Tag Archives: Habeas Corpus

Davis Urges Suspension of Habeas Corpus

February 3, 1864 – President Jefferson Davis delivered a message to Congress asking for the authority to suspend the writ of habeas corpus.

Confederate President Jefferson Davis | Image Credit: Wikipedia.org

By this time, Federal military forces had begun various campaigns that included looting, pillaging, and plundering private property in the South. This had caused widespread disorder that required attention from the Confederate government. Consequently, Davis requested the same authorization that President Abraham Lincoln had assumed (without congressional consent) to apprehend and jail citizens suspected of disloyalty without trial.

In his message, Davis noted the “discontent, disaffection, and disloyalty” pervading the Confederacy, partly due to the demoralizing effects of Federal military occupation. Davis also alleged that such sentiments were rising among those who “have enjoyed quiet and safety at home.” He stated that suspending the writ was necessary to combat the rising number of Federal occupiers and Confederate dissidents, both of which tended to demoralize the people and encourage potential race wars between slaves and masters. Davis wrote:

“Must the independence for which we are contending, the safety of the defenseless families of the men who have fallen in battle and of those who still confront the invader, be put in peril for the sake of conformity to the technicalities of the law of treason?… Having thus presented some of the threatening evils which exist, it remains to suggest the remedy. And in my judgment that is to be found only in the suspension of the privilege of the writ of habeas corpus.”

Although the Lincoln administration had suspended the writ long ago and jailed thousands of anti-war dissidents without trial, this concept was still controversial for the Confederacy, which had been founded on the principle that states’ rights checked a potentially overreaching national government. As such, many members of the Confederate Congress opposed Davis’s request. Conversely, supporters argued that such a measure was necessary to suppress draft opposition and other “disloyal” practices.

After nearly two weeks of acrimonious debate, Congress finally approved authorizing Davis to suspend the writ of habeas corpus. The bill included a specific list of treasonable offenses, thus limiting Davis’s ability to act arbitrarily as much as possible. To further appease detractors, Davis only had suspension power until August 2.

Nevertheless, fierce critics remained, including Davis’s own vice president, Alexander Stephens of Georgia. Stephens declared that “constitutional liberty will go down, never to rise again on this continent” if Davis was empowered to suspend the writ. He called the bill a “blow at the very ‘vitals of liberty’” and accused Davis of–

“… aiming at absolute power… Far better that our country should be overrun by the enemy, our cities sacked and burned, and our land laid desolate, than that the people should thus suffer the citadel of their liberties to be entered and taken by professed friends.”

Despite opposition from Stephens and both of Georgia’s Confederate senators, the state legislature approved a resolution supporting this and all laws designed to win the war. Even so, the opposition to suspending the writ of habeas corpus remained so strong that Davis rarely exercised the power.

However, passage of the law prompted William W. Holden to suspend publication of his Unionist newspaper, the Raleigh (North Carolina) Standard. Many Confederate officials had targeted Holden as a traitor for urging southerners to rejoin the Union, and Davis could have ordered him arrested and jailed without charges.

Holden declared that “if I could not continue to print as a free man I would not print at all.” Holden then announced that he would oppose Governor Zebulon Vance in the upcoming election, but Vance turned many of Holden’s supporters against him by accusing him of treason.

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References

Faust, Patricia L., Historical Times Illustrated Encyclopedia of the Civil War (New York: Harper & Row, 1986, Patricia L. Faust ed.), p. 331; Foote, Shelby, The Civil War: A Narrative: Volume 2: Fredericksburg to Meridian (Vintage Civil War Library, Knopf Doubleday Publishing Group, Kindle Edition, 2011), p. 950; Fredriksen, John C., Civil War Almanac (New York: Checkmark Books, 2007), p. 394, 398; Long, E.B. with Long, Barbara, The Civil War Day by Day (New York: Da Capo Press, Inc., 1971), p. 460-61, 465; McPherson, James M., Battle Cry of Freedom: The Civil War Era (Oxford History of the United States Book 6, Oxford University Press, Kindle Edition, 1988), p. 435, 692-93, 697-98; White, Howard Ray, Bloodstains, An Epic History of the Politics that Produced and Sustained the American Civil War and the Political Reconstruction that Followed (Southernbooks, Kindle Edition, 2012), Q164

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The Vallandigham Affair Continues

June 11, 1863 – Exiled Copperhead Clement L. Vallandigham was nominated to run for governor of Ohio, and President Abraham Lincoln issued a response to those protesting his abuse of civil liberties.

Former U.S. Congressman Clement L. Vallandigham | Image Credit: CivilWarDailyGazette.com

Lincoln had banished Vallandigham to the South last month after Vallandigham had delivered incendiary speeches condemning the administration’s war policies and encouraging others to oppose the war effort. After Federal authorities escorted Vallandigham to Tennessee, President Jefferson Davis directed Confederate officials to consider the former Ohio congressman an “alien enemy” and send him to Wilmington, North Carolina.

