Revoking Civil Liberties: Lincoln's Constitutional Dilemma

His suspension of habeas corpus is part of what some consider the "dark side" of his presidency

February 10, 2009 RSS Feed Print
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President Abraham Lincoln seated in profile.

President Abraham Lincoln

Few presidents have interpreted their wartime powers as broadly as Abraham Lincoln, whose presidency—for all of its many successes—did have what some consider a "dark side." Most famously, Lincoln suspended the writ of habeas corpus in the first year of the Civil War, responding to riots and local militia actions in the border states by allowing the indefinite detention of "disloyal persons" without trial. Habeas corpus, which literally means "you have the body," is a constitutional mandate requiring the government to give prisoners access to the courts.

Lincoln ignored a Supreme Court justice's decision overturning his order, and over the next few years, the Great Emancipator, in one of the war's starkest ironies, allowed these new restrictions, which also imposed martial law in some volatile border areas and curbed freedom of speech and the press, to expand throughout the Northern states.

As the war drew to a close, though, some historians believe Lincoln may have begun to recognize the dangers of his own unprecedented expansion of presidential war powers. More than 13,000 civilians were arrested under martial law during the war throughout the Union. But it was in Missouri, in particular, nearly a thousand miles from the nation's capital and far beyond the federal government's day-to-day reach, that Lincoln was confronted with the most dramatic example of his internal security measures' unintended consequences.

In the months before he was assassinated, Lincoln found, to his surprise, that he was unable to convince Missouri's Republican leaders—who had grown accustomed to their newfound powers—to put an end to martial law in the state. The lesson he learned, historians say, may have been a simple one: "It is much easier," says Eric Foner, a professor of history at Columbia University, "to put these restrictions in place than it is to stop them."

When the war started, there was little doubt in Lincoln's mind that his suspension of civil liberties was both necessary and constitutional. His political opponents may have disagreed, but facing a full-fledged insurrection in the South and with the loyalty of Maryland, the state between Washington, D.C., and the rest of the Union, wavering, Lincoln had grounds to worry that the nation's capital was in real danger.

His worst fears were realized in the first month of the war, when a group of Massachusetts soldiers he had ordered south to protect the capital was attacked by an angry mob as the troops passed through Baltimore. The soldiers, panicking, fired into the crowd, killing 12 civilians. Four soldiers were killed, too. Ironically, they were the first casualties of the Civil War.

With Southern sympathizers beginning to cut telegraph wires and burn bridges behind Union lines in Maryland, Lincoln gave the order in April 1861 to suspend the writ of habeas corpus, allowing the Army to arrest and detain without trial those considered "disloyal." His order was limited, at first, to the rail lines between D.C. and Philadelphia, but it soon spread to the rest of the Union.

Legally, Lincoln felt he was on firm ground. The Constitution, after all, explicitly grants the government the power to suspend habeas corpus "in cases of rebellion or invasion," though it is not clear on whether this power resides with Congress or the president. In either case, before the war was over, the Union would face both rebellion and invasion, and in 1863, Congress passed a law, the Habeas Corpus Indemnity Act, in support of Lincoln.

Though he worried privately that these new powers might be misused, Lincoln publicly scoffed at the notion that his administration's suspension of civil liberties would have any long-term consequences. In a letter published before the 1864 election, Lincoln compared the wartime measures to the bitter medicine a patient takes when sick. He could not believe, he wrote, "that the American people will, by means of military arrests during the rebellion, lose the right of public discussion, the liberty of speech and the press, the law of evidence trial by jury, and Habeas corpus, throughout the indefinite peaceful future . . . any more than I am able to believe that a man could contract so strong an appetite for emetics [medicines] during temporary illness, as to persist in feeding upon them through the remainder of his healthy life."

When Lincoln wrote these words, though, some historians argue, he may not have realized just how far things had gone in Missouri. Martial law was declared early in the war in the frontier state, which sent thousands of men to fight for both sides of the Civil War. With the population sharply divided on the issue of slavery, the state was riddled throughout the war by hundreds of small skirmishes, many of them involving neighbors fighting neighbors and guerrilla bands torching farms and crops.

Abraham Lincoln,
civil rights

Reader Comments Read all comments (9)

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1. Mr. Lincoln was a circuit lawyer. Of 5000+ case he handled approx. 130 railroad cases. of those, he opposed the railroads in about 60 of those cases. hardly classifies him as a 'railroad lawyer'.

2. Um, yeah, okay... this definitely applies to the Bush administration

3. If Mr. Lincoln decided to secede the DC area from the Union, then i guess he was responsible for the war. But that's not what happened.

4. Try to engage in unrestricted warfare and not destroy your enemies economy. Stupid idea.

5. see #2 above

6. the emancipation proclamation freed ALL slaves held in rebellious states not 'volunteers' willing to fight for the Union.

7. i was not aware that the Andersonville was a Union prison, as it was opened in Sumter Co. Georgia by the confederacy, but accuracy doesn't seem to be an impediment to anyone who would consider this screed true.

Bob of FL 4:05AM February 22, 2009

I was born and raised in Kansas, however I do not hold a grudge against the Missouri bushwackers that burned crops, farmsteads, slaughtered cattle as well as the killing of the innocent. It was horrible, true enough, however war is a nasty business and Lincoln did the best he could with what he had. I don't think he had much control over Sherman. In retrospect if anyone should have been tried for a war crime it would be Gen. Sherman.

lreece of WA 7:03PM February 17, 2009

> A politician with a agenda to save the union.

He said he was, but politicians lie. Saying he wanted to free the slaves

would have been politically dangerous at the time: pretending all he

cared about was the union made sense.

> It is clear that his proclomation was a political ploy to gain favor

> with the northeners

I don't think so, or at least not mostly. The northerners who wanted

slavery abolished were already on his side anyway.

Gaining favour with the British and French was part of it: he needed to

keep them out of the war. And he wanted to stir up trouble in the south:

if the slaves knew they'd be free when the confederacy fell, they would

be more likely to make a nuisance of themselves: sabotage, go slow, etc..

> The document refers to all states that are in rebellion.

Which was nearly all the slaves since it was the slave states that had

revolted. He might not have felt he had the legal authority to abolish

slavery in Maryland. Anyway Maryland abolished slavery itself not long


If your own ancestors were slaves in Maryland then I can understand you

feeling he let them down. But he was probably doing as much as he felt

he could get away with.

Lincoln wasn't perfect. But nobody is, and he deserves credit for doing

far more than others of him time did.

David Bofinger 6:34PM February 15, 2009

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