Posted on 05/08/2003 7:01:49 AM PDT by Non-Sequitur
BALTIMORE--There is a good reason why the Lincoln legend has taken on such mythical proportions: Much of what Americans think they know about Abraham Lincoln is in fact a myth. Let's consider a few of the more prominent ones. Myth #1: Lincoln invaded the South to free the slaves. Ending slavery and racial injustice is not why the North invaded. As Lincoln wrote to Horace Greeley on Aug. 22, 1862: "My paramount object in this struggle is to save the Union, and it is not either to save or destroy slavery. If I could save the Union without freeing any slave, I would do it"
Congress announced to the world on July 22, 1861, that the purpose of the war was not "interfering with the rights or established institutions of those states" (i.e., slavery), but to preserve the Union "with the rights of the several states unimpaired." At the time of Fort Sumter (April 12, 1861) only the seven states of the deep South had seceded. There were more slaves in the Union than out of it, and Lincoln had no plans to free any of them.
The North invaded to regain lost federal tax revenue by keeping the Union intact by force of arms. In his First Inaugural Lincoln promised to invade any state that failed to collect "the duties and imposts," and he kept his promise. On April 19, 1861, the reason Lincoln gave for his naval blockade of the Southern ports was that "the collection of the revenue cannot be effectually executed" in the states that had seceded.
Myth #2: Lincoln's war saved the Union. The war may have saved the Union geographically, but it destroyed it philosophically by destroying its voluntary nature. In the Articles of Confederation, the Declaration of Independence, and the Constitution, the states described themselves as "free and independent." They delegated certain powers to the federal government they had created as their agent but retained sovereignty for themselves.
This was widely understood in the North as well as the South in 1861. As the Brooklyn Daily Eagle editorialized on Nov. 13, 1860, the Union "depends for its continuance on the free consent and will of the sovereign people of each state, and when that consent and will is withdrawn on either part, their Union is gone." The New York Journal of Commerce concurred, writing on Jan. 12, 1861, that a coerced Union changes the nature of government from "a voluntary one, in which the people are sovereigns, to a despotism where one part of the people are slaves." The majority of Northern newspapers agreed.
Myth #3: Lincoln championed equality and natural rights. His words and, more important, his actions, repudiate this myth. "I have no purpose to introduce political and social equality between the white and black races," he announced in his Aug. 21, 1858, debate with Stephen Douglas. "I, as well as Judge Douglas, am in favor of the race to which I belong having the superior position." And, "Free them [slaves] and make them politically and socially our equals? My own feelings will not admit of this. We cannot, then, make them equals."
In Springfield, Ill., on July 17, 1858, Lincoln said, "What I would most desire would be the separation of the white and black races." On Sept. 18, 1858, in Charleston, Ill., he said: "I will to the very last stand by the law of this state, which forbids the marrying of white people with Negroes."
Lincoln supported the Illinois Constitution, which prohibited the emigration of black people into the state, and he also supported the Illinois Black Codes, which deprived the small number of free blacks in the state any semblance of citizenship. He strongly supported the Fugitive Slave Act, which compelled Northern states to capture runaway slaves and return them to their owners. In his First Inaugural he pledged his support of a proposed constitutional amendment that had just passed the U.S. Senate and the House of Representatives that would have prohibited the federal government from ever having the power "to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State." In his First Inaugural Lincoln advocated making this amendment "express and irrevocable."
Lincoln was also a lifelong advocate of "colonization" or shipping all black people to Africa, Central America, Haiti--anywhere but here. "I cannot make it better known than it already is," he stated in a Dec. 1, 1862, Message to Congress, "that I strongly favor colonization." To Lincoln, blacks could be "equal," but not in the United States.
Myth #4: Lincoln was a defender of the Constitution. Quite the contrary: Generations of historians have labeled Lincoln a "dictator." "Dictatorship played a decisive role in the North's successful effort to maintain the Union by force of arms," wrote Clinton Rossiter in "Constitutional Dictatorship." And, "Lincoln's amazing disregard for the Constitution was considered by nobody as legal."
James G. Randall documented Lincoln's assault on the Constitution in "Constitutional Problems Under Lincoln." Lincoln unconstitutionally suspended the writ of habeas corpus and had the military arrest tens of thousands of Northern political opponents, including dozens of newspaper editors and owners. Some 300 newspapers were shut down and all telegraph communication was censored. Northern elections were rigged; Democratic voters were intimidated by federal soldiers; hundreds of New York City draft protesters were gunned down by federal troops; West Virginia was unconstitutionally carved out of Virginia; and the most outspoken member of the Democratic Party opposition, Congressman Clement L. Vallandigham of Ohio, was deported. Duly elected members of the Maryland legislature were imprisoned, as was the mayor of Baltimore and Congressman Henry May. The border states were systematically disarmed in violation of the Second Amendment and private property was confiscated. Lincoln's apologists say he had "to destroy the Constitution in order to save it."
Myth #5: Lincoln was a "great humanitarian" who had "malice toward none." This is inconsistent with the fact that Lincoln micromanaged the waging of war on civilians, including the burning of entire towns populated only by civilians; massive looting and plundering; rape; and the execution of civilians (See Mark Grimsley, "The Hard Hand of War"). Pro-Lincoln historian Lee Kennett wrote in "Marching Through Georgia" that, had the Confederates somehow won, they would have been justified in "stringing up President Lincoln and the entire Union high command" as war criminals.
