The Great Writ, North and South During the Civil War both the federal and Confederate governments had to deal with a pressing question far from the battlefield: how to balance the rights enshrined in their respective constitutions against effectively fighting the war. This challenge was particularly sharp when it came to the writ of habeas corpus, considered the most important protection against the wrongful exercise of governmental power. The essentially similar ways in which Abraham Lincoln and Jefferson Davis, for all their many differences, limited their respective nations" citizens access to habeas corpus illustrates the thorny choices forced on leaders during wartime. The federal government was thoroughly unprepared to grapple with the legal questions surrounding its response to secession in April 1861. Nevertheless, given his bedrock commitment to restoring the Union, Lincoln acted with remarkable dispatch, regardless of whether he was constitutionally empowered to do so. "It would not be easy," observed the historian James G. Randall, "to state what Lincoln conceived to be the limit of his powers." Lincoln clearly considered control over habeas corpus - the constitutional principle that requires the government to justify an arrest before a judge - within those powers, and exercised that power almost immediately. In the opening weeks of the war Maryland seethed with secessionist activity. To combat it, on April 27, 1861, Lincoln suspended the writ across the entire state. A Marylander named John Merryman was soon arrested on treason charges. He sought relief under the writ from Supreme Court Chief Justice Roger B. Taney, who was serving as a circuit judge, but the commander holding Merryman refused Taney's order to justify the detention in court. Taney strongly condemned the administration's position in Ex parte Merryman, a ruling that Lincoln simply ignored for months. Finally, in a special message to Congress on July 4, 1861, the president claimed to possess authority to suspend the writ if necessary to protect the nation against the rebellion: "The whole of the laws which were required to be faithfully executed, were being resisted ... in nearly one-third of the States. Must they be allowed to finally fail of execution, ... are all the laws but one, to go unexecuted, and the government itself go to pieces, lest that one be violated? In his chambers opinion Taney had asserted that under Article I, Section 9, of the Constitution, only Congress could suspend the writ. Lincoln's July message, strictly speaking, did not deny that. But Congress had been out of session when the war began, Lincoln said, and he wrote the message in the hopes that Congress would validate his actions retroactively. "These measures, whether strictly legal or not," he argued, "were ventured upon, under what appeared to be a popular demand, and a public necessity; trusting, then as now, that Congress would readily ratify them." Lincoln sustained his position throughout the war and used it several more times. Before Congress finally passed legislation supporting the president's power over habeas corpus in March 1863 (many provisions of which the president later disregarded whenever he saw fit), Lincoln didn't hesitate to deal with what he considered threats to the national well-being. He issued orders that suspended the writ in parts of Florida under Union control, along the vital lines of travel between Philadelphia and Washington, and in large swaths of Missouri to help tamp down fearsome guerilla warfare there. In September 1862, moreover, he declared the writ suspended nationwide in a wide range of cases. But even after passage of the Habeas Corpus Act of 1863, Lincoln was willing to intervene independently regarding access to the writ. On the same day that Congress passed the act, it also passed the Union's first national draft law. Resistance to conscription, which often relied on habeas claims, quickly became a serious impediment in the eyes of many to responsible execution of the war effort. Perhaps no one was more taken aback by this resistance than Lincoln himself. By early September 1863 he had had enough of men resorting to the writ in state courts, particular in Pennsylvania, to escape service in the army or navy. When the cabinet met on Sept. 14 to discuss the matter, Attorney General Edward Bates would remember, Lincoln was angrier than he had ever seen him. Lincoln proposed not only to suspend the writ for persons seeking relief from conscription; but he also wanted to use federal military force against state officials, including judges, to enforce the suspension. After a closely divided cabinet debate, Secretary of State William H. Seward drafted a revised order that suspended the writ in draft cases for the rest of the war. Lincoln signed the order and it was announced on Sept. But what about Lincoln's nemesis, Jefferson Davis? A good deal of postwar scholarship and popular opinion have presented him as significantly more respectful