Lincoln: A Life of Purpose and Power (46 page)

William Tecumseh Sherman (1820–91), trained at West Point, rejoined the U.S. army at the outbreak of war, and in March 1864 became chief commander in the West. His “hard war” strategy, involving the destruction of civilian property and morale, reached new levels of ruthlessness in his troops’ March to the Sea during late 1864, following their taking of Atlanta.

The Union army’s coercive role was by no means restricted to the Confederate South. Maryland and other contested border areas were transformed into armed camps, while Midwest and Middle Atlantic strongholds of the “Copperheads”—antiwar Democrats, so called after the venomous snake that strikes without warning—felt the firm hand of Union commanders empowered to make what dissenters castigated as “arbitrary arrests.” Lincoln’s sequence of ad hoc orders suspending the privilege of the writ of habeas corpus opened the way for a military assault on civil liberties. Early on, as we have seen, he simply suspended the writ along the Washington–Philadelphia line, later extended to New York City and points north. This allowed the military authorities to arrest obstructive and disloyal civilians without having to specify charges. Far more sweeping were Stanton’s orders of August 8, 1862, authorized by the president and designed to enforce America’s first national military draft, the Militia Act of July 17. These orders suspended the writ across the whole country when dealing with those who discouraged enlistments, evaded and impeded the draft, or were “in any way giving aid and comfort to the enemy, or [engaged] in any other disloyal practice against the United States.” Military and civilian officers were empowered to arrest and imprison offenders, subjecting them to martial law. Lincoln’s proclamation of September 24 in effect provided a formal, if anticlimactic, presidential endorsement of the War Department’s orders. One year later, in September 1863, Seward drafted for Lincoln a routine reiteration of the writ’s suspension throughout the United States, while also making clear its constitutional legitimacy. For Congress had in the interim passed a Habeas Corpus Act which explicitly approved presidential suspensions and which was expected to help in enforcing an essential new conscription law, the Enrollment Act.
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The military arrests of civilians in loyal states thus began early on and continued for the duration of the war. Most of those arrested were deserters, draft evaders, and those who encouraged them. Even Union loyalists worried about the resort to conscription, a constitutionally questionable encroachment on individual freedom, while the more extreme opponents of the administration and its “abolition war” encouraged violent resistance to the draft. The ringleaders of protests in many communities in the lower North and the Midwest—which reached their apogee in the bloody draft riots in New York City in July 1863—became targets of arrest. So, too, did those shady businessmen, peddlers, and recruitment brokers who seized the burgeoning opportunities for plundering the public purse. In the border states, where most civilian arrests occurred, a large proportion of those targeted were blockade runners, smugglers, and traders in contraband goods.

Officers’ actions were rarely driven by raw partisanship, but their interventions against treason or suspected disloyalty certainly had a political impact. They suppressed newspapers careless with confidential military information, seized presses, and arrested or banished pro-Confederate editors. Their targets were mainly Democrats. Provost marshals and other troops policed the polls at election time, to head off violence against Union voters and sometimes, in border areas, to intimidate their opponents by extorting loyalty oaths under the threat of arrest. Federal forces arrested Maryland legislators in September 1861, supposedly to prevent them from voting for secession at a time of possible Confederate invasion. Smaller fry were equal targets: General Halleck arrested a Missourian simply for saying, “I wouldn’t wipe my ass with the stars and stripes.” There was a fine line between prudent political action and counterproductive intervention. Anxiety often induced misjudgments over what constituted disloyalty. Thus the misguided arrest of a Dubuque editor, Dennis A. Mahony, turned a Union troop-recruiter into an outraged critic of the president.
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Most notorious of all military miscalculations was General Ambrose Burnside’s arrest of Clement Vallandigham, the most influential western voice of Peace Democracy. Democrats enjoyed a potent political resurgence in the spring of 1863, during what Greeley described as “the darkest hours of the National Cause.” With the state governors of Illinois and Indiana feeling themselves under siege, and with the lower Midwest a seeming powder keg of peace sentiment, anti-abolitionism, venomous race prejudice, separatism, and covert treason, Burnside watched with alarm as the administration’s provost marshal and his deputies met serious obstruction to the new conscription law. As the energetic commander of the Department of the Ohio, but one with rather more facial hair than political gumption, Burnside issued an order banning “the habit of declaring sympathies for the enemy.”
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Tried not by a civil court (though civil courts were functioning) but by military commission, Vallandigham was sentenced to imprisonment for the rest of the war. The ensuing public outcry, fierce in denouncing a tyrannical assault on free speech and constitutional liberties, was by no means restricted to antiwar Democrats, nor to the midwestern states. A chastened administration counted the damage of what several cabinet members judged a massive and unnecessary political error.

An anti-Lincoln satire, produced in response to General Burnside’s arrest of Clement Vallandigham, and to the president’s subsequent banishment of the Peace Democrat leader. On the left, Burnside, choked by a Copperhead snake, holds a Wide Awake torch and gasps, “Oh, dear Clement you are hugging too tight.” Lincoln rips up a document, “Constitution and Union as it was,” while trying to evade snakes which have forced him to drop a paper inscribed “New Black Constitution.” Playing on visceral prejudice against blacks, the print takes its title from a deformed African who was featured in P. T. Barnum’s Broadway museum. Two freedmen call after Lincoln, “Fadderrrr Abrum” and “Take us to your Bussum.” A tiny black figure, falling from Lincoln’s hat, cries: “Ise going back to de sile.”

