War Powers in Action:
The American Civil War
Artemus Ward
Department of Political Science
Northern Illinois University
Bill of Rights Institute
Indianapolis, IN
September 23, 2010
Introduction
• The Civil War provided the first occasion for the
U.S. Supreme Court to weigh in on the question
of war powers.
• For the first time the Court answered the
questions of when war exists, when the
president can act, and the extent of presidential
powers in times of war.
• In the end, though the Court did not answer
these questions definitively for all time, their
decisions laid the foundation for future cases
involving war powers.
Southern Secession
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As soon as word reached Charleston, South Carolina, that the “black Republican” Abraham Lincoln had
been elected President, the legislature summoned a state convention, which met on December 20,
1860, and formally dissolved the connection between South Carolina and the other states comprising
the United States of America.
This action was soon imitated by other southern states. Mississippi seceded on January 9, 1861, Florida
on January 10, Alabama on January 11, Georgia on January 19, Louisiana on January 26 and Texas on
February 1.
These states ultimately joined together to form the Confederate States of America (CSA). They held a
convention in Montgomery, Alabama, on February 8, where their representatives drew up a constitution
and established a provisional government. Closely resembling the U.S. Constitution, the Confederate
document contained notable differences, including the recognition of the independent and sovereign
character of each state. The following day Jefferson Davis was elected provisional President of the
CSA.
There were some formal attempts to avoid war. A peace convention was undertaken to save the Union,
and delegates from northern, southern and border states met behind closed doors in Washington on
February 4, 1861, with former President John Tyler presiding. But they failed to work out an acceptable
agreement.
Another attempt to prevent secession came on February 28, when Congress considered a joint
resolution to amend the Constitution to guarantee slavery in the states where it already existed. Despite
its intensely controversial provision, the amendment passed the House, 133 to 65, and the Senate, 24
to 12, but the states failed to ratify it.
Abraham Lincoln’s inauguration on the steps of the U.S. Capitol with the dome undergoing reconstruction. March 4, 1861
War Begins
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As President, Lincoln wanted to hold the Union
together and avert war. But he had no choice but
to enforce the law, and that duty included
maintaining federal property within the seceded
states. His decision to provision Fort Sumter in
Charleston harbor prompted the Confederates to
attack the fort and force its surrender on April 12.
And thus began the Civil War.
Once fighting broke out, four states of the upper
South joined the original seven states of the
lower South and seceded from the Union:
Virginia on April 17, Arkansas on May 6,
Tennessee on May 7 and North Carolina on May
20.
Four other slave states—Delaware, Maryland,
Kentucky and Missouri—remained loyal to the
Union, despite strong sentiment for the
Confederacy in sections of those states and
determined efforts to provoke secession.
Lincoln unilaterally took a number of steps to
suppress “treacherous” behavior, believing “that
the nation must be able to protect itself in war
against utterances which actually cause
insubordination.”
With Congress out of session, he expanded the
military, authorized the purchase of armament
and suspended the writ of habeas corpus in
Florida and Maryland.
Can the president unilaterally suspend habeas
corpus?
Can U.S. citizen’s be denied due process rights?
Habeas Corpus
• Art. I, Sec. 9 of the Constitution says, “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.”
• Who is protected by habeas corpus? U.S. citizens? Persons in the
U.S.? Person’s held by the U.S. government?
• Art. I outlines legislative, not executive power. Therefore, is this a
limitation on legislative power?
• Can the executive unilaterally suspend habeas corpus?
Ex parte Merryman (1861)
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In April 1861 Lincoln unilaterally and secretly suspended the writ
of habeas corpus in Maryland. Among the pro-Confederates in
the Maryland militia was Lieutenant John Merryman. He had
recruited and trained soldiers for the Confederate army and was
involved in cutting telegraph wires and burning railroad bridges.
On May 25, Merryman was arrested and charged with treason.
Merryman's lawyers appealed to the United States Circuit Court
for the District of Maryland. At this time, Supreme Court Justices
sat as circuit judges while the Supreme Court was not in session.
Merryman's complaint was heard by Chief Justice Roger Taney.
Taney promptly issued a writ of habeas corpus for Merryman and
held that the President cannot suspend habeas corpus: “These
great and fundamental laws, which congress itself could not
suspend, have been disregarded and suspended, like the writ of
habeas corpus, by a military order, supported by force of arms.
Such is the case now before me, and I can only say that if the
authority which the constitution has confided to the judiciary
department and judicial officers, may thus, upon any pretext or
under any circumstances, be usurped by the military power, at its
discretion, the people of the United States are no longer living
under a government of laws, but every citizen holds life, liberty
and property at the will and pleasure of the army officer in whose
military district he may happen to be found.”
Lincoln, citing Andrew Jackson before him, disregarded the ruling.
Lincoln also got an opinion supporting his suspension from
Attorney General Bates. It formed the basis for Lincoln's July 4,
1861 speech to Congress in which he rhetorically asked "Are all
the laws, but one, to go unexecuted, and the government itself go
to pieces, lest that one be violated?" Lincoln subsequently
expanded the zone within which the writ was suspended.