Myth #6: War was necessary to end slavery. During the 19th century, dozens of countries, including the British and Spanish empires, ended slavery peacefully through compensated emancipation. Among such countries were Argentina, Colombia, Chile, all of Central America, Mexico, Bolivia, Uruguay, the French and Danish colonies, Ecuador, Peru, and Venezuela. (Lincoln did propose compensated emancipation for the border states, but coupled his proposal with deportation of any freed slaves. He failed to see it through, however). Only in America was war associated with emancipation.
In sum, the power of the state ultimately rests upon a series of myths about the alleged munificence of our rulers. Nothing serves this purpose better than the Lincoln myth. This should be kept in mind by all who visit the new Lincoln statue in Richmond.
THOMAS DILORENZO is the author of "The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War" and a professor of economics at Loyola College in Baltimore.
Special prize to the first person to refer to a poster as WLAT.
The war may have saved the Union geographically, but it destroyed it philosophically by destroying its voluntary nature.
The framers had no illusion at all that the Union was perpetual and leaving under U.S. law was not an option.
DiLorenzo has found a niche in the "Hate the U.S.A." crowd, but no one else will pay him much mind.
This makes a lot of sense:
"The men at the [Constitutional] convention, it is clear enough, assumed that the national government must have the power to throw down state laws that contradicted federal ones: it was obvious to them that the states could not be permitted to pass laws contravening federal ones...
It did not take long for the supremacy of the Supreme Court to become clear. Shortly after the new government was installed under the new Constitution, people realized that the final say had to be given to somebody, and the Connecticut Jurist and delegate to the Convention Oliver Ellsworth wrote the judicary act of 1789, which gave the Supreme Court the clear power of declaring state laws unconstitutional, and by implication allowing it to interpret the Constitution. The power to overturn laws passed by Congress was assumed by the Supreme Court in 1803 and became accepted practice duing the second half of the nineteenth century."
"The convention was slow to tackle the problem of an army, defense, and internal police. The Virginia Plan said nothing about a standing army, but it did say that the national government could 'call forth the force of the union against any member of the Union failing to fulfill its duty under the articles thereof.' The delegates had expected to discuss something like this clause, for one of the great problems had been the inability of the old Congress to enforce its laws. Surely it should be able to march troops into states when necessary to get state governments to obey.
But in the days before the convention opened Madison had been thinking it over, and he had concluded that the idea was a mistake. You might well march your troops into Georgia or Connecticut, but then what? Could you really force a legislature to disgorge money at bayonet point? 'The use of force against a state,' Madison said, as the debate started on May 31, 'would be more like a declaration of war, than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound.' Although he did not say so at the moment, he had another way of enforcing national law, which not only would be more effective, but also philosophically sounder. As the government was to derive its power from the people, it ought to act on the people directly. Instead of trying to punish a state, which was, after all, an abstraction, for failure to obey the law, the U.S. government could punish individuals directly. Some person -- a governor, a tax collector, a state treasurer -- would be held responsible for failure to deliver the taxes. Similarly, the national government would not punish a state government for allowing say, illegal deals with Indians over western lands, but would directly punish the people making the deals. All of this seemed eminently sensible to the convention and early in the debate on the Virginia Plan the power of the national government to 'call forth the power of the Union' was dropped. And so was the idea that the government should be able to compell the states disappeared from the convention. It is rather surprising, in view of the fact that the convention had been called mainly to curb the independence of the states, that the concept went out so easily. The explanation is, in part, that the states' righters were glad to see it go; and in part that Madison's logic was persuasive: it is hard to arrest an abstraction."
--"Decision in Philadelphia" by Collier and Collier
Walt
Lincoln absolutely came to support equal rights for all.
Lincoln said a lot.
"I confess that I hate to see the poor creatures hunted down down, and caught, and carried back to their stripes and unwarranted toils; but I bite my lip and keep quiet. In 1841 you and I had together a tedious low-water trip, on a Steam Boat from Louisville to St. Louis. You may remember, as I well do, that from Louisville to the mouth of the Ohio there were, on board, ten or a dozen slaves, shackled together with irons. That sight was a continual torment to me; and I see something like it every time I touch the Ohio, or any other slave-border. It is hardly fair for you to assume, that I have no such interest in a thing which has, and continually exercises, the power of making me miserable. You ought rather to appreciate how much the great body of the Northern people do crucify their feelings, in order to maintain their loyalty to the Constitution and the Union."
8/24/54
"If A can prove, however conclusively, that he may, of right, enslave B. -- why not B. snatch the same argument, and prove equally, that he may enslave A.?
-- You say A. is a white, and B. is black. It is --color--, then; the lighter, having the right to enslave the darker? Take care. By this rule, you are to be the slave to the first man you meet, with a fairer skin than your own.
You do not mean color exactly? -- You mean the whites are --intellectually-- the superiors of the blacks, and therefore, have the right to enslave them? Take care again. By this rule, you are to be slave to the first man you meet, with an intellect superior to your own.
But, say you, it is a question of --interest--; and, if you can make it your --interest--, you have the right to enslave another. Very well. And if he can make it his interest, he has the right to enslave you."
1854
My friends, I have detained you about as long as I desired to do, and I have only to say, let us discard all this quibbling about this man and the other man; this race and that race and the other race being inferior, and therefore they must be placed in an inferior position; discarding our standard that we have left us. Let us discard all these things, and unite as one people throughout this land, until we shall once more stand up declaring that all men are created equal."
