Constitutional Problems Under Lincoln James G. Randall LINCOLN ROOM UNIVERSITY OF ILLINOIS LIBRARY presented h\ University of Illinois Press Constitutional Problems Under Lincoln Constitutional Problems Under Lincoln REVISED EDITION James G. Randall UNIVERSITY OF ILLINOIS PRESS Urbana and Chicago 1951 by the Board of Trustees of the University of Illinois Manufactured in the United States of America C 5 4 3 2 This book is printed on acid-free paper. Library of Congress Catalogue Card No. 51-1577 ISBN 0-252-02288-2 ■T- TO Ruth Painter Randall CONTENTS FOREWORD TO THE REVISED EDITION IX ACKNOWLEDGMENTS I. 11. III. IV. V. VI. VII. VIII. IX. X. XI. XII. XIII. XIV. XV. XVI. XVII. XVIII. XIX. XX. Introduction ..... The Constitution and the War Powers The Legal Nature of the Civil War The Law of Treason The Treatment of Confederate Leaders The Power to Suspend the Habeas Corpus Privilege Military Rule and Arbitrary Arrests Martial Law and Military Commissions The Indemnity Act of 1863 .... The Regime of Conquest in Occupied Districts of the South ....... Legal and Constitutional Bearings of Conscription The Policy of Confiscation .... The Right of Confiscation ... Restoration of Captured and Confiscated Property Steps Toward Emancipation .... Emancipation Completed .... State and Federal Relations During the Civil War The Partition of Virginia . The Relation of the Government Summary and Conclusion . BIBLIOGRAPHY ... SUPPLEMENTAL BIBLIOGRAPH'i INDEX .... to the Press 1 25 48 74 96 118 140 169 186 215 239 275 293 316 342 371 405 433 477 511 531 549 565 FOREWORD TO THE REVISED EDITION This book was published in 1926, but for a number of years it has been out of print. To make it once more available is the chief motive of the present republication, but the opportunity has been used to correct errors found in the original, to bring the bibliog- raphy up to date, to do considerable revision, to take account of Civil War material newly come to light, and, in a few instances, to indicate recent action and opinion concerning questions similar to those arising under Lincoln, The volume was, and remains, a study based on sources. Treatises and secondary accounts have been examined so far as they exist, but the method of the book has been that of breaking new ground in an extensive searching of first-hand material for the Civil War period. The present treatment is of considerable length, but a number of other volumes could be produced without exhausting the theme. This could be illustrated in a score of ways. For example, let the student take the subject of the legal status of those who resided within the area of the seceded states. Were they all "rebels" merely because they inhabited so-called "rebel" territory? Then let him take that voluminous congressional document, House Report No. 262, 43 Congress, 1 session, in which the pronouncements of United States authorities on this topic are elaborately summarized. Having done this, let him ask himself what it all "adds up to." What did it mean, in Union legal interpretation, to be a "rebel"? By technical legal pronouncement it was understood that all who inhabited "insurrectionary" territory were "rebels." (House Report above cited, p. 6 ff.) But this signified very little in actuality. Men were not in fact prosecuted and punished for what was considered the crime of rebellion or treason. The complications and ramifica- tions of this one topic would fill weighty tomes, yet this is but one of dozens of elaborate constitutional questions of the period. In view of the records, rules, reports, debates, investigations, briefs, decisions, dissents, orders, and learned polemics which the subject X coNsri I u rioNAi. problems under i.incoi.n embraces, the present book may l^e regarded as a selection and a condensation. As was said in the preface of the original edition, many things have been left in the inkpot. Conditions and techniques of research have undergone consid- erable "modernization" since the author's student days. Extensive use of photostats and microfilms, the development of archival ad- ministration together with superb archives buildings for state and nation, the availability of grants in aid, the processing of manu- scripts, the preparation of archival guides and manuscript calendars, the expansion of government agencies with their own research staffs — all such things have served greatly to facilitate the proced- ures of historical study in America. When the author first used the papers of the attorney general's ofiice, they were casually housed in an old-fashioned building in Washington, rented by the govern- ment; it was obvious that they had not been previously used for historical purposes. In that period documents pertaining to con- fiscation and captured property were found (after sifting the hay- stack) in what was correctly called the "miscellaneous division" of the treasury department. It was a kind of Old Curiosity Shop, where, as