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Lincoln and the Writ of Liberty

Lincoln and the "Writ of Liberty"

It is 2:30 a.m., and everyone in the darkened house is asleep. Suddenly, there are loud voices outside the house and a heavy banging at the door.

A man opens an upstairs window and looks down on the scene unfolding in his front yard. Unbelieving, he sees soldiers carrying rifles with fixed bayonets surrounding his house and an army officer at his door, shouting that he is under arrest.

The shocked citizen refuses to admit the soldiers into his home. The officer orders his men to break down the door. After forcing their way into the house, the soldiers rush upstairs and break apart two bedroom doors before finding the man they have come to arrest.

The arrested man is secretly taken aboard a special train and transported to another city where he is locked up in a military barracks. The prisoner never sees a judge and is not even formally charged with a crime. Instead, within 24 hours after his arrest, he is brought before eight army officers who put him on trial for making disloyal speeches against the government.

This incident sounds like it might have happened in Nazi Germany But it occurred in the United States and involved a former Ohio congressman named Clement L. Vallandigham. Even more surprising, the army men who arrested Vallandigham and put him on trial were given the authority to do so by one of Americas greatest presidents: Abraham Lincoln.

Arrests like Vallandigham's are not supposed to happen in the United States. Judges guard against illegal arrests and imprisonments much like they protect citizens from arbitrary government searches. Before the police may search a persons house, they must show a judge that they have "probable cause" for a search warrant. Similarly, after an arrest, law-enforcement authorities must convince a judge that they have "probable cause" for holding a person. If the government cannot do this, the judge will order the person released.

The authority of judges to free prisoners held without legal reason is based on a right that existed in America long before either the Constitution or the Bill of Rights were written. This is the right of habeas corpus. This Latin phrase literally means "produce the body." It is an ancient English legal concept that empowers judges to order imprisoned persons to be brought into court to determine if they are being legally held. A judges order to do this is called a writ of habeas corpus, also known as the "writ of liberty."

The Writ of Liberty--Suspended

The actual right of habeas corpus is not stated anywhere in the Constitution or the Bill of Rights. The authors of these documents apparently believed that habeas corpus was such a fundamental liberty that it needed no further guarantee in writing. The only mention of the writ of habeas corpus in the Constitution relates to when it can be taken away from judges. In a section limiting the powers of Congress (Art. I, Sec. 9), the Constitution states: "The privilege of the writ of habeas corpus shall not be suspended, unless when in causes of rebellion or invasion of the public safety may require it."

This suspension clause was never activated through the terms of the first 15 presidents. Then during the Civil War, President Lincoln suspended the writ of habeas corpus without consulting Congress. In doing so, Lincoln enabled the military to arrest and imprison thousands of civilians, including Clement L. Vallandigham.

Lincolns first order suspending the writ of liberty applied only to Maryland, a border state sympathetic to the South that virtually surrounded Washington, D.C. Shortly after, Lincoln issued this suspension order, Union troops arrested a Maryland man for helping to organize a pro-Confederate militia. Following his arrest, he was imprisoned at Fort McHenry. Trying to gain his freedom, the prisoner appealed to a federal court in Baltimore for a writ of habeas corpus. But when a federal judge issued the writ, the military officers at Fort McHenry refused to obey it. They said Lincolns suspension order made the writ worthless.

On September 24, 1862, Lincoln issued a proclamation unprecedented in American history. He suspended the writ of liberty everywhere in the United States. The suspension applied to Confederate spies or to those who aided the rebel cause, interfered with military enlistments, resisted the draft, or were "guilty of any disloyal practice." This last offense allowed the military to arrest newspaper editors and speakers critical of the Union war effort. Lincoln further ordered that persons arrested under his proclamation were subject to martial law, which meant they would be tried and punished by military courts.

Copperhead on Trial

Clement L. Vallandigham was insultingly known as a "copperhead." Usually referring to a poisonous snake, the term "copperhead" became the symbol during the Civil War for Northerners who opposed the war and sympathized with the South. Many members of the Democratic Party in the North voiced "copperhead" views. As a leader of the Democrats in Congress, Vallandigham persistently called for a negotiated end to the war and reunion with the South. He also criticized Lincolns proposal to emancipate the slaves. Vallandigham agreed with the "copperhead" slogan: "The Constitution as it is, the Union as it was." He lost his seat in Congress in the election of 1862, but continued to speak out against Lincolns war policy

General Ambrose E. Burnside commanded the military district that included Ohio. Fed up with widespread "copperhead" sentiment in the area, Burnside issued "General Order, No. 38." Directed mainly at Confederate spies and Northern traitors, this order also warned that: "The habit of declaring sympathies for the enemy will no longer be tolerated in this department. Persons committing such offenses will be at once arrested." Burnside got his authority to issue this order from Lincolns proclamation suspending the writ of habeas corpus.