In the North, Vallandigham continued enjoying widespread support for his opposition to the war, as more and more people joined the Copperheads in calling for negotiating a peace with the Confederacy. Delegates to the Ohio Democratic convention nominated Vallandigham for governor, despite his banishment, by a vote of 411 to 11.

Davis wanted nothing to do with Vallandigham, then under guard at Wilmington. He feared that sheltering Vallandigham would discredit the northern peace movement, which the Confederacy actively supported. Davis told Vallandigham to either reject the nomination or leave the South. Vallandigham chose the latter, and in mid-June, Confederates shipped him to Bermuda. He was later sent to Canada, where he ran for governor while in exile.

Meanwhile, protests of Lincoln’s handling of the Vallandigham affair continued. A delegation of New York Democrats led by Erastus Corning had adopted resolutions condemning the military suppression of civil liberties. Lincoln drafted a response and read it to his cabinet before sending it to the New Yorkers. Navy Secretary Gideon Welles remarked, “It has vigor and ability and with some corrections will be a strong paper.” Lincoln sent the letter and had a copy printed in the New York Tribune, titled, “Letter to Erastus Corning, et al.”

Lincoln began by praising the delegation for their “eminently patriotic” vow to uphold the Union and support the administration’s prosecution of the war as long as it remained within constitutional boundaries. While Lincoln conceded that military arrests of civilians would be unconstitutional in peacetime, he noted that the Constitution allowed for the suspension of the writ of habeas corpus “in cases of Rebellion or Invasion,” when “the public Safety may require it.”

The president argued that “public Safety” required the suspension because the country indeed faced a “clear, flagrant, and gigantic” rebellion. According to Lincoln, this “giant rebellion” had stretched into the northern states, where “under cover of ‘liberty of speech,’ ‘liberty of the press,’ and ‘Habeas corpus,’ (the rebels) hoped to keep on foot amongst us a most efficient corps of spies, informers, suppliers, and aiders and abettors of their cause.”

This brought the war to the home front, and this required military intervention because civil courts were “utterly incompetent” to address such subversion. Lincoln explained that being “Thoroughly imbued with a reverence for the guaranteed rights of individuals,” he had been “slow to adopt the strong measures” such as military suppression, and he guessed that a time would come “when I shall be blamed for having made too few arrests rather than too many.”

Lincoln rejected the argument that Vallandigham had been arrested “for no other reason than words addressed to a public meeting.” He wrote that Vallandigham had been arrested “because he was laboring, with some effect, to prevent the raising of troops (and) to encourage desertions… He was damaging the army, upon the existence and vigor of which the life of the nation depends.” The president then posed a rhetorical question to prove his point:

“Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert?… I think that in such a case to silence the agitator and save the boy is not only constitutional, but withal a great mercy.”

Lincoln disagreed with the New Yorkers’ resolution that military suppression during war would lead to limits on personal freedoms in peace. He wrote that he could no more accept this premise “than I am able to believe that a man could contract so strong an appetite for emetics during temporary illness, as to persist in feeding upon them through the remainder of his healthful life.”

Nearly 10 million people ultimately read this letter, which proved vastly popular among Republicans and other champions of the war effort. The Loyal Publication Society printed and distributed 500,000 copies, with many politicians using it for their campaigns.

Lincoln followed up this letter with one to Matthew Birchard, leading delegate to the Ohio Democratic Convention that nominated Vallandigham for governor. This was a response to Birchard and others coming to Washington to protest Vallandigham’s banishment. Lincoln wrote this letter at the urging of Treasury Secretary Salmon P. Chase, a former Ohio governor who was familiar with the state’s politics.

Unlike Lincoln’s first letter, this one was much more scathing. He accused Vallandigham of being responsible “personally, in a greater degree than… any other one man” for desertions, draft evasions, and terrorism against Unionists. Nominating him for governor encouraged “desertion, resistance to the draft and the like.”

Lincoln pledged to revoke Vallandigham’s banishment if each Ohio delegate pledged to “do all he can to have the officers, soldiers, and seamen of the army and navy… paid, fed, clad, and otherwise well provided and supported.” The delegates called such an ultimatum a “sacrifice of their dignity and self-respect,” and refused. Vallandigham’s banishment continued, as did military arrests in the northern states.