A. Lincoln, 7/10/58
"I will say here, while upon this subject, that I have no purpose directly or indirectly to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so. I have no purpose to introduce political and social equality between the white and the black races. There is a physical difference between the two, which in my judgment will probably forever forbid their living together upon the footing of perfect equality, and inasmuch as it becomes a necessity that there must be a difference, I, as well as Judge Douglas, am in favor of the race to which I belong, having the superior position. I have never said anything to the contrary, but I hold that notwithstanding all this, there is no reason in the world why the negro is not entitled to all the natural rights enumerated in the Declaration of Independence, the right to life, liberty and the pursuit of happiness. [Loud cheers.] I hold that he is as much entitled to these as the white man. I agree with Judge Douglas he is not my equal in many respects---certainly not in color, perhaps not in moral or intellectual endowment. But in the right to eat the bread, without leave of anybody else, which his own hand earns, he is my equal and the equal of Judge Douglas, and the equal of every living man."
August, 1858
"I do not expect the Union to be dissolved--I do not expect the house to fall--But I do expect it will cease to be divided. Either the opponents of slavery, will arrest the further spread of it, and place it where the public mind shall rest in the belief that it is the course of ultimate extinctioon; or its advocates will push it forward, till it shall become alike lawful in all the States, old as well as new--North as well as South. Have we no tendency towards the latter condition?"
1858
"The principles of Jefferson are the definitions and axioms of free society. And yet they are denied, and evaded, with no small show of success. One dashingly calls them "glittering generalities"; another bluntly calls them "self evident lies"; and still others insidiously argue that they only apply to "superior races."
These expressions, differing in form, are identical in object and effect. -- the supplanting the principles of free government, and restoring those of classification, caste, and legitimacy. They would delight a convocation of crowned heads, plotting against the people. They are the van-guard -- the miners and sappers -- of returning despotism. We must repulse them, or they will subjugate us. This is a world of compensations; and he that would -be- no slave, must consent to --have-- no slave. Those that deny freedom to others, deserve it not for themselves, and under a just God cannot long retain it."
3/1/59
"But to be plain, you are dissatisfied with me about the negro. Quite likely there is a difference of opinion between you and myself upon that subject. I certainly wish that all men could be free, while I suppose that you do not. ....peace does not appear as distant as it did. I hope it will come soon, and come to stay; and so come as to worth the keeping in all future time. It will have then been proved that, among free men, there can be no successful appeal from the ballot to the bullet; and that they who take such appeal are sure to lose their case, and pay the cost. And then, there will be some black men, who can remember that, with silent tongue, and clenched teeth, and steady eye, and well-poised bayonet they have helped mankind on to this great consumation; while, I fear, there will be some white ones, unable to forget that, with malignant heart, and deceitful speech, have strove to hinder it. Still let us not be over-sanguine of a speedy final triumph. Let us be quite sober. Let us dilligently apply the means, never doubting that a just God, in his own good time, will give us the rightful result."
8/23/63
"I am naturally anti-slavery. If slavery is not wrong, nothing is wrong. I can not remember when I did not so think, and feel...
In telling this tale I attempt no compliment to my own sagacity. I claim not to have controlled events, but confess plainly that events have controlled me. Now, at the end of three years struggle the Nation's condition is not what either party, or any man devised, or expected. God alone can claim it. Whither it is tending seems plain. If God now wills the removal of a great wrong, and wills also that we of the North as well as you of the South, shall pay for our complicity in that wrong, impartial history will find therein new cause to attest and revere the justice and goodness of God."
4/4/64
"it is also unsatisfactory to some that the elective franchise is not given to the colored man. I would myself prefer that it were now conferred on the very intelligent, and on those who serve our cause as soldiers."
4/11/65
sources: "Abraham Lincoln, Mystic Chords of Memory" published by the Book of the Month Club, 1984 and:
"Lincoln, Speeches and Writings, 1859-65, Library of the Americas, Don E. Fehrenbacher, ed. 1989
Consider these letters:
Private
General Hunter
Executive Mansion
Washington D.C. April 1, 1863
My dear Sir:
I am glad to see the accounts of your colored force at Jacksonville, Florida. I see the enemy are driving at them fiercely, as is to be expected. It is mportant to the enemy that such a force shall not take shape, and grow, and thrive, in the south; and in precisely the same proportion, it is important to us that it shall. Hence the utmost caution and viglilance is necessary on our part. The enemy will make extra efforts to destroy them; and we should do the same to perserve and increase them.
Yours truly
A. Lincoln
_________________________________________________________
Hon. Andrew Johnson
Executive Mansion,
My dear Sir:
Washington, March 26. 1863.
I am told you have at least thought of raising a negro military force. In my opinion the country now needs no specific thing so much as some man of your ability, and position, to go to this work. When I speak of your position, I mean that of an eminent citizen of a slave-state, and himself a slave- holder. The colored population is the great available and yet unavailed of, force for restoring the Union. The bare sight of fifty thousand armed, and drilled black soldiers on the banks of the Mississippi, would end the rebellion at once. And who doubts that we can present that sight, if we but take hold in earnest? If you have been thinking of it please do not dismiss the thought.
Yours truly
------------------------------------------------------------------------------------------------------------
Hon Soc of War
Executive Mansion
Washington
July 21, 1863
My Dear Sir:
I desire that a renewed and vigorous effort be made to raise colored forces along the shores of the Missippi [sic]. Please consult the General-in-chief; and if it is perceived that any acceleration of the matter can be effected, let it be done. I think the evidence is nearly conclusive that Gen. Thomas is one of the best, if not the very best, instruments for this service.