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Congress
Responds
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Clement Vallandigham
When Congress convened in special session on July 4, 1861, Lincoln sent them
a message in which he defended his actions in suspending the writ of habeas
corpus. Although he felt he had the right to expand his powers under the
Constitution, he assured the members “that nothing has been done beyond the
constitutional competency of Congress” and he expressed confidence that the
legislature would “ratify” the extraordinary measures he had taken.
Rep. Clement Vallandigham (D-OH) carried on a prolonged and futile fight
against Lincoln’s acts of “usurpation,” and introduced seven resolutions
censuring the President for the suppression of freedom of speech and press, the
suspension of the writ of habeas corpus and the establishment of a naval
blockade, among others. But by voice vote the House quickly tabled the
resolutions and they never came to a vote.
Led by Thaddeus Stevens (R-PA), the Republican-controlled Congress passed
66 bills, all but four of which related to supporting the war effort, in the one
month they were in special session. For example, one of the bills authorized the
secretary of the treasury, Salmon P. Chase, to borrow $250 million over the next
12 months to help finance the war.
But the Union Army initially lost a series of battles to the South. Eventually, they
fought to a draw at Antietam in September 1862. Lincoln declared victory and
issued a preliminary Emancipation Proclamation in which he would free all
slaves as of January 1, 1863, in Confederate areas still in rebellion against the
U.S.
Two days after he issued the preliminary proclamation he announced that at his
discretion the writ of habeas corpus could be suspended anywhere in the United
States.
Peace Democrats picked up congressional seats during the 1862 elections and
increased their criticism of Lincoln. On the House floor they howled their
opposition to this “imperial military despotism.” Vallandigham had failed to win
reelection but continued to denounce Lincoln’s tyrannical rule in a fiery February
23, 1863 speech before he left his seat.
Thaddeus Stevens introduced a habeas corpus bill in the House, giving the
President the authority, at his discretion, to suspend the writ for the duration of
the war. It passed in March 1863.
No longer a member of Congress, Vallandigham gave a speech back in his
home state of Ohio on May 1, 1863, in which he contended that the war could
have been concluded by negotiation but that the administration needlessly
prolonged the bloodshed in order to liberate blacks and enslave whites. Accused
of advocating resistance to the Lincoln administration and expressing sympathy
for the enemy, he was arrested, denied the privilege of habeas corpus, tried by a
military commission and found guilty of disloyal opinions. He was sentenced to
prison for the duration of the war. But Lincoln commuted his sentence and
ordered Vallandigham escorted to the Confederacy.
President Abraham Lincoln, between Maj. Allan Pinkerton of the Pinkerton National Detective Agency (Lincoln’s bodyguard) and
Gen. John A. McClernand, visits the Union camp at Sharpsburg, Md., on Oct. 3, 1862, a few weeks after the Battle of Antietam.
Lincoln was there to persuade Gen. George McClellan to take his army on the attack against Gen. Robert E. Lee.
The Prize Cases (1863)
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Lincoln had not asked Congress to declare war on the
Confederate States of America as he believed this
would be tantamount to recognizing the Confederacy
as a nation. Instead, Lincoln instituted a naval
blockade which had interesting legal ramifications
because nations do not blockade their own ports;
rather they close them. By ordering a blockade,
Lincoln essentially declared the Confederacy to be
belligerents instead of insurrectionists.
The Confederate States were mostly agrarian, and
almost all of their machined and manufactured goods
were imported. At the beginning of the war there was
only one significant steel mill and manufactory in the
South, the Tredegar Iron Works in Richmond, Virginia.
Moreover, the southern economy depended on the
export of cotton, tobacco and other crops.
The blockade of the South resulted in the capture of
dozens of American and foreign ships, both those
attempting to run the highly efficient blockade and
smuggle goods and munitions to the South as well as
those attempting to smuggle exports from the South.
The commercial ship owners brought suit claiming
that Lincoln did not have the authority to seize their
ships without a formal declaration of war from
Congress.
Justice Robert C. Grier
Delivered the Opinion of the Court
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“The right of prize and capture has its origin in the ‘just
belli,’ [laws of war—international law governing war] and
is governed and adjudged under the law of nations
[international law in general]. To legitimate the capture of
a neutral vessel or property on the high seas, a war
must exist de facto, and the neutral must have
knowledge or notice of the intention of one of the parties
belligerent to use this mode of coercion against a port,
city, territory.”
Writing for a 5-4 majority, Grier said that the parties do
not have to be sovereign nations, one belligerent can
claim sovereign right against the other. A civil war is
never publicly proclaimed, it just evolves.
“The proclamation of blockade is itself official and
conclusive evidence to the Court that a state of war
existed which demanded and authorized a recourse to
such a measure, under the circumstances peculiar to the
case.”
“Therefore we are of the opinion that the President had a
right, jure belli, to institute a blockade of ports in
possession of the States in rebellion, which neutrals are
bound to regard.”
Though a bare majority, the decision expanded the
power of the president to act in military conflicts without
congressional approval. It also made clear that war
could exist without a formal declaration.