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References

Denney, Robert E., The Civil War Years: A Day-by-Day Chronicle (New York: Gramercy Books, 1992 [1998 edition]), p. 290, 294; Donald, David Herbert, Lincoln (Simon & Schuster, Kindle Edition, 2011), Loc 9361-419; Fredriksen, John C., Civil War Almanac (New York: Checkmark Books, 2007), p. 304, 308; Goodwin, Doris Kearns, Team of Rivals: The Political Genius of Abraham Lincoln (New York: Simon and Schuster, 2005), p. 524-25; Historical Times Encyclopedia Of The Civil War (2010, retrieved 6/4/2012); Long, E.B. with Long, Barbara, The Civil War Day by Day (New York: Da Capo Press, Inc., 1971), p. 361, 364-65; McPherson, James M., Battle Cry of Freedom: The Civil War Era (Oxford History of the United States Book 6, Oxford University Press, Kindle Edition, 1988), p. 598; Porter, George Henry, Ohio Politics During the Civil War Period (New York: 1911), p. 167; Stanchak, John E., Historical Times Illustrated Encyclopedia of the Civil War (New York: Harper & Row, 1986, Patricia L. Faust ed.), p. 775; Vallandigham, James L., A Life of Clement L. Vallandigham (Baltimore, MD: Turnbull Brothers, 1872), p. 293-95; White, Howard Ray, Bloodstains, An Epic History of the Politics that Produced and Sustained the American Civil War and the Political Reconstruction that Followed (Southernbooks, Kindle Edition, 2012), Q263

Lincoln Banishes Vallandigham

May 19, 1863 – President Abraham Lincoln directed Secretary of War Edwin M. Stanton to banish former Congressman Clement L. Vallandigham to the South for voicing anti-war views that the administration considered dangerous.

Former U.S. Congressman Clement L. Vallandigham | Image Credit: CivilWarDailyGazette.com

Vallandigham had been an outspoken opponent of Lincoln and the war since the conflict began. He was a prominent leader of the “Peace” Democrats, or “Copperheads,” in Ohio, where he had narrowly lost his congressional seat due to Republicans redrawing his district’s boundaries.

On May 1, Vallandigham delivered a speech to thousands of spectators at a party rally in Mount Vernon. He asserted that peace with the South could be negotiated, but Lincoln and his Republican Party refused to negotiate. This, Vallandigham said, was because they no longer sought to preserve the Union, but rather to free slaves and enslave whites by destroying civil liberties.

Vallandigham declared that the war would end only if soldiers began deserting in droves and the people hurled “King Lincoln from his throne.” He warned pro-war New Englanders that if they continued supporting the conflict, western states might secede and rejoin the South.

Major General Ambrose E. Burnside, commanding the Federal Department of the Ohio, had sent two staff members to listen to Vallandigham’s speech. After receiving their report on what the former congressman said, Burnside directed his aide-de-camp to take a company of Federal soldiers aboard a special train and arrest Vallandigham at his Dayton home.

At 2:30 a.m. on the 5th, the troops broke down Vallandigham’s door and pulled him out of bed amidst the screams of his wife and sister-in-law. The Federals dragged Vallandigham to the waiting railcar, which took him to Burnside’s headquarters at Cincinnati, where he was jailed.

Maj Gen A.E. Burnside | Image Credit: Wikispaces.com

The Federals charged Vallandigham with violating Burnside’s General Order No. 38, issued on April 13. The order stated that “the habit of declaring sympathy for the enemy will not be allowed in this department,” and anyone committing such “treason, expressed or implied,” would be seized and brought before a military tribunal.

Burnside claimed he had the authority to enforce this order based on Lincoln’s suspension of habeas corpus last September, under which anyone expressing “disloyalty” or discouraging support for the war effort could be subject to military trial, regardless of the constitutionally protected freedoms of speech and expression.

A military commission assembled on May 6 and tried Vallandigham for:

“Publicly expressing, in violation of General Orders No. 38, from Head-quarters Department of the Ohio, sympathy for those in arms against the Government of the United States, and declaring disloyal sentiments and opinions, with the object and purpose of weakening the power of the Government in its efforts to suppress an unlawful rebellion.”

According to witnesses’ testimony–

“… he addressed a large meeting of citizens at Mount Vernon, and did utter sentiments in words, or in effect, as follows: declaring the present war ‘a wicked, cruel, and unnecessary war’; ‘a war not being waged for the preservation of the Union’; ‘a war for the purpose of crushing out liberty and creating a despotism’; ‘a war for the freedom of the blacks and the enslavement of the whites’; stating that, ‘if the Administration had so wished, the war could have been honorably terminated months ago’; characterizing the (Burnside’s) military order ‘as a base usurpation of arbitrary authority’; declaring ‘that he was at all times and upon all occasions resolved to do what he could to defeat the attempts now made to build up a monarchy upon the ruins of our free government.’”

Vallandigham refused to enter a plea, arguing that a military tribunal had no authority where civilian courts functioned. The commissioners convicted Vallandigham the next day, but they expressed reluctance to execute him by firing squad. They ultimately recommended sending him to confinement at Fort Warren, Massachusetts, for two years or “during the continuance of the war.” Burnside approved the sentence, declaring that speeches such as Vallandigham’s were “weakening the power of the Government (to put down) an unlawful rebellion.”