Yours truly
--------------------------------------
Lincoln also proposed --privately-- to the new governor of Louisiana that the new state constitution include voting rights for blacks. A year later, in April, 1865 he came out --publicly-- for the suffrage for black soldiers, because his great --political-- skill told him that the time was right.
It was a direct result of this speech, and this position, that Booth shot him.
President Lincoln, besides ordering the army (note that this is only a few months after the EP) to use black soldiers more vigorously, made many public speeches to prepare the people for the idea of black suffrage.
"
"When you give the Negro these rights," he [Lincoln] said, "when you put a gun in his hands, it prophesies something more: it foretells that he is to have the full enjoyment of his liberty and his manhood...By the close of the war, Lincoln was reccomending commissioning black officers in the regiments, and one actually rose to become a major before it was over. At the end of 1863, more than a hundred thousand had enlisted in the United States Colored Troops, and in his message to Congress the president reported, "So far as tested, it is difficult to say they are not as good soldiers as any." When some suggested in August 1864 that the Union ought to offer to help return runaway slaves to their masters as a condition for the South's laying down its arms, Lincoln refused even to consider the question.
"Why should they give their lives for us, with full notice of our purpose to betray them?" he retorted. "Drive back to the support of the rebellion the physical force which the colored people now give, and promise us, and neither the present, or any incoming administration can save the Union." To others he said it even more emphatically. "This is not a question of sentiment or taste, but one of physical force which may be measured and estimated. Keep it and you can save the Union. Throw it away, and the Union goes with it."
--"Lincoln's Men" pp 163-64 by William C. Davis
Lincoln's sense of fairness made him seek to extend the blessings of citizenship to everyone who served under the flag.
His great political skill made him realize that blacks --were--not-- leaving -- he played that card and no one was biting, black or white. That being the case, he knew he had to prepare for the future, and that future involved full rights for blacks.
Walt
The Constitution confers almost dictatorial powers on the president in wartime.
Most historians (which DiLorenzo certainly is not) agree that Lincoln bent but didn't break the Constitution.
The Anniversary of Abraham Lincoln's
Gettysburg Address
Gettysburg, Pennsylvania
November 19, 1996
Remarks by
Sandra Day O'Connor
Associate Justice, Supreme Court of the Unites States
I. Introduction
I am honored to have the opportunity to speak with you today, on this anniversary of the Gettysburg Address. But I have to admit that my task is a bit daunting, even for a Supreme Court Justice.
No speaker, I am afraid, can find the words to compete with those spoken here by Abraham Lincoln six score and thirteen years ago (that's 133 years, for those of you without calculators). That goes for me, as well as for Edward Everett, perhaps the greatest orator of the Nineteenth Century. He was commissioned to be the Keynote speaker at the dedication of this cemetery in Gettysburg in 1863. Everett's oration was a two-hour affair, filled with rhetorical flourishes, peppered with allusions to Greek antiquity, and ending with a recitation of every hill and gully where men had fought and fallen at Gettysburg. The speech was considered the masterpiece of Everett's career.
But is was quickly overshadowed when Lincoln rose from his chair and gave, as his secretary modestly described it, a "half dozen words of consecration." Lincoln was indeed a poor prophet when he predicted that "[T]he world will little note nor long remember what we say here."
Lincoln's "few appropriate remarks" began this way:
"Fourscore and seven years ago our fathers brought forth on this continent, a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal. Now we are engaged in a great civil war, testing whether that nation or any nation so conceived and so dedicated can long endure."
In the early days of the Civil War, it looked as though the young American nation, "conceived in liberty" might not "long endure." It faced so many threats. The southern states had broken away. European powers were poised to intervene, to permanently divide the young nation into Union and Confederacy.
The war posed another sort of danger, as well--a danger less obvious, perhaps, than columns of soldiers marching through the countryside, but one far more insidious to a nation "conceived in liberty". It was the danger that government at war might use its extraordinary powers to stamp out political opposition. And when President Lincoln suspended the Writ of Habeas Corpus during the Civil War, there was a good chance of that happening.
Because it is an issue of considerable interest to lawyers and judges, I propose to talk today about Lincoln's suspension of Habeas Corpus. I will make three points. First, I will review a little bit of the history of Habeas Corpus: where it came from, what it means, and how it came to be viewed, by the beginning of the Civil War, as a principle guarantee of political liberty. Second, I will talk about what prompted President Lincoln to suspend the Writ of Habeas Corpus in those first few days of the Civil War, when states were seceding left and right, and our capital, Washington, was threatened with invasion. Finally, I will come to the main question: how did the Lincoln Administration act once Habeas Corpus was suspended, and it was free to take people into custody without arrest warrants issued by courts? I think that history shows that President Lincoln did not arrest civilians during the Civil War to repress political dissent, but only to protect the military and security interests of a nation at war.
II. Background About Habeas Corpus
But first, a bit of background is in order. Those of you who are not lawyers may recognize the term "Habeas Corpus" as a sort of criminal appeal. You may be following the ongoing debate about how to regulate Habeas Corpus proceedings brought by prisoners, particularly those on death row. Earlier this year, Congress passed a law making it more difficult for prisoners to challenge their convictions or sentences by invoking the Writ of Habeas Corpus. This new law has prompted quite a bit of activity in the courts, and it remains to be seen exactly what effects that law will have. But history shows that constant change is part and parcel of the remedy of Habeas Corpus.
We can trace the Writ Habeas Corpus as far back as the Norman Conquest of England. Back then, William the Conqueror sent royal judges to ride throughout the countryside of his new kingdom dispensing justice. These itinerant judges would, on occasion, order local sheriffs to "have the bodies" of accused criminals brought before their courts. That's where we get the Latin phrase "Habeas Corpus". It means literally, "have the body". And we call it a "writ" because these traveling judges would put their orders into a "written" document.
