Friday, July 16, 2010

Lincoln, the Constitution, and Habeus Corpus, part 1, Revised.

One of the charges against Lincoln, today and in his time, was that he was a rampant believer in big government. Those that say this point to his suspension of the writ of Habeus Corpus.

What is habeas corpus?
Suspending habeas corpus compromises human rights and civil rights. According to Wikipedia, it is a way that prisoners may seek to end an imprisonment for which there is no corpus, or body, of evidence. It is not a way to stop a false arrest, but a way to nullify an imprisonment that has become a kind of warehousing, where accusers have time to find elusive evidence or forget the prisoner altogether.

Article I, Section 9, clause 2 of the U.S. Constitution states "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."

In this post, I concentrate more on Lincoln and his rationales or defenses against his accusers and detractors. In the meantime, I think I found that Lincoln's suspension of habeas corpus marks an early determination to be the Commander-in-Chief that a military could actually function under.

Many of Lincoln's letters to generals have suggestions. Others have direct orders. In every case, it seems that Lincoln is determined to assure his military command that he supported them. That he knew life was difficult on the ground. It is a conducted military diplomacy, designed to ensure that his thinking was understood and carried out with regard to the war. It was calculated to the single purpose of preserving Union, through military and non-military means. These first months show his first steps toward that end.

A Short, Eventful Timeline:
In April of 1861, Abraham Lincoln had been president less than two months. The 'First Wave' of states had already seceded from the Union.
April 15:  Lincoln called Congress back in session. He also called for 75,000 militia from the states. This turned out to be, at least in Shelby Foote's estimation, a grand mistake. The call for militia led to the secession of the second wave of states, including Virginia--right next door.

April 18: The first soldiers show up: 500 untrained and unarmed men from Pennsylvania arrive from Maryland. They report a cold reception, but no incidents.
April 19:  The 6th Massachusetts showed up with 21 less able-bodied than when they started. In Baltimore, while on the train, they had been stoned and shot at by Marylanders. Four died; 17 wounded. They had returned fire, killing twelve and wounding more.

On the 19th of April, Lincoln ordered the blockade against the rebellious states.

April 22: a delegation of Marylanders came to Lincoln, protesting the "pollution" of Union soldiers crossing their state. Lincoln told them this would be impossible to prevent. In response, Maryland citizens tore up their railways, cut telegraph lines, and wrecked bridges. Washington was now cut off on all sides. (Foote, I, pp. 52-53).

Popular sentiment in Maryland--a slave state--was running high against Lincoln and for secession. People high in government, such as Baltimore's mayor, were pro-secession.  Governor Thomas Hicks was pro-Union, but sympathetic to slavery; the Legislature was not so inclined. If Maryland had seceded from the United States, the District of Columbia would be completely surrounded on all sides by insurrection.

April 24: Lincoln writes Maryland State Legislator Reverdy Johnson (a Union sympathizer): "I do say the sole purpose of bringing troops here is to defend this capital. I do say I have no purpose to invade Virginia . . ."

Mostly Lincoln is trying to avoid writing people. He wants to avoid making promises that he might break, or saying something else that upsets people all over again. He wants to avoid rumors.

Because Maryland was on the brink.
Fort Stevens on Map shows the site of the District of Columbia.
The situation continued to deteriorate.  Lincoln sent two letters to Lieutenant-General Winfield Scott, the head of the U.S. Army:
April 25, 1861
My Dear Sir: The Maryland Legislature assembles tomorrow at Anapolis; and, not improbably, will take action to arm the people of that State against the United States. The question has been submitted to, and considered by me, whether it would or would not be justifiable , upon the grounds of necessary defence, for you, as commander in Chief of the United States Army, to arrest, or disperse the members of that body. I think it would not be justifiable; nor, efficient for the desired object.
First, they have a clearly legal right to assemble; and, we can  not know in advance, that their action will not be lawful and peaceful. And if we wait until they shall have acted, their arrest, or dispersion, will not lessen the effect of their action.
Secondly, we can not permanently prevent their action. If we arrest them, we can not long hold them as prisoners; and when liberated, they will immediately re-assemble, and take their action. And, precisely the same if we simply disperse them. They will immediately re-assemble in some other place. 
I therefore conclude that it is only left to the commanding General to watch, 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, even, if necessary, to the bombardment of their cities--and in the extremest necessity, the suspension of the writ of habeas corpus. 
Your Obedient Servant
Lincoln was faced with a dilemma between national security and civil liberty. He explained his reasoning to Scott. Rather than arrest anyone on mere suspicion, or drive them to conspire in secrecy, Lincoln instructed Scott to wait and find out what the Legislature actually did, first. If events were not favorable, then Scott was empowered for the drastic.

