Special Message to Congress: Habeas Corpus Summary

  • Last updated on November 10, 2022

One of the less examined and yet more controversial aspects of the presidency of Abraham Lincoln was his suspension of the writ of habeas corpus–the ability of an individual who is taken into custody to challenge the charges against him or her in a court of law. Lincoln, faced with an open rebellion at the start of the Civil War, called upon his military leaders to detain suspects along major supply routes on the Eastern Seaboard without the writ of habeas corpus. When this policy was challenged by the courts, Lincoln called upon Congress, the only body constitutionally permitted to suspend habeas corpus, to convene and review his policies.

Summary Overview

One of the less examined and yet more controversial aspects of the presidency of Abraham Lincoln was his suspension of the writ of habeas corpus–the ability of an individual who is taken into custody to challenge the charges against him or her in a court of law. Lincoln, faced with an open rebellion at the start of the Civil War, called upon his military leaders to detain suspects along major supply routes on the Eastern Seaboard without the writ of habeas corpus. When this policy was challenged by the courts, Lincoln called upon Congress, the only body constitutionally permitted to suspend habeas corpus, to convene and review his policies.

Defining Moment

One of the major issues motivating the American Revolution against the British was the detention of colonists without recourse to a writ of habeas corpus. Latin for “you have the body,” habeas corpus refers to the right of a detained individual to challenge the charges against him or her in a court of law. Ironically, the notion of habeas corpus was brought over to America from England centuries before the Revolution. Upon the expulsion of the British and the establishment of the new nation, the American founders included habeas corpus as one of the individual rights and liberties protected under the Constitution.

According to article 1, section 9 of the Constitution, the right to a writ of habeas corpus may be suspended by Congress if “in cases of rebellion or invasion the public safety may require it.” In 1861, this very scenario came into being, as Southern states opted to leave the Union in support of the Confederacy, creating a state of civil war in the United States. During the early stages of this rebellion, therefore, the idea of suspending habeas corpus was put forth–not by Congress, but by President Abraham Lincoln.

Virginia’s secession from the Union in April of 1861 meant that the only lines for troop transport, supplies, and even communication into Washington, DC, would go through Maryland. This state, although still part of the Union, demonstrated a great deal of political instability, questionable loyalty to Washington, and even violence, leading Lincoln to express great concern over public safety and the safety of the national government. He issued an order to his troops stating that the writ of habeas corpus would be suspended along the rail lines from Philadelphia to Washington. A month later, a Maryland resident, John Merryman, was detained under suspicion of raising troops for the Confederacy. Merryman’s lawyer appealed to Judge Roger Brooke Taney–chief justice of the United States Supreme Court, in this case acting as a federal circuit-court judge–who held a hearing and, based on the information presented, determined that the president did not have the authority to suspend habeas corpus.

Before Merryman was detained, Lincoln had called for Congress to convene in a special session, where he took the opportunity to address the issue of habeas corpus. Meanwhile, Lincoln ignored Taney’s ruling and continued to call for suspensions of habeas corpus in other areas impacted by the growing war. On July 4, 1861, Lincoln spoke in front of the special session of Congress, citing the dangers facing the country and asserting his perceived authority regarding the suspension of habeas corpus. However, he left to the legislature the issue of which branch of government–the president or Congress–would have the ultimate authority to perform what he deemed a necessary measure.

Author Biography

Lincoln was born on February 12, 1809, near Hodgenville, Kentucky, to parents Thomas Lincoln (a farmer and frontiersman) and Nancy Hanks (who died when Abraham was only nine years old). Lincoln and his father moved through the frontier several times after Nancy’s death, first to Indiana and later to Illinois. Lincoln’s childhood education was basic, a product of his upbringing in the rural areas of the Midwest. For example, his school in Indiana was a log cabin. His father assisted in Lincoln’s education. Although his education was limited, young Lincoln developed a love for literature that continued throughout his life. As he grew older, he also gained a strong interest in law.

In 1832, the twenty-three-year-old Lincoln joined the army as a volunteer during the Black Hawk War. He was elected captain of his unit within months of joining and remained involved until the end of the conflict. After the war, Lincoln explored a number of business activities, including work on a riverboat and at his father’s store, before he set up a law practice in New Salem, Illinois.

