- The Washington Times - Saturday, December 8, 2001

The Union was coming apart. Five states of the Deep South had seceded in the winter of 1860-61, and by the time of Abraham Lincoln's presidential inauguration on March 4, 1861, several border states were threatening to follow suit. The prospect for a negotiated peace had evaporated with the Rebel forces' firing on Fort Sumter on April 12. On April 19, Lincoln had called for 75,000 militia with which to put down an insurrection.
The nation's capital between Virginia, which joined the Confederacy on April 17, and Maryland, where secessionist sentiment ran strong was in imminent peril. When a Massachusetts regiment passed through Baltimore on the way to Washington, it was attacked by pro-secessionist rowdies, and at least 12 people died in the ensuing riot. The Baltimore violence did not occur in a vacuum; both Washington and Baltimore were strongly pro-Confederate in their sympathies. Two of the leading newspapers in New York City openly espoused the Rebel cause.
With this situation, Lincoln believed he had no choice but to curb the activities of secessionists in the North. Fully aware that he would be criticized sharply, Lincoln, less than two months into his presidency, suspended the writ of habeas corpus in the coastal states from Washington to New York. In so doing, he effectively suspended civil rights in the areas affected. Military authorities were allowed to arrest persons thought to be aiding the Confederacy and to detain them indefinitely without a hearing. Trial, if any, would be by military tribunal. Lincoln's action was far more draconian than anything initiated by today's Bush administration because it applied potentially to every American, not solely to aliens.
Although the situation in Maryland quieted during May, military authorities took advantage of Lincoln's decree to arrest a number of prominent secessionists. One of them was John Merryman, whose attorney petitioned a federal court in Baltimore for a writ of habeas corpus. Chief Justice Roger B. Taney granted Merryman's request and ordered him tried in a civil court. When Merryman's jailors, on Lincoln's instructions, refused to accept the writ, Taney ruled that the president had acted unlawfully. Lincoln ignored Taney's ruling, asking rhetorically, "Are all the laws but one (the right of habeas corpus) to go unexecuted, and the government itself go to pieces, lest that one be violated?"
Lincoln wanted to arrest overt Confederate activists, but he was reluctant to turn this responsibility over to the War Department. He did not have a great deal of confidence in Secretary of War Simon Cameron, and in any case, the War Department already had enough problems.
Instead, he turned to Secretary of State William H. Seward, who had strongly urged the suspension of habeas corpus. Seward set up a special bureau in his department, hired detectives and set about analyzing reports of dissident activity. Many cases were clear-cut, especially those in which the accused was known to have recruited for the Confederate army or peddled Confederate securities. Much less clear were those cases in which a person was charged only with speaking out in support of the rebellion.
Seward took up his new responsibilities with characteristic zeal. He supposedly told the British minister on one occasion, "I can touch a bell on my right hand and order the imprisonment of a citizen of Ohio; I can touch the bell again and order imprisonment of a citizen of New York; and no power on earth, except that of the president, can release them." Nevertheless, both Lincoln and Seward were aware of the potential for abuse of the power they were exercising and of the fact that they must answer to the voters .
The targets of the administration's detention program were rarely "little" people; for the most part, they were persons of means and influence. Several of former President James Buchanan's diplomatic appointees who were believed to harbor Southern sympathies were detained on their return from abroad. Four secessionist newspapers in New York City effectively were closed by being denied access to the mails.
Not even legislative groups were exempt from pre-emptive strikes. In September 1861, the administration received word that the Maryland Legislature, scheduled to meet in Frederick, planned to take Maryland out of the Union. On Sept. 12, Lincoln and Seward traveled to the Rockville headquarters of Gen. Nathaniel P. Banks, a Union officer of unquestioned loyalty. At Lincoln's direction, more than 20 state legislators were arrested, and Maryland stayed in the Union.
The most prominent detainee in the first year of the war was Rose O'Neal Greenhow, an attractive and prominent Washington hostess who at one time or another had entertained most of Lincoln's Cabinet. Allan Pinkerton, a detective on the federal payroll, put Greenhow under surveillance and found that she appeared to be in contact with Confederate authorities.
Placed under house arrest, Greenhow became the most celebrated prisoner in the North. When she continued to meet with suspected Confederate couriers, she was transferred to Old Capitol Prison, where she continued to provide copy for the Washington newspapers. In June 1862, the "Rebel Rose" was repatriated to the Confederacy, and the Lincoln administration breathed a collective sigh of relief.
The number of persons detained at any one time was not large; it peaked at about 200 in autumn 1861. No one is known to have died while in detention, not even in the dank casemates of Fort Lafayette in New York Harbor or Fort Warren in Boston. Because most detainees were politically prominent, pressure was brought to bear for their release, and justice often was tempered with mercy. In July 1861, Seward ordered a review of the cases of all detainees, and 70 prisoners were released.
In February 1862, Lincoln transferred responsibility for political prisoners from the State Department to the War Department, by then directed by the aggressive Edwin M. Stanton. For a time, Stanton continued Seward's policy of releasing all except the most dangerous detainees, but the hard line returned. The Midwest in general (and Indiana in particular) was a hotbed of anti-war sentiment, and during 1862, hundreds of people were arrested for attempting to discourage volunteering or otherwise giving aid and comfort to the Confederacy. Most of those whose cases came before a military tribunal were convicted.
Yet even Stanton was uneasy in the exercise of his wartime authority. In November 1862, he freed all civilian prisoners against whom his agents had no credible evidence and who lived in states that had fulfilled their draft quotas. Defending his actions, Stanton said, "It has been the aim of the department to avoid any encroachment upon individual rights, as far as it might be consistent with public safety and the preservation of the government."
The most conspicuous use of wartime power by the Lincoln administration concerned a vocal opponent of the war, Clement L. Vallandigham. A lame-duck congressman from Ohio, Vallandigham was outspoken in his opposition to the draft, the arrest of civilians and continuation of the war. In May 1863, the commander of the Ohio military district, Gen. Ambrose E. Burnside, was so outraged by Vallandigham's pronouncements that he ordered Vallandigham arrested and tried. A military commission found him guilty and ordered him imprisoned for the duration of the war.
Lincoln was unrepentant: Vallandigham was arrested, he maintained, not because the Ohioan was opposed to the war, but because he was damaging the Army's morale. "Must I shoot a simple-minded soldier boy who deserts," he asked, "while I must not touch a hair of the wily agitator who induces him to desert?"
Later in 1863, however, the threat posed by the likes of Vallandigham had diminished. Rather than make him a martyr, Lincoln ordered that Vallandigham be released and "exiled" to the Confederacy.
The most controversial trial by military commission was that of John Wilkes Booth's accomplices in the assassination of Lincoln. Stanton had no compunction about the use of a military tribunal, and legally he was on solid ground, for the war would not formally be declared over until April 1866.
The fighting had effectively ended, however, with the surrender of Gen. Robert E. Lee's army, which suggests that a trial in civil court would have endangered nothing and would have been less susceptible to criticism.
The most striking aspect of the Lincoln administration's suspension of habeas corpus is the sense of responsibility demonstrated by almost all who were involved. Lincoln, Seward and Stanton were very much aware that they were dealing with one of their country's cherished freedoms.
The Founding Fathers were looking over their shoulders. One gets the impression that Lincoln and his advisers exerted their wartime authority with some uneasiness and at times seemed as eager to release detainees as to imprison them.

John M. Taylor lives in McLean. He is the author of several books dealing with the Civil War period, including "William Henry Seward: Lincoln's Right Hand."




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