By Presidential Decree — Part I

America in 1860

No one can say that Abraham Lincoln didn’t have a full plate during the American Civil War and filling up that plate began even before he assumed office.  No one should have to endure that kind of stress — tensions that lasted for four long years — but it was Lincoln himself who signed up for that slog-fest.  In 1861, the nation’s capital lay in the center of southeastern slave territories.  Although Maryland didn’t secede from the Union, Southern sympathies were widespread in that state.  Maryland’s possible secession was one of many factors Lincoln had to consider in defining his domestic agenda.

John Merryman (1824-1881) was the father of eleven children, a farmer in Cockeysville, Maryland, and a president of the Board of County Commissioners of Baltimore County.  Before the outbreak of the Civil War, Merryman also served as Third Lieutenant of Baltimore County Troops.  In 1861, he served as First Lieutenant in the Baltimore County Horse Guards.  On Friday, 19 April 1861, anti-war Democrats (calling themselves Copperheads) joined with other Southern sympathizers to oppose certain Massachusetts and Pennsylvania militia members.  They were mobilizing in Baltimore as a defense force for the city of Washington.  Hostilities erupted when the Copperheads attempted to prevent the aforementioned Yankee militia from moving to Washington.

On 20 April, Maryland’s governor Thomas H. Hicks (a pro-slave/anti-secession Democrat) and Baltimore mayor George W. Brown dispatched Maryland State Militia to disable the railroad tracks and bridges leading out of Baltimore.  Hicks later denied issuing any such order.  In any case, one of the low-level Maryland militia leaders was none other than John Merryman.

On 27 April, President Lincoln suspended the writ of habeas corpus.  This Latin phrase means, “We command that you must produce the body at court.”  The writ prohibits unlawful detention or imprisonment and compels “government authority” to produce a prisoner to the court so that the accused can appear before a jurist.  It is a mechanism for ensuring the right of an accused to have his day in court.

In suspending the writ, Lincoln’s purpose was to give military authorities power to arrest, detain, and silence dissenters and rebels.  Was Lincoln’s act lawful?  According to experts in Constitutional law — yes.  A president may suspend the Constitution when rebellion or invasion occurs, and public safety requires it.  

On 25 May, Union military forces arrested Mr. Merryman for his role in destroying railroad tracks and bridges and escorted him to a cell at Fort McHenry.  Merryman remained there for several months.  If it were up to President Lincoln, Merryman would stay in that cell to this very day.  Some would argue that the federal government violated Mr. Merryman’s constitutional rights.  Through his lawyer, Merryman petitioned the court for a writ of habeas corpus.  The petition was presented to, of all people, the Chief Justice of the United States, Roger B. Taney — a native of Maryland and the federal circuit court judge for Maryland.

We know from history that Lincoln’s election to the presidency led several states to secede from the Union.  We also know that the first hostile act of the Civil War occurred in Baltimore, which means that the bombardment of Fort Sumter was not the initiating action of the Civil War — so we should stop saying that.

Roger B. Taney was an anti-Lincoln jurist who saw it as his duty to remain seated on the high court rather than resigning his appointment to serve the Confederacy.  As with Governor Hicks (and many others of his day), Taney was a pro-slavery anti-secessionist.  As a jurist, he believed that states had a Constitutional right to secede from the Union.  As a man, he detested Lincoln, believing that he was responsible for destroying the Union.  From his position on the high court, Taney would challenge Lincoln’s suspension of habeas corpus, arguing that only Congress could do that.  And he loathed Lincoln’s interference with civil liberties.

Through non-acquiescence (where one branch of the government refuses to acknowledge the authority of another branch of government), Lincoln ignored Taney’s ruling.  Lincoln nevertheless addressed the issue in a message to Congress in July 1861.  In his letter, Lincoln cited Article I, Section 9 of the Constitution (previously mentioned).

Eventually, Lincoln doubled down on suspending habeas corpus by extending it on a much larger scale, which some would argue violated the rights of citizens throughout the war.  Eventually, Lincoln’s policy softened somewhat in Maryland, but only out of concern that Maryland might also secede from the Union.  After the Merryman arrest, however, Lincoln channeled such actions through Congress.  It was a workable arrangement because, in 1863, Congress passed the Habeas Corpus Suspension Act.

Chief Justice Taney passed away in 1864, aged 87 years.  He served as Chief Justice of the United States for 28 years, 198 days — the second-longest tenure of any chief justice and the oldest ever serving Chief Justice in United States’ history.

Ultimately, John Merryman was turned over to civilian authorities and allowed to post bail.  The government finally dropped its treason charges against Merryman in 1867; he was never brought to trial.  Six years later, in a case unrelated to Merryman’s, the high court ruled that civilians were not subject to military courts even in times of war.  As it turned out, the Merryman case was not the last time the federal government suspended American civil rights.

