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The Story of Civil Liberty in the United States

by Leon Whipple (more about this book and author)

Chapter 4: Civil Liberty and Civil War (1860-1865)
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Subsection Links:

FOR civil liberty the Civil War (1861–1865) meant three things. First, it consummated the claim of one phase of the “tyranny of the majority,” namely that a minority is not free to withdraw and set up a new state. Second, it proved again that war suspends constitutional guarantees. Third, it left the United States a legacy of violence and of weakened constitutional ideals.

The first is most important for liberty as an historic process. The majority of States in population and power finally asserted their rule over the rest—forbidding in effect any section from splitting off to install a new state guarantee in order to secure for itself some special liberty. The liberties the South wanted were: first, to own slaves, and second, to assert the opposite of tyranny by the majority of states, namely, tyranny by individual states under the principle of “states' rights.” With the defeat of this second principle the Union established a “geographical tyranny” of the majority. A few years later the Mormons attempted to detach from the Union the Territory of Utah to create the polygamous state of Deseret. But the Union held Utah, and the Mormons have been denied liberty to practice polygamy.

In these cases the power of the majority achieved what are considered to be good ends. It freed the slaves and ended polygamy. But at the same time it created the machinery for crushing other minorities, which may not represent socially undesirable purposes. Now minorities must make their fight for existence inside the Union. They cannot set up independent states in which to function. Their liberty must be won at home, by education, not by migration. Outside,
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the earth is so occupied that no group can find room, as did the pioneering Puritans, to create a new state in which to establish their own freedom. This is the chief reason why a larger conception of evolutionary political liberty is now a supreme need.

As the Civil War blotted out the claims of geographical sections, it tended also to extend the majority's power in every direction, vertical as well as horizontal. It did away, at least in concept, with any undemocratic status like master and slave. The people were the only master. Everybody must belong to “the people,” or the majority rule will not work. So they took the Negro from his owner and turned him over to a new master, the mob, to whom he was not only of no value, but was a rival to be persecuted as a “nigger” or “a scab.”

The chief lesson of the Civil War from the standpoint of civil liberty is that “the people” (and their government) will control all sections or factions on any issue they think is vital to the democratic state. They will not allow any fractional liberty. The entire Civil War is evidence of that concept, regardless of whether the coerced minority was right or wrong.

The second lesson concerns civil liberty in the North and South. What happened to it under the impact of war is significant. In both sections there were minorities opposed to the entire war, and claiming the legal right to their dissent.

The facts in the North afford a peculiar test of civil liberty principles. The anti-slavery majority had just grown from an oppressed minority whose persecution was too recent to be forgotten. Now this majority is itself faced with a dissenting political group opposed to the war. Do they recall the old struggles? Do they protect this new minority? They do not! They pursue no abstractions. They follow the ancient rule—who has power has liberty—and put the dissenter in jail.

In the South there was less oppression because there was
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less liberty and fewer dissenters. The constitutions of the Confederacy and of its states contained bills of rights on the old forms. But since the military power arose before the civil, there was no strength in the civil government. The urgency of defense was advanced as excuse for whatever the military did. In reality there was no law but military law. Jefferson Davis suspended the privilege of the writ of habeas corpus just as Lincoln did. The South showed the same invasions of civil rights as the North—by conscription, espionage, military rule and wholesale illegal arrests.

The political mind of the South was united for self-preservation and so did not resent military power. Opposition was negligible, compared with conditions in the North. Under the terrible pressure of Southern sentiment, none dared invoke constitutional forms that depended for their meaning entirely upon the success of the armies. No study of civil liberty in the South has significance except the cases of the Southern conscientious objectors to war.

We do not discuss here the intersectional problems of prisoners and the like that arose under the commonly accepted laws of war. Nor where the military power was in force have its decisions been questioned. They are noted only when they usurp the civil power.

There were of course extraordinary conditions in this war which have been urged in justification for the invasions of liberty in the North. First, it was a civil war,—the enemy was the same race and lived on the border of the loyal population. It was often difficult to distinguish the disloyal, so that measures intended to restrain the disaffected, were not infrequently invoked against the innocent whose acts might look disloyal. The long border between the states was a zone where allegiance was dubious and shifting. The instability of Maryland, the invasion of Pennsylvania, the constant threat of capture of Washington, demanded emergency measures which could not be particular about civil rights. The wide area involved, and the shifting operations made the theater of war hard to define and difficult to police.
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Second, it was the first nation-wide war in which the morale of the whole people became a prime concern. New dangers arose in directions hitherto regarded as outside the theater of war;—from espionage, political and religious opposition to the war, resistance to conscription and from enforced labor. Fewer enlistments, curtailed production and a lowered morale meant defeat. How could such obstacles be overcome?

The practical answer was by force,—by replacing civil processes with military rule. Ordinarily martial law could not replace civil government until the courts were actually closed. But in the Civil War military rule extended into regions not invaded or remotely threatened. Men far up in New York State were arrested on executive order from Washington; a newspaper in Chicago was suppressed by a telegram from the commanding general. The civil courts were functioning and oddly enough their only danger was from the armies which were presumably defending them.

From the Civil War on we must recognize the extension of the field of war to the entire nation. Munitions are as important as the men on the firing-line; industry must be guarded against strikes and lowered production; the press must stimulate the war ardor. Political opposition, tolerated in time of peace, now becomes dangerous. People must be protected from opposition arguments, even if they lend no aid or comfort to the enemy. How such forces shall be checked becomes of great importance. President Lincoln, as head of both military and civil arms of the government, decided to use what he felt the necessities of any case demanded. Let us turn to his record.

DOES WAR SUSPEND THE CONSTITUTION?

Does war suspend the Constitution? Is the maxim inter armis leges silent always true? President Lincoln, his cabinet, his generals, and even Congress all answered yes. Here is what Lincoln said of his policy:
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April 4, 1864.

… My oath to preserve the Constitution imposed on me the duty of preserving by every indispensable means that government, that nation, of ‘which the Constitution was the organic law. Was it possible to lose the nation, and yet preserve the Constitution? By general law, life and limb must be protected, yet often a limb must be amputated to save a life, but a life is never wisely given to save a limb. I felt that measures otherwise unconstitutional, might become lawful by becoming indispensable to the preservation of the Constitution through the preservation of the nation. Right or wrong I assumed this ground and I now avow it. I could not feel that to the best of my ability I had even tried to save the Constitution, if to save slavery, or any minor matter, I should permit the wreck of the government, country, and Constitution, together.1

This is a classic statement of the old doctrine of necessity when power always justifies restrictions on liberty. Mr. Lincoln frankly admitted that the Constitution was suspended. James Bryce reached the same conclusion:

The executive and majority in Congress found themselves obliged to stretch this war power to cover many acts trenching on the ordinary rights of the States and individuals, till there ensued something approaching a suspension of constitutional guarantees in favour of the Federal government…. Only a few of these cases came before the courts, and the courts, in some instances disapproved them. Appeals made to the letter of the Constitution by the minority were discredited by the fact that they were made by persons sympathizing with the secessionists who were seeking to destroy it. So many extreme things were done under pressure of necessity, that something less came to be regarded as a reasonable and moderate compromise.

In theory war cannot suspend the Constitution. No word occurs in the Constitution authorizing its suspension—in war
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or peace—(save the clause on the suspension of habeas corpus). Nor apparently did its framers anticipate that it would at any time be suspended. The English Constitution had been enforced in war-time. The state constitutions made no mention of suspension,—ever. Delaware expressly prohibited it. “No power of suspending laws shall be exercised but by the legislature.”

In fact, however, a serious war always suspends parts of the Constitution. The Revolution suspended the State guarantees for Tory and Quaker; the mere threat of war served as an excuse for the Alien and Sedition Acts; in the War of 1812, Jackson had proceeded on the thesis that in an emergency military power is above the civil. The Dorr War had proven the case in Rhode Island.

MR. LINCOLN SUSPENDS THE WRIT OF HABEAS CORPUS

April 27, 1861, scarcely a week after the fall of Sumter, President Lincoln authorized General Winfield Scott, if he found resistance that rendered it necessary, to suspend the writ of habeas corpus between Philadelphia and Washington, personally or through any officer in command. His purpose was to control border conditions, especially in Maryland, which daily threatened to go over to the South. Similar suspension was ordered on July 2, as far north as New York.

According to the Constitution the privilege of the writ is to be suspended only “in cases of rebellion or invasion when public safety requires it.” Mr. Lincoln's order was widely disapproved on two grounds: first, by suspending the privilege himself he had usurped the powers of Congress; second, he suspended it in areas where the courts were functioning and no public danger of rebellion or invasion existed.2 He was forced to defend himself in a message on July 4:—

It is believed that nothing has been done beyond the constitutional competency of Congress…. This authority has purposely been exercised very sparingly…. It is insisted that Congress … is vested with this
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power. But the Constitution itself is silent … and as the provision was plainly made for a dangerous emergency, it cannot be believed that the framers intended that in every case the danger should run its course until Congress should be called together, the very assembling of which might be prevented, as was intended in this case, by the rebellion.3

By February 14, 1862, the President, reassured that “the facilities for treasonable practices had diminished” and “anxious to favor a return to the normal course of Administration” directed that all political prisoners, or prisoners held in military custody, be released on a parole to render no aid or comfort to the enemy. Complete amnesty was granted for past offenses, and in the future extraordinary arrests were to be made by the military authorities alone.4 A board of one military and one civil commissioner was appointed to determine whether military prisoners should be held, discharged, or remitted to the civil tribunals for trial. In November the Secretary of War ordered the release of all draft resisters and other war offenders in states where the draft quotas had been filled. He freed all prisoners from rebel States on parole, with permission to leave the North, not to return during the war.5 The efforts of the joint-commission seem to have been half-hearted.