Vallandigham’s conviction sparked protests throughout the North. Democrats and even some Republicans expressed outrage that someone could be thrown in prison for simply delivering a speech, and nearly every member of President Lincoln’s cabinet opposed the action. Nevertheless, Lincoln gave Burnside his “kind assurance of support” after learning of Vallandigham’s conviction in a newspaper.

When the Chicago Times backed Vallandigham and attacked the Lincoln administration, Burnside closed the newspaper down. An outraged mob burned the office of the Dayton Journal, the Republican newspaper in Vallandigham’s home town.

The pro-Democrat New York Atlas declared that “the tyranny of military despotism” displayed by Vallandigham’s conviction proved “the weakness, folly, oppression, mismanagement, and general wickedness of the (administration).” The New York Herald feared this was only the first of “a series of fatal steps which must terminate at last in bloody anarchy.”

Another Democrat noted that Vallandigham’s vocal opposition to the war was mild compared to then-Congressman Lincoln’s blistering speech in the House of Representatives condemning President James K. Polk and the Mexican War in 1849. New York Governor Horatio Seymour, a prominent pro-war Democrat whose support the Lincoln administration needed, issued a statement on the incident:

“The transaction involved a series of offenses against our most sacred rights. It interfered with the freedom of speech; it violated our rights to be secure in our homes against unreasonable searches and seizures; it pronounced sentence without a trial, save one which was a mockery, which insulted as well as wronged. The perpetrators now seek to impose punishment, not for an offense against law, but for a disregard of an invalid order, put forth in utter violation of the principles of civil liberty.

“If this proceeding is approved by the Government and sanctioned by the people, it is not merely a step toward revolution, it is revolution; it will not only lead to military despotism, it establishes military despotism. If it is upheld, our liberties are overthrown. The safety of our persons, the security of our property, will hereafter depend upon the arbitrary wills of such military rulers as may be placed over us, while our constitutional guarantees will be broken down. Even now the Governors and the courts of some of the great Western States have sunk into insignificance before the despotic powers claimed and exercised by military men who have been sent into their borders.”

Losing Seymour seriously jeopardized the administration’s hopes for a political alliance between Republicans and War Democrats.

On the 16th, a protest meeting took place in Albany, New York, headed by New York Central Railroad President Erastus Corning. The attendees consisted mostly of state Democrats supportive of Governor Seymour, and they adopted resolutions calling Vallandigham’s conviction a “blow… against the spirit of our laws and Constitution,” and the end of “the liberty of speech and of the press, the right of trial by jury, the law of evidence, and the privilege of habeas corpus.” The resolutions stated that upholding the conviction would be “a fatal blow at the supremacy of law, and the authority of the State and Federal Constitutions.”

Vallandigham’s arrest and conviction raised serious questions about whether a civilian could be seized by military force for giving a speech, and whether a military court could override a civilian court by trying and convicting said civilian. Former Senator George H. Pugh of Ohio applied for a writ of habeas corpus on Vallandigham’s behalf, but Judge Humphrey H. Leavitt of the U.S. Circuit Court for the Southern District of Ohio denied it. Citing the law passed by Congress on March 3 authorizing the president to suspend habeas corpus, Leavitt ruled that the president’s war powers included arresting Vallandigham for incendiary speech and subjecting him to military trial.

Lincoln recognized the political problem of such a harsh punishment, and so he sought a compromise by publicly supporting Vallandigham’s arrest but commuting his sentence. Lincoln ordered the former congressman banished to the Confederacy, and he also directed Secretary of War Stanton to reopen the Chicago Times. Federal cavalry soon escorted Vallandigham to Tennessee and handed him over to Confederate officials, who were reluctant to take him.

Meanwhile, protests continued throughout the month. Petitions condemning the “arbitrary arrest, illegal trial, and inhuman imprisonment of Hon. C.L. Vallandigham” circulated in Ohio. New Jersey Governor Joel Parker told an audience in Newark that the conviction and deportation “were arbitrary and illegal acts. The whole proceeding was wrong in principle and dangerous in its tendency.” Indiana Governor Oliver P. Morton, a Republican and Lincoln ally, alleged that the president’s actions emboldened Copperheads in his state. Despite such mass indignation, Lincoln refused Burnside’s offer to resign.

