WHEN THE CIVIL WAR started in the Roman Republic, Julius Caesar defied the civil authority and crossed the River Rubicon in 49 B.C. This was a violation of the Roman constitution, for no army was to cross the Rubicon and enter Rome under arms.
Within a few months Caesar was the master of Rome and Italy. He was elected by the senate as consul and appointed dictator for life, when by the constitution such appointments were for six months only. When the civil war finally ended with the triumph of Caesar’s adopted son, Octavian, Cicero lamented, “Our beloved republic is gone forever.” How right he was, for republican government would not return to Rome and most of Western civilization for almost 2,000 years.
Caesar rode roughshod over the Roman constitution, and that resulted in his assassination. The killing of a tyrant was a patriotic act, a belief held by both the Romans and the Greeks. John Wilkes Booth felt that way about Lincoln.
There are other similarities between Caesar’s story and that of Lincoln. Both held supreme military command. Both suspended civilian authority and tossed their respective constitutions out the window in the interest of public order. But the final outcome was not the same, as civilian authority returned in America, but not in Rome.
It is not necessary to go back into ancient history to see a common pattern unfold: in a time of national crisis, a strong leader assumes extraordinary powers; constitutional rights are suspended; and a dictator rules by decree and perpetuates himself after the crisis is over.
This happened in Germany in the 1930s, which ended the Weimar Republic and put the National Socialists in power after suspending the German constitution. Fidel Castro overthrew the Batista regime and offered to institute democratic elections and a restoration of the 1940 constitution. But once in power, Castro assumed and kept dictatorial powers. America was lucky. The dictatorial pattern did not remain following the Civil War, but it could have and, for a time, the Constitution hung by a thread.
Suspending the Constitution
Fort Sumter was bombarded on April 12, 1861. By the end of the month, the Republican administration had ripped the guts out of the Constitution, as constitutional government passed away in the United States, not to return for almost five years. Here is the sequence of events:
First, on April 15, Lincoln called up the militia from all of the states to put into the field an army of more than 75,000 men. The Constitution puts this power with the Congress: Article I, Section 8, sets forth the powers of Congress: “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections….”
Six governors rejected Lincoln’s call as illegal. The governor of North Carolina, John Ellis, responded,
I regard the levy of troops made by the administration for the purpose of subjugating the states of the South as in violation of the Constitution, and a usurpation of power. I can be no party to this wicked violation of the laws of the country, and to this war upon the liberties of a free people. You can get no troops from North Carolina.
The other five governors answered in the same vein.
Second, also on April 15, Lincoln called Congress into session, as required by the Constitution for “extraordinary Occasions,” but delayed the meeting of Congress almost three months. By contrast, when Pearl Harbor was attacked, Roosevelt called Congress into session the very next day, December 8, 1941.
Third, less than a week later, April 21, he ordered the purchase of war materials, five naval vessels, which under the Constitution required congressional appropriations.
Fourth, the same day, he ordered the navy to blockade all Southern ports. A blockade is an act of war, requiring the resolution of Congress.
Fifth, on April 27, he suspended the right of habeas corpus — unquestionably one of the most important of our civil liberties, for it prohibits government from making arrests without just cause, that is, from locking people up and throwing the key away, so to speak. In time, more than 10,000 were arrested and imprisoned by military officers, often for crimes that never existed in any law book, manufactured by the generals, often just plain silly. One unfortunate fellow, while drunk, was arrested and imprisoned for shouting, “Hurrah for Jeff Davis!” Under the Bill of Rights, a person cannot be charged with a crime except by an indictment from a grand jury, nor can a person be convicted except by a jury of fellow civilians. No military trial of civilians was permitted, or so said the Constitution.
Lincoln’s denial of these most basic constitutional rights led to the destruction of civilian government in Maryland, where in late 1861 he had soldiers arrest and imprison the members of the legislature believed to be Southern sympathizers and who might vote for Maryland’s secession. Democratic government ceased in Maryland for the duration of the war.
