Southern Insurrection and Lincoln's Suspension of the ‘Great Writ'

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26-04-2025

For 27 hours, British ships bombarded Fort McHenry, but, as Francis Scott Key eloquently recalled, 'Our flag was still there.' This attack on the Maryland fort took place more than three months before the Americans and British signed the Treaty of Ghent on Dec. 24, 1814. More than two weeks later and 1,000 miles away, the British landed its fleet 60 miles east of New Orleans, preparing to take the city.
To maintain order, Gen. Andrew Jackson took the unprecedented step for an American general and issued martial law. Beginning on Dec. 16, New Orleans would be under his military authority. Starting on Dec. 23 and over the course of the next two weeks, hostilities ensued between the Americans and British, culminating in the lopsided victory for Jackson and his makeshift army on Jan. 8, 1815. The British retreated and finally sailed from New Orleans on Jan. 18. The threat was gone; martial law, however, remained.
Gen. Andrew Jackson standing on the parapet of his makeshift defenses as his troops repulse attacking Highlanders during the defense of New Orleans, the final major and most one-sided battle of the War of 1812.
Public Domain
New Orleans remained under martial law for three months. When a newspaper published an article critical of Jackson's measures, he had the author, State Senator Louis Louaillier, arrested. When U.S. District Judge Dominick Hall issued a writ of habeas corpus for Louaillier, Jackson had the judge arrested. Jackson
In mid-March, Jackson received official word about the Treaty of Ghent and immediately lifted martial law. Hall fined Jackson $1,000 for contempt of court—a fine the general quickly paid. His actions raised constitutional questions—questions that arose during his presidential election bids in 1824 and 1828.
Less than 50 years later, constitutional questions centering around military authority and the writ of habeas corpus again arose.
False Moves
Before Abraham Lincoln took the oath of office to become president on March 4, 1861, seven states had already seceded from the Union over the issue of slavery. During Lincoln's inauguration, he
His assurances to the Southern states, however, were not be enough to stem the rolling tide of secession. By Feb. 18, the seven states had formed the Confederate States of America and inaugurated its first president, Jefferson Davis. South Carolina had been leading the charge of secession, and now it had its sights set on Fort Sumter, which was garrisoned by 80 federal troops.
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Over the course of several months, Fort Sumter became the focal point between the U.S. government and the new Confederate government. One false move by either side could lead to all-out war. The result was several false moves.
Before Lincoln took office, President James Buchanan attempted to have the federal troops at Fort Sumter resupplied. The ship carrying supplies was forced to retreat under fire from cadets at the Citadel Military College. Lincoln was left with the Fort Sumter situation, and his cabinet was split on whether to resupply or surrender the fort. On April 4, Lincoln informed the Confederacy of his plan to resupply the troops.
Davis consulted his cabinet. The Confederates chose to attack the fort and force its surrender, before the supply ships arrived. On April 12, at 4:30 a.m., nearly 36-hour bombardment began. The outgunned and outmanned federal troops under the command of Maj. Robert Anderson, fired back, but eventually capitulated. Although there were no casualties on either side during the attack on Fort Sumter, it nonetheless began the Civil War.
An engraving of the bombardment of Fort Sumter by the Batteries of the Confederate States, on April 13, 1861.Coincidentally, on the same day Lincoln advised the Confederacy of his plans to resupply Fort Sumter, Virginia's delegates voted to remain in the Union. Three days after the Fort Sumter attack, Lincoln issued a
The attack on Fort Sumter proved to be the Confederacy's false move. Lincoln's proclamation and gathering of 75,000 troops to quell the rebellion was the Union's false move, as Virginia immediately voted to secede on April 17, followed by Arkansas on May 6, North Carolina on May 20, and Tennessee on June 8. With the addition of Virginia into the Confederacy, Washington could now only be supplied overland through Maryland. The state, however, was full of Confederate sympathizers, and it seemed on the precipice of seceding and joining the Confederacy.
The Baltimore Riot
When Lincoln issued his April 15 proclamation, the Sixth Massachusetts Regiment boarded a train the next day for Washington to protect the capital. From Boston through Springfield, Hartford, New York City, Trenton, and Philadelphia, the volunteer regiment was met with cheers from thousands of citizens. It was a very different scene when it reached Baltimore. A mob had gathered, prepared to make the regiment's passage through the city far from a welcoming experience.
Since trains were not allowed to pass through the city limits, the soldiers boarded horse-drawn train cars. Citizens, however, had thrown sand and boat anchors onto the tracks, forcing the militia members to travel the rest of the journey on foot. Before continuing, all the soldiers were ordered to load their weapons and be prepared to fire if fired upon.
"Massachusetts Militia Passing Through Baltimore (Baltimore Riot of 1861)," 1861, engraving of F.F. Walker.
Public Domain
One soldier
Lincoln's Infamous Order
Fearing more violent provocation from the arrival of federal troops, Maryland Governor Thomas Hicks ordered the destruction of railroad bridges connecting Baltimore to the Northern states. While bridges were destroyed, Maryland secessionists destroyed communication lines with Washington. Hicks, who had long advocated for neutrality between the Northern and Southern states, finally called for a special session to vote on secession. Instead of Annapolis, he recommended the session be held in Frederick where there was strong Union sentiment. The session would begin on April 26.
Lincoln received word that a special session would be held, and he informed Commanding General of the Army of the United States Winfield Scott to take measures to ensure Marylanders did not arm themselves against the federal government. Two days after his communication with Scott, Lincoln took an unprecedented step for a president.
It was during this week in history, on April 27, 1861, that Lincoln issued the following
The writ of habeas corpus, which can be traced back to the Magna Carta of 1215, is a stalwart legal protection against false imprisonment, allowing the arrested person to plead their case in court. Much like Andrew Jackson had done in 1815, citizens could be arrested and held in prison without trial. Just as with Jackson's order, Lincoln's order was deemed unconstitutional.
Testing Lincoln's Order
Lincoln was aware of the constitutional quandary that came with such an order, but with Congress out of session until July, he was compelled to act. A month after his order to Scott, its constitutionality was tested.
On May 25, John Merryman, a lieutenant in the Baltimore County Horse Guards who had assisted in destroying the Baltimore bridges, was arrested, indicted for treason, and held indefinitely at Fort McHenry. Merryman's lawyers petitioned Maryland's U.S Circuit Court for a writ of habeas corpus. The petition fell to Roger B. Taney, who oversaw the circuit court and was also chief justice of the Supreme Court. Taney issued a writ to Gen. George Cadwalader, the arresting officer, to bring Merryman before the court. Cadwalader refused, citing Lincoln's order. Reminiscent of Jackson and Hall, Taney cited Cadwalader for contempt of court.
Portrait of Gen. Cadwalader by Thomas Eakins.
Public Domain
Taney wrote an opinion on the matter called '
Lincoln's Response
Before the July 4 session, Lincoln further extended his suspension of the writ of habeas corpus to part of the Florida coast and between Philadelphia and New York. When the president stood before Congress, he addressed Taney's opinion,
Lincoln relented somewhat, stating, 'Whether there shall be any legislation upon the subject, and, if any, what, is submitted entirely to the better judgment of Congress.' Congress, for some reason, did not pass legislation regarding the suspension of the writ until March 3, 1863.
Before then, Lincoln had issued another
Regarding the suspension clause, Lincoln
Interestingly, since 1815, 600 years after the Magna Carta was created, this suggestion that 'the Constitution itself is silent as to which or who is to exercise the power' continues to be a subject of constitutional debate among legal scholars.
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