In spite of this generous house-cleaning President Lincoln, averring that “disloyal persons are not adequately restrained by the ordinary processes of law,” ordered a general suspension of the writ of habeas corpus on September 24, 1862:

During the existing insurrection … all rebels and insurgents, their aiders and abetters, within the United States, and all persons discouraging voluntary enlistments, resisting military drafts, or guilty of any disloyal practices … shall be subject to martial law and liable to trials and punishments by courts-martial or military commission;

Second, that the writ of habeas corpus is suspended in
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respect to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fort, camp, arsenal, military prison, or other place of confinement, by any military authority, or by the sentence of any court-martial or military commission.6

Thereafter the civil authority was subordinate to the military, and every person guilty of the vague crime of “any disloyal practice” was subject to martial law. The controversy over it became bitter. In the Congressional elections of 1862 Mr. Lincoln suffered a distinct rebuke, in part attributable to his subversion of civil rights. It became necessary to back up the President by an “Indemnifying Act,” which passed both houses in spite of a vigorous protest. It became a law, March 3, 1863. It reads in part:

Be it enacted, … that during the present rebellion, the President … 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. And whenever and where-ever the said privilege shall be suspended … no military or other officer shall be compelled … to return the body of any person detained by him by authority of the President; but upon certificate, under oath … that such person is detained by him as a prisoner under authority of the President, further proceedings under the writ … shall be suspended by the judge or court, so long as said suspension shall remain in force….

Section 4…. That any order of the President, or under his authority, made at any time during the present rebellion, shall be a defence in all courts to any action, civil or criminal, pending or to be commenced, for any search, seizure, arrest, or imprisonment, made, done, or committed, or acts omitted to be done, under and by virtue of such orders, or under color of any law of Congress, and such defence may be made by special plea, or under the general issue.

Section 2 required the Secretaries of State and of War to furnish to judges of United States circuit and district
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courts lists of all citizens of states in which the administration of law remained unimpaired, who were held as “state or political prisoners”; and if after such lists had been furnished, no grand jury had indicted such persons, they were to be brought before the judge to be discharged; provided that the detained person take the oath of allegiance, and swear not to aid the rebellion, and that the judge might require bond to keep the peace if he deemed the public safety required it. Sections 5 and 6 provided that actions against officers might be transferred from the State Courts to the United States Courts; and must be commenced within two years.7

Under this act the President on September 15, 1863 confirmed his previous suspension in modified form for the duration of the rebellion. The writ could not issue against military, naval, or civil officers who under the President's command held

Prisoners of war, spies, aiders and abettors of the enemy … or those for resisting the draft, or for any other offense against the military or naval service.

The President's power was limited only by interpretations of the vague terms “aiders and abettors of the enemy” and “any other offence against the military or naval service.”

THOUSANDS OF POLITICAL PRISONERS

Under this authority from 1861 to the end of the War arrests continued. They constitute the largest record of official interferences with civil rights in the history of the United States. The total number is astounding, though exact figures are difficult to give because the records confuse State and Federal prisoners, political and military spies and draftresisters. The evidence shows that they ran well into the thousands.

The records of the provost-marshal's office in Washington show 38,000 military prisoners (political prisoners) reported there during the rebellion.8
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The records of the commissary-general of prisoners from February, 1862 to the close of the war contains the names of 13,535 citizens who were arrested and confined in various military prisons…. Many cases do not show the charge on which arrests were made. There were also many imprisonments by military authorities in State prisons…. The assistant provost-marshal of Illinois reports, exclusive of deserters, 443 arrests from the organization of his office to May, 1865…. No lists of “state or political prisoners” were furnished to the Judges (by the Indemnifying Act) as far as I have been able to ascertain; and in truth the relish for autocratic government had so developed that in September of that year Chase was surprised that the provisions of the act were unfamiliar to the President and all the members of the Cabinet except himself.9

The Official Records of the War of the Rebellion, series 2, volume II, documents hundreds of cases in its 1,557 pages, with sixty pages of summaries added from the Record Book of the State Department. In The American Bastile, John A. Marshall details some one hundred and fifty cases of alleged illegal arrest and imprisonment.

Three statements on these arrests and imprisonments are of interest. Marshall contrasts our previous history with the Civil War cases. He says:

From the organization of the government to the Administration of the late President Lincoln, we know of no case in which an American citizen was arrested without warrant, imprisoned without charges preferred, and released after months and years of incarceration, without trial … although there was not only imaginary, but real “disloyalty” among citizens, dangerous to the common interests of the government, during former administrations.10

Rhodes in his history says:

While I have not lighted upon an instance in which the President himself directed an arrest, he permitted
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them all; he stands responsible for casting into prison citizens of the United States on orders as arbitrary as the Lettres-de-cachet of Louis XIV.11

James Bryce writes:

Abraham Lincoln wielded more authority than any Englishman has done since Oliver Cromwell. It is true that the ordinary law was for some purposes practically suspended during the War of Secession.12

THE ARMY DEFIES THE SUPREME COURT

John Merryman of Baltimore County, Maryland, was arrested May 25, 1861, under the original suspension of the writ, charged with various acts of treason and lodged at Fort McHenry under Gen. George Cadwalader. Merryman petitioned Chief Justice Roger B. Taney of the United States Supreme Court for a writ of habeas corpus, which was issued returnable May 27. Gen. Cadwalader refused to respond, alleging that he was duly authorized by the President to suspend the writ. The Chief Justice next issued a writ for the United States Marshal to produce the body of Gen. Cadwalader in court “to answer for his contempt.” The marshal reported that he was not permitted to enter the fort, and was informed “there was no answer to his writ.”

Justice Taney then delivered an opinion that the imprisonment was unlawful upon two grounds:

  1. The President, under the Constitution and laws of the United States, cannot suspend the privilege of the writ of habeas corpus, nor authorize any military officer to do so.
  2. A military officer has not the 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 and of the judicial authority and subject to its control….

He further declared that the civil authority had been resisted by a superior force, and that therefore there was
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nothing he could do except reduce to writing his reasons, report them to the President, and call upon him to do his constitutional duty,—in other words to enforce the process of the court.13

This pitiful appeal of the Supreme Court was met by an opinion from the Attorney-General justifying Mr. Lincoln. When United States Judge Garrison of Brooklyn cited Col. Burke of Fort Lafayette for contempt in refusing to answer a writ sued out for four members of the Baltimore Police Board, the officer refused to appear, and the Judge, “submitting to inevitable necessity” dismissed the proceedings. The prisoners were subsequently released.14

Several states recognized the danger in these military arrests. The Wisconsin legislature approved Justice Taney's opinion, the Delaware legislature passed a bill to prevent illegal arrests by federal authority, but the Governor refused to recognize it and issued a proclamation that he would protect any persons prosecuted for making illegal arrests. Governor Horatio Seymour of New York in his first message, January 7, 1863, discussed “State Rights versus Martial Law.” Governor Curtin of Pennsylvania sent a protesting message to his legislature.15 Politics was of course responsible for some of this opposition, but there was behind it a wide-spread protest against the President's actions.

GENERAL ORDER 38

The famous General Order 38 was issued April 13, 1863, after the Indemnifying Act had passed, by General Burnside, commanding the Department of the Ohio in which there was strong opposition to the war. The text speaks for itself:

General Order 38.

The Commanding general publishes, for the information of all concerned, that all persons found within our lines who shall commit acts for the benefit of the enemies of our country will be tried as spies or traitors, and, if convicted, will suffer death…. The habit of declaring sympathy for the enemy will not be allowed in this department.
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Persons committing such offenses will be at once arrested, with a view of being tried as above stated…. It must be distinctly understood that treason, expressed or implied, will not be tolerated in this department.