Preceding the arrest of the Maryland legislators, Lincoln’s most shocking, even treacherous act, swept under the rug by Lincoln’s loving biographers, grew out of ex parte Merryman. John Merryman was a known Southern sympathizer in Maryland. He was arrested by General Cadwallader and imprisoned in Fort McHenry in Baltimore. Merryman petitioned the Supreme Court for a writ of habeas corpus, which was granted by Chief Justice Roger Taney, and the general was ordered to bring Merryman into court for adjudication. The general refused.
Ordering the arrest of the chief justice
In response, the Court ordered federal marshal Bonifant to bring the general and Merryman to court. Taney could have organized an armed posse of deputy marshalls to arrest the general, but that might have resulted in bloodshed and was avoided.
As an alternative approach, Taney wrote a blistering opinion — today considered one of the greatest opinions of the Supreme Court — and had a copy delivered to President Lincoln. The opinion condemned the action of the president and reviewed the leading authorities on English as well as American constitutional law.
An undoubtedly enraged Lincoln took it upon himself to execute an order to arrest the chief justice for having the gall to give orders to the president and to condemn his acts against the Constitution. And remember: Taney was simply doing his duty, as under the Constitution the Supreme Court has the final say on Constitutional issues, not the president, not the Congress, not anyone else.
According to the writings of U.S. Marshal Ward Hill Lamon, questions arose about serving the arrest order on the chief justice, and where he should be imprisoned. Lamon recalls that Lincoln gave the arrest warrant to him with instructions to “use his own discretion about making the arrest unless he receive further orders.”
Lincoln was saved the condemnation of history, possibly impeachment and removal from office as well, by a reluctant federal marshal who wisely refrained from arresting the chief justice of the United States. But notwithstanding the failure to arrest the chief justice, this episode marked the end of constitutional government in the United States, as a British periodical, Macmillan Magazine, observed in 1862:
There is no Parliamentary (congressional) authority whatever for what has been done. It has been done simply on Mr. Lincoln’s fiat. At his simple bidding, acting by no authority but his own pleasure, in plain defiance of the provisions of the Constitution, the Habeas Corpus Act has been suspended, the press muzzled, and judges prevented by armed men from enforcing on the citizens’ behalf the laws to which they and the President alike have sworn.
The final crime against the Constitution came with the arrest and military trial of those accused of having conspired to assassinate Lincoln. There was no indictment by a grand jury, no trial by a jury, no appellate review. Just a hanging for the public to see.
The one innocent victim, put to death for having an association with John Wilkes Booth, was Mary Surratt, a Catholic and Southern sympathizer who happened to operate a boarding house where Booth stayed at times. Her lawyer, who later became famous in American jurisprudence, said it was a tribunal “organized to convict,” no matter what the evidence.
As the tribunal was illegal under the Constitution, this meant that the execution by the tribunal was no more legal than a lynching, and this, as sad as it may be, was simply — in the words of many who studied the case — “judicial murder.” It was predictable that Lincoln’s use of the military to try and punish civilians would end in such a tragedy, and it proved the wisdom of the Founders in framing the Bill of Rights.
Soon after the war, President Andrew Johnson reinstated the constitutional right to habeas corpus, and the matter soon came before the Supreme Court in ex parte Milligan. The government wanted to indict Milligan, a citizen of Ohio, for treason, but a grand jury refused to do so on the ground that the evidence was insufficient. The matter then went to a military tribunal, as with Mary Surratt, and Milligan was quickly convicted and sentenced to be executed. A review by the Supreme Court threw the military conviction out and held that when civilian courts are open, no military court may try civilians. Period! Thus making the more than 10,000 military trials, convictions, and punishments during the Civil War illegal.
Slowly most civil rights reemerged after the military dictatorships during Reconstruction. But lurking below the surface of American society, military supremacy lay dormant, only to emerge in wartime — in the First World War, then in the Second World War with the “relocation” of more than 100,000 American citizens of Japanese ancestry. In late 1944, the Supreme Court threw in the towel on the Japanese internment by ruling that during wartime the military has supreme authority to do as it pleases with the civilian population. Thus we still live with the threat that the military can toss the Constitution and the Bill of Rights out the window at their pleasure when the military thinks it is necessary — exactly as Lincoln believed in 1861.