Civil Liberties, Civil War

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The outbreak of the Civil War on April 12, 1861, created a major civil liberties crisis. Although President Abraham Lincoln never formally declared war, he used his authority as commander in chief to expand the powers of the presidency. Even before Congress convened on July 4, Lincoln called for volunteers, spent money unauthorized by Congress, ordered a blockade of Southern ports, and violated civil liberties guaranteed in the Constitution.

All the civil liberties guaranteed by the Bill of Rights and other sections in the Constitution rested on the protection found in Article 1, Section 9: "The privilege of the writ of habeas corpus shall not be suspended, unless in cases of rebellion or invasion the public safety may require it." Known from English history and widely revered as the Great Writ, the writ of habeas corpus ad subjicienolum is a court order directing that a detained individual be brought before the court so that the reason for the detention can be explained and justified. However, the suspension of the writ was listed under the powers of Congress, not the president. Lincoln nevertheless suspended the writ in parts of the country so that those allegedly planning or engaging in treasonous practices could be detained. Maryland—where Union army officers arrested a number of secessionists, including John Merryman—provided the earliest cases.

After United States Supreme Court Chief Justice Roger B. Taney heard the case of Ex parte Merryman (1861), he ordered the military to produce the accused railroad bridge burner. Union officers, acting under Lincoln's orders, refused to comply. Taney then published a decision in which he argued that only Congress could suspend the writ. The president, he maintained, was bound by the constitution to see that the laws were faithfully carried out and could not ignore the civil authorities by substituting military rule. Lincoln's attorney general, Edward Bates, countered that the presidential oath, to "preserve, protect, and defend the Constitution" gave Lincoln the power he needed. On July 4, Lincoln told Congress that it was better to violate a single law "to a very limited extent" rather than have "the Government itself to go to pieces" (Richardson, p. 3236).

Lincoln continued to suspend the writ on his own authority, and his generals imposed martial law. Approximately one out of every one hundred males in Missouri ended up in detention, and in 1862, in anticipation of opposition to the militia draft of that year, Secretary of War Edwin Stanton suspended the writ until the draft quota was met that fall.

The federal draft law of 1863 prompted a new round of opposition to federal authority and prompted the passage of the Habeas Corpus Act of 1863. This legitimated past executive actions and, since some state officials were trying to thwart the draft by issuing the writ, provided federal officials with immunity from state prosecution in carrying out their duties. The administration did provide review commissions to weed out many of those taken into custody. No accurate figures can be deduced on the number of persons detained but at least 16,000 persons were imprisoned on suspicion and held indefinitely without trials. Most of those in custody had been caught trading with the enemy, defrauding the military, or selling liquor to soldiers.

As the Civil War dragged on, opposition by Northern Democrats became more vocal. Demands for a cease-fire and a negotiated peace—or indeed any criticism of the administration—could be looked upon as treasonous. In 1863, prominent Ohio Democrat Clement L. Vallandigham was arrested and tried by a military commission for expressing views considered to be disloyal. His conviction was appealed to the Supreme Court, which, in Ex parte Vallandigham (1864), refused to review the judgment on the grounds that the commission was not a court. Despite infringements on civil liberties, the Civil War also produced a landmark decision to protect individual rights in time of war. In 1866, the Supreme Court ruled in Ex parte Milligan that a military court could not replace civil courts where those civil courts, far from the war itself, were open and functioning. In this case, a military court in Indiana had sentenced a citizen to death without a grand jury indictment and with no right of appeal. In overturning the conviction, the Supreme Court created a landmark in protection of civil liberties in time of war.

Habeas corpus and martial law also figured prominently in the Confederate States of America. On April 14, 1861, the Confederate general Braxton Bragg arrested a newspaper correspondent whom he accused of treason during the course of the war. More than 4,108 civilian prisoners were taken into custody. Confederate President Jefferson Davis at first roundly castigated his Northern counterpart for engaging in tyrannical acts but soon found it necessary to follow suit. Davis tried to maintain the legal fiction that declaring martial law in specific areas was not the same as suspending the writ of habeas corpus. In the Habeas Corpus Act of 1862, the Confederate Congress granted a power to the president who could use it to cover large areas not necessarily under military control. Provost marshals required that travelers carry passports, arrested spies and deserters, and tried to enforce the Confederacy's prohibition of alcohol.

The war's end led to three important developments. First, the assassination of Lincoln turned him into a martyr, and not until the twentieth century did academics begin to raise questions about his civil liberties record. Second, the sweeping language of Ex parte Milligan fostered a libertarian climate about the nature of a citizen's rights in wartime, which has remained strong in theory even though it was breached egregiously for individuals in World War I and for an entire group—Americans of Japanese ancestry—in World War II. Third, a thorough understanding of the Confederate experience diminishes the luster on the halo of the Lost Cause, making the South look as intolerant as most states are in time of war and imminent danger.


Neely, Mark E., Jr. The Fate of Liberty: Abraham Lincoln and Civil Liberties. New York: Oxford University Press, 1991.

Neely, Mark E., Jr. Southern Rights: Political Prisoners and the Myth of Confederate Constitutionalism. Charlottesville: University Press of Virginia, 1999.

Randall, James G. Constitutional Problems under Lincoln, revised edition. Urbana: University of Illinois Press, 1951.

Richardson, James D., ed. A Compilation of the Messages and Papers of the Presidents. New York: Bureau of National Literature, 1897.

Michael B. Dougan

See also:Blockade, Civil War; Lincoln, Abraham; Supreme Court, 1815–1900.

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Civil Liberties, Civil War

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