America in 1916

Americans saw no reason to involve themselves in Europe’s “great war” of 1914.  Few people knew where the Austro-Hungarian Empire was, much less who was in charge of it, so the assassination of the heir to the throne was a non-event.  Nor did many Americans care about the wartime alliances.  The whole affair, in the mind of most Americans, was none of our business.  President Woodrow Wilson, a progressive Democrat, proclaimed United States’ neutrality — a view widely supported by the American people — including many immigrants from the belligerent countries.

Yet, despite Wilson’s claim of neutrality, American capitalists were quick to take advantage of war-related opportunities.  Europeans needed food, materials, and American-made munitions.  Not only were American companies happy to sell these goods to the Europeans, but American banks were also happy to loan money to the Europeans so that they could purchase those goods.  This financial involvement gave the United States a stake in the winner of the Great War.  The trick for the Americans was to find a way to safely send American-made goods to the allied powers — through seas patrolled by German submarines.

When RMS Lusitania was laid down in 1904, the British government decided to subsidize its construction costs, provided that the Cunard Line agreed to allow Lusitania to serve as an Armed Merchant Cruiser (AMC) should Great Britain need her in time of war or other national emergencies.  The British government placed Lusitania on its list of AMCs in 1914, but Lusitania’s exorbitant operating costs caused the government to reverse that decision.  Whether the British ever got around to informing the Germans of this decision is unknown.

For their part, Imperial Germany gave due notice and warning to anyone booking passage on Lusitania: since a state of war existed between Germany and Great Britain, all Allied vessels were targets of the German Imperial Navy.  From Germany’s point of view, knowing full well that Lusitania’s holds contained U. S. manufactured war materials intended to aid the Allied powers, Lusitania became a legitimate target.  After all, Britain’s decision to allow passengers on a de facto AMC vessel wasn’t Germany’s problem — and besides — the United States’ claim of neutrality was laughable.[1]

It was no surprise to anyone in the hierarchy of either government when a German submarine torpedoed Lusitania on 7 May 1915.  Twelve hundred people lost their lives, including 128 Americans.  By this time, anti-German war propaganda was in full swing.  Stories of German military atrocities targeting civilians appeared regularly in the American press, such as the Rape of Belgium, which claimed that the German army was responsible for the death or injury to 46,000 innocents.  Even though President Wilson maintained his non-intervention policy, anti-German passions increased throughout the United States.

Meanwhile, the Mexican Revolution (1910-1921) was in full swing.  Mexican bandits attacked, murdered, and looted American homesteaders living along the US/Mexican border with increasing regularity.  In 1916, Wilson dispatched US troops to the southern border and ordered General “Black Jack” Pershing into Mexico to capture or kill Pancho Villa.  Anticipating conflict on two fronts, President Wilson asked for and gained congressional authority to increase the size of the U. S. Army, National Guard, and U. S. Navy.

American voters reelected Wilson to a second term in November 1916.  By this time, the anti-German passions led some Americans to join the French Army, French Foreign Legion, and French Air Service.

After the German Imperial government announced its intent to resume unrestricted submarine warfare, President Wilson severed diplomatic relations with Germany.  Germany responded by targeting American merchant ships in the North Atlantic.

In January 1917, British codebreakers intercepted an encrypted German telegram addressed to the German Ambassador to Mexico.  The telegram instructed the Ambassador to propose an alliance between Germany and Mexico against the United States.  In essence, should the United States join the allied war effort, Germany suggested a pact with Mexico with military assistance regaining the territory lost to the United States during the Mexican-American War (1848): Texas, New Mexico, Arizona, and California.  History recalls this communique as the Zimmerman Telegram.

British diplomats handed the Zimmerman Telegram to Wilson on 24 February, and Wilson released it to the American press on 1 March.  The effect of publishing this information was, as anticipated, wide-scale public outrage toward both Germany and Mexico (even though Mexico never officially acknowledged the proffered alliance).  The United States declared war on Germany on 4 April 1917.

After declaring war, Wilson focused almost exclusively on his foreign policy agenda — leaving domestic affairs to his “war cabinet.”  The cabinet’s chief concern was the expansion of the military, food distribution, fuel rationing, and consumer conservation.  Within three years, America’s annual budget exploded from around $1 billion in 1916 to nearly $20 billion in 1920.  Congress raised taxes through the War Revenue Act of 1917 and the Revenue Act of 1918, increasing the top tax rate to 77% and expanding the number of citizens subject to personal income taxes.