Justice Samuel Nelson Dissenting
• “No civil war existed between
this Government and the States
in insurrection till recognized by
the Act of Congress 13th July,
1861.”
• “The President does not
possess the power under the
Constitution to declare war or
recognize its existence within
the meaning of the law of
nations…this power belongs
exclusively to Congress.”
• Nelson said that the blockade
was illegal and all vessels and
property seized prior to the
congressional declaration of
war should be restored.
Lincoln and Troops at Antietam (1862).
President Lincoln visits Gen. George B. McClellan and his staff near Sharpsburg, Md. ,on Oct. 3,1862, a few weeks after the
Battle of Antietam. Lincoln was there to try to persuade McClellan to move his troops and attack Gen. Robert E. Lee's army. But
McClellan declined to attack and was dismissed as commander of the Army of the Potomac a few days later.
Ex Parte Milligan (1866)
• Milligan was an attorney living in
southern Indiana. He was a
confederate sympathizer (a
Copperhead) and made speeches
and organized against the war. He
was arrested by the military, found
guilty by a military tribunal, and
was sentenced to be hanged.
• Meanwhile, the war ended but
President Andrew Johnson
sustained the sentence. Milligan
filed for a writ of habeas corpus in
federal court claiming that he
should not have been tried by the
military and that the President did
not have the authority to suspend
habeas corpus.
Lambdin P. Milligan
Justice David Davis Delivered the
Opinion of the Court
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Writing for a unanimous Court, Davis held that the
writ of habeas corpus had not been suspended by
Congress and therefore Milligan must be set free or
tried in a civilian court.
Davis explained that the “law and usages of war can
never be applied to citizens in states which have
upheld the authority of the government, and where
the courts are open and their process unobstructed.
Indiana was under federal authority ad no usage of
war could sanction a military trial there for any
offense whatever of a citizen in civil life, in nowise
connected with military service. He should have been
presented to the grand jury of the circuit court.”
“It is difficult to see how the safety of the country
required martial law in Indiana. If any of her citizens
were plotting treason, the power of arrest could
secure them, until the government was prepared for
their trial, when the courts were open and ready to
try them. It was as easy to protect witnesses before a
civil as a military tribunal; and as there could be no
wish to convict, except on sufficient legal evidence,
surely an ordained and established court was better
able to judge of this than a military tribunal
composed of gentlemen not trained to the profession
of the law.”
Chief Justice Salmon P. Chase Concurring
• Chief Justice Chase writing for four justices
held: “We think Congress had power, though
not exercised, to authorize the military
commission which was held in Indiana.”
• In the end, the Court was split 5-4 over the
question of whether congress can suspend
habeas corpus when civilian courts function.
• 5 justices said that neither the president nor
congress acting separately or together could
suspend habeas corpus where civilian courts
functioned.
• 4 justices said that the even though they
didn’t use it, Congress has the power to
suspend habeas corpus and use military
tribunals.
• The justices chose not reach the question of
whether the president can unilaterally
suspend habeas corpus when civilian courts
are NOT functioning.
The Chase Court (1869) – the first photograph taken of the justices of the Supreme Court. By Matthew Brady.
(L-R): Stephen J. Field, Samuel Miller, Nathan Clifford, Samuel Nelson, Salmon P. Chase,
Robert C. Grier, Noah Swayne, and David Davis.
Ex parte McCardle (1869)
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After the Civil War, the Radical Republican Congress essentially
placed the South under military rule. McCardle was a journalist and
former confederate soldier who urged opposition to this situation. He
was arrested in Mississippi by the military, placed in a military jail, and
tried in a military court for publishing “incendiary and libelous articles.”
McCardle claimed that as a civilian, and not a member of any militia,
he was being held illegally and petitioned for a writ of habeas corpus
in the U.S. Circuit Court of the Southern District of Mississippi. The
judge sent him back into custody, finding the military actions legal
under the 1867 Reconstruction Act. He appealed to the Supreme
Court under the Habeas Corpus Act of 1867, which granted appellate
jurisdiction to the Supreme Court to review denial of habeas petitions.
As the Court was deciding the matter, Congress passed a new law in
1868—under Article III’s Exceptions Clause—removing the Court’s
jurisdiction over the case.
The Court held 8-0 that they no longer had jurisdiction: “Without
jurisdiction the court cannot proceed at all in any case.”
But Chase pointed out that the 1868 statute repealing jurisdiction
"does not affect the jurisdiction which was previously exercised”
implying that congress may have only foreclosed one way to bring a
habeas challenge—and McCardle only asked for the writ under the
1867 Act.
Indeed, three months later Chase held in Ex parte Yerger (1869) that
the Court could still hear habeas cases through its appellate
jurisdiction under the Judiciary Act of 1789.
Furthermore, the post 9/11 War on Terrorism cases suggest that
habeas claims may always be available regardless of congressional
action.
Conclusion
• The Civil War brought about the first occasion
for the Supreme Court to weigh in war powers
claims.
• Overall, the rulings were mixed. On the one
hand the President’s authority was strengthened
by The Prize Cases (1863). On the other hand
the habeas cases suggested that the President’s
authority had limits—particularly when U.S.
citizens were involved.