Lincoln’s subsequent robust defense of Burnside’s action, in his “Corning Letter,” a public address to the leaders of a mass protest meeting in Albany, New York, made no constitutional concessions to the administration’s critics. “Strong measures,” Lincoln insisted, including military arrests of civilians, were allowable under the Constitution in time of rebellion. Overestimating, as did most Unionists, the real strength of secret societies and conspiracy, Lincoln maintained that those who championed habeas corpus, liberty of speech, and a free press included “a most efficient corps of spies, informers, supplyers, and aiders and abettors” of the rebels’ cause. He did not concede that military arrests should be restricted to areas of actual insurrection: they were “constitutional
wherever
the public safety does require them—as well . . . where they may restrain mischievous interference with the raising and supplying of armies, to suppress the rebellion, as where the rebellion may actually be.” The arrest would have been wrong had it been merely a response to public criticism of political and military leaders. But Vallandigham’s words were “damaging the army” and threatening the nation’s existence, by undermining the draft. “Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wiley agitator who induces him to desert?”
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Lincoln was not squeamish about pushing the Constitution to its limits during a wartime emergency: the cause was just, extraordinary measures would cease with the ending of hostilities, and most of the Union public supported them. He was angered less by the knowledge that there could be innocent victims of military arrests than by learning about obstruction to military mobilization. When judges blocked recruitment by “discharging the drafted men rapidly under
habeas corpus,
” as they did to provoke a crisis in Pennsylvania in the summer of 1863, the attorney general found Lincoln “more angry than I ever saw him.” Welles described him as “very determined” and ready to send the judges packing. Chase feared civil war if the writ was suspended, but Lincoln, remarkably, ordered the military officers to ignore the state’s civil courts and, if necessary, use force to protect themselves from arrest by court officers.
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In practice, Lincoln mixed toughness with restraint, tempering a broad reading of his constitutional power with astute political realism. He knew the propaganda damage that could be done by the martyrdom of the guilty and the arrest of the innocent. Thus he commuted Vallandigham’s sentence to banishment and subsequently chose to ignore his illegal return to the country. He backed away from a punitive response to the New York draft riots, resisting calls for a formal investigation that would have been seen as provocative. In fact, he showed no appetite for exploiting his habeas corpus policy for cheap political gain, nor did he need friends like David D. Field to tell him that “the practice of arresting citizens without legal process” invited a violent electoral backlash. Lincoln was generally tolerant of the opposition press and took no personal initiative in imposing censorship, though for security reasons he did not question the War Department’s regulating of the Washington telegraph. When Burnside suppressed the
Chicago Times,
probably the most influential Democratic newspaper in the Midwest, for “disloyal and incendiary sentiments,” the president revoked the order, only to suffer the mystified anger of the many who had cheered the general on. It was entirely in character that he should tell General John M. Schofield only to “arrest individuals, and suppress assemblies, or newspapers, when they may be working
palpable
injury to the Military.”
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It was for military, not electoral, benefits that Lincoln sailed close to the constitutional wind.

Lincoln’s circumstances gave him opportunities for using and expanding presidential power in ways that his predecessors would never have dreamed. “This great nation has given to you almost absolute authority,” a Republican ally reflected, and his grasp on the levers of power grew firmer and more expert with the passage of time. He was no instinctive administrator—Hay described him as “extremely unmethodical”—but his skills in political management were second to none. He gave his cabinet secretaries room to maneuver in their own departments, but they knew that, when he chose, he was their master, not primus inter pares. He left Congress to its own devices in some areas of policy making, notably its economic program, but he kept firm control over emancipation, reconstruction, and—the Joint Committee on the Conduct of the War notwithstanding—management of the war. His grip on his party, complained one of the congressional radicals, made him “the virtual dictator of the country.” An admiring John Hay marveled as the Tycoon—his private name for the president—developed into a “backwoods Jupiter” wielding “the bolts of war and the machinery of government with a hand equally steady & equally firm.” Given Lincoln’s combination of aptitude and opportunities, then, what is remarkable is not that he moved into questionable constitutional terrain, but that he would not allow the argument of “necessity” alone to settle things or to become an excuse for persecution. Loyalty to the Constitution and the laws—and to their spirit—mattered. A president who never questioned the need for democratic elections even in the midst of war, who saw an obligation to resubmit himself to the judgment of the people in 1864, and who recognized the political dangers of being labeled a tyrant, felt no great urge to kick over the constitutional traces.
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Once in place, however, the Union’s internal security system operated routinely with little input from the president. His interventions in individual cases, whether to exercise mercy or prevent injustice, operated only at the margins, as military justice became a valued and potent buttress to the Union cause. The historian Mark Neely has shown the impossibility of putting a precise figure on the number of civilians arrested. They ran into the tens of thousands. But these included overwhelming numbers of Confederates and suspected rebels in the contested border region, where military policing shored up public order. Beyond the border, the security system was essentially deployed as an instrument of draft enforcement, not as a weapon of party political control. Most of those arrested were held for a short period of a few weeks in federal prisons and released without trial.
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For Lincoln’s opponents, the long reach of the War Department’s security system into the homes and lives of local communities was just one element in what Horatio Seymour, New York’s Democratic governor, labeled the administration’s “centralization and meddling.”
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Federally imposed emancipation, conscription, and a roster of economic measures heralded a centralized state. Leviathan would crush the brittle bones of the decentralized antebellum republic of which Democrats had been the architects and guardians.