Lincoln soon pursued elected office. He was defeated in his first campaign for the Illinois state legislature. He remained involved in government until his next campaign opportunity, holding a number of local appointed positions, such as surveyor and postmaster. He also continued to practice law from his own office. In 1834, he successfully campaigned for the state legislature and was reelected three times thereafter. After retiring from the state legislature, he returned to Springfield, Illinois, where he had established a new law practice after passing the Illinois bar. In 1842, he married Mary Todd, with whom he would have four children, although only one would survive into adulthood.

In 1847, Lincoln was elected, as a member of the Whig Party, to the US House of Representatives, a post he held for one term. In 1855, he ran unsuccessfully for the US Senate. He tried again in 1858, this time as a Republican. In 1860, undaunted by his previous electoral defeats, Lincoln ran successfully for president on the Republican ticket. He was reelected in 1864.

President Lincoln’s 1861–65 tenure was marked not just by his Civil War accomplishments. He also helped build the Republican Party, unify the Northern Democrats, bring an end to slavery, and improve relations with the Indians on the American frontier. During his second term, he led the effort to reconcile the nation’s relationship with the secessionist South. However, he was unable to complete his work as president. On April 14, 1865, while attending a play at Ford’s Theatre in Washington, DC, he was assassinated by John Wilkes Booth. After three days of lying in state in the US Capitol rotunda, he was interred at Oak Grove Cemetery in

Document Analysis

At the time of this address, Abraham Lincoln had clearly reached a point at which he believed a stronger exertion of authority was warranted. Addressing the joint session of Congress in 1861, he begins his speech by observing, in a section not reproduced above, that four months into his first term as president, six states had officially seceded from the Union. These states each had sizable military forts, ports, arsenals, and modes of transportation, all of which had been seized from the federal government and put to service for the Confederacy. Meanwhile, Confederate troops had begun organizing in great numbers, which meant that any Union force sent into the seceded states to reestablish order and reacquire these assets would be met with powerful opposition. Lincoln adds that, with the exception of Delaware, the so-called slave states–states that remained in the Union but still permitted slavery–refused to raise troops to support the Union cause against these secessionist states. Meanwhile, in nearby Virginia, Confederate troops had captured a number of federal armories, naval ports, and other essential federal assets with little resistance. Virginia, Lincoln says, allowed this “insurrection” to occur within its borders and, as such, represented a major threat to Washington that could not be immediately quelled.

With states falling into Confederate control from Virginia southward, attention was turning to the states of the mid-Atlantic, the so-called border states. Some in these states advocated a policy of “armed neutrality,” Lincoln observes, under which no Union or Confederate forces or supplies would be allowed to move through them. If such a policy were successfully adopted, he says, it would only help the Confederacy, by allowing its secession to go unchecked except perhaps by a naval blockade. Meanwhile, Confederate sympathizers in the border states could move food and other supplies southward, aiding the Confederate effort under the banner of neutrality.

In the above excerpt of Lincoln’s speech, the president describes the Union’s response to the secessions and the destabilization of the border states. He called for seventy-five thousand Union troops and a naval blockade of ports in the rebellious states. These steps, he says, were within the president’s authority. He also called for volunteers for the army and navy to commit to three-year tours of duty–much longer than a typical tour–to take part in what he believed would be a long war. This policy was atypical, he says, but was not necessarily illegal or outside the “constitutional competency” of Congress to approve. He says the threat to the American public loomed large enough to warrant such a response.

Suspending Habeas Corpus

Along with raising additional troops and extending the tour of duty for volunteers, Lincoln says he took another bold step, one that was not well received in some circles: he authorized the commanding officer of this region to “arrest and detain without resort to the ordinary processes and forms of law” those individuals whom Union troops may consider a threat to the public, thus suspending the writ of habeas corpus. Lincoln says this power has been used only sparingly, although he tells Congress, referring to the Taney decision, that the legality of this practice has been called into question.

