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So to Speak Podcast Transcript: Civil liberties and Civil War

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Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Tyler MacQueen: Before he took office on March 4th, 1861, president-elect Abraham Lincoln watched helplessly as seven states seceded from the union and declared themselves to be a new nation, the Confederate States of America. A lawyer from Illinois with a single congressional term to his credit, Lincoln was unprepared to address the growing tension in the country he had been tasked with leading. In the previous decade, he had thought and spoken extensively about the freedoms and rights denied to enslaved persons across the nation as well as the danger that slavery posed to the country.

Southern states knew of Lincoln’s beliefs all too well. And, when he was elected to the presidency in 1860, they seceded to protect the institution of slavery. But in his career to that point, there had been little need for him to consider assertions of government power and even less need to imagine what those powers might look like during times of war. But during the trip from his hometown of Springfield, Illinois to the nation’s capital, Lincoln tried his hand at doing just that.

Abraham Lincoln: We are not enemies but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection. The mystic chords of memory stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land will yet swell the chorus of the union when again touched as surely, they will be by the better angels of our nature.

Tyler MacQueen: But in the end, Lincoln’s appeals to the South failed. The Confederate attack on Fort Sumter on April 12th, 1861, meant only one thing; war had arrived. The ideological debate over slavery, which had dominated American discourse since the American founding stepped out from behind the lectern and printing press and onto the battlefield. Pamphlets and petitions were replaced with bullets and bayonets. What follows is the story of a nation straining to hold itself together and the lengths political and military leadership was willing to go to keep it from tearing itself apart.

The issue of civil liberties during the civil war has been hotly debated and contested since the war itself. Scholars critical of Lincoln’s presidency have singled out his apparent disregard for civil liberties as the greatest failure of his administration. In contrast, others claim that restricting certain liberties was essential to maintain order in a nation divided by war. This episode will seek out the tension, explore it, and present the facts for you to draw your own conclusions. The long legal and military fight over American civil liberties first erupted in the nation’s border states, a point of concern for the North throughout the war. The border states were the few that allowed for slavery but did not secede. These states included Maryland, Delaware, Missouri, and Kentucky.

From the beginning, Maryland was a source of much anxiety. A week after the attack on Fort Sumter a Massachusetts regiment heading south towards Washington to help defend the city was stopped by a violent mob in Baltimore. Later that same evening, locals burnt Baltimore’s key railroad bridges claiming they acted out of fear that northern troops would attack the city in response to the riot. The Baltimore riots and attacks on critical infrastructure cut Washington off from the rest of the North. Northerners were outraged.

Joseph R. Fornieri: Around April 19th, there were riots in Baltimore, and a mob had attacked Massachusetts and Pennsylvania soldiers passing through the city. There were about 4 soldiers dead, 12 civilians dead, and about 36 wounded. So, this was no small affair.

Tyler MacQueen: This is Joseph R. Fornieri, Professor of Political Science at the Rochester Institute of Technology and the Director of the Center for State Craft, Law, and Liberty.

Joseph R. Fornieri: The next day, Lincoln met with Mayor Brown who seemed to be sympathetic to the rebels – that’s Mayor Brown of Baltimore. And Lincoln reprimands him and says, “After the attack of Fort Sumter, troops are sent to the defense of Washington, and you would have me break my oath and surrender the government without a blow.” Lincoln is extremely frustrated. The Capital is vulnerable. There’s no standing army at this time to protect the Capital. By this time, Virginia had already seceded. So, the Capital is encircled by slave states with riots in Baltimore preventing Union forces from securing the Capital.

Tyler MacQueen: After the Baltimore riot, rumors began to spread that Maryland itself might soon declare secession. In fact, its Governor Thomas H. Hicks went as far as calling a special session of the Maryland legislature to convene to discuss the matter. The Unions General and Chief, Winfield Scott wrote to Lincoln requesting permission to arrest any pro-succession politicians. Lincoln refused, but he kept the door open for military response.

Abraham Lincoln: The Maryland legislature assembles tomorrow and not improbably will take action to arm the people of that state against the United States. The question has been submitted to me whether it would not be justifiable for you to arrest or disperse the members of that body. I think it would not be justifiable nor efficient for the desired object. I therefore conclude that it is only left to the commanding general to awatch and await their action, which if it shall be to arm their people against the United States, he is to adopt the most prompt and efficient means to counteract. And, in the extremist necessity, the suspension of the writ of habeas corpus.

Tyler MacQueen: Often referred to as the “Great Writ,” habeas corpus is the Constitutional protection against unlawful and indefinite imprisonment. It comes from the Latin meaning “Show me the body” and has been used as a safeguard against executive overreach. The Constitution mentions the writ of habeas corpus only once and allows Congress, not the president to suspend it. And, historically, instances where individuals suspended habeas corpus rather than Congress have not gone well. When General Andrew Jackson did it during the battle of New Orleans in 1815, he was fined $1,000 by a federal judge.