compensation for the labor, the student could at least have complete assurance that no one else in historical study had been over that mess of material before. (Contrary to the usual impression, such hard-to-find records are not always dry as dust. They contain significant human-interest material. The combing and searching of archives still remains to a large extent an undeveloped resource for historical investigation.) The question of the Constitution in working adjustment with national life, and in relation to social, economic, and political motives, briefly sketched in the first chapter, has been examined more fully by the author elsewhere. ("The Interrelation of Social and Constitutional History," Amer. Hist. Rev., XXV, 1-13, Oct., 1929). Constitutional history is more than a legal study. The his- torian must search the human factors that surround a "case." With the use of a variety of material, much of it in manuscript, he must penetrate beneath the formal pages of judicial decisions FOREWORD TO THE REVISED EDITION XI to discover, in terms of tlie personal equation and the contem- porary setting, why a judge's mind inclines as it does, and why a President selects as he does (and has throughout American history) when he appoints judges. Pronouncements of courts are not merely a matter for the legal fraternity or for books in a law library. Courts have not only great power over legislation; they exert far reaching control over economic forces; they are of large importance in the executive field. It was only by one vote, and only with the support of justices of his own choosing, that Lincoln escaped a most embarrassing rebuke of his use of the war power. In the five-to-four decision in the Prize Cases Lincoln's presidential acts early in the war were held valid, but only against a powerful minority which included Chief Justice Taney along with Nelson, Catron, and ClifTord. Every one of the five who sustained Lincoln (Grier, Swayne, Davis, Miller, and Wayne) was, of course, indispensable in order to constitute a majority. Three of them — Swayne, Miller, and Davis — were of Lincoln's own choosing, while another — Wayne of Georgia — was of the deep South. A study of the case shows how slender was the thread on which this famous decision hung. The effectiveness of the Constitution is a matter of democracy at work. An alert and well disposed public is essential if "equal justice under the law" is to be honored in the observance. The Constitution prohibits Congress from abridging freedom of speech and press; but (leaving aside the fact that, according to some authorities, this prohibition has been violated by Congress in 1798, in 1918, and later) the question whether we actually have liberty of spoken and written opinion rests with the community. Intoler- ance as to a certain type of opinion, or as to the rights of minor- ities, may be more of a controlling factor than constitutional pro- nouncements by robed justices. The extent to which the Supreme Court has come to the rescue when freedom of opinion and other civil rights of human beings have been abridged by Congress, has been exaggerated (See Henry W. Edgerton, in Cornell Law Quarterly^ 1937), and in any case the effectiveness of what both Congress and the courts have said depends in the last analysis upon the determined will of the American people to make constitutionally protected XU CONSTITUTIONAL PROBLEMS UNDER LINCOLN rights a continuing reality. In a true sense the people have the power of superior appeal. When this is remembered, one of the impressive things in Ameri- can history is the high degree of prestige of the Supreme Court, whose decisions as a rule are observed and obeyed without the necessity or even the suggestion of punitive action by the Court itself, through its marshal. Though in some respects the American people have a tendency toward lawlessness, as Lincoln sadly noted in his address to the Young Men's Lyceum,^ they have for the most part shown a great respect for their highest tribunal. Where the opposite is true, the fact is highly exceptional. The power and effectiveness of the Court depend not so much upon physical force as upon the basic purpose, public awareness, and fair-minded attitude of the people. All this serves to emphasize the obligation of the Court to keep step with the times, and to remember that its far reaching power must be wielded in adaptation to the social and economic needs of a complex world. The Court may make mistakes, but public opinion is brought to bear by free discussion, and there is always the chance of ultimate reversal. Where a democracy faces a tremendous war challenge there are two conflicting problems that necessarily arise. (1) There is the question of preserving civil rights, remembering that opponents at home, and also the enemy, have rights. (2) There is at the same time the necessity of getting ahead with the wartime task, and not allowing dissent at home