By Command of Major-General Burnside.16

Freedom of speech is here denied, and the novel crime of “implied treason” created. But Burnside was not successful in stilling the opposition. The famous “Vallandigham case” presents a clear-cut issue between the President's military power in peaceful territory and the right of political opponents to criticize his acts. Clement Vallandigham was a Democrat, a member of Congress, and a vigorous political opponent of President Lincoln's. The Democrats moreover, espoused Vallandigham's cause.17

He was the chief speaker at a Democratic mass-meeting in Ohio on May 1, 1863. Two captains in civilian clothes took notes upon which General Burnside decided Order 38 had been violated. Vallandigham was arrested by soldiers at 2:30 on the morning of May 5, tried by a military commission two days later; found guilty and sentenced to close confinement during the continuance of the war. Rhodes sums up the case thus:

From the beginning to the end of these proceedings law and justice were set at naught…. The right of General Burnside even to make the arrest may be questioned. The majority of the United States Supreme Court in the Milligan case maintained that the suspension of the writ of habeas corpus did not authorize the arrest of any one. The argument that Southern Ohio was the theater of war and therefore under martial law cannot be maintained…. The United States courts were regularly open in the Southern district of Ohio.18

The charge against Vallandigham was “publicly expressing … sympathy for those in arms against the government, and declaring disloyal sentiments and opinions with the object
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of weakening the power of the government in its efforts to suppress an unlawful rebellion.” The specifications of utterances on which this charge was made included such statements as: “The present war is a cruel, wicked, and unnecessary war; a war not waged for the preservation of the Union … characterizing General Orders No. 38 as a base usurpation of arbitrary authority … that he firmly believed that the men in power are attempting to establish a despotism … more cruel and oppressive than ever existed before.”19 Vallandigham attempted no defence except this statement:

I am not either in the land or naval forces … nor the militia in actual service, and therefore am not triable for any cause by such a court, but am subject by the express terms of the Constitution, to arrest only by judicial warrant … and am now entitled to speedy and public trial by an impartial jury of the State of Ohio … and evidence and arguments according to the common law and ways of Judicial Courts.

And all these I here demand as my right as a citizen of the United States…. But the alleged “offence” is not known to the Constitution nor to any law thereof. It is words spoken to the people of Ohio in open and public political meeting, lawfully and peaceably assembled. It is the words of criticism of the public policy of public servants of the people by which policy it was alleged that the welfare of the country was not promoted. It was an appeal to change that policy, not by force, but by free election and the ballot box. It is not pretended that I counselled disobedience to the Constitution or resistance to laws and lawful authority. I never have.20

The sentence of the commission was commuted by President Lincoln as follows:

May 19, 1863.

Sir: The President directs that without delay you send C.L. Vallandigham under secure guard to the headquarters of General Rosecrans to be put by him beyond our military lines; and in case of his return within our
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lines, he will be arrested and kept in close custody for the term specified in his sentence.

He went South, later to Canada, and returned to Ohio unmolested.21 Mr. Lincoln was not very well pleased with Burnside, and wired that “all the Cabinet regretted the arrest, doubting its necessity…. but being done, all were for seeing you through with it.”22

Two legal efforts were made to set aside General Burnside's stern action. Two days after the military trial Judge Humphrey Leavitt of the Southern District Court of Ohio refused a writ of habeas corpus on the grounds: (1) the arrest was legal; (2) even though it had been illegal it was “morally certain that the writ would not be obeyed.” General Burnside submitted a paper claiming a legal right to make arrests as military commander of the Department, which he “chose to regard as a vast armed camp, every citizen within its limits being subject to military law.” The Supreme Court of the United States denied Vallandigham a writ of certiorari to order the Judge Advocate of the Army to send up the proceedings of the military commission for review. Justice Swayne delivered the opinion that “whatever may be the force of Vallandigham's protest that he was not triable by a court of military constitution, it is certain that his petition cannot be brought within the 14th section of the Judiciary Act of 1789…. This court cannot originate a writ of certiorari to review or pronounce any opinion upon the proceedings of a military commission.”23

The courts were unanimous in their impotence. They never actually passed upon the constitutionality of the President's acts though in most of the decisions one gets the impression that there were grave doubts as to the legality of what was done. The judges simply said they had to submit to a preponderant military power in the hands of those against whom their feeble writs might be issued; or else as did Justice Swayne, they sidestepped on a technical lack of jurisdiction.
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Military power is necessarily unjust, particularly against the unknown and friendless. Here is an example of what must have happened generally:

Not many months ago, this Administration, in its great and tender mercy towards the six hundred and forty prisoners of state confined for treasonable practices, at Camp Chase, Ohio … appointed a commissioner, an extra-judicial functionary, unknown to the Constitution and laws, to hear and determine the cases of the several parties accused, and with power to discharge, at his discretion, or to banish to Johnson's Island, in Lake Erie. Among the political prisoners called before him was a lad of fifteen, a newsboy upon the Ohio River, whose only offence proved upon inquiry to be that he owed fifteen cents, the unpaid balance of a debt due to his washerwoman—who had him arrested by the provost-marshal, as guilty of “disloyal practices.” And yet for four weary months the lad had lain in that foul and most loathsome prison, under military charge….24

Even after Lincoln's death and the close of hostilities, President Andrew Johnson prolonged the alleged war-power by suspending the writ by special order for the execution of Mrs. Mary Surratt, who had been found guilty by a military commission on June 28, 1865, of complicity in the conspiracy which led to the assassination of President Lincoln. Five members of the commission petitioned President Johnson to commute her sentence to life imprisonment on account of her sex and age—nearly fifty. He refused to intervene and she was sentenced to be hung between ten A. M. and two P. M. on July 7. At 7:30 that morning her counsel applied to Judge Andrew Wylie of the Supreme Court of the District of Columbia, for a writ of habeas corpus, to be returnable by Major-General W. S. Hancock of the Middle Military Division. The gist of her claim was “that she had been unlawfully tried by a military commission, although a private citizen and in nowise connected with the military; that the alleged offense was committed within the lines of the United
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States armies, and not in enemy's territory, or in territory under the control of a military commission for the trial of civil causes; that she had the right to a public trial by jury in the criminal courts of the District which were and are open.”

Judge Wylie endorsed the writ to General Hancock, returnable at the hour of ten o'clock A.M. It was served by the marshal, but when General Hancock did not appear at that time, Judge Wylie declared:

The Court acknowledges that its powers are inadequate to meet the military power … the laws are silent … The court must submit to the supreme physical force that now holds the prisoner.

But at half-past eleven Hancock and Attorney-General Speed appeared with an apology and presented this return to the writ:

That the body of Mary E. Surratt is in my possession under and by virtue of an order of Andrew, Johnson, president of the United States … and that I do not produce said body by reason of the order of the President, endorsed upon the said writ:

Executive Offices,
July 7, I865, 10 A. M.

W. S. Hancock … I, Andrew Johnson, President of the United States, do hereby declare that the writ of habeas corpus has been heretofore suspended in such cases as this, and I do hereby especially suspend this writ and direct that you proceed to execute the order heretofore given on the judgment of the Military Commission, and you will give this order in return to the writ.

Andrew Johnson, President.

The Court replied: “The Court finds itself powerless to take any further action … and therefore declines to make orders which would be vain for any practical purpose.” That afternoon Mrs. Surratt was hanged.25
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LIBERTY RESTORED AFTER THE WAR

The United States Supreme Court finally repudiated the whole doctrine upon which these arrests and orders rested—but unfortunately for the deported Vallandigham or the dead Mrs. Surratt, not until some time after the close of the War. Then came before them the case of Lamdin P. Milligan of Indiana, arrested October 5, 1864, by the military commission on the usual charges,—conspiracy against the government, inciting insurrections, affording aid and comfort to the rebels, violations of the laws of war. The specification was that he had joined a secret society known as the Order of American Knights for the purpose of overthrowing the government … conspiring to liberate prisoners of war … resisting the draft, etc. He was found guilty, sentenced to be hanged, and his execution set for May 19, 1865. He petitioned the United States Circuit Court for Indiana to be turned over to a civil tribunal or discharged, advancing the usual argument of these petitioners, namely that he had never been in the military service, nor in any State engaged in rebellion, and that the grand jury, which had convened during his imprisonment, had returned no indictment against him.

The Circuit Court judges divided and certified the case to the Supreme Court, which decided that a writ of habeas corpus should be issued, that Milligan should be discharged, and that the military commission had no jurisdiction legally to try or sentence Milligan. The decision contains these fine words on civil liberty:

No graver question was ever considered by this Court nor one which more nearly concerns the right of the whole people, for it is the birthright of every American citizen when charged with crime to be tried and punished according to the law…. By the protection of the law human rights are secured; withdraw that protection and they are at the mercy of wicked rulers or the clamor of an excited people…. By that Constitution and the law authorized by it, this question must be determined.
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… One of the plainest constitutional provisions was therefore infringed when Milligan was denied a trial by jury … If this government (martial law) is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist when the courts are open and in the proper and unobstructed exercise of their jurisdiction; it is also confined to the locality of actual war.