Scott’s fears of secession in Annapolis proved ill-founded, but the troubles in Baltimore made him and Lincoln nervous. In another letter to General Scott after the Annapolis scare, Lincoln gave his first authorization of the suspension of the writ in an effort to protect the railroads between Washington and Philadelphia and ensure that the Union army had a safe route to the Capital. In May, with the support Secretary of State William Seward, Lincoln suspended the writ publicly for the first time in the State of Florida. To many Union officers in Florida, Lincoln’s proclamation simply reflected the realities on the ground.

Scholars argue that the president’s behavior during these tense early months showed that he believed that southerners who seceded had abdicated their civil liberties under the Constitution and that the lack of public protest validated his theory. In fact, before the president issued his proclamation, Colonel Harvey Brown of the Department of Florida issued his own proclamation suspending the writ. And, since he did not face severe public pushback, similar actions regarding civil liberties became easier for Lincoln. And, in the first year of the war, he assigned Secretary of State William Seward to oversee the matters. Seward was a prominent New York abolitionist and one of the leading political figures of his era. He served in the Senate for nearly two decades while also serving as Governor of New York before running for the Republican presidential nomination in 1860. He lost to Lincoln on the third ballot. Determined to show unity within the party, Lincoln quickly turned to Seward for guidance after his election.

It was Seward that helped rewrite Lincoln’s first inaugural address. And it was Seward that helped Lincoln try to make sense of the political chaos in the early days of the civil war. This fueled rumors that Seward was the kingpin of Republican politics and the real power behind the president. Seward seemingly shared this belief and carried it to unrestrained limits. In fact, during the war, Seward boasted to the British Prime Minister that he could ring a bell from his desk in Washington and have anyone arrested in the United States.

The truth is, while Seward did wield immense control over military arrests over the first year, he and the State Department ordered very few of them. Most were done by military commanders on the ground in the border states. In fact, the State Department spent most of its time trying to figure out what happened to political prisoners. The federal government was ill-equipped and inefficient in carrying out the tasks and was often unable to track down accurate information about the prisoners.

Even worse than being unable to figure out what happened to political prisoners, the State Department often found out about the arrest through lawyers or distressed relatives and not from military or government officials. Focused on regional stabilization, Lincoln and Seward gave the Union Army permission to confiscate, monitor, and censor communication sent via mail and wire including newspapers and telegraphs. Northern newspapers were shuttered and reporters arrested. Some of those who retaliated after government suppression of speech and expression were arrested and held without warrants or due process of law.

Robert Corn-Revere: If you look at the powers that were exercised during the suspension of habeas corpus, you see a story that often happens when you remove the constraints of governmental power. And that is that power is used not just to prevent emergencies but also to prevent dissent.

Tyler MacQueen: This is Robert Corn-Revere, Chief Counsel for the Foundation for Individual Rights and Expression. Robert is a prominent thinker, writer, and advocate for the First Amendment, who recently published the book, The Mind of the Censor and the Eye of the Beholder.

Robert Corn-Revere: Newspapers shut down and newspaper editors jailed during the suspension of habeas corpus rivals the number of newspaper, and may exceed the number of newspaper editors that were jailed during the Aliens and Sedition Acts post-Revolutionary War, an action that has been universally acknowledged to be a violation of the letter and spirit of the First Amendment. But in this case, you had editors arrested and held without charge, newspapers that shut down, key among them was a newspaper run by Francis Key Howard who is the grandson of Francis Scott Key who wrote the Star-Spangled Banner.

And he was imprisoned simply for writing an editorial saying that the war against the South was a mistake and later wrote a book about his experiences called Fourteen Months in American Bastiles. There were people who were imprisoned during this time simply for selling copies of his book. So, you can see how emergency powers exercised for arguably very good reasons can be used to become agents of suppression.

Tyler MacQueen: In Cincinnati, a man was arrested for selling Confederate-themed envelopes and stationery. In Baltimore, it was illegal to display any items with portraits of Confederate generals. In Alexandria, Virginia, a pastor was arrested for omitting Lincoln from a prayer. Moses Dandor of Connecticut was arrested for raising a Confederate over his house and wishing the Confederates would kill the president and his cabinet. Because he delegated the responsibility of enforcing the suspension of the writ to local military officials, Lincoln often found out about political arrests after the fact if he ever found out at all.