of civil liberties in general and the writ of habeas corpus in particular than his Northern counterpart. This picture of Davis as the more principled defender of constitutional freedoms is due in large part to strenuous efforts by him and other ex-Confederates after the war to recast his wartime actions in a more favorable light. In addition to the effects of Lost Cause mythologizing, the gap between Davis's rhetoric and the reality regarding access to habeas corpus in the Confederacy has misled many observers. On July 20, 1861, mere days after Lincoln defended his own suspension of habeas corpus, Davis thundered in a congressional message that "we may well rejoice that we have forever severed our connection with a government that thus tramples on all the principles of constitutional liberty, and with a people in whose presence such avowals could be hazarded." But while asserting the superiority of the Confederacy in respecting fundamental liberties like habeas corpus, Davis countenanced violations of those same rights. Less than a month after denouncing Lincoln, he pressured a political prisoner in Tennessee to end his criticism of the government as the price for release. More tellingly, on Feb. 28, 1862, five days after he was officially inaugurated as president, Davis signed legislation suspending the writ of habeas corpus approved by the Confederate Congress. This was the first of three such periods of suspension Davis signed, along with additional periods he requested from the Confederate Congress but did not receive. Davis also adjusted his respect for habeas corpus to his larger wartime goals. As the latter necessarily shifted through the course of the conflict, so did the former. Early in the war, as part of his efforts to attract the border slave states to secede, Davis emphasized the Confederacy's supposed greater commitment to freedom. This situational stand for freedoms like habeas corpus, of course, did not succeed in its direct aims, but it did bring additional benefits at least in the short term for the Confederacy. Davis's declarations that in the Union "upright men [are] dragged to distant dungeons upon the mere edict of a despot" helped strengthen white Southerners" fervor to defend their new nation. Davis also hoped that his rhetorical defense of habeas corpus and other rights would lead to recognition by European nations, in particular Britain. He wasn't alone: as late as September 1862 a British observer could state that "if recognition should take place, it will be chiefly owing to the practical abrogation of the constitution" by the Lincoln administration. By February 1864, however, as the Confederacy's fortunes darkened, Davis decided that the Confederacy's civil liberties must be sacrificed on the altar of military necessity, and he requested congressional approval for the suspension of habeas corpus. Calling the suspension "a remedy plainly contemplated by the Constitution," he justified the request as necessary to fight the "discontent, disaffection, and disloyalty" threatening to destroy the nation from within. It is easy to be misled by some differences between Lincoln's and Davis's respective treatments of habeas corpus. Lincoln acted sooner than Davis to suspend the writ, and Davis's ability to execute his preferred policies was relatively more constricted by congressional and judicial action. However, at a more fundamental level, both presidents subordinated respect for the writ to the imperatives of preserving their respective political entities and prosecuting the war. Differences between their treatments of the writ can be traced to how they saw the abrogation of civil liberties contributing to the achievement of those goals, and not to any fundamental difference in political philosophy. Most important, Jefferson Davis was in practice no more committed to protecting the Great Writ than was Abraham Lincoln. Both men embraced the military and political realities confronting them in wartime. Sources: Corpus Juris Secundum, Vol. 39, Sect. 427; Daniel Farber, "Lincoln's Constitution"; Abraham Lincoln, "Collected Works"; Brian McGinty, "The Body of John Merryman: Abraham Lincoln and the Suspension of Habeas Corpus"; Mark E. Neely, Jr., "The Fate of Liberty: Abraham Lincoln and Civil Liberties" and "Southern Rights: Political Prisoners and the Myth of Confederate Constitutionalism"; James G. Randall, "Lincoln the Liberal Statesman"; James F. Simon, "Lincoln and Chief Justice Taney: Slavery, Secession, and the President's War Powers"; Jonathan W. White, "Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman"; Frank J. Williams, "Judging Lincoln." Frank J. Williams is the former chief justice of the Rhode Island Supreme Court and founding chair of the Lincoln Forum. A lifelong student of Abraham Lincoln, he is the author or editor of over 14 books. He has also served as chief judge of the United States Court of Military Commissions Review to hear appeals from trials conducted in Guantánamo, Cuba.