What Would Lincoln Do?
“Is there, in all republics, this inherent and fatal
weakness? Must a government, of necessity, be too strong
for the liberties of its own people, or too weak to
maintain its own existence?”
–Abraham Lincoln, July 4, 1861
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
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
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.
Updated December 29, 2005
Want to learn more?
Ruffle through Abraham Lincoln’s papers
at the Library of Congress:
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