to go so far as to force the nation down to destruction. Opposition is useful while matters are being dis- cussed in order to decide how the national effort shall be focused. When that focusing has been fixed, and the nation is committed to a policy, or when it is engaged in a life-and-death struggle, there may yet be value in .some opposition, but not in the kind \J. G. Nicolay and John Hay, eds., Complete Works oj Abraham Lincoln, I, 35- 50. Where Lincoln's words are quoted, the reference (unless otherwise stated) is to the twelve-volume edition of Nicolay and Hay. Hereafter in the fore- word, citations to this work will be merely to volume and page. The date of Lincoln's notable address before the Young Men's Lyceum (incorrectly given by Nicolay and Hay as 1837) was January 27, 1838. FOREWORD TO THE REVISED EDITION XllI that is no better than partisanship, or negative obstructionism, or irresponsible accusation, or maneuvers to embarrass or block the existing administration. Yet this latter type of opposition can hardly be suppressed in a democracy. That is another way of saying that if the people themselves fall short, then democracy to that extent fails. Faith in the people, and intelligent response by the people to justify that faith, are democratic prerequisites. Yet this is not all: governmental safeguards should be so devised as to give effect to genuine popular mandates, and men in public trust should never forget their duty to discover, understand, and not distort, the people's will. Many people seem to think that it is only a despotism or dic- tatorship that accomplishes results or "gets things done." The record is far otherwise. The War of 1914 was not won by the undemo- cratic Central Powers. Wilson's message, even within the boundaries of those powers, was a tremendous force in that war. Except for partisan obstructionism in the Senate, the Wilsonian democratic message could have been of tremendous importance in world peace. Nor was the Axis War of 1939-1945 won by the tyrannical despot- isms of the Nazis and Fascists. Not all the horrors of Buchenwald, torture chambers, the gestapo, slave labor, master-race ideology, genocide, anti-Semitism, Lidice, and Himmlerism could bring vic- tory to the Axis. In broad periods of peace, and in the fearful debacle of war, it is the democracies that have proved the more "efficient, "though war-making performance is not the main argument for democracy; that argument is set in a frame of sanity, and of life in its regular course, not of war. Its success in war is rather offered as proof that despotisms fail even at those points where they are supposed to have special advantages or talents. The failure of authoritarian or tyrannical powers in peace is evidenced by the constant terrorism of a pervasive state police to bolster up their artificial regimes. The fact that they have stupidly started, and ultimately lost, great wars, while also failing in peace, is one of the unforgettable lessons of modern times. The failure of democracies has been in not bind- ing together the strength of peace-minded nations in effective co- operation for the purpose of preventing war. These nations simply XIV CONSTITUTIONAL PROBLEMS UNDER LINCOLN did not use the commanding power for order and peace that they potentially had in the decades from 1919 to 1939. When the true validity of democracy is more widely recognized in a sick and deranged world, men abroad will understand the significance of the American constitutional example, and Americans at home will remember that the strength of the nation lies in the force and integrity of the democratic principle; they will realize the folly of imitating the cynical and unfair tactics of totalitarian regimes. To develop this type of understanding it is important to know the whole record of American constitutional development. In that national story the period of Lincoln is but one of many chapters, but it is a chapter deserving of study and restudy. Some of the measures seemed drastic, such as the use of martial law and arbi- trary arrests, but the Lincoln administration, after all, conducted the conflict in vinculis. Stanton's secret police was deplorable, but it was exceedingly mild by "modern" standards. The Union gov- ernment did not go to the limit of the war power, nor descend to the low level of barbarity shown in recent examples. Smearing and character assassination were not Lincolnian devices. (The near- est approach to that was in the congressional committee on the conduct of the war, which became an unfair instrimient of radical inquisition. See The Civil War and Reconstruction, 367-370; also bibli- ography under W. W. Pierson and T. Harry Williams.) It should be remembered that the Lincoln administration planned ahead, looked to a continuing nation, and gave thought to the coming period of peace. Not only in conducting war should the Lincoln regime be remembered, but also in emancipation, in