Lincoln speaks directly to the controversy surrounding the notion that the very individual–himself–who took an oath to “take care that the laws be faithfully executed” could be violating the laws of the country. Lincoln addresses this issue by first stating that he and his cabinet gave careful consideration to all applicable laws before pursuing this course of action. After this in-depth analysis, Lincoln believed the suspension to be within his right as president. More importantly, he argues, it was important to note that nearly one-third of the states–those that had seceded–were already disregarding all of the federal laws by breaking away from the Union. In comparison, he says, his actions seem overwhelmingly agreeable, especially since it is clear that his choice to suspend the writ of habeas corpus was made the for the purpose of protecting the public welfare.

The president further presses this argument by suggesting that a single violation of the multitude of federal laws, made to preserve the Union, was within reason. If Washington was faced with the execution of every law save one, he asks, should “the Government itself go to pieces lest that one be violated?” He adds to this question one about his own responsibilities, asking if the presidential oath could be allowed to be broken when breaking a single law could prevent the entire government from being completely overthrown.

Regardless of these hypothetical questions, he states, suspension of habeas corpus was completely within the legal right of the federal government. He refers to article 1, section 9 of the Constitution, which states definitively that the writ of habeas corpus may not be suspended except “when in cases of rebellion or invasion the public safety may require it.” Although this language is contained in a section pertaining to the limits on Congress, Lincoln points out that in actuality, the Constitution does not specify which branch of government, legislative or executive, may suspend habeas corpus. It would be foolish, he says, to think the founders meant to restrict to Congress the power to halt a state of emergency that might prevent Congress from even assembling safely–precisely the kind of danger Lincoln says the country was potentially facing. He then says he offers no further views on the subject, deferring to his attorney general to present a more comprehensive argument on the legality of the president’s actions and to Congress regarding any legislative action.

Troops and Money

Lincoln next reminds Congress of the severity of the situation facing the Union. Indeed, he says, the “forbearance” (restraint or tolerance) of the federal government had been so tested by the Confederate campaign that some foreign governments were beginning to behave toward the United States as if the collapse of the Union were imminent. Lincoln adds, however, that the country’s sovereignty and international influence had by this point built for America a positive image. In light of this fact, the Union’s struggle with the South elicited a “general sympathy” in the international community.

Although he attempts to demonstrate to Congress that the country’s standing during his presidency remains viable, Lincoln delivers a list of his needs in order to put down the Confederacy in rapid and decisive fashion. He asks Congress to give him the authority to raise at least four hundred thousand men and $400 million. The number of troops, he says, is not an unreasonable one–only one-tenth of the eligible men living in loyal states. The $400 million, he states, is also a small sum in comparison to what the people in these areas seem willing to pay to put down the rebellion. Furthermore, the total resulting national debt, approximately $600 million, would be significantly less than the debt incurred by the American Revolution, and the viability of both the American dollar and economy meant that the debt would be met in timely manner.

If the financial and troop needs submitted to Congress are relatively minor, Lincoln states, the returns for the country would be substantial if the conflict were brought to a quick end. Therefore, it is important for Congress and the president to work together to address the rebellion. Lincoln says that there are many tasks to be performed in order to defeat the secessionists, some of which require legislative approval and some of which require the efficient and practical action of the executive. Balance and coordination between these two branches are essential, he says, ensuring that the government can support and provide for the troops they raise. A military that has the full backing of the federal government, Lincoln argues, will do its part to save that government.

A Right to Secede?

Lincoln next turns to the debate over whether the South’s “movement” is a secession or rebellion. To the casual eye, he says, the differences between these two terms may seem minor, but in reality, the South’s actions make clear that its intent is to break federal law. Lincoln accuses the Confederates of disguising their illegal actions with “sugar coated” rhetoric. He says that the people supporting the South’s efforts understood fully that their actions amounted to treason but needed the support of the people. The secessionists therefore appealed to the “moral sense,” respect for the law, and patriotism of their constituents by presenting to the people an “ingenious sophism”: that states’ rights take precedence over the power of the federal government; that the states are, in a word, sovereign, and have the right to withdraw from the Union if they see fit. Lincoln proceeds to assail this argument.