It was an early taste of what Civil War really was: to fire on neighboring cities. To know that people were committed to destroying government, in secret, in public, by harassment and by battle.

Two days later, Lincoln completed the instructions: the last step required for Winfield Scott. And perhaps, a significant step in Lincoln's understanding of his role as Commander-in-Chief of his nation's military. With this letter, Lincoln took the responsibility for suspending habeas corpus:
April 27 1861
To the Commanding General of the Army of the United States
You are engaged in repressing an insurrection against the laws of the United States. If at any point on or in the vicinity of the military line, which is now between the City of Philadelphia and the City of Washington, via Perryville, Annapolis City, and Annapolis Junction, you find resistance which renders it necessary to suspend the Writ of Habeas Corpus for the public safety, you, personally, or through the officer in command at the point where the resistance occurs, are authorized to suspend that writ.
You might note there is no "Obedient Servant" at the end of this letter. Lincoln is taking charge with no ambivalence.

Of the 85,000 Maryland volunteers to soldier in the Civil War, nearly 25% fought for the Confederate side. Maryland, standing so to speak at our capital's back, was a place of unrest and perhaps insurrection. The situation was well within the definition of need specified by the Constitution. Lincoln therefore believed he could suspend habeas corpus.

Or somebody could. The next post is about Lincoln's maneuvers to get the constitutional question out of the way, or, answered, at least in part.

Abraham Lincoln, Speeches and Writings, 1859-1865. The Library of America. Available.
The American Civil War: Habeas Corpus, at etym online, especially useful and linked above, here.
Shelby Foote, The Civil War, Volume I. Random House. Available.
A fine paper written by C.R. Smith, posted here. It pointed the way to things I looked up in Lincoln's letter in re: Valladigham.
US Government Info at, with Lincoln's 1862 Proclamation suspending the writ of habeus corpus, here. This is short.
Wikipedia, Maryland in the Civil War
Wikipedia, also on Habeus Corpus, linked above.


Bob G. said...

I had always heard about Lincoln's suspension of HC, but until now, I never knew all the particular events that lead up to it. The letters are a great find.

Ann T. said...

Dear Bob,
Reading Lincoln's letters has been an eye-opening experience!

His turn of phrase at every point conveys so much. These two letters stuck out in desperation to me, but as I looked up other events, I could certainly see why.

I am glad you are enjoying this series! There have been times I felt like I landed in a fast-moving river. But I've enjoyed writing and studying Lincoln very much.

Thanks for stopping by!

Slamdunk said...

Wow, I can't believe how far behind I am on your great series here Ann T. The initial suspenion due to the problems in Baltimore seems to be easier to defend from critics than the 1862 actions. The 10,000+ jailed is where many point to and say "yes, this was a problem."

I do remember the argument on the 4/27 action was that Union troops had already made their way through Baltimore by this time and that the capital did not face being cutoff, but I need to read more about it.

Thanks again for running this series. I'll save a comment on your part ii when I have a coherent thought.

Ann T. said...

Dear Slamdunk,
Lincoln called for 75K troops and sent messages to all the governors. Some sent a few; Tennessee's governor flat-out refused to send any. Not nearly enough troops made it by that time, according to Foote.

I don't know if 2 2/3 blog posts will really cover habeas corpus. From what I have read, the severity depended on the state. Reading about Kentucky, for instance, is a whole different level of threat and response than Delaware.

In the end, I think Lincoln was faced with an unprecedented and never-repeated situation. I did spend some time thinking about the HUAC /infiltration of communists and the 9-11 suspensions. They may or may not be justified. But they are not comparable.

That would surely be another post. Maybe someday.

Thanks for writing in!
Ann T.