The privilege of this great writ (habeas corpus) had never before been withheld from the citizen…. The suspension of the writ does not authorize the arrest of any one, but simply denies to one arrested the privilege of the writ in order to obtain his liberty…. Those great and good men foresaw that troublous times, would arise when rulers and people would seek by sharp and decisive measures to accomplish ends deemed just and proper, and that the principles of constitutional liberty would be in peril unless established by irrepealable law. The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men at all times and under all circumstances…. No doctrine is more pernicious than that any of its great provisions can be suspended during any of the great exigencies of government. That leads directly to anarchy and despotism…. Whatever his desert or his punishment may be, it is more important to the country and to every citizen that he should not be punished under an illegal sentence, sanctioned by this court of last resort than that he should be punished at all….26

SUSPENSION OF THE WRIT DURING RECONSTRUCTION

One suspension of habeas corpus during Reconstruction occurred as a consequence of the Civil War. President Grant, having issued a proclamation against certain lawless bodies in South Carolina on March 24, 1871, an act outlawing the Ku Klux Klan was passed on April 20, empowering the President to suspend the writ. He issued a proclamation calling attention to the recent law, and on October 17 suspended habeas corpus in nine counties in South Carolina.
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Federal troops were sent in and over 1,800 arrests were made. The suspension lasted until November 10. The President's act was authorized by Congress, but whether actual conditions in South Carolina justified the suspension, was then, and remains now, unsettled. This is the last suspension of the writ by the President of the United States.27

FREEDOM OF SPEECH AND ASSEMBLAGE

The mob violence and suppression of minority opinion that characterize all wars occurred throughout the Civil War. Peace meetings and expressions of peace sentiments were quickly put under the ban. Persons were arrested or mobbed for chance remarks, as when a talkative stagedriver was charged with “sedition.” Philadelphia witnessed violence against Southern sympathizers; but the Mayor had the ringleaders of the mob arrested. In New Town a peace meeting was postponed for fear of violence. At Middleton, New Jersey, Thomas Dunn, an Englishman, was locked up because he promoted a peace meeting.28 Here are two incidents:

A number of tories at New Fairchild, Conn., had a white flag up, which certain Union men in Danbury determined to take down. Some thirty or forty of them repaired to the location of the obnoxious rag, taking an American flag to put in its place…. They were attacked by a party of tories some two hundred strong … the weapons being spades, axes, and clubs. Being soon overpowered the Union men fled, carrying away with them Andrew Knox, John Allen, and Thomas Kinney of their party, all very badly cut around the head with spades…. Of the tories two were probably fatally wounded…. A peace flag was taken down in Easton on Thursday … and preparations were making on Sunday to proceed to Hattertown….29

A peace flag was to be raised at Stepney … to be addressed by a well-known stump-speaker in the last campaign. Five or six omnibus-loads of people, including many returned volunteers went out, broke up the
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meeting and replaced the peace flag with the American flag. Calls were made for the speaker, but none appearing P. T. Barnum mounted the platform … immediately surrounded by returned volunteers who, revolvers in hand, promised death to any one who should fire on the platform. Mr. Barnum then called for the speakers advertised, promising them in the name of the Union men, a fair hearing provided they uttered nothing treasonable.

Since no one accepted, a regular Union meeting was organized with P. T. Barnum as secretary, which adopted a threatening resolution, ending:

Until this war is ended in the complete suppression of this wicked rebellion, we will stand by the old Stars and Stripes and hereby pledge our lives, our fortunes, and our sacred honor to defend it to the last.30

Soon there were laws against sedition:

The sheriff of this county went to Chestnut Hill, Penn., and took down a secession flag, to-day. A new law of the State authorizing the constable in any town, or the sheriff of any county to take down treasonable flags has been enacted, and their owners are liable to not less than 30 days' imprisonment or a fine of not less than $100. Prudential committees are being formed throughout the State to put down secession.31

Chicago: An ordinance was passed by the Common Council requiring all newcomers to take the oath of allegiance or leave the city. The people have formed a vigilance committee.32

The colleges reflected the general intolerance. A student at Princeton was subjected to indignities by fellow-students for secession sympathies. The faculty suspended three of the students concerned, and warned the Southerners against “inflammatory utterances.” This sort of suppression of opinion was nation-wide.
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FREEDOM OF OPINION IN CHURCHES

The military authorities repeatedly interfered with church services to prevent disloyalty or to force expression of allegiance to the government. For example:

The Catholic bishop of Natchez, Mississippi, having refused to read the prescribed prayer for the President, and having protested in an able and temperate manner against the orders of the commanding general in this respect, the latter ordered him expelled from the Union lines, although this order was almost immediately rescinded.

A young officer rose in his seat and requested an Episcopal minister to read the prayer for the President, which he had omitted. Upon the minister's refusal, the soldier led him, loudly protesting to the door, and then quietly returning to the altar himself read the prayer—not much, it is to be feared, to the edification of the congregation.

General Rosecrans issued an order in Missouri requiring the members of religious convocations to give satisfactory evidence of their loyalty to the United States as a condition precedent to their assemblage and protection…. In answer to protestations from many loyal church members, he said that if he should permit all bodies claiming to be religious to meet without question, a convocation of Price's army (Confederate) under the garb of religion, might assemble with impunity and plot treason.33

General Butler arrested a clergyman at Norfolk, Virginia, and placed him at hard labor for “disloyalty in belief and action.”, But the President reversed this sentence to exclusion from the Union lines.34

In 1862 a difference between the Reverend Dr. McPheeters of the Vine Street Church in St. Louis and his congregation grew so bitter that the provost-marshal finally intervened, ordered the arrest of Dr. McPheeters, excluded him from the pulpit, and took the control of the church out of the hands of his trustees. The only offenses discoverable were that he would not declare himself in favor of the Union, and that
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he had baptized a baby with the name of Sterling Price, a rebel general. President Lincoln repudiated this action, writing General Curtis:

Now … I tell you frankly I believe he does sympathize with the rebels, but the question remains whether such a man, of unquestioned good moral character, who has taken such an oath as he has, and cannot even be charged with violating it, … can, with safety to the government, be exiled upon suspicion of his secret sympathies…. I must add that the United States government must not undertake to run the churches. When an individual in a church or out of it becomes dangerous to the public interest, he must be checked … but it will not do for the United States to appoint trustees or other agents for the churches.35

Later, however, Mr. Lincoln refused to restore Dr. McPheeters to his church.

Lincoln was aroused to anger in the last year of the war by discovering that Secretary of War Stanton had virtually given the Northern Methodist Church possession of certain churches, and lent military aid to Bishop Ames in taking possession of them. He wrote:

This, if true, is most extraordinary. I say again, if there be no military need for the building, leave it alone, neither putting anyone in or out of it, except on finding some one preaching or practising treason, in which case lay hands on him just as if he were doing the same thing in any other building or in the streets….36

FREEDOM OF THE PRESS IN THE CIVIL WAR

The first interference with freedom of the press came, as usual, in attacks upon editors and their properties. The first weeks of the war witnessed the forcing of many newspapers to display the flag. After the fall of Sumter a mob collected around The New York Herald office, and were prevented from
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violence only when Gorgon Beyond displayed the Union flag from his window. In August after the battle of Monists and the return of the first “three-months volunteers,” the mobs, often led by returned soldiers or departing recruits, grew more vicious. On August 25, The New York Journal of Commerce listed all newspapers forced to suspend by mobs. Ambrose L. Kimball of the Essex, N. J., Democrat—a “weekly secession sheet”—was tarred and ridden on a rail until he promised to quit writing. William Halsey was deported from town for trying to get subscribers to the New York Daily News on a Connecticut railroad. The Cumberland Alleghanian was destroyed; the Wilmington Gazette attacked; a sheriff's posse was called to protect the Allentown (Pa.) Democrat and Republican. At Terre Haute, Ind., the office of the Journal and Democrat and several private dwellings were demolished by members of the 43rd regiment declared to be under the command of their colonel. He denied it and asked for an investigation by the civil authorities. The Westchester (Pa.) Jeffersonian was cleaned out by a mob. The prevalent attitude is clear in the naive press report that “there was no disturbance.”

This violence continued in less degree throughout the war. In the spring of 1863 the Columbus (Ohio) Crisis was destroyed by 150 soldiers; the Richmond (Ind.) Jeffersonian demolished by 800 paroled prisoners, and the Keokuk (Iowa) Constitution wrecked by convalescents in a hospital. Here are the details of an early case which show their character:

The paper of Archibald McGregor, coming out every week, kept alive the animosity of the war party, and made him a constant object of their vindictiveness. This they manifested in various ways—withdrawal of patronage, loss of subscribers, threats of personal injury and destroying his office…. The night of August 22, 1861, the newspaper and job-office of the Stark County Democrat was broken into by a squad of new recruits, mostly sons of prominent families of Canton…. The marauders did their work effectively, making a bon-fire in the
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street, and burning wood, type cases, type and all that was combustible…. The old newspaper hand-press was the only article of value that escaped.37

McGregor himself was afterwards imprisoned on executive order without trial. The Advertiser and Farmer of Bridgeport, Conn., suffered almost identical treatment for “its disloyal and traitorous course.”38 A newspaper office at Concord, New Hampshire, was attacked by armed soldiers, and the publishers had to be rescued by the citizens and carried to the State Prison for safety, considerably bruised but not seriously injured.39

NEWSPAPERS AND GRAND JURIES

The first attempt to suppress the minority newspapers by law was through actions before grand juries. A New Jersey grand jury reported five papers to the United States court, declaring:

They feel it their duty to repudiate and denounce the conduct of these journals…. They recommend all loyal citizens, all public officers, all municipal corporations, vigorously to withhold all patronage from such newspapers as do not hereafter give their unqualified support to the national government.