Wilson’s tax scheme was unsettling from several points of view.  Because tax increases were by themselves insufficient, the federal government began issuing low-interest war bonds.  To encourage investment, Congress made the interest paid on these bonds tax-free.  One consequence of this policy was that it encouraged citizens to borrow money for the purchase of bonds.  This, in turn, produced two additional effects: an increase in inflation and (by 1929) the Stock Market crash.[2]

Not everyone was pleased with Wilson’s decision to enter World War I.  Without realizing their country’s economic involvement with European nations at war, many Americans demanded that the United States maintain its neutrality.  Other groups opposed the military draft (the first of its kind in the world).  Other opposition groups included pacifists, anarchists, socialists, labor union workers, Christians, anti-militarists, the so-called “Old Right,” and women’s peace groups.  Among the socialists were Irish, German, and Russian immigrants whose “loyalty” to the United States Wilson always questioned. While young Americans were fighting and dying for the American way, Wilson, fearing that dissidents would undermine his war effort, signed the Espionage Act of 1917 and the Sedition Act of 1918.[3]  Both acts criminalized disloyal, profane, scurrilous, and abusive language toward the United States government, the military, or any speech or language intended to incite insubordination, disloyalty, mutiny, or refusal of conscription.  They were among the most egregious of the government’s violations of the Constitution and Bill of Rights.  The Supreme Court upheld several convictions based on “limitations of free speech in a time of war.”  See also Schenck v. United States and Note 4.[4]

(Continued next week)

Sources:

  1. Connell, T.  America’s Japanese Hostages: The US Plan for a Japanese Free Hemisphere.  Praeger-Greenwood, 2002.
  2. McGinty, B.  The Body of John Merryman: Abraham Lincoln and the Suspension of Habeas Corpus.  Harvard University Press, 2011.
  3. Hall, K. L. (Ed.)  The Oxford Companion to the Supreme Court of the United States.  Oxford University, 1992.
  4. Lewis, W.  Without Fear or Favor: A Biography of Chief Justice Roger Brooke Taney.  Houghton Mifflin, 1965.
  5. Robinson, G. By Order of the President: FDR and the Internment of Japanese Americans. Harvard University Press, 2009.

Endnotes:

[1] The sinking of the Lusitania underscored Germany’s success in espionage, and America’s failure in counter-espionage.

[2] Wall Street investors were making large profits from their arrangement with the Allied Powers — even after federal taxes, but they would make a lot more money by investing in post-war reconstruction.  This would become part of the post-war boom that was so profitable, people borrowed money to invest in the stock market.  When the Stock Market crashed in 1929, due to the over-valuation of stocks, people not only lost their investments, they also became indebted with no way to repay their personal loans.  It was a behavior that caused investors to throw themselves off buildings.

[3] Later, partially in reaction against the Bolshevik Revolution and the rising tide of socialism in Europe, a more general anti-immigrant sentiment gripped America.  For example, through the Palmer Raids of the 1920s, the Department of Justice rounded up thousands of foreigners who were alleged communists, anarchists, labor reformers, or otherwise menaces to society. Many were forcibly deported.

[4] The years surrounding America’s involvement in World War I were a watershed for how the United States treated foreigners within its borders during wartime. Immigrants had flooded the United States in the late 19th and early 20th centuries. When the United States declared war on Germany on April 6, 1917, almost a third of Americans were either first or second-generation immigrants. Those born in Germany and even American-born citizens of German descent fell under suspicion of being disloyal.

My thanks to Mr. Koji KANEMOTO for his much-valued assistance and participation in the research, preparation, and editing of this post.


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Mustang

Retired Marine, historian, writer.

6 thoughts on “By Presidential Decree — Part I”

  1. To supplement the wonderful facts shown herein regarding martial law and Writ of Habeas Corpus, one must remember the governor of Hawaii declared martial law soon after the attack on Pearl Harbor. It lasted until October 1944.

    A couple thousand residents were arrested under suspicion of espionage, sabotage and the like. Nearly all were of Japanese bloodlines. Some were transported to mainland camps, the most notorious being Crystal City. Ironically, the only one found guilty of espionage was a man of German descent and was sentenced to 50 years hard labor. He was returned to Germany after the war.

    This post’s lessons parallels what is happening today. As it happened 80 years ago, news is complicit in the manufactured hysteria of today.

    Liked by 2 people

    1. You’re right, Koji … hence, the value of history. We will eat this putrid carcass until we finally learn our lessons. The lightbulb never came on for the Romans; I doubt that we are any better.

      Liked by 2 people

  2. The civil war and WWI such horrible things.

    I believe it worthwhile noting the market is coming up on its 100 year anniversary of 1929. Anniversaries are important in the market to many followers.

    Liked by 1 person

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