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References

Davis, Jefferson, The Rise and Fall of the Confederate Government: All Volumes (Heraklion Press, Kindle Edition 2013, 1889), Loc 19965-76, 19978-86; Denney, Robert E., The Civil War Years: A Day-by-Day Chronicle (New York: Gramercy Books, 1992 [1998 edition]), p. 281-82, 286, 289; Donald, David Herbert, Lincoln (Simon & Schuster, Kindle Edition, 2011), Loc 8898, 8921-31, 9361; Foote, Shelby, The Civil War: A Narrative: Volume 2: Fredericksburg to Meridian (Vintage Civil War Library, Knopf Doubleday Publishing Group, Kindle Edition, 2011), p. 632-33; Fredriksen, John C., Civil War Almanac (New York: Checkmark Books, 2007), p. 288, 292, 299, 301, 303; Goodwin, Doris Kearns, Team of Rivals: The Political Genius of Abraham Lincoln (New York: Simon and Schuster, 2005), p. 522-24; Lincoln, Abraham, Abraham Lincoln Complete Works, Vol. Two (New York, NY: The Century Co., 1920), edited by John G. Nicolay and John Hay, p. 239; Long, E.B. with Long, Barbara, The Civil War Day by Day (New York: Da Capo Press, Inc., 1971), p. 349, 353-55, 357-60; McPherson, James M., Battle Cry of Freedom: The Civil War Era (Oxford History of the United States Book 6, Oxford University Press, Kindle Edition, 1988), p. 596-97; Pittman, Benn, The Trials for Treason at Indianapolis, Disclosing the Plans for Establishing a North-Western Confederacy (Cincinnati, OH: Moore, Wilstach & Baldwin, 1865), p. 253; Stanchak, John E., Historical Times Illustrated Encyclopedia of the Civil War (New York: Harper & Row, 1986, Patricia L. Faust ed.), p. 775; Vallandigham, Clement Laird, The Trial Hon. Clement L. Vallandigham by a Military Commission: and the Proceedings Under His Application for a Writ of Habeas Corpus in the Circuit Court of the United States for the Southern District of Ohio (Cincinnati, OH: Rickey and Carroll, 1863), p. 11, 23, 33-34, 40, 259-72; Vallandigham, James L., A Life of Clement L. Vallandigham (Baltimore, MD: Turnbull Brothers, 1872), p. 288-93; “Vallandigham Meeting in Newark,” The New York Times, 31 May 1863; Ward, Geoffrey C., Burns, Ric, Burns, Ken, The Civil War (New York: Alfred A. Knopf, 1990), p. 188-89; White, Howard Ray, Bloodstains, An Epic History of the Politics that Produced and Sustained the American Civil War and the Political Reconstruction that Followed (Southernbooks, Kindle Edition, 2012), Q263

Final Legislation of the 37th U.S. Congress

March 3, 1863 – President Abraham Lincoln reviewed several bills and signed many into law as the lame-duck session of the Thirty-seventh U.S. Congress ended.

U.S. Capitol Building under construction | Image Credit: Wikimedia.org

A measure was approved authorizing the president to appoint four major generals and nine brigadiers for the Regular Army, as well as 40 major generals and 200 brigadiers for the volunteer army. Thirty-three ranking Federal officers were dismissed from the military for various offenses. Other military measures included:

  • Authorizing the Medal of Honor for army soldiers; previously the Medal was only awarded to navy personnel
  • Appointing financier Jay Cooke to lead the effort to sell war bonds

Lincoln vetoed a bill authorizing letters of marque against ships transporting goods to or from the Confederacy. Senator Charles Sumner, chairman of the Foreign Relations Committee, opposed this measure because allowing Federal privateers (i.e., “rovers of the sea”) to confront neutral ships suspected of working with the Confederacy would “involve us with the great neutral powers of the world.” Sumner also resented that Secretary of State William H. Seward, who supported this bill, bypassed Sumner to push it through Congress. Lincoln sided with Sumner in vetoing the measure.

Lincoln approved the following finance-related measures:

  • Establishing the means to prevent and punish revenue fraud
  • Authorizing the Treasury Department to collect all cotton, tobacco, rice, and sugar captured by Federal forces in Confederate states
  • Loaning the Federal government $300 million this year and $600 million next year
  • Replacing postage stamp currency with $50 million in greenbacks

General legislation approved by Lincoln included:

  • Increasing the number of Supreme Court justices to 10
  • Establishing the Idaho Territory (present-day Idaho and parts of Montana and Wyoming, taken from parts of the Washington and Dakota territories)
  • Establishing the National Academy of Sciences

Under the Habeas Corpus Act, Congress sanctioned Lincoln’s suspension of the writ of habeas corpus in September by authorizing, “That during the present rebellion, the President of the United States, whenever in his judgment the public safety may require it, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United States, or any part thereof.”

This retroactive congressional approval shifted the power over suspending the writ from Congress to the president. It also overrode the ruling by U.S. Chief Justice Roger B. Taney in Ex Parte Merryman (1861), which declared that the Constitution only empowered Congress, not the president, to suspend habeas corpus.

The act also canceled state court rulings by exempting Federal military officers from being sued for violating civil liberties: “It shall then be the duty of the State court to accept the surety (of the Federal court ruling on the matter) and proceed no further in the cause or prosecution, and the bail that shall have been originally taken shall be discharged.” To balance this provision, Federal officers were required to report all arrests made to the Federal judges presiding over the jurisdiction. Nevertheless, this led to a large increase in military arrests in the northern states.