The United States attorney at Pittsburgh warned an editor o*hat the tone of his paper might lead to prosecution. The grand jury of the Southern District of New York asked the advice of the Court on the following presentment of facts:—

There are certain newspapers within this district which are in frequent practice of encouraging the rebels … by expressing sympathy and agreement with them…. The New York daily and weekly Journal of Commerce, News, Day Book, Freeman's Journal … Brooklyn Eagle. The first named has just published a list of newspapers in the free states opposed to what it calls “the present unholy war.” … If the utterance of such language in the streets or through the press is not a crime, then there is a great
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defect in our laws, or they were not made for such an emergency…. The Grand Jury will be glad to learn that such conduct is subject to indictment and punishment….40

No action was taken, however, against these papers. The judge of the circuit court of Westchester County, N. Y., told the grand jury that reported on four local papers that they had violated no law. But the report on the New York papers started governmental action against the press in three ways: first, denial of the use of the mails; second, the imprisonment of editors by executive order; and third, the suppression of newspapers by the military authorities.

NEWSPAPERS DENIED THE USE OF THE MAILS

The use of the mails was denied according to the following order:

August 22, 1861.

To the Postmaster, New York City

Sir:—The Postmaster-General directs that from and after your receipt of this letter none of the newspapers published in New York City which were lately presented by the grand jury as dangerous, from their disloyalty, shall be forwarded in the mails….

T. B. Trott, Chief Clerk.

Circulation was denied some of these papers in other ways. In Philadelphia, Marshall Millward and his officers examined all the bundles of papers arriving on the New York train and seized every copy of the New York Daily News. He also seized all bundles at the express office marked for the West and South. The sale was totally stopped. He also took possession of the office of The Christian Observer.41 The Secretary of State wrote to the Postmaster-General recommending that The Franklin Gazette (N. Y.) be barred from the mails “for its treasonable character.” The Post Office replied that the order had been given at Malone, N. Y., almost two weeks before.42 This cooperation of the two departments is
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the more interesting because the editors of The Gazette— F.D. and J.R. Flanders—were political opponents of the Administration. Both were finally cast into prison without trial.43

An extra of The Democrat, Bangor, Maine, was held up by the postmaster who awaited orders from Washington. The Democrat's office had been destroyed by a mob two weeks before. Two “Rebel” papers in Baltimore, The South and The Exchange, were excluded September 31, 1861, and similar orders followed later during the war.

Some of the papers were stopped altogether—The True American of Trenton, N. J., a Democratic organ and one of the oldest papers in the State suspended, declaring that the government had virtually forbidden the publication of every newspaper that did not support the Administration. The New York News and the Day Book suspended. The Brooklyn Eagle and The New York Journal of Commerce agreed to abandon their previous policies and were soon restored to the mails. The order against The Freeman's Journal was not revoked until April 4, 1862. Postmaster-General Blair rescinded all exclusion orders against so-called disloyal papers on December 15, 1862.

Investigations of the exclusions were made by both House and Senate. The House Committee on the Judiciary made two reports, January 20 and March 3, 1863. It white-washed the Postmaster-General with the usual formula:

It being a time when extreme vigilance was demanded by the executive departments … to preserve the integrity of the Union … your committee believes the act of the Postmaster-General was not only within the scope of his powers, but induced solely by consideration of the public good.44

The letter of Postmaster-General Blair is a historical document in the development of the postal censorship:

The freedom of the press is secured by high constitutional sanction. But it is freedom and not license….
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It cannot aim blows at the Government and the Constitution … and at the same time claim its protection. While, therefore, this department neither enjoyed nor claimed the power to suppress such treasonable publications, but left them free to publish what they pleased, it could not be called upon to give them circulation. The mails established by the United States could not upon any known principle of law or public right, be used for its destruction…. I would not, except in time of war, have adopted the arguments of my predecessors…. These citations show that a course of precedents has existed for twenty-five years—known to Congress, not annulled or restrained by act of Congress—in accordance with which newspapers and other printed matter decided by the postal authorities to be insurrectionary or treasonable, or in any degree exciting to treason or insurrection, have been excluded from the mails … solely by authority of the executive administration. This, under the rules as settled by the supreme court … as applicable to the executive construction of laws with whose execution the departments are specially charged, would establish my action as within the legal construction of the postal acts….

Upon the like considerations, I have at different times excluded from the mails obscene and scandalous printed matter on exhibition of its immorality. This power should not devolve on the 28,000 postmasters but be reserved to the postmaster-general … and he cannot in time of peace exclude matter obnoxious to some special interest, but not to the government, law or public safety.45

This states all the elements of postal censorship. It is here based on the exigency of war and specifically limited to war emergencies, but in the same document it is extended to peacetime control by the assumed right to exclude so-called “obscene matter” on the sole judgment of the postmaster-general acting for the “moral police power.” It also shields itself behind the judicial doctrine that the courts cannot question the acts of an executive officer in the exercise of his discretion unless manifest wrong is done.
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That postal officials were suspected of interfering with private letters is indicated by a resolution offered in Congress on July 15, 1861, asking the Postmaster-General to inform the House whether he had authorized any postmaster or other person at any post-office to open letters or violate seals … or if he knew whether private correspondence had been violated. By law, letters can be opened only by authority of a search warrant. The resolution was lost by a refusal to suspend the rules to consider it.46

IMPRISONMENT OF EDITORS

There were a few cases of imprisoning editors for their attitude to the war. A case typical of the method was that of James W. Wall of New Jersey:

James W. Wall was arrested by order of the Secretary of War, at Burlington, New Jersey … and committed to Fort Lafayette, September 11, 1861. From papers on file in the Department of State it appears that Wall was a contributor to the columns of the New York News, and an active supporter of the obnoxious and dangerous principles disseminated by that sheet previous to the withdrawal from it of mail facilities, and its subsequent suppression. He was also represented as a noisy, brawling secessionist and as having exulted over the defeat of the United States troops at the Battle of Bull Run.47

After two week's imprisonment on charges no more precise than the above, Wall appealed to the Governor of New Jersey:

I have endeavored in vain to learn the cause of my arrest. I am denied my rights as a citizen of the United States. I now ask if I have any rights as a citizen of New Jersey under her Constitution, or if not, at what time my rights ceased and by virtue of what provision in that constitution?

The Governor dropped this delicate hint to the Secretary of State, Seward:
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I suggest that the charges upon which persons are arrested and imprisoned should be communicated to them and be made public so that it may be known that they are arrested for good cause, for some actual wrong-doing, and thus the Government may be justified…. Thinking men among us feel uneasy lest the confidence of the people in the government should be impaired.

Seward made this retort:

It is to be regretted that you have not given me more precise information in regard to the cases of arrest in New Jersey which are represented to have been made upon insufficient grounds so that correction might be applied in those cases if injustice should be found….

Wall was however shortly released on taking the oath of allegiance to the United States still quite ignorant of what his crime had been. Wall's fellow-citizens evidently held him in esteem for they later elected him to the United States Senate.

Henry A. Reeves of the Greenport, L. I., Republican was sent to Fort Lafayette for the treasonable character of his paper.48 James A. McMaster of the New York Freeman's Appeal was arrested by order of the Secretary of State, September 14, 1861, charged with editing a disloyal newspaper. He was released a month later on taking the oath, which he did under protest. The effect of the paper's suspension is shown in a letter from McMaster's wife to Lincoln:

I am now advised that the continued suspension of the “Appeal” will be followed by the complete loss of its subscription list, its advertising patronage, and by such pecuniary damage as will require the discharge of its employees…. I respectfully ask that it may be allowed to pass through the mails.49

Though these imprisonments of editors were comparatively few they terrorized other editors into silence and so achieved a far-reaching censorship.
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MILITARY SUPPRESSION OF NEWSPAPERS

In addition to the postal censorship and executive orders, military force was used against the press, both in suppressing particular papers and in forbidding their circulation within prescribed areas. Here is one case:

Headquarters, U.S. Reserve Corps,
St. Louis, July 12, 1861.

To the People of the State of Missouri:

The “Missouri State Journal” … is continually giving aid and comfort to those who are in active rebellion…. It has not only encouraged them by its pertinacious appeals to the People to take up arms … but by its constant and continual publication of intelligence known to be false respecting the troops of the United States, it has indirectly incited disaffected citizens to the commission of overt acts of treason….

For these reasons … I have by order of General Lyon, … suppressed the publication of the “Missouri State Journal” for the present. Its further publication will be prohibited as long as the public peace and safety require it.

John McNeil, Col. 3d Regt.

Upon issuance of this order a detachment of Home Guards surrounded the office and removed the forms.50 The St. Louis Herald and Evening News were suppressed in August and September. Later all Missouri newspapers, except in St. Louis, had to furnish an advance copy of each issue to the provost-marshal for his inspection.

The suppression of the Chicago Times by telegraphic despatch of “General Orders 84” from the headquarters of the Department of the Ohio, June 1, 1863, aroused a bitter controversy, especially because Chicago was so remote from the seat of war. The order follows:

  1. The tendency of the opinions and articles habitually published in the newspaper known as the New York “World” being to cast reproach upon the Government, and to weaken its efforts to suppress the rebellion, by creating distrust of its war policy, its circulation in time
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of war is calculated to exert a pernicious and treasonable influence, and is therefore prohibited in this department.
  • Postmasters, et cetera, will govern themselves by this order.
  • On account of the repeated expression of disloyal and incendiary sentiments, the publication of the newspaper known as the Chicago “Times” is hereby suppressed.…

    • By Command of Major-General Burnside.
    Official Records, Series 11, XXIII, part II, 381.