Local military leaders were too eager to enforce Lincoln’s orders. This left the president, who ordered the suspension in the first place, often frustrated. He believed that the arrest of newspaperman polarized the North even further. When Union General Ambrose Burnside censored the Chicago Times, one of the nation's largest anti-war newspapers, Lincoln ordered Burnside to revoke his order. When the Times resumed publication, it declared “The right of free speech has not passed away. We have then still a free press.” But the damage was already done. The temporary closure of the Times is another point of contention among many who criticized Lincoln’s administration to this day. As Lincoln wrote to a St. Louis-based general in 1863 upon hearing of the arrest of a newspaper editor…

Abraham Lincoln: I regret to learn of the arrest of the Democrat editor. I fear this loses you the middle position I desired you to occupy.

Tyler MacQueen: Three months into the American Civil War and now having restricted civil liberties in several states, President Lincoln convened Congress for a special session to seek congressional approval for his actions. In his written remarks to Congress, Lincoln defended his declaration of Marshall Law and the suspension of the writ of habeas corpus.

Abraham Lincoln: Now, it is insisted that Congress and not the executive is vested with this power, but the Constitution itself is silent as to which or who is to exercise the power. And, as the provision was plainly made for a dangerous emergency, it cannot be believed the framers of the instrument intended that in every case the danger should run its course until Congress could be called together, the very assembling of which might be prevented as was intended in this case by the rebellion.

Tyler MacQueen: Again, this is Joseph Fornieri, Professor of Political Science at the Rochester Institute of Technology.

Joseph R. Fornieri: Congress is out of session at this time, which makes the situation even more precarious. Lincoln could have summoned Congress in a special session, but some elections were still taking place. There was no uniform election date at this time. States were running their own elections.

Tyler MacQueen: Lincoln never believed he broke the law. But even if he did, Lincoln claimed that he would rather break one law than let the nation fall apart. And because Congress was out of session when the attack on Fort Sumter took place, it was incumbent upon the president to act decisively to ensure the maintenance of the union. Basically, Lincoln’s rationale was act now and apologize later.

Abraham Lincoln: The legality and propriety of what has been done under it are questioned, and the attention of the country has been called to the proposition that one who is sworn to take care that the laws be faithfully executed should not himself violate them. Are all the laws but one to go unexecuted and the government itself go to pieces lest that one be violated? Even in such a case, would not the official oath be broken if the government should be overthrown when it was believed that disregarding the single law would tend to preserve it? But it was not believed that this question was presented. It was not believed that any law was violated.

Joseph R. Fornieri: Lincoln really reveals himself to be a master lawyer. The argument is multifaceted, and sometimes we lose sight of this. The first part of the argument starts with a hypothetical, and that is the “all the laws but one” argument. It’s kind of an appeal to a Lockean prerogative. John Locke gives the example of a fire in London. And, although it’s against the law to demolish a home, it may be necessary to break the law in order to save the law by analogy to burn a neighboring house to contain the fire.

And so, this is Locke’s description of prerogative, and it’s comparable to Lincoln’s initial argument, which I think is provisional or hypothetical that he had to suspend the writ of habeas corpus and break his oath in a limited sense to uphold the Constitution, the government, and the rule of law and not after he makes this argument. In other words, I would be justified even if the law was broken. He backtracks and said, “No law was broken in fact because the Constitution and Article 1 Section 9 authorizes for the suspension of habeas corpus in cases of invasion or rebellion where the public safety may require it.”

Now, of course, this is in Article 1, but Lincoln broadly construed this saying the Constitution itself makes the distinction by including this, if you will, proviso or this exception between wartime and peacetime. And, with Congress out of session, one could have a debate over which branch subsequently had the authority to do it, but the Constitution clearly authorized it. The emergency circumstances warranted it. And thus, Lincoln argued that the Constitution provides flexibility in times of war to bend without breaking. And thus, he was justified. It’s a masterful argument.

Tyler MacQueen: Political reactions to Lincoln’s justification were mixed. Congress supported Lincoln and passed the Habeas Corpus Act of 1863, which authorized Lincoln suspending the writ in the first place. The Supreme Court, however, was a different story. In the aftermath of the Baltimore riots, John Merryman, a Confederate sympathizer and Maryland Militia Officer worked with others to destroy the railroad bridges leading in and out of the city helping cause the panic that led to Lincoln’s first suspension of the writ.

For his actions, Merryman was arrested and imprisoned at Fort McHenry outside of Baltimore without a warrant. Chief Justice Roger Taney filed his objections to the arrest as Ex parte Merryman in June of 1861. But because Lincoln believed that the Constitution was silent as to who had the authority to execute the suspension of the writ and because Congress was out of session and incapable of handling the crisis until they reconvened, the president ignored Ex parte Merryman completely.

Robert Corn-Revere: It was decided at the time when there was concern about whether or not events in Maryland would result in Washington being surrounded. And so, the sense of emergency at the time says a lot for why that case was decided as it was. Although, keep in mind at the time, Chief Justice Taney had declared that this was a violation of the Constitution. It’s just that the court couldn’t do anything about it because the military authorities refused to enforce the writ. And Lincoln explained that he wasn’t going to obey it and disagreed with Taney as to whether or not this was a violation of the Constitution.