So Habeas Corpus began as a way of dragging an unwilling suspect into court. But eventually people who were unlawfully imprisoned--say, by a corrupt mayor, or even the king--began asking royal judges to bring them out of jail and into court, where their jailers would have to justify why they were in custody. This explains why today, when a prisoner seeks a Writ of Habeas Corpus, he technically names his prison warden as the defendant.
England grew to regard the Writ of Habeas Corpus as a beacon of individual liberty against the gloom of tyrannical government. It was not a "get out of jail free" card, mind you--but it at least ensured that a prisoner could have his day in court. If you were to ask an Englishman to name the greatest legal documents in English history, right alongside the "Magna Carta" would be the "Habeas Corpus Acts" passed by Parliament in the 1600s, guaranteeing this remedy to all English subjects.
When English settlers moved to the New World, they brought with them more than hammers and saws to build new homes, plows and shovels to till new fields. They also brought with them the English Common Law to build their new legal system. That included habeas corpus. When tensions mounted between the colonies and the crown, royal governors were known to lock up "troublemakers." And local courts were known to issue Writs of Habeas Corpus to release those troublemakers.
One of the guiding principles of the American Revolution, of course, was that governments should not be able to lock up citizens arbitrarily, or simply because they raised their voices against the government. The founding fathers took this concern to heart at the Constitutional Convention. Like their ancestors, they saw the Writ of Habeas Corpus as a bulwark against tyranny. So, to safeguard the writ, our new constitution provided that "the privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."
There was only one brief incident during the early days of the republic when "public safety" led to suspension of the writ. During the War of 1812, General Andrew Jackson imposed martial law in New Orleans. At one point, he locked up a newspaper editor who had been fiercely critical of the General. When a judge issued a Writ of Habeas Corpus to free the editor, Jackson not only ignored the writ--he arrested the judge, too! Only a few days later, when a peace treaty had been signed and the British fleet sailed away from the coast, did Jackson release both editor and jurist.
This proved to be an isolated incident. After that brief wartime interlude, courts went on issuing the writ as justice demanded.
As time went on, the Writ of Habeas Corpus took on new dimensions. For a time, the writ became a lightning rod for people on both sides of the slavery issue. When runaway slaves were apprehended by slave catchers in Northern states, abolitionist lawyers helped them secure their freedom with Writs of Habeas Corpus from sympathetic courts. Perhaps the most successful lawyer in this regard was Salmon P. Chase, Secretary of the Treasury under Lincoln and later Justice of the Supreme Court. Chase extracted so many slaves from jail that he earned the moniker "Attorney General for Fugitive Slaves."
While abolitionists interposed the writ as a shield to protect freed slaves, some pro-slavery forces tried to use it as a sword. Some Northern states let slavemasters use the Writ of Habeas Corpus to force local sheriffs to bring back runaway slaves. But this fight over the soul of Habeas Corpus--a longstanding instrument of freedom--was interrupted by the Civil War.
III. The Civil War: Suspension of the Writ
1861 was a difficult time, to say the least. Barely a month after Lincoln's inauguration, Washington was abuzz with rumors that Confederate soldiers, gathering near Harper's Ferry in Virginia, might move against the capital. The Southern states had been seceding, one by one, and it looked as though Maryland--south of the Mason-Dixon Line and still a slave state--might be next. Lincoln himself had traveled incognito through Baltimore, at night, to avoid assassination plots on his way to his own inauguration.
In April, in the midst of all this confusion, a trainload full of Union soldiers passed through Baltimore en route to Washington. They were fresh recruits from Massachusetts, outfitted with polished boots and belt buckles, satin-trimmed coats and hats. They had been summoned to man the defensive fortifications around the capital.
These soldiers were not greeted by brass bands and waving flags, but by an angry mob of Southern sympathizers who were spoiling for a fight. The soldiers literally had to fight their way across the town of Baltimore to reach another station, where their train to Washington waited. Four of them did not make it out of town alive. Later that night, local authorities--whose sympathies clearly ran in a southerly direction--burned the bridges and cut the telegraph lines between Baltimore and Washington, claiming that Union soldiers might come back, looking for revenge after the riot. But as one commentator has put it, "Bridge-burning looked more like plain treason to the government in Washington, which was now defenseless and cut off from the rest of the North."
Washington had a rebel army to its south and a secession-minded mob to its north. Congress was out of session. Lincoln felt the need to take things into his own hands. Invoking his power as Commander-in-Chief, he authorized local military commanders to suspend the Writ of Habeas Corpus along the railroad line from Washington to Philadelphia. Essentially, this meant that the Army could arrest civilians without getting a warrant from a court or without probable cause to believe a crime had been committed by the person arrested, and without providing the speedy jury trial that the Constitution guarantees in times of peace.
Enter Mr. John Merryman, a member of the Maryland legislature. Merryman had been recruiting local men to march south and join the rebel army. When a Union General found out, he ordered Merryman's arrest and packed him of to Fort McHenry in Baltimore Harbor (of Star-Spangled Banner fame) for the rest of the war. Merryman, in turn, applied for a Writ of Habeas Corpus from his local federal circuit judge.
Now, as you may remember, I mentioned earlier that royal judges in medieval England used to "ride circuit," holding court throughout the countryside. Well, the Supreme Court worked much the same way until late in the Nineteenth Century. Justices of the Supreme Court sat together only part of the year. During their plentiful spare time the justices would hop onto their horses and serve as federal circuit judges around the country. When Merryman filed his request with his local circuit judge, he went to none other than Roger Taney, Chief Justice of the Supreme Court.
