Focus Question for the Lesson: Was the rule of law and the Constitution respected in the Union during the Civil War?
Students will explore original source materials illuminating the suspension of the writ of habeas corpus during the Civil War. Students will examine Lincoln's suspension of the writ of habeas corpus and the non-judicial detention of Southern sympathizers during the Civil War. Students will need direct instruction prior to this lesson on the meaning and history of the writ of habeas corpus and the vocabulary words set out below and on the basic facts of occurrences in April, 1861. This direct instruction should include all of the following material. Limit this mini-lesson to a firm 5 minutes.
Habeas corpus is often called the Great Writ. A writ is a formal court order. In
this case, it is an order from a court to some officer, usually from the Executive
Branch of government, to justify holding a particular individual in custody. It is
considered the citizen's great protection against arbitrary arrest by government
agents because government officials must either obey the court or look like they
are disrespecting the rule of law.
The U.S. Constitution provides, in Article I, section 9, "The privilege of the Writ
of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or
Invasion the public Safety may require it."
On April 15, 1861, Confederate forces in Charleston, S.C., opened fire on Fort
Sumter, forcing its surrender. President Lincoln immediately called for the states
to send troops to join the army to put down the armed rebellion of the Confederate
states. On April 19, 1861, a riot broke out in Baltimore when part of a regiment
of Massachusetts troops arrived by train in Baltimore and attempted to march
through the city by way of Pratt Street on their way to Washington, D.C. Many of
the leading people in Baltimore either failed to control the rioters or actively
assisted them, including the city's mayor and the head of the police commission.
Partly in response to this, President Lincoln on April 27, 1861, issued an
Executive Order authorizing General Scott, the Chief of Staff of the Army, or any
officer General Scott might designate, to suspend the writ of habeas corpus in
order to protect the rail line leading from the north through Baltimore to
One each per student
Sufficient copies of Newspaper source analysis tools, Manuscript source analysis tools for
classroom use; chart paper & colored markers, together with appropriate copies of Primary
Sources listed below.
1. "Local Matters The Habeas Corpus Refusal" May 6, 1861 The Baltimore Sun, Maryland
State Historical Society
2. Leonis, Maj. W.W., Letter to Judge William Fell Giles, May 6, 1861; Ms 1977, Maryland
Military Affairs Documents 1818-1887, Folder 1860's, Doc. C and transcription,
Maryland State Historical Society
Additional Documents for Teachers:
Lincoln's Order suspending the writ of habeas corpus, 27 April 1861, found at
Write a BCR on the prompt: Judge Giles and Major Leonis disagreed over the
question 'Whether the civil rights guaranteed in the Constitution may be set aside in times
of emergency?' Who had the stronger argument? Support your answer by referring to
specific language in the documents. Turn this in with your Manuscript and Newspaper source analysis tools.
Do you believe this restriction on civil liberties was unique to the Civil War? What
other occasions in American History do you know of where similar or related restrictions
ACCOMMODATIONS: Students with literacy deficits should be allowed to begin with the
typed excerpts rather than with the photocopies of the originals.
Is there a parallel to this situation in today's "War on Terrorism"?
Compare Ex parte Merryman 17 F. Cas 144 (1861) with Hamdan v Rumsfeld 548 US
557 (2006) with Korematsu v US , 323 US 214 (1944).
Students may assess the use of Merryman as precedent to Korematsu and both of these
as precedent to Hamdan. Students may choose to compare the severity of the crisis as perceived at the time for two or all of these cases. Students may also be asked to reflect forward to 2060 and consider what historians at that time may say about our society's perception of crisis today.