    On June 3 at three o'clock in the morning videttes galloped up to the Chicago Times office.… An hour later two companies of infantry took possession, stopped the press, destroyed the newspapers which had been printed, placed a guard over the establishment, and patrolled the entire block. The proprietors at once secured an injunction from Judge Drummond of the United States Court, and under it issued their paper for six mornings. Excitement was high throughout the city and nation. A meeting of prominent citizens was held, the Mayor presiding, and by unanimous vote the President was asked to rescind Burnside's order. The State House of Representatives denounced the order by a resolution. Twenty thousand loyal citizens, half of them Republicans it is said, assembled and passed resolutions that freedom of speech and the press must not be infringed by the military power. The next day President Lincoln ordered the rescinding of Burnside's order affecting the Times and the World. In New York on June 8 a meeting of prominent journalists was held to protest against this suppression.51 At the same time, however, the so-called “Copperhead” press generally was suppressed, including the South Bend, Ind. Forum and the Columbia City News.

    CONFLICT OF CIVIL AND MILITARY POWERS

    The last important military interference with the press was in New York City. On May 18, 1864, The Journal of Commerce and The World printed a proclamation purporting
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    to have been issued by President Lincoln calling 400,000 men into the service:

    This paper was delivered at the offices of these journals late on the night of May 17, and in the news bureau form of a Washington despatch. Soon after its publication it was found to be a forgery, whereupon the fact was announced by the journals on their bulletin-boards, and a reward of $500 offered for the author of the fake. The editors at once informed General Dix of the forgery … He issued orders to seize the offices, to suppress the publications, and imprison the editors and proprietors in Fort Lafayette the American Bastile. The order for the arrest … was rescinded the same day, but publication of their papers was suspended for two days. The author of the proclamation was discovered, arrested and imprisoned, however, before the printing offices were restored to their owners. He was detained several months and then discharged without further investigation.

    Governor Horatio Seymour wrote to A. Oakey Hall, district attorney of the County of New York:

    … If the owners of the above named journals have violated State or National laws, they must be proceeded against and punished by those laws.… Any action against them outside those laws is criminal.…

    The district attorney laid the matter before the Grand Jury who found it “inexpedient to examine into the subject.” Then on June 21, he appeared before a Judge of the city and county who issued warrants for General Dix and others. They appeared and were paroled, the counsel for the defence announcing that the President had ordered General Dix to disregard the process of Court. Governor Seymour on July 7 ordered Hall to enforce the law without regard to the President's order. On August 1 the Judge rendered his decision to hold General Dix and others subject to the action of the Grand Jury, declaring:
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    If that provision of the Indemnifying Act is constitutional it assimilates the President of the United States during the existence of the present rebellion, to an absolute monarch, and makes him incapable of doing any wrong.

    Apparently the Grand Jury took no action, the civil authorities being content to have the military power appear in court.52

    Military suppression of newspapers continued as long as war conditions made it seem necessary. May 18, 1864, Major-General Wallace suppressed The Baltimore Evening Transcript, and on May 26 The Metropolitan Record was forbidden to circulate in the department of the Missouri, and The Cincinnati Enquirer in Kentucky.

    LIBERTY OF THE PRESS UNDER “RECONSTRUCTION”

    During the first years of “Reconstruction” while the Southern states were still under military control, civil liberty was denied by the very status of the people, and freedom of the press was restrained. In many states newspapers were suppressed. This order from General Schofield to the Richmond, Virginia, Times reveals the condition:

    Sir:—The commanding general directs me to call your attention to an editorial article in the Richmond, Virginia, “Times” of this morning, headed “A Black Man's Party in Virginia,” and to say that while he desires not only to permit but encourage the utmost freedom of discussion of political questions, the character of the article referred to calls for severe censure.… Especially the following words.… are an intolerable insult to our soldiers of the U.S.A. and no less so to all true soldiers of the late Confederate Army.… The efforts of your paper to foster enmity, create disorder and lead to violence can no longer be tolerated. It is hoped this warning will be sufficient.53

    An amusing example of the spirit of censorship is the following “resolution” adopted by the Constitutional Convention
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    of South Carolina in redrafting the State Constitution.

    Resolved, That this Convention take such action as it may in its wisdom deem compatible with its powers and conducive to the public weal to expunge forever from the vocabulary of South Carolina, the epithets, “negro,” “nigger,” and “Yankee.”

    Resolved, That the exigencies and approved civilization of the times demand that the Convention or Legislative body created by it enact such laws as will make it a penal offense to use the above epithets in the manner described against an American citizen of this State, and to punish the insult with fine and imprisonment.54

    CONSCRIPTION AND CIVIL LIBERTY

    Conscription for military service was practiced on a large scale for the first time in the United States by both Federal and Confederate governments. Enforced military service is not commonly regarded as affecting civil liberty except when it conflicts with religious scruples. It is not mentioned in the federal Bill of Rights and in only a few state bills where exemptions on religious grounds are authorized. Yet conscription is the greatest possible interference with the liberty of body and soul of the individual. The soldier has no freedom of opinion, speech, assemblage, or of movement. He has no voice in making the laws or selecting the officers he must obey on penalty of death. He has no civil rights. He becomes an automaton. Despite the silence of the constitutions and the decisions of courts, this conflict between personal liberty and state power is most significant.55

    We may note at once that the courts have invariably upheld the constitutionality of the conscription laws, declaring that they do not violate individual rights.56

    The first conscription law in the Union during the Civil War, act of March 3, 1863,57 contained no provision for exemption on conscientious grounds, religious or other. A man could, however, secure exemption by providing a substitute
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    or paying a bonus of $300 with which a substitute could be hired. This law produced a crop of “draft resisters” who without any scruples against war per se, refused to be forced into military service. As most of these refused service for selfish reasons, and expressed their objection by flight, desertion, and riots, they are of little interest from the viewpoint of civil liberty. It is an interesting commentary on national unity that in the spring of 1863 desertions from Union armies had reached such a number that troops had bloody encounters with bands of resistants in Illinois and with the “Butternuts” in Indiana.

    In some few cases, however, the draft-resisters seemed moved by some sense of personal liberty, and of a local right to refuse a national service they did not endorse. This seemed partly the case in Columbia County, Pennsylvania, where such resistance was on such a large scale that troops had to be sent in, martial law declared, and many participants punished.58

    The chief resistance arose in cities where the laboring classes were angered by seeing the wealthy escape the draft by paying a bonus or hiring a substitute. The sense of injustice was sharpened by economic and race antagonism. Negro strike-breakers had been introduced in the cities on the docks, and clashes and murders were frequent.

    The draft in the minds of a large part of the industrial classes, already deeply stirred, was another name for forced military service in behalf of their hated negro rivals, and at the head of the rioting mobs were angry and defeated longshoremen. Industrial discontent was a fundamental cause of the riots.59

    The most tragic of these draft riots was in New York, July 12–17, 1863—exceeding in loss of life any similar event in our history.60 This violent resistance is not a matter of concern to civil liberty.

    Efforts to make foreigners with their first papers liable to the draft also aroused a storm of wrath, and was one of the causes of the New York riots. The foreign consulates were
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    crowded with “first-paper men” claiming the protection of their countries.61 There were no “political” objectors, such as the Socialists in the World War.

    The “conscientious objectors” were chiefly Friends, with fewer Dunkards, Mennonites, and numbers of pacifist smaller sects, whose creeds forbade engaging in war. Among them were a few “absolutists,” that is, men whose scruples forbade even non-combatant service, or any service rendered under military direction, or furnishing a substitute. They were sincere men whose record has significance for civil liberty.

    CONSCIENTIOUS OBJECTORS IN THE NORTH

    The Union government was on the whole lenient with the comparatively few real objectors, in part because the Quakers had been the first and strongest opponents of slavery. The President himself was descended from Friends and had a “Quaker Cabinet.” Stanton's mother was the head of a Friend's meeting, Bates and Chase were connected with Friends, and General Halleck remained by accident a member of a Meeting during the entire War. Quakers were exempted from the first draft. But Congress judged this unjust to others, and would not permit it to continue. At the suggestion of government officials, when the draft was about to be extended, a conference of Friends from about twenty-five Meetings in New York, New England and elsewhere, was held in Baltimore (December 7, 1863). It unanimously adopted the following minutes:

    We believe it right for us to record our united sense and judgment that Friends continue to be solemnly bound unswervingly to maintain our ancient faith and belief that war is forbidden in the Gospel and that as followers of the Prince of Peace we cannot contribute to its support or in any way participate in its spirit; that to render other service, as an equivalent for, or in lieu of, that requestioned for military purposes is a compromise of a vital principle which we feel conscientiously bound to support under all circumstances and
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    notwithstanding any threats to which we may be subjected.… “We greatly appreciate the kindness evidenced at all times by the President and Secretary of War when we have applied to them for relief from suffering for conscience sake, and honor them for their manifest regard for religious liberty.62

    A delegation from this Conference, with Stanton's help, secured the following exemption clause in the amendatory Enrollment Bill of February 24, 1864:

