Center for Civic Education - Lincoln Bicentennial with Supplemental Lesson: Page 7

pertaining to the powers and duties of Congress. Finally, Taney ordered the release of John Merryman from the military prison in Maryland, where he had been detained for alleged pro-Confederacy actions.

In his July 4, 1861, speech to Congress, Lincoln disputed Taney’s charge that the Constitution had been violated. He noted that the habeas corpus clause in Article 1, Section 9 of the Constitution “is silent as to which, or who, is to exercise the power [of suspension]; and as the provision was plainly made for a dangerous emergency, it cannot be believed that the framers of the instrument intended that in every case the danger should run its course until Congress could be called together, the very assembling of which might be prevented, as was intended in this case, by the rebellion.” The president in 1862 issued a new executive order to increase the areas of the country where the writ of habeas corpus could be suspended by military commanders. Lincoln’s proclamation also authorized trials by military tribunals or commissions of all “rebels and insurgents, their aiders and abettors within the United States, and all persons discouraging voluntary enlistments, resisting military drafts, or guilty of any disloyal practice, affording aid or comfort to rebels against the authority of the United States.” Congress enacted a law on March 3, 1863, ratifying the president’s decisions to suspend the writ of habeas corpus. Military trials of civilians, however, were judged constitutional only if they occurred in areas of warfare or imminent threat of armed conflict in which the civil courts were not functioning. Nearly one year after the Civil War ended, on April 3, 1866, the Supreme Court unanimously decided that a civilian, Lambdin Milligan, should not have been tried and convicted by a military court in a state, Indiana, where the civil courts were open and operational (Ex parte Milligan, 71 U.S. 2).

After winning the 1860 presidential election, Lincoln repeated his long-held opposition to the spread of slavery in the federal territories. He promised, however, that the federal government would not take action against slavery in the states where it existed. In a letter to Alexander Stephens of Georgia on December 22, 1860, Lincoln wrote, “You think slavery is right and should be extended; while we think slavery is wrong and ought to be restricted. That I suppose is the rub. It certainly is the only substantial difference between us.” After the Civil War started, Lincoln vowed to preserve the Union against secession and insurrection, but said nothing about the abolition of slavery. Lincoln explained his position in a letter on August 22, 1862, to Horace Greeley, editor of the New York Tribune: “My paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery. If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it: and if I could save it by freeing some and leaving others alone, I would also do that.” Lincoln concluded: “I have here stated my purpose according to my view of official duty; and I intend no modification of my oft-expressed personal wish that all men everywhere could be free.” >