This law drew intense opposition from the minority Democrats. Senator Willard Saulsbury of Delaware delivered a scathing (and possibly drunken) speech on the Senate floor in which he called Lincoln “an imbecile” who was “the weakest man ever placed in a high office.” Vice President Hannibal Hamlin, presiding over the Senate, called upon the sergeant-at-arms to subdue Saulsbury when he refused to yield; Saulsbury threatened the officer to “shoot you dead.”

Most Democrats in Congress, especially the Peace Democrats or “Copperheads,” vigorously opposed all these measures enacted by the Republican majority. War Democrats argued that the war-related measures went beyond merely defeating the Confederacy by violating civil liberties, inflating the size of the Supreme Court (thus assuring a Republican majority on the bench), and nationalizing institutions such as banking.

Some Democrats hid in cloakrooms to prevent a quorum when voting on key measures, others added outrageous amendments to bills, and some senators filibustered as long as they could to prevent voting. However, every Republican-driven piece of legislation ultimately passed by the time Congress adjourned on the 4th.

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References

Davis, Jefferson, The Rise and Fall of the Confederate Government: All Volumes (Heraklion Press, Kindle Edition 2013, 1889), Loc 17608-17, 19712-29; Faust, Patricia L., Historical Times Illustrated Encyclopedia of the Civil War (New York: Harper & Row, 1986, Patricia L. Faust ed.), p. 331; Fredriksen, John C., Civil War Almanac (New York: Checkmark Books, 2007), p. 267; Goodwin, Doris Kearns, Team of Rivals: The Political Genius of Abraham Lincoln (New York: Simon and Schuster, 2005), p. 503-04; Long, E.B. with Long, Barbara, The Civil War Day by Day (New York: Da Capo Press, Inc., 1971), p. 325; Sylvia, Stephen W., Historical Times Illustrated Encyclopedia of the Civil War (New York: Harper & Row, 1986, Patricia L. Faust ed.), p. 484; Ward, Geoffrey C., Burns, Ric, Burns, Ken, The Civil War (New York: Alfred A. Knopf, 1990), p. 61; White, Howard Ray, Bloodstains, An Epic History of the Politics that Produced and Sustained the American Civil War and the Political Reconstruction that Followed (Southernbooks, Kindle Edition, 2012), Q163

President Lincoln’s 1862 Message to Congress

December 1, 1862 – The second session of the lame duck Thirty-seventh U.S. Congress assembled at Washington and received President Abraham Lincoln’s annual message.

U.S. Capitol Building under construction | Image Credit: Wikimedia.org

By this month, many northerners had condemned Lincoln’s Emancipation Proclamation. Democratic victories in the midterm elections, opposition to the war effort, and temperamental military commanders added to the president’s problems.

Democrats in Congress quickly condemned the Lincoln administration for violating civil liberties, especially the suspension of habeas corpus in September. Congressman S.S. Cox of Ohio introduced a resolution on the first day of the new session calling for the immediate release of all political prisoners and declaring that their imprisonment had been “unwarranted by the Constitution and the laws of the United States, and… a usurpation of power never given up by the people to their rulers.”

President Abraham Lincoln | Image Credit: Wikimedia.org

In his message, Lincoln reported that foreign relations were satisfactory, adding a statement provided by Secretary of State William H. Seward: “If the condition of our relations with other nations is less gratifying than it has usually been at former periods, it is certainly more satisfactory than a nation so unhappily distracted as we are, might reasonably have anticipated.”

Commerce was adequate, and Federal receipts exceeded expenditures. Lincoln urged Congress to give “most diligent consideration” to the nation’s finances. According to Treasury Secretary Salmon P. Chase, there should be “a return to specie payments… at the earliest period compatible with due regard for all interests concerned,” and Congress should authorize the creation of a national banking system.

Lincoln also noted the Post Office’s “much improved” efficiency, the Interior Department’s successful suppression of the Sioux uprising, and the perceived benefits of having a new Department of Agriculture, which Congress recently created as a bureau within the executive branch. Lincoln also reported that the Navy Department now consisted of an unprecedented 427 warships, with 1,577 guns and a total capacity of 240,028 tons.

He avoided mentioning the politically volatile Emancipation Proclamation, instead reiterating support for his original plan of compensating slaveholders for gradually, voluntarily freeing their slaves. To that end, Lincoln proposed three constitutional amendments that would supersede his constitutionally dubious emancipation decree:

  • States abolishing slavery prior to 1900 would receive Federal subsidies
  • Slaves gaining freedom during the war would remain free, and if those slaves belonged to slaveholders loyal to the Union, those slaveholders would be compensated for their loss
  • Congress would provide for the colonization of free blacks outside the U.S. with their consent

These amendments were intended to prevent “vagrant destitution” that would result in the immediate liberation of all slaves.