    Members of religious denominations who shall by oath or affirmation declare that they are conscientiously opposed to the bearing of arms, and who are prohibited from doing so by the rules and articles of faith and practice of said religious denominations, shall, when drafted into the military service, be considered non-combatants, and shall be assigned by the Secretary of War to duty in the hospitals, or to the care of freedmen, or shall pay the sum of $300 to such person as the Secretary of War shall designate … to be applied to the benefit of sick and wounded soldiers: Provided that no person shall be entitled to the benefit of … this section unless his deportment has been uniformly consistent with such declaration.63

    Stanton even tried unsuccessfully to have this $300 put into a special fund for colored refugees of which Friends should have the disbursement. The Friends felt they would have been granted unconditional exemption but for the embarrassment it might cause the Government. Mr. Lincoln's attitude is shown in his reply to the letter from Mrs. Gurney, which he was carrying in his pocket when he was shot:

    Your people, the Friends, have had, and are having, a great trial. On principle and faith opposed to both war and oppression they can only practically oppose oppression by war. In this hard dilemma some have chosen one horn, and some the other. For those appealing to me on conscientious grounds, I have done, and shall do, the best I could and can, in my own conscience, under my oath to the law.64

    He expressed similar sentiments in letters to the Iowa Quakers (January 5, 1862) and to Samuel Boyd (March 19, 1862). “This promise Abraham Lincoln faithfully kept and the Northern Friends had no just grounds for complaint. The three hundred dollars was accepted for hospital supplies, service in hospitals was granted, and where conscience was not free to accept either, or it seemed inexpedient, they were “paroled until called for and never called for.” Occasional cases of hardship did occur, as in that of Cyrus Pringle of Vermont, who had taken the absolutist position, refusing to take part in the war in any way.65 Parts of his very moving diary follow:

    For more than a week we have lain here, refusing to engage in hospital service; shall we retrace the steps of the past week? or shall we go South as overseers of the blacks on the confiscated estates of the rebels, to act under military commanders …? What would become of our testimony and our determination to preserve ourselves clear of the guilt of this war?

    P. S. We have written Henry Dickensen that we cannot purchase life at the cost of peace of soul?

    … This morning the officers told us we must yield…. We were threatened great severities and even death…. We seem perfectly at the mercy of the military power, and more, in the hands of inferior officers, who from their being far removed from Washington, feel less restraint from those regulations of the Army … for the protection of privates from personal abuse …

    I went back to my tent and lay down for a season of retirement, endeavoring to gain resignation to any event. I dreaded torture and desired strength of flesh and spirit. The lieutenant called me out and pointing to the gun … asked me to clean it. I replied to him that I could not comply with military requisitions…. Two sergeants … bade me lie down on my back, and stretching my limbs apart, tied cords to my wrists and ankles and these to four stakes driven into the ground somewhat in the form of an X. I was very quiet in mind as I lay there on the ground soaked with the rain of the previous day,
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    exposed to the heat of the sun, and suffering keenly from the cords binding my wrists and straining my muscles. And, if I dared the presumption, I should say that I caught a glimpse of heavenly pity.… About the end of another hour his orderly came and released me.… I arose and sat on the ground. I did not rise to go away. I had nowhere to go, nothing to do.…66

    Friends of Pringle intervened with Lincoln, who finally said: “I want you to go and tell Stanton that it is my wish all those young men be sent home at once.” But Pringle fell into a delirious fever from which he recovered only after many weeks.

    MARTYRS FOR CONSCIENCE IN THE SOUTH

    “When the South was being bled white for soldiers, the objectors to war suffered extraordinary martyrdoms. The Southern Quakers earned hatred on two scores: they opposed slavery, and they refused to participate in war. In North Carolina many Abolition societies had existed since the 1820's; in one strong Quaker county the vote was 2,370 to 45 against secession. These Southern pacifists were patriotic:

    It has often been charged that non-resistant peace-men are bad patriots, real enemies to their country. Nothing could be further from the truth… Their patriotism was an intelligent and discriminating one, and no blast from the hot furnace of persecution was able in the least to make it yield.67

    As early as December, 1861, the North Carolina Legislature passed an act for a test oath of loyalty. All males above 16 were required to renounce the United States and defend the Confederacy. A few Friends were included in the first military drafts, but appear to have obtained relief through unofficial action. In July, 1862, Friends petitioned both State and Confederacy and were released from State service on payment of $100 each. Their real difficulties began in the
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    same month when the Confederacy conscripted all men between 18 and 35 years. But on October n the Confederate Congress exempted all friends, Nazarenes, Dunkards, and Mennonites upon payment of $500, or the provision of a substitute, or entrance upon hospital service. The later sufferings seem to have come upon those who refused to take any service or to pay the bonus; or else resulted from the inefficiency of the exemption machinery or from the brutality of individual officers.68

    THE SUFFERINGS OF THE MACONS

    Abijah Macon, after securing an honorable discharge as a volunteer and paying the $500 exemption fee, was, nevertheless, hurried on to Richmond, and immediately required to take a gun and fight. But he was in no mood for fighting, so they put him under guard and for food gave him only cotton-seed meal. This was followed by severe illness … and he soon passed away—having laid down his life for the gospel of peace.

    Isaiah Macon was forced into the battle of Winchester. But he stopped no bullets. He had nothing to do but to trust in God and await the end of the terrible scene. He seemed to possess a charmed life. His comrades fell all around him, their places being filled with others who wondered at the strange sight—a man with plain citizen's clothes, having neither pistol, sword, nor gun, and no military cap, calmly filling his place in battle line, but taking no part in the battle … As his company turned to flee he calmly laid down upoYi the ground. Northern soldiers soon discovered him, peaceful amidst all; no shot had he fired, no part had he taken.… He was soon in Point Lookout prison, where in a few days he died, doubtless from mental suffering.69

    In Randolph County, N. C., forty-three young men were taken for the army. Some accepted substitute service in the gristmills and salt mines, some fled to the West.

    Yancey Cox, 17 years old, who weighed but 84 pounds, was taken from his widowed mother, but officers
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    tried in vain to make a soldier of this boy. He refused to take a gun or to wear military clothing…. He was made to march until the blood ran from his feet…. He was pierced in the thigh with a bayonet….

    By confinement, punishment, and torture they endeavored to extort from these aged people information as to the hiding places of their sons. The soldiers placed the hands or fingers of the aged men and women between the lower rails of the fence, and with its crushing weight upon them would wait to be told what they wished…. One mother, who would ere long have given birth to another child, was hung by a rope around her waist to a tree (a usual torture) in order to make her reveal the hiding place of her boy, and she died as a result of this cruelty.

    Solomon Frazier was so meek and endured all their persecutions with such patience that the Captain got very angry, and told him he must now take a gun or die. While the officer was tying a gun to his arm, Solomon remarked to him: “If it is thy duty to inflict this punishment upon me, do it cheerfully; don't get angry about it.” The Captain then left him, saying to his men, “If any of you can make him fight, do it. I cannot.”70

    CIVIL WAR AND LABOR

    Military interference with the right to work was comparatively rare. The workers were not organized to take advantage of the Government's need, and there were few strikes. In numerous cases the mere organization of a union was sufficient to secure the demands.71 There were a few cases of the use of the military to make men work, or to forbid strikes, in the last two years of the war when losses of life and the increased cost of living had made the workers rebellious. They are the only cases in our history where men worked under governmental coercion:

    On March 10, 1864, a strike took place among the laborers at Cold Spring, N. Y., … in the employ of R. P. Parrott, who was engaged in the manufacture of shot, shell, et cetera, for the government. The men were
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    receiving from a dollar to a dollar and a quarter a day. Owing to the very large advance in the price of the necessaries of life, they requested that their wages be advanced to a dollar and a half. This was refused…. Two days after the strike took place, four of the strikers were arrested and sent to Fort Lafayette where they remained for seven weeks, when they were liberated without a trial, though a trial was demanded. Two companies of United States soldiers were ordered to Cold Springs and martial law was proclaimed, and the men forced to resume work at the old rates…. Three of these poor men were not permitted to return to their homes and their families forced from town….72

    A strike by tailors, and one by machinists and blacksmiths occurred in St. Louis, Missouri, April, 1864. Because martial law was in effect the employers demanded military interference by the commanding general of the district, who issued the following “General Order No. 65” on April 29:

    It having come to the knowledge of the Commanding General that combinations exist in the city of St. Louis, having for their object to prevent journeymen … and laborers from working in manufacturing establishments, except on terms prescribed to the proprietors by parties not interested therein, which terms have no relation to the matter of wages to be paid employees, but to the internal management of such establishments; and it appearing that in consequence of such combination … the operation of some establishments where articles are produced which are required for use in the navigation of the Western waters, and in the military, naval, and transport services of the United States, have been broken up, and the production of such articles stopped … the following order is promulgated:

    1. No person shall, directly or indirectly, attempt to deter or prevent any person from working on such terms as he may agree upon in any manufacturing establishment, etc., etc.
    2. No person shall watch around or hang about any
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    such establishment for the purposes of annoying the employees thereof, or learning who are employed therein.
  • No association or combination shall be formed or continued, or meeting held, having for its object to prescribe to the proprietors … whom they shall employ, or how they shall conduct the operation thereof.73

    • The order further provided for listing the members of all such combinations and for military enforcement of the order and protection for the employees against interference. And Major-General Rosecrans “confidently relied on the help of the city authorities and of all right-minded men.” Several members of the two unions were arrested with intense excitement. A demonstration could not be made by the working-men because the city was ruled by martial law.

