The Lincoln Administration and the Supreme Court during the Civil War: A Letter by Attorney General Edward Bates

Abstract

The Lincoln Administration and the Supreme Court during the Civil War: A Letter by Attorney General Edward Bates JONATHAN W. WHITE The Lincoln administration fought the Civil War on numerous fronts. Most obvious were thephysical battlefields scatteredthrough­ out the nation. Ofnear-equal importance were the legal battles waged in state and federal courthouses in nearly every state ofthe Union. Many of Lincoln’s wartime policies engendered strong opposition and ultimately found their way into the courtroom. The issue that led to the most notable litigation was Lincoln’s decision to suspend the privilege of the writ of habeas corpus and to use the military to arrest and try civilians. Historian Mark E. Neely, Jr., has estimated that at least 14,000 civilians were arrested by the Union military during the Civil War; at least 4,271 civilians were tried in military tribunals.1 Dozens of civilians challenged their detentions in the state and federal courts.2 In one of the first cases, Ex parte Merryman (1861), Chief Justice Roger B. Taney ruled that the President did notpossess the authority to suspend the writ of habeas corpus. Other state and federal judges made similar pro­ nouncements both during and after the war. While some of these opinions, such as the Supreme Court’s ruling in Ex parte Milligan (1866), are now hailed as standard maxims of civil liberty, when they were rendered they were often viewed as disloyal attempts to aid the Southern rebellion. The New York Times, for example, accused Chief Justice Taney of wanting “to throw the weight ofthe judiciary against the United States and in favor of the rebels,” for Taney was “at heart a rebel himself.”3 In response to these judicial challenges, Lincoln adopted an unofficial policy ofignoring the courts when he believed that their rulings would undermine the Union war effort.4 One important case, In re Kemp, came before the Supreme Court of Wisconsin after 262 JOURNAL OF SUPREME COURT HISTORY Secretary of War Edwin M. Stanton (above) wanted the Wisconsin court’s Kemp decision to be overturned and agreed with Chief Justice Dixon that it should be reviewed by the U.S. Supreme Court. The Supreme Court of Wisconsin handed down a decision in a case arising out of an instance of draft resistance under the militia draft of 1862, holding that the power to suspend the privilege of the writ of habeas corpus was a legislative power, not an executive one. Luther S. Dixon (above), the chief justice of the Wisconsin court, based his opinion on Chief Justice Roger B. Taney's 1861 decision in Merryman ruling that President Lincoln had exceed­ ed his authority. several men were arrested by the military during a draft riot at Port Washington on November 10, 1862. Nicholas Kemp and other detainees petitioned their state’s highest court for a writ of habeas corpus in Decem­ ber 1862, but Union military authorities refused to bring prisoners before the court, claiming that Lincoln’s September 1862 proclamation suspending the writ of habeas corpus authorized them to detain prisoners without charges. On January 13, 1863, the Supreme Court ofWisconsin handed down its decision in the case. Relying on Taney’s “unanswerable” opinion in Merryman, the court held that suspending the privilege ofthe Once apprised of Stanton’s plan, Attorney General Edward Bates (above) immediately sent him a letter urging that it would be imprudent to appeal the Kemp decision to the U.S. Supreme Court because a favorable outcome was highly improbable. There is no record of the case being appealed. THE LINCOLN ADMINISTRATION AND THE SUPREME COURT 263 writ ofhabeas corpus was a legislative power, not an executive one. As such, President Lincoln exceeded his authority when he suspended the writ. Moreover, the court held that civilians could not be detained and tried by military authorities in “remote districts” far away from the contending armies—in places where “the civil authorities were able, by the ordinary legal process, to preserve order, punish offenders, and compel obedience to the laws.” Chief Justice Luther S. Dixon conceded that Lincoln’s actions were prompted “by the highest motives of patriotism, public honor, and fidelity to the constitution and laws” during...