Lincoln concluded:

“As our case is new, so we must think anew, and act anew. We must disenthrall ourselves, and then we shall save our country. Fellow-citizens, we cannot escape history. We of this Congress and this administration, will be remembered in spite of ourselves. No personal significance, or insignificance, can spare one or another of us. The fiery trial through which we pass, will light us down, in honor or dishonor, to the latest generation. In giving freedom to the slave, we assure freedom to the free–honorable alike in what we give, and what we preserve. We shall nobly save, or meanly lose, the last best, hope of earth.”

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References

Denney, Robert E., The Civil War Years: A Day-by-Day Chronicle (New York: Gramercy Books, 1992 [1998 edition]), p. 237; Donald, David Herbert, Lincoln (Simon & Schuster, Kindle Edition, 2011), Loc 8366-99, 8810; Foote, Shelby, The Civil War: A Narrative: Volume 2: Fredericksburg to Meridian (Vintage Civil War Library, Knopf Doubleday Publishing Group, Kindle Edition, 2011), p. 120; Fredriksen, John C., Civil War Almanac (New York: Checkmark Books, 2007), p. 234; Goodwin, Doris Kearns, Team of Rivals: The Political Genius of Abraham Lincoln (New York: Simon and Schuster, 2005), p. 501; Long, E.B. with Long, Barbara, The Civil War Day by Day (New York Da Capo Press, Inc., 1971), p. 292; White, Howard Ray, Bloodstains, An Epic History of the Politics that Produced and Sustained the American Civil War and the Political Reconstruction that Followed (Southernbooks, Kindle Edition, 2012), Q462

The Suspension of Habeas Corpus

September 24, 1862 – After issuing an order freeing all slaves in the Confederate states, President Abraham Lincoln issued a second order curtailing freedoms in the northern states.

President Abraham Lincoln | Image Credit: Wikimedia.org

On the same day that the Emancipation Proclamation was published, Lincoln issued an edict declaring that “all Rebels and Insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting military drafts, or guilty of any disloyal practice affording aid and comfort to the rebels against the authority of the United States, shall be subject to martial law, and liable to trial and punishment by courts-martial or military commission.” This order also suspended the writ of habeas corpus for those suspected of perpetrating such activities.

Lincoln issued this directive in conjunction with the provisions of the Militia Act, which gave the War Department arbitrary (and some argued unconstitutional) powers to arrest and imprison anyone suspected of interfering with the military draft. Secretary of War Edwin M. Stanton had caused an uproar by ordering the arrest of hundreds of citizens, especially in traditionally Democratic districts of Pennsylvania, Ohio, Indiana, and Wisconsin.

In addition to this order, the new position of provost marshal general was created within the War Department. This person was to work with the provost marshals within the states:

“To arrest all deserters, whether regulars, volunteers, or militia, and send them to the nearest military commander or military post, where they can be cared for and sent to their respective regiments; to arrest, upon the warrant of the Judge Advocate, all disloyal persons subject to arrest under the orders of the War Department; to inquire into and report treasonable practices, seize stolen or embezzled property of the Government, detect spies of the enemy, and perform such other duties as may be enjoined on them by the War Department.”

The provost marshals were authorized to force citizens into helping them do their jobs, and military commissions were established to try those arrested for such infractions, regardless of whether civil courts functioned in those states. This threatened to place the North under military rule. Hundreds of people were arrested, including five newspaper editors, three judges, and several politicians.

This order served to silence dissent against not only the Emancipation Proclamation, but the war and even the Lincoln administration as well. Many expressed outrage that this order was issued alongside the order freeing slaves, believing that white rights were being curtailed while black rights were being expanded. In addition, many feared the ramifications of allowing the Federal government to infringe so heavily upon constitutional liberties.

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References

CivilWarDailyGazette.com; Davis, Jefferson, The Rise and Fall of the Confederate Government: All Volumes (Heraklion Press, Kindle Edition 2013, 1889), Loc 19866-82; Donald, David Herbert, Lincoln (Simon & Schuster, Kindle Edition, 2011), Loc 8027; Fredriksen, John C., Civil War Almanac (New York: Checkmark Books, 2007), p. 215; Long, E.B. with Long, Barbara, The Civil War Day by Day (New York: Da Capo Press, Inc., 1971), p. 270-71; McPherson, James M., Battle Cry of Freedom: The Civil War Era (Oxford History of the United States Book 6, Oxford University Press, Kindle Edition, 1988), p. 493; White, Howard Ray, Bloodstains, An Epic History of the Politics that Produced and Sustained the American Civil War and the Political Reconstruction that Followed (Southernbooks, Kindle Edition, 2012), Q362

Ex Parte Merryman

May 25, 1861 – Pennsylvania militia seized John Merryman at his Maryland home for suspected secessionist activity. This provoked a controversial legal dispute between the president and the U.S. chief justice.

At 2 a.m., forces led by Samuel Yoke surrounded the Cockeysville home of Merryman, a Baltimore County farmer and leader of a secessionist drill company. Merryman’s company had allegedly sabotaged bridges, railroad tracks, and telegraph lines during the April unrest in Maryland.