The Chief Justice was no friend of the Republican administration, having written the Dred Scott Decision only four years before. When he received Merryman’s petition, Taney ordered the commander of Fort McHenry to bring Merryman to his court in Baltimore. Instead of sending Merryman, the Colonel, sent back an aide bearing a polite message. The President had authorized the Colonel, in this time of war, to suspend the Writ of Habeas Corpus. Merryman would stay at Fort McHenry. This, as you can imagine, incensed the Chief Justice. He wrote a fiery opinion arguing that only Congress had the power to suspend Habeas Corpus. The President could not. The President’s job, he said, was merely to see that the laws be faithfully executed.
Lincoln did not publicly respond to Taney's opinion until Congress met a month later, on July 4. Lincoln said that, had he not suspended Habeas Corpus immediately, Washington itself might be now be in Southern hands. That, of course, would have prevented Congress from meeting, let alone from responding to the rebellion. Lincoln then took aim at Taney's claim that the President's job was to sit back and ensure that the laws be faithfully executed, even in the face of Merryman's recruiting soldiers for the Confederate cause. In the Confederacy, fully one-third of the country, the Constitution itself was being ignored. Should Lincoln's hands be tied by the writ of Habeas Corpus in such a national emergency? He asked; "[A]re all the laws, but one, to go unexecuted and the government itself go to pieces, lest that one be violated?"
Merryman stayed in jail. Now, Merryman was only one of many people arrested, without benefit of Habeas Corpus relief, in the early days of the war for providing military aid to the young Confederacy. Lincoln later said that he regretted not arresting even more traitors to the Northern cause--particularly the Robert E. Lees who had abandoned the Union Army to lead its Southern enemy to victory after victory.
Scholars still debate whether Lincoln had the authority to invoke the Constitutional provision suspending Habeas Corpus during the early days of the war. I will not wade into the muddy waters of that debate. I am more interested in talking about what Lincoln did after March of 1863--for that is when Congress gave Lincoln legislative authority to suspend the writ. From that point forward, Lincoln faced no constitutional obstacles. He could arrest whomever he chose, without courts interfering with Writs of Habeas Corpus. What did Lincoln do at this point? Did he attempt to stifle political debate, by imprisoning his opponents? In short, did he trample on the civil liberties the Writ of Habeas Corpus was meant to protect?
A recent historical study, entitled The Fate of Liberty, says "no." The author, Mark Neely, combed through the musty boxes of arrest records from the Civil War "to find out who was arrested when the Writ of Habeas Corpus was suspended and why." Neely concludes that, throughout the war, Lincoln was guided by a "steady desire to avoid political abuse under the Habeas-Corpus policy."
According to the best estimates, about 38,000 civilians were arrested by the military during the Civil War. Who were they? Almost all fell within a few categories: "draft dodgers, suspected deserters, defrauders of the government, swindlers of recruits, ex-Confederate soldiers, and smugglers." And strikingly, most of these were Confederate citizens, caught behind Northern lines. The numbers show that very few civilians were taken from their homes and arrested. And of those few arrests, only a handful were colored by political considerations.
Indeed, Lincoln issued his most sweeping proclamation suspending Habeas Corpus not to silence political dissent, but to stop judicial interference in the draft. Early in the war, patriotic zeal was so strong that volunteers flooded into the Army. But as the war dragged on, public enthusiasm ebbed. Eventually, the government was reduced to instituting a draft. Conscription was rather unpopular, to say the least. If any of you remember the burning of draft cards during the Vietnam War, imagine that unrest multiplied several times over in the New York City Draft Riots in 1863. The problem was especially bad in Pennsylvania. Coal miners attacked men thought to be "in sympathy with the draft." State and federal courts added to the problem. They were churning out Writs of Habeas Corpus, freeing soldiers as soon as they were drafted. Lincoln observed that "[T]he course pursued by certain judges is defeating the draft."
Lincoln's response was to suspend the Writ throughout the North in any case that involved military arrest of deserters or draft dodgers. And for good measure, he threw in prisoners of war, spies, and those giving assistance to the enemy--say, by smuggling goods to the Confederate government. But his focus was always on military necessity. Lincoln never tried to suppress political dissent. He understood that a democracy only grows stronger by allowing people to voice their opposition to the government, even in the midst of war. He understood that the strength of the Union lay not only in force of arms, but in the liberties that were guaranteed by the open, and sometimes heated, exchange of ideas. And as one historian has put it, "[T]he opposition press in the North was vibrant, vigorous, and often vicious."
This point is illustrated by the most sensational arrest of the Civil War: the arrest of Clement Vallandigham, a former democratic congressman from Ohio. Vallandigham was an out-spoken Confederate sympathizer, a man who minced no words expressing his contempt for the Lincoln administration. He was one of the “Peace Democrats,” or “Copperheads,” who originally earned their name from “the poisonous snake that attacks without notice.” The Copperheads co-opted the title, wearing the head of the goddess Liberty cut from a copper penny as lapel pins, to broadcast their opposition to the war. Its a nice irony, I think, to remember whose head appears on the penny today! The Copperheads must be turning in their graves.
In May 1863, General Ambrose Burnside was in charge of the Department of The Ohio. Burnside, it turned out, is a man bettered remembered for his long whiskers--or "sideburns"--than for his political acuity. The general announced that anyone within his jurisdiction who was in the "habit of declaring sympathies for the enemy" would be arrested as a traitor.