    A similar occurence took place in Louisville, Kentucky, where Brigadier-General Burbridge issued an identical order. It was charged against Burbridge that “he was in the confidence of the employers, aware of their plans and objects and that he was actuated by the most selfish and dishonorable motives.”

    Other incidents were the arrest in Tennessee of two hundred striking mechanics by General Thomas who sent them north of the Ohio river; the seizing and running of the Reading railroad in Pennsylvania which had been tied up by striking engineers; (2) The breaking-up of the Miners' Association in the Eastern coal fields by Government interference; and the confiscation of the back pay of the moulders in the Brooklyn Navy Yard when they struck for higher wages. In New York the striking longshoremen stood idly by while government transports were loaded by deserters under strong guard.
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    NOTES

    1 Abraham Lincoln, Works, II, Letter to Mr. Hodges.

    2 It is to be noted that the clause on the writ occurs in the section wherein are enumerated the powers of Congress.

    3 For the bitterness of the opposition, especially by the Democrats, see the newspapers, July–December, 1861, and Debates in Congress and Senate, December 16, 1861, and April 29, 1862.

    4 Lincoln, Works, II.

    5 McPherson, History of the Rebellion, p. 154.

    6 Lincoln, Works.

    7 12 Statutes at Large, 755, c. 81.

    8 Alexander Johnston, in Lalor's Encyclopedia.

    9 Rhodes, History, IV, 230–231, note. He compares this with imprisonments in England during the Napoleonic Wars: “From April to December, 1798 … 70 or 80 persons had been apprehended, but not brought to trial…. In December only a few still remained in prison. From May, 1799, to February, 1800, but three men had been arrested; yet it was a subject of indignant remonstrance by two lords … that twenty-nine persons were immured in jail still without being brought to trial.”

    10 Marshall, American Bastile, introduction, p. xxxii.

    11 Rhodes, History, IV, 234.

    12 Bryce, American Commonwealth, I, 61.

    13 Roger Taney, Reports, Ex parte Merryman. See McPherson, History of the Rebellion, VIII, 154 for the facts.

    14 Official Records, series 2, II, 20, “An Opinion on the President's Power of Arrest.”

    15 See The Public Record of Horatio Seymour, pp. 94–100, 121, 254. For Curtin's action see The Philadelphia Enquirer, Feb. 13, 1863. The violent pamphlet warfare was led by Horace Binney, Mr. Lincoln's chief apologist. McPherson's History gives the views of Binney and Parsons. See also B. R. Curtis, Life and Writings, II, 306; and a volume of pamphlets on both sides in the New York Public Library.

    16 Official Records, series I, XXIII, part 2.

    17 McCabe, Life of Horatio Seymour, pp. 135–150 gives the “Albany Resolutions” by the Democratic Party of New York, and Letter to Erastus Corning, et al.; Lincoln's Letter of Defense to Erastus Corning, and the Albany Democrats is in Works, II, 360. Raymond, Lincoln, p. 378; Hart, History by Contemporaries, IV, 402, and Guide to Readings, sec. 213–214. Appendix, Congressional Globe, 37th Congress, 3rd session, pp. 53–59. See Vallandigham's Speech in Congress, Jan. 14, 1863.

    18 J. F. Rhodes, History, IV, 245–252.

    19 James L. Vallandigham, Memoir of C. L. Vallandigham, supplement, p. 63.

    20 Clement L. Vallandigham, Speeches, p. 505.

    21 Vallandigham, op. cit., Nicolay and Hay, Lincoln, VII, chap. xii.

    22 Lincoln, Works, II, 342.

    23 I Wallace 243.

    24 C. L. Vallandigham, Speeches, p. 472.

    25 Account reprinted from The Philadelphia Enquirer.

    26 Ex parte Milligan, 4 Wallace 2. See Marshall, American Bastile, pp. 71–91 for his imprisonment; James A. Garfield, Works, I, 143 for argument to the court; Ben Pittman, Trials for Treason at Indianapolis, story of the trial.

    27 Frank Moore, Rebellion Records, I, 78, 123, 190: II, 460. See also McPherson, Political History; Marshall, American Bastile. The Philadelphia incident is in the New York Times, April 16, 1861.

    28 See note 27.

    29 Moore, Rebellion Records, III, 3, quoting the New Haven Palladium.

    30 Ibid., p. 4.

    31 The New York Tribune, August 20, 1861, p. 5.

    32 The New York Tribune, August 31, 1861.

    33 Nicolay and Hay, Life of Lincoln, VI, 334; McPherson, History of the Rebellion, pp. 522, 546; Fleming, Documentary History of Reconstruction, II, 221, et seq.

    34 Report of the Judge Advocate General, April 30, 1864.

    35 Lincoln, Works, II, 290; Nicolay and Hay, Life of Lincoln, VI, 334.

    36 Orders of the War Department, November 30, 1863; Lincoln, Works, pp. 480, 481, 491, 521.

    37 Marshall, American Bastile, p. 119.

    38 Moore, Rebellion Records, III, 5, prints an account from the New Haven Palladium.

    39 Moore, Rebellion Records, II, 490, reprint from the Boston Journal.

    40 Moore, Rebellion Records, II, 531.

    41 McPherson, History of Rebellion, p. 188.

    42 Official Records, series 2, II, 936–956.

    43 Marshall, American Bastile, p. 111.

    44 Here he includes the arguments by Amos Kendall, 1835, and the Attorney-General, 1857, justifying the non-delivery of “incendiary” Abolitionist mail. See above pp. 109, 112.

    45 E. McPherson, Political History, p. 189.

    46 Congressional Globe, 37th Congress, 1st session.

    47 Record Book, State Department, reported in Official Records, series 2, II, 771.

    48 New York Tribune, September 4 and 9, 1861.

    49 Official Record, loc. cit., pp. 802–804.

    50 New York Tribune, July 17, 1861.

    51 Rhodes, History, IV, 253; Horace Greeley, The American Conflict.

    52 McCabe, Life of H. Seymour, pp. 177–178; see also Public Record of H. Seymour, pp. 218–220.

    53 Fleming, Documentary History of Reconstruction, I, 441.

    54 Ibid., p. 441.

    55 For conscription in the Revolutionary War see chapter I. In 1812 it arose in minor technical questions as to the right of the States to conscript, on the powers of State versus National armies, and respecting the status of members of the militia. See Houston Moore, 5 Wheaton 1; Martin v. Mott, 12 Wheaton 19; Luther v. Borden, 7 Howard 1.

    56 See Knoedler v. Lane, 45 Pennsylvania State Reports, 238, for long arguments, and a very full opinion by the judge. For similar decisions upholding the law in the Confederacy see R. P. Brooks, Conscription in the Southern States, and cases—34 Georgia 27; 39 Alabama 254; 26 Texas 386.

    57 12 Statutes at Large 731.

    58 J. A. Marshall, The American Bastile, pp. 303–316 presents one side of these incidents.

    59 Fite, Social Conditions during the Civil War, p. 189.

    60 Herman Schluter, Lincoln, Labor, and Slavery (a Socialist interpretation) declares: “The cause of the draft riots in New York was exclusively social. It arose from the fact that the propertied class with all the force of its economic and political prestige, attempted to unload the blood tax … from its own shoulders onto those of the working class.” Chap, iv, p. 203. For facts on the New York Riots see Col. James B. Fry, New York and Conscription, 1863; James D. McCabe, Life of H. Seymour, and Public Record of H. Seymour; S. F. Headley, The Great Draft Riots, p. 149, et seg.; A. B. Hart, History by Contemporaries, IV, 376; Rhodes, History, IV, 321, 328; Nicolay and Hay, Lincoln, VII, chaps. i and ii; Anna Dickensen, “The New York Riots,” Harper's Magazine, January, 1867. The Congressional Globe, and New York City newspapers of the period.

    61 Fite, op. cit., p. 192.

    62 Fernando G. Cartland, Southern Heroes, p. 131.

    63 13 Statutes at Large 6.

    64 Lincoln, Works, II, 243, 573.

    65 Other records are: Ethan Foster, The Conscript Quakers (privately printed, the Riverside Press, 1883); Allen Thomas, History of the Quakers.

    66 Cyrus Pringle, The Record of a Quaker Conscience, edited by Rufus Jones.

    67 Cartland, op. cit., Introduction by Benjamin Trueblood, p. xxvii.

    68 Cartland, Southern Heroes, pp. 191–193.

    69 Cartland, op. cit., chap. ix, and p. 200.

    70 Cartland, op. cit., chap. ix, and p. 200.

    71 J. R. Commons, et al., History of Labor in the United States, II, 23.

    72 Schluter, Lincoln, Labor, and Slavery, p. 214.

    73 Schluter, op. cit., p. 216.

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