Lincoln points out that the states have no more or less power than is afforded to them by the Constitution. In fact, the states came into being only because they broke away from British rule and joined the Union, and, except for Texas, they were at no time separate and politically independent entities. Rather, they agreed to become states that were loyal to one another and to the federal republic they created after the Revolution. To claim to have the authority to unilaterally detach from the Union, Lincoln argues, would be to assume states have a power to “lawfully destroy the Union itself.” State “sovereignty,” according to Lincoln, is a misleading term that appears nowhere in the Constitution. In a political sense, the term would apply to a “political community without a political superior.” However, he says, states have their official status as part of the Union–of which the states became a part by separating from British rule–and no other legal status. An attempt to break away from the United States would therefore be acting in defiance of the laws of the body to which the states belong. Here, Lincoln is identifying the Union as the political superior of the states. He argues that the states receive their liberty and their independence from the federal government. Put simply, the states’ claims to be sovereign, according to the above definition, were erroneous.

Lincoln is not, however, claiming that the federal government in Washington assumes total authority over the states. Without a doubt, he says, the states do have powers, rights, and legal standings that are given to them through the Constitution, but these powers do not include the ability to rebel against the Union or destroy it. Rather, the powers bestowed upon states are administrative in nature, giving state governments the ability to manage their own internal services and activities in concurrence with, not independent of, federal laws and the US Constitution. There would be those who would debate the true nature of the powers afforded to states, he admits, but one point cannot be disputed: the Constitution has “defined the boundaries” between state and federal governments, and all Americans are obligated to respect these boundaries.

Secession, Lincoln says, is not consistent with the Constitution, nor is it lawful. The proof is the result: such actions lead to “unjust or absurd consequences.” No law could be enacted with the possibility of these consequences. Furthermore, it should be noted that the territory comprising the states was purchased by the United States. Lincoln asks rhetorically, if the states secede, should they issue a refund for the cost of the land? Should the debts that were incurred in these purchases be assumed by the seceding states, or should they be simply written off? Furthermore, if one state secedes, then another will almost certainly secede. If every state seceded, the creditors who backed these purchases would be left with no one to repay their debts. These states and the Union alike would have difficulty in the future finding financial backers.

The seceding states, Lincoln continues, claim that the right to secede is written into the US Constitution. He says, however, that the Confederacy created a constitution that lacks secessionist language–meaning the seceding states acknowledged either that the principle of secession is “one of disintegration” that leads to the destruction of a government or that the US Constitution itself, after which the Confederate one was broadly modeled, does not, in fact, allow for secession. Adding to the issue, Lincoln states, is the likelihood that in most of the seceding states, the majority of qualified voters were not actually in favor of secession but were pressured into voting for it. Many of the elections on the secession question, he notes, were held in military camps, where voters almost literally cast their ballots at gunpoint–a situation that, he says, “can scarcely be considered as demonstrating popular sentiment.”

A Popular Contest

The United States, Lincoln professes, enjoys a strong military of great soldiers, all of whom joined of their own free will, giving the country a reputation of strength in the international community. He asserts that each unit includes soldiers intelligent, cultured, and capable enough to become the president, a member of Congress, or another great leader. The same could be said for members of the Confederate Army, he adds, but they are being deceived by those who claim the power to detach from the very Union whose form of government has created the conditions of their freedom and self-empowerment.

The point Lincoln is making is that the growing Civil War is a battle for the hearts and minds of the people. The Union has long stood for protecting its people and encouraging their individual pursuits of happiness, a fact that most common citizens understand and appreciate. Lincoln says that he is buoyed to know that, although a number of army and naval officers have abandoned their country to join the secessionist movement, no common seaman or sailor has “deserted his flag” and followed them. “They understand,” he says, that “destroying the Government which was made by Washington means no good to them.”

The American “experiment,” Lincoln says, referring to a phrase coined by eighteenth-century political scientist and philosopher Alexis de Tocqueville, is hinged on the establishment and continued administration of the democratic government. The latter point, the ongoing maintenance of the government, was being tested by this uprising. One of the most important tools for preventing collapse is the electoral process, which requires each individual to be an active participant in the nation’s course. “Ballots,” Lincoln says, “are the rightful and peaceful successors of bullets,” and ballots, not bullets, will enable the government to survive after the rebellion is put down.