state- and-federal adjustment, in railroad promotion, homesteads, land- grant colleges, agricultural advance, freedom of the press (de- partures from that freedom being untypical), freedom of opinion, and promotion of liberal causes. If the present volume is occupied with war problems, the period should be viewed in the broader setting of the nation's purpose and destiny, of which Lincoln was ever conscious. Lincoln did not play up the "glories" of war. In 1848 he referred to Polk's uneasy conscience: "he feels the blood of this [Mexican] FOREWORD TO THE REVISED EDITION XV war, like the blood of Abel, is crying to Heaven against him." With scathing bitterness he then spoke of "the exceeding bright- ness of military glory, — that attractive rainbow that arises in showers of blood." (I, 341.) As to war's by-products he wrote in 1863: "Thought is forced from old channels into confustion . . . Confidence dies and universal suspicion reigns. . . . Every foul bird comes abroad and every dirty reptile rises up." (IX, 157.) He did not believe that war was "inevitable." In his first inaugural he said he would act "with a view and a hope of a peaceful solution of the national troubles." (VI, 176.) The present writer is not impressed with the argument that such statements constituted a trick or maneuver, that Lincoln had cryptic and hidden purposes, that his motives were "provocative," and that his solemn declara- tions were a kind of deception. On this controversial subject one line of interpretation is given in the article by Charles W. Rams- dell, "Lincoln and Fort Sumter," Jour, of So. Hist., Ill, 259-288 (1937). Ramsdell's argument is that Lincoln deliberately man- euvered to have the South "fire the first shot" — i.e., that Lincoln really intended to bring on war. The present author does not agree, as a matter of historical fact, with this representation of Lincoln's motives. (See Lincoln the Liberal Statesman, chap, iv; see also Kenneth M. Stampp, And the War Came: The North and the Secession Crisis [1950].) In the treatment of this subject, reliable clues have been over- looked, while stock phrases which misrepresent Lincoln's purpose are tiresomely repeated. One should remember Lincoln's state- ment to Mrs. Gurney in September 1862: "If I had had my way, this war would never have been commenced." (VIII, 51.) To brush this statement aside as insincere is a kind of dodge; accusa- tions of insincerity should never be raised unless proved. To take bodies of evidence showing Lincoln's peaceful appeals and efforts and wave them aside by the too-easy assertion that the President did not mean what he was saying, or intend what he was doing, is simply to color the whole treatment by an author's interpretations and conjectures. If one thinks of Lincoln's statesmanship only as strategy, he misses the main point. Lincoln sensed the significance of an cndur. XVI CONSTITUTIONAL PROBLEMS UNDER LINCOLN ing world problem. In his keen awareness of the evils of society, and the social abuses that needed correction, he did not believe that war was the civilized answer. He said in that first inaugural, which needs constantly to be restudied and quoted: "My country- men, one and all, think calmly and well upon this whole subject. Nothing valuable can be lost by taking time. . . . Intelligence, patriotism, Christianity, and a firm reliance on Him who has never forsaken this favored land, are still competent to adjust in the best way all our present difficulty." (VI, 184.) There is also the statement in his second inaugural which bears upon the subject of 1861 intent. Recalling his inaugural of four years before, he mentioned that it was "devoted altogether to saving the Union without war." (XI, 44-45.) There is a certain Lincolnian verity and sanity in the comment of Bonar Law: "There is no such thing as inevitable war. If war comes it will be from failure of human wisdom." (Burton Stevenson, ed.. The Home Book oj Quotations, 5th edition, p. 2108. For similar but not identical words by Bonar Law, see Parliamentary Debates, Ser. 5, Vol. LXV, p. 2084.) Nor did Lincoln believe in "preventive war." In his letter to Herndon of February 15, 1848, he denounced the idea that the President could order an invasion on the supposition that this was necessary in order to "repel" an "expected" invasion. (II, 2.) War is sometimes called an "instrument of national policy," but Lincoln did not consider it so. "Suppose you go to war [he said], you cannot fight always; and when, after much loss on both sides, and no gain on either, you cease fighting, the identical old ques- tions . . . are again upon you." (VI, 181-182.) Lincoln did not favor retaliation in the sense of using vengeful and brutal methods on the understanding — or report — that such methods had been used by the other side. His attitude in this matter was shown in a number of cases — e.g., in connection with the aflfair at Fort Pillow, Tennessee (April