the military leeway to quickly react if an insurgency reared its ugly head either in re-occupied southern territory or in the North. Suspension also permitted the Union army to keep the lines of communications open, railroads especially. With the insurgency kept at a low simmer, this allowed the Union military to focus on a conventional war. Suspending the writ of habeas corpus saved lives, shortened the war and maintained the constitutional republic of United States.[7]
[1] John G. Nicholay and John Hay, eds., Complete Works of Abraham Lincoln, Vol. 6 (New York: Francis D. Tandy Company, 1894), 310.
[2] Ibid., 255-56. Note, I’m not sure if Lincoln was saying bombarding Maryland cities was less extreme than suspension of the writ of Habeas Corpus. It kind of sounds that way, probably more so to Steelers fans, but I digress.
[3] Ibid., 258 and 295.
[4] Ibid., Vol. 7, 8.
[5] Ibid., Vol. 6, 271.
[6] Ibid., Vol. 9, 121.
[7] Arresting potential insurgents is better than killing them.
Congratulations to JoAnna McDonald on presenting a compelling, thought-provoking series of articles on Civil War habeas corpus in an unbiased, balanced manner.
For my last comment on this topic: the case of sloop “Isabella” [Captain William Jones] operating out of Mobile Alabama in early 1861. On or about 20 March 1861 the Isabella was seized, and Captain Jones taken into custody at Mobile. His offense? Providing fresh food to the U.S. Navy warships on station in the Gulf of Mexico, just south of the entrance to Pensacola Bay and Fort Pickens. General Braxton Bragg had issued a series of regulations, one of which “prohibited the conducting of trade with enemy vessels off Pensacola.” Shortly afterwards, Captain Jones, through his wife, sued for redress under Habeas Corpus; and on or about 28 March 1861 the local magistrate at Mobile considered: 1) Was the arrest of Jones legal? 2) Did the application of military restrictions apply to civilians? 3) Did a state of war exist?
The magistrate [Judge Rapier] determined that “a state of war did NOT exist, which alone could justify such an arrest.” And on 28 March 1861 Captain Jones was released, his charges dismissed.
For further reading, see The Daily National Intelligencer of 1 April 1861 page 3 c.3 and The Richmond Enquirer 23 March 1861 page 1 column 5.
I’d be interested in seeing examples of how the suspension of Habeas Corpus helped keep the railroads open and allowed the Union armies to focus on conventional warfare. It certainly didn’t keep Confederate cavalry from raiding railroads or release ten of thousands of soldiers from guarding them. And really without the suspension would any northern state of joined the rebellion?