Lincoln states that it will be his purpose as president to seek the peaceful reintegration of seceding states after the Civil War ends. In the meantime, he argues, it is critical that the executive and legislative branches work together to prevent the disintegration of the Union. He adds that he wishes the responsibility of declaring war on the secessionist movement was not “forced upon him,” but the preservation of the Union is paramount. The president, Lincoln says, has done and will continue to do what is necessary to keep the country together. He calls upon Congress to perform its duty–”without fear and with manly hearts”–and give Lincoln the resources he needs to defeat the Confederate movement.

Essential Themes

Much attention has been paid to President Abraham Lincoln’s historic speeches and accomplishments during the Civil War, including the iconic Emancipation Proclamation and the Gettysburg Address. Lincoln’s message to Congress regarding the suspension of the writ of habeas corpus, as well as his relevant orders to his generals, is one of the less analyzed yet more controversial aspects of his presidency. Very early in his presidency, Lincoln was faced with a secessionist movement that threatened to destroy the Union. Lincoln felt that he was therefore justified in suspending the writ of habeas corpus–a power to be used sparingly–in the face of the treason that the secessionists were committing.

In his speech, Lincoln insists that his actions are permissible per the Constitution. Legal analysts would claim that the Constitution only allows Congress suspend the writ under extreme situations. In this regard, Lincoln offers his own legal argument and defers to Congress to reconcile the issue, if it deemed necessary–which Congress did in 1863 when it passed the Habeas Corpus Suspension Act, essentially ratifying Lincoln’s action.

The larger issue, Lincoln says, is the crisis at hand. The nation was facing a rebellion that threatened to destroy the Union. The president calls for a unified approach, with Congress providing the support and resources necessary for the executive to carry out an effective campaign to defeat the rebellion. Lincoln’s speech reminds Congress not only of the military threat at hand but also of the motivations of the secessionist movement. He says that the Union remains the primary authority, protected by the Constitution and superior to other state and Confederate constitutions, even if the South professes that states enjoy sovereignty. The people of the South, he adds, are being deceived into believing that the actions of their leaders were proper and legal.

The focal point of Lincoln’s speech is the protection of the Constitution and the Union. The secessionists are breaking the law, he states, and, by doing so, are endangering the United States and the way of life it promotes. A unified nation of states, Lincoln argues, was the goal of the Founding Fathers after the American Revolution, and that should remain the highest priority for the federal government in the face of the present rebellion.

  • “Abraham Lincoln: A Resource Guide.” Library of Congress. Lib. of Cong., 30 July 2010. Web. 16 Apr. 2013.
  • “Biography: Abraham Lincoln.” American Experience. PBS: Public Broadcasting Service. WGBH Educ. Foundation, n.d. Web. 16 Apr. 2013.
  • Dueholm, James A. “Lincoln’s Suspension of the Writ of Habeas Corpus: An Historical and Constitutional Analysis.” Journal of the Abraham Lincoln Association 29.2 (2008): 47–66. Web. 16 Apr. 2013.
  • Lincoln, Abraham. “Abraham Lincoln’s War Address.” Furman U, n.d. Web. 16 Apr. 2013.
  • “Lincoln, Abraham (1809–1865).” Biographical Directory of the United States Congress. US Cong., n.d. Web. 16 Apr. 2013.
Additional Reading
  • Masci, David, and Patrick Marshall. “Civil Liberties in Wartime.” CQ Researcher 11.43 (2001): 1017–40. Web. 16 Apr. 2013.
  • McGinty, Brian. The Body of John Merryman: Abraham Lincoln and the Suspension of Habeas Corpus. Cambridge: Harvard UP, 2011. Print.
  • Neely, Mark E. The Fate of Liberty: Abraham Lincoln and Civil Liberties. Oxford: Oxford UP, 1992. Print.
  • White, Jonathan W. “The Lincoln Administration and the Supreme Court during the Civil War: A Letter by Attorney General Edward Bates.” Journal of Supreme Court History 37.3 (2012): 261–65. Print.
  • White, Jonathan W. Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman. Baton Rouge: Louisiana State UP, 2011. Print.
Categories: History