The militia hauled Merryman out of bed and took him to Brigadier General George Cadwalader, commanding the Department of Annapolis. Cadwalader ordered Merryman imprisoned at Fort McHenry in Baltimore Harbor. Merryman, arrested by a force outside his home state without either a warrant or official charge against him, became a political prisoner.

Roger B. Taney in 1849 | Image Credit: Wikimedia.org

Roger B. Taney in 1849 | Image Credit: Wikimedia.org

The next day, Merryman’s attorney petitioned the Federal circuit court in Baltimore for a writ of habeas corpus for his client. U.S. Supreme Court Chief Justice Roger B. Taney, a Marylander and the court’s senior judge, granted the writ by ordering General Cadwalader to either deliver Merryman to district court tomorrow to show just cause for his arrest or release him.

When a Federal marshal delivered the writ to Fort McHenry on the 27th, General Cadwalader refused to accept it. Citing President Abraham Lincoln’s suspension of habeas corpus on April 27, Cadwalader declared that he recognized no authority except for that of his commander-in-chief. Upon the marshal’s return, Taney issued a legal opinion:

“I ordered the attachment yesterday, because upon the face of the return the detention of the prisoner was unlawful upon two grounds: 1) The President, under the Constitution and laws of the United States, can not suspend the privilege of the writ of habeas corpus, nor authorize any military officer to do so. 2) A military officer has no right to arrest and detain a person not subject to the rules and articles of war for an offense against the laws of the United States, except in aid of the judicial authority and subject to its control; and, if the party is arrested by the military, it is the duty of the officer to deliver him over immediately to the civil authority, to be dealt with according to law.”

Taney issued his ruling “ex parte” since the administration refused to bring Merryman to court. He asserted that suspending habeas corpus, as defined in Article I, Section 9 of the U.S. Constitution, could only be done by Congress, not the president. Taney also reminded Lincoln of his duty to “take care that the laws be faithfully executed,” and if civil liberties continued to be disregarded, “the people of the United States are no longer living under a government of laws.”

The circuit court held Cadwalader in contempt for refusing to obey the writ, but he was not punished for violating Merryman’s civil liberties, and Merryman remained imprisoned. This was one of many cases in which the Lincoln administration violated the personal freedoms in the name of putting down the rebellion.

The next day, Attorney General Edward Bates issued a 26-page legal opinion on Merryman’s arrest, upholding Lincoln’s decision to suspend the writ of habeas corpus and mandate Merryman’s incarceration at Fort McHenry. Bates asserted that in case of national emergency, the president had the power to suspend the writ as the public safety required.

According to Bates, “in a time like the present, when the very existence of the Nation is assailed, by a great and dangerous insurrection, the President has the lawful discretionary power to arrest and hold in custody, persons known to have criminal intercourse with the insurgents.” However, Bates did not elaborate on how the Confederacy assailed the U.S. other than merely trying to break away. Most northerners agreed with Bates, contending that suspending habeas corpus was an emergency power to be used in times of rebellion, and only the president could act quickly enough to meet the emergency, especially since Congress (at Lincoln’s behest) would not convene until July 4.

Lincoln issued an order to General Cadwalader at Fort McHenry, written by Assistant Adjutant-General E.D. Townsend: “In returns to writs of habeas corpus by whomsoever issued you will most respectfully decline for the time to produce the prisoners, but will say that when the present unhappy difficulties are at an end you will duly respond to the writs in question.” Thus, the administration essentially ignored Taney’s ruling.

Civil liberties continued to be violated, and Merryman remained imprisoned for seven weeks. He was indicted in Federal circuit court, but his case never went to trial because administration officials doubted that a Maryland jury would convict him.

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Sources

Davis, Jefferson, The Rise and Fall of the Confederate Government: All Volumes (Heraklion Press, Kindle Edition 2013, 1889), Loc 19367-74; Donald, David Herbert, Lincoln (Simon & Schuster, Kindle Edition, 2011), Loc 6271; Fredriksen, John C., Civil War Almanac (New York: Checkmark Books, 2007), p. 33-34; Goodwin, Doris Kearns, Team of Rivals: The Political Genius of Abraham Lincoln (New York: Simon and Schuster, 2005), p. 355; Long, E.B. with Long, Barbara, The Civil War Day by Day (New York: Da Capo Press, Inc., 1971), p. 79; McPherson, James M., Battle Cry of Freedom: The Civil War Era (Oxford History of the United States Book 6, Oxford University Press, Kindle Edition, 1988), p. 287-88; Wert, Jeffry D., Historical Times Illustrated Encyclopedia of the Civil War (New York: Harper & Row, 1986, Patricia L. Faust ed.), p. 529; White, Howard Ray, Bloodstains, An Epic History of the Politics that Produced and Sustained the American Civil War and the Political Reconstruction that Followed (Southernbooks, Kindle Edition, 2012), Q261