On May 1, 1863, Vallandigham spoke at a large Democratic Party rally at Mount Vernon, Ohio. Aware that Burnsides men were in the crowd, Vallandigham attacked both the general and Lincoln. The former congressman declared that his right to speak was based on "General Order, No. 1, the Constitution of the United States." He lashed out at the "wicked, cruel, and unnecessary war." He spoke against the draft law, but did not go so far as to encourage men to disobey it. He also charged that "the men in power are attempting to establish a despotism in this country, more cruel and more oppressive than ever existed before."

A few days later, Vallandigham was arrested in his bedroom by Burnsides soldiers. A military trial quickly followed. The "copperhead" Democrat was charged with "Publicly expressing, in violation of 'General Order, No. 38. . . sympathies for those in arms against the Government of the United States, declaring disloyal sentiments and opinions, with the object and purpose of weakening the power of the Government in its effort to suppress the unlawful rebellion."

Vallandigham refused to plead guilty or not guilty. Tried before eight army officers handpicked by General Burnside, he told the military judges that they had no legal right to try him. Burnsides officers, however, found him guilty and recommended putting him in prison for the remainder of the war.

Vallandigham versus Lincoln

Lincoln was embarrassed by the Vallandigham affair. Bumside had failed to inform the president about his plans to arrest the prominent Democrat and put him on trial. Even so, Lincoln supported Burnside, but ordered that Vallandigham be banished to the Confederacy.

In response to widespread criticism of his suspension of the writ of habeas corpus and the banishment of Vallandigham, Lincoln wrote a long letter to Democratic Party leaders defending his actions. Lincoln declared that the regular civilian courts were inadequate during a rebellion. He claimed that those opposing the Unions cause endangered "the public safety." Ordinarily, he wrote, such people could not be arrested since criticizing the government was not a criminal offense. If such persons were arrested, they would undoubtedly be released on a writ of habeas corpus by a civilian court judge. The necessary solution, Lincoln argued, was to suspend the writ and lock up the troublemakers until the war ended.

As for Vallandigham, Lincoln charged that he was encouraging desertions from the Union army. "Must I shoot a simpleminded soldier boy who deserts," Lincoln asked, "while I must not touch a hair of a wily agitator who induces him to desert?"

After Vallandigham was banished to the South, his friends went to the U.S. Supreme Court in an attempt to convince the justices to hear the case. On February 15, 1864, the Supreme Court announced it would refuse to hear the case, saying that it had no authority to review the proceedings of a martial law court. While the bloody Civil War raged on, the Supreme Court decided it was not the time to challenge the power of General Burnside or his commander-in-chief, Abraham Lincoln.

For Discussion and Writing

  1. Why is the writ of habeas corpus called the "writ of liberty"?

  2. How do the basic values of the writ of habeas corpus compare to those of the Bill of Rights generally?

  3. Why did Lincoln suspend the writ of habeas corpus? Do you think he was justified in doing this?

  4. Do you agree or disagree with the way Clement L. Vallandigham was arrested, tried, and punished? Explain.

  5. Can you think of any circumstances now that would justify a presidential suspension of habeas corpus?

A C T I V I T Y

Vallandigham v. Lincoln

In this activity, the class will have an opportunity to argue some of the questions that the U.S. Supreme Court avoided in 1864.

  1. Form groups of three. Each group will simulate a hearing on the Vallandigham case before the Supreme Court. In each group, one student should play the role of Clement L. Vallandigham, another student should take the part of Abraham Lincoln's attorney general, and the third student should represent a Supreme Court justice (two students may play this the role of justices if the group has four members).

  2. The students should next meet in role groups. All those playing Vallandigham should meet in on corner of the room, those playing Lincoln's attorney general in another, and the justices in another. The groups role playing Vallandigham and Lincoln's attorney general should prepare answers and supporting arguments for each of the Questions Before the Supreme Court, below, based on information provided in the article. The justices of the Supreme Court should prepare by studying the section on "The Writ of Liberty -- Suspended" in the article and thinking of questions to ask Vallandigham and the attorney general.

  3. Students should now meet in their groups of three. Vallandigham should present first, then the attorney general, and the judge should interrupt at any time to ask questions.

  4. Have the Supreme Court justices come to the front of the room. ,Each justice should write down his or her decision on each question. The justices should then discuss the first question, vote on it, and give reasons for their votes. This procedure should be repeated for the other two questions.

Questions Before the Supreme Court

  1. Did Lincoln have the right to suspend the writ of habeas corpus in his proclamation of 1862?

  2. Should Vallandigham have been arrested and put on trial?

  3. What types of persons should be covered in a suspension of the writ of habeas corpus?(Review Lincolns list of offenders in his proclamation of September 24, 1862.)

Follow-up Exercise

The U.S. Supreme Court did not decide a case concerning Lincolns suspension of the writ of liberty until after the Civil War. Find out what the Supreme Court decided in Ex Parte Milligan, 71 U.S. 2 (1866).