Tyler MacQueen: Ex parte Merryman would only be the first of many legal challenges to Lincoln’s suspension of civil liberties. It also set up a dynamic political struggle in the midst of the greatest crisis the nation has ever faced. To varying degrees, each branch of the federal government had a different understanding of how the president could act. And, over the course of the war, the courts would do what they could to push back against Lincoln when they thought he was stepping over the line like in Merryman.

But the courts defended Lincoln from time to time. Back when the Confederates attacked Fort Sumter in April 1861, Lincoln ordered a blockade of southern ports with the Navy seizing multiple merchant vessels in the process. Under Lincoln’s order, the ships and their cargo were seized and forfeited as a prize regardless of the owner’s nationality or loyalty. A group of merchants sued, arguing that Lincoln acted outside his presidential powers when he ordered the blockade without a formal declaration of war. Collectively, these lawsuits became known as the “Prize Cases.”

Robert Corn-Revere: The question in the Prize Cases were simply whether or not the president had the ability to order a blockade on ports with whom we were not technically at war. The court vindicated his use of executive authority in that instance saying that they were – well, maybe not a declared war at the time that they were belligerence of virtue of having fired on Fort Sumter and other acts.

Tyler MacQueen: In a five-four decision, the Supreme Court, still under Chief Justice Roger Taney, found that the president did have the power to act. But while the Supreme Court sided with Lincoln during the Prize Cases, they unanimously overruled him during the third of the Civil War cases.

Robert Corn-Revere: Ex parte Milligan was decided in 1866. It was decided after the Civil War was over, and it had to do whether or not the president had the power to try people who had been arrested during the suspension of habeas corpus using military tribunals. And so, I think the fact that it was decided after the war was over had a lot to do with the fact the court reached the decision that, while the courts are open – the civil courts are open, that is unconstitutional to impose law using military tribunals.

Tyler MacQueen: In October 1864, Lambden Milligan of Indianapolis, Indiana was arrested for plotting to steal weapons and free Confederate soldiers held in prisoner-of-war camps. He was tried, convicted, and sentenced to be hanged by a military commission in Indianapolis. Desperate, he appealed to a federal court. The Supreme Court took Milligan’s case in 1866 and decided unanimously in Milligan’s favor in the court decision Ex parte Milligan, which dealt a devastating blow to Lincoln’s legacy regarding civil liberties.

The court, now under a Lincoln-appointed Chief Justice, argue that the president had no authority to establish military commissions. More specifically, the president had no authority to do so when the federal courts were open and operating. While limiting presidential power, the decision came too late to affect the shifting dynamics of the Civil War. By the time Ex parte Milligan was decided, the American Civil War had ended. The Union emerged victorious when General Robert E. Lee of the Army of Northern Virginia surrendered to Ulysses S. Grant at Appomattox Courthouse on April 9th, 1865.

And President Lincoln, the controversial figure at the heart of the war was assassinated less than a week later. The legacy of the Civil War and the long story of civil liberties is murky and messy. Reporters were censored and newspapers were shuttered. Protestors were arrested and telegraphs were confiscated. Between 1861 and 1865, somewhere between 18,000 and 32,000 American citizens were arrested.

Robert Corn-Revere: We are always at risk of the guarantees of the Constitution and Bill of Rights being taken away, that as is often said that the price of liberty is eternal vigilance. And these cases represent the push and pull between perceived emergencies – some of them real, some of them not – and the protections of law for individual liberties. I believe the ultimate story that comes out of that is a cautionary tale that says that we can preserve our liberties in spite of significant challenges.

Joseph R. Fornieri: Franklin famously warned that those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety. But equally valid is Justice Jackson’s admonition a century later that the Constitutional Bill of Rights is not a suicide pact. It’s a matter of balancing these. And there’s not going to be a perfect algorithm.

Tyler MacQueen: As I’ve said many times before, the story of America is the story of one people with many voices. And, with those many voices, come many perspectives. And, as we’ve seen, there are plenty regarding the controversial decisions that were made during the war. In war, civil liberties can be hard to uphold and our rights can be difficult to defend. This chapter in America’s history shows how hard it can be. After all, the story of civil liberties in the Civil War is the story of the tug and pull of the rule of law.

Robert Corn-Revere: We see the system, the rule of law, being tested and trying to find some kind of equilibrium where you have the courts at first acquiescing to the use of power and then, as the emergency subsides, then reinforcing the protections that we were guaranteed in the Constitution and Bill of Rights.

Tyler MacQueen: It’s a dramatic political struggle in the midst of the greatest crisis of our history. And yet, somehow, the rule of law prevailed. Our institutions remained, and our country was kept as one. And slowly, the lessons of the Civil War would begin to shape how we view the First Amendment to this very day.