Vallandigham took Burnside's proclamation as a challenge. At a public rally opening his campaign for the Governor of Ohio, Vallandigham gave a vitriolic speech. He denounced the President as "King Lincoln," accused Burnside of being a heavy-handed tyrant, and called for a negotiated peace with the south. Burnside read the speech, arrested Vallandigham, and shipped him off to jail in Boston.
This, of course, was exactly what Vallandigham wanted. Overnight, he became a martyr for the Copperhead cause. The papers called him "Valiant Val." Democrats triumphantly announced that Lincoln had finally shown his true colors: he was nothing more than a petty tyrant.
Lincoln, for his part, was not pleased by the General's actions. To be sure, he was not fond of Vallandigham. The former Congressman had been stirring up sentiments against the war, and Lincoln suspected that was purposely fanning the flames of street violence in opposition to the draft. But Lincoln realized that the arrest was valuable ammunition for his political opponents.
Burnside, ever the zealous soldier, had one more blunder to make. Turning his attention to Illinois, the General decided that the Chicago Times was getting too loud in criticizing the war effort. It was time to shut the paper down. So he sent out two companies of infantry, and they stopped the presses.
This was too much. Lincoln had to engage in what today might be called "damage control." Burnside had proclaimed that traitors would either be put on trial or sent "into the lines of their friends." Lincoln decided to take the second option. Early one morning, Union troops escorted a bewildered Vallandigham to the Confederate lines in Tennessee and, there, they set him free. After some confusion, he made his way to Charleston, South Carolina. He exchanged some awkward pleasantries with his Confederate hosts, and eventually caught a slow boat to Canada.
The next order of business was to get the Chicago Times back in circulation. Lincoln rescinded Burnside's order, called back the troops guarding the presses, and warned his overzealous general not to arrest any more civilians or shut down any more newspapers without express approval from Washington.
Although Lincoln undid most of the damage, he still wanted to make a point. He explained to a group of New York Democrats that he would not allow civilians to be arrested merely for "damaging the political prospects of the administration or the personal interests of the commanding general." Arrests would be made only to protect national security. Now, national security is always a difficult line to draw, especially during a civil war. But the line had to be drawn somewhere, if the Union was to be preserved.
Lincoln asked:
"Must I shoot a simple-minded boy who deserts, while I must not touch a hair of wily agitator who induces him to desert?.... I think that, in such a case, to silence the agitator and save the boy is not only constitutional, but withal a great mercy."
IV. SUMMARY
In sum, the Vallandigham episode is emblematic of Lincoln's approach to political liberties during the Civil War. The President was not out to trample on the First Amendment. He was not out to crush his political opposition. He suspended the writ of Habeas Corpus in response to perceived military threats to the Union. After he, and later Congress, removed that Constitutional safeguard, the Lincoln Administration did not use its power selfishly or arbitrarily. It arrested only those people who actively supported the Confederate war machine--people like Merryman, who recruited troops to march south. And when people walked this fine line between political dissent and treason, as Vallandigham did, Lincoln tried to err on the side of free speech.
Midway through the war, Lincoln predicted that Habeas Corpus would quickly be re-instituted after the war was over. He could not bring himself to believe that Americans would allow the wartime suspension of Habeas Corpus to extend into peacetime, he said, "Any more than I am able to believe that a man could contract so strong an appetite for emetics during temporary illness as to persist in feeding upon them during the remainder of his healthful life." Lincoln died before he could see the writ of habeas corpus restored.
In one of his most famous debates with Stephen Douglas, Lincoln spoke about how a society that tolerates slavery corrodes the very foundations of its own liberty. These words, I think, reveal Lincoln's awareness that he wasn't battling for territory on a map. He was battling to preserve a nation "conceived in Liberty."
Lincoln asked:
"What constitutes the bulwark of our own liberty and independence? It is not our frowning battlements, our bristling sea coasts, the guns of our war steamers, or the strength of our gallant and disciplined army. These are not our reliance against a resumption of tyranny in our fair land. All of them may be turned against our liberties, without making us stronger or weaker for the struggle. Our reliance is in the love of liberty which God has planted in our bosoms. Our defense is in the preservation of the spirit which prizes liberty as the heritage of all men, in all lands, everywhere. Destroy this spirit, and you have planted the seeds of despotism around our doors. Familiarize yourselves with the chains of bondage, and you are preparing your own limbs to wear them. Accustomed to trample on the rights of those around you, you have lost the genius of your own independence, and become the fit subjects of the first cunning tyrant who rises."
So today, let us heed the wisdom of a man who led our nation to a "new birth of freedom." Let us always be, first and foremost, lovers of liberty. Thank you
DiLorenzo again shows himself as the shill of the "Hate the U.S.A. group.
"To his delight, and probably amazement, Breckinridge saw that Sherman went far bevond Reagan's opening proposal, and instead offered virtually everything that he had been working For in his own reconstruction plan.
Indeed, the terms were practically identical to what Campbell had proposed independently to Lincoln, suggesting the common origin of both proposals in the discussions Breckinridge and Campbell held back in February and March, and that the secretary of war had pressed them hard on Sherman now. When it came to recognizing the existing state governments, Sherman did at least have before him the example of what had been started in Virginia, not knowing that Lincoln and Campbell's plan there would soon collapse, but on most of the other concessions there was no precedent. Sherman even omitted any mention of emancipation. Perhaps Breckinridge in fact did seduce Sherman in some degree, and years later Sherman himself recalled how "those fellows hustled me so that day,"
Now the proposal of universal amnesty made no exceptions for Davis and his leaders, which the day before Sherman told ]ohnston was impossible. Undoubtedly Breckinridge and Johnston appealed to Sherman's vanity in their discussions by portraying him as potentially a great peacemaker, for within hours, when he wired his terms to Grant for approval, Sherman almost boasted that his cartel constituted an absohne submission. "The terms are all on our side," he wrote his wife that afternoon: "I can hardly realize it." His work that day would "produce Peace from the Potomac to the Rio Grande."
Once the three stood agreed on the terms, Sherman and Johnston signed it and Sherman called for copies to be made for their two governments. He then he spoke to the two Confederates of Lincoln's assassination. Johnston confided to Sherman his horror at the deed, fearing it would be blamed on the Confederates, and that Lincoln might have been their greatest ally in reconstruction." Stepping outside to their now mingled escorts, they found the news generally known, as Sherman introduced the two of them to his staff, and Breckinridge and Reagan discussed it with some of their followers. The postmaster said he hoped no connection between the murdered and their cause would be found, or it should go hard for them, while Breckinridge said Lincoln's death at this time and in this manner must precipitate great calamity for them. "Gentlemen," he told them, “the South has lost its best friend." At once he wrote a message to be taken by courier to Davis, announcing the assassination and what he called the "dastardly attempt" on Seward. As soon as he got back to Goldsboro and the telegraph, he would send a wire with more details Sherman also took Breckinridge aside privately and advised him that despite the provision for universal amnesty in their agreement, he doubted that the North would allow it to apply o the civil leaders. If they could, they had all better leave the country especially Davis. Noting that there was particular hostility toward Breckinridge since, as one-time vice president, he was the highest ranking living civilian to go over to the rebellion he advised the Kentuckian to be sure to get away.
Breckinridge replied that he would give the Yankees no more trouble on his own account, and that he would attempt to get Davis and himself and the rest out of the country as soon as possible.
-"An Honorable Defeat" pp.166-67 by William C. Davis
"...in the wake of the assasination, editors, generals and public officials across the South voiced the opinion that the region had lost its best friend.
Indignation meetings, so-called, were convened in many places. Lincoln stood for peace, mercy, and forgiveness. His loss, therefore, was a calamity for the defeated states. This opinion was sometimes ascribed to Jefferson Davis, even though he stood accused of complicity in the assasination....He [Davis] read the telegram [bringing news of Lincoln's death] and when it brought an exultant shout raised his hand to check the demonstration..."He had power over the Northern people," Davis wrote in his memoir of the war," and was without malignity to the southern people."...Alone of the southern apologists, [Alexander] Stephens held Lincoln in high regard. "The Union with him in sentiment," said the Georgian, "rose to the sublimnity of religious mysticism...in 1873 "Little Elick" Stephens, who again represented his Georgia district in Congress, praised Lincoln for his wisdom, kindness and generosity in a well-publicized speech seconding the acceptance of the gift of Francis B. Carpenter's famous painting of Lincoln and the Emancipation Proclamation."
...[in 1880] a young law student at the University of Virginia, Thomas Woodrow Wilson, speaking for the southern generation that grew to maturity after the war, declared, "I yield to no one precedence in love of the South. But because I love the South, I rejoice in the failure of the Confederacy"...the leading proponent of that creed was Henry W. Grady, editor of the Atlanta Constitution. In 1886 Grady, thirty-six years old, was invited to address the New England Society of New York, on the 266th anniversary to the landing of the Pilgrims at Plymouth. General Sherman, seated on the platform, was an honored guest, and the band played [I am not making this up] "Marching Through Georgia" before Grady was introduced. Pronouncing the death of the Old South, he lauded the New South of Union and freedom and progress. And he offered Lincoln as the vibrant symbol not alone of reconciliation but of American character. "Lincoln," he said, "comprehended within himself all the strength, and gentleness, all the majesty and grace of the republic." He was indeed, the first American, "the sum of Puritan and Cavalier, in whose ardent nature were fused the virtues of both, and in whose great soul the faults of both were lost."
--From "Lincoln in American Memory" by Merrill D. Peterson P. 46-48
Walt
And the made up information. His claim that after the first 7 states seceded there were more slaves in the U.S. than in the confederacy is patent bullsh*t. The seven original confederate states had almost 59% of the slave population.
Good point. I figured it was at least 50%.
And how about this from Dr. D.
There were more slaves in the Union than out of it, and Lincoln had no plans to free any of them.
What he doesn't explain is exactly how Lincoln could have freed any of them. He intentionally leaves the impression that Lincoln could have waved his hand and freed the slaves if he had only wanted to. Even the rabid Lincoln-hater, Dr. D must understand that it required a Constitutional amendment for the Union to end slavery. Then again, judging from his overall level of "scholarship", maybe he doesn't know that.
Having read a few of the past Lincoln threads, I think it's in the backroom because the odds are it will devolve into a shouting match rather than rational discussion.
Also, are you sure it was moved to the backroom, or did Non-Sequitur post it here to begin with because he knows what it will turn into?
No, not really. He simply noted the historical fact that the Lincoln committed widespread crimes of war against southern civilians. If you want an example of a "Hate the U.S.A" quote, you need to look for something such as this:
"All these deaths of U.S. citizens --the death of EVERY U.S. citizen killed by Arab terror in the United States, can be laid directly at the feet of George Bush I." found at http://www.freerepublic.com/focus/f-chat/786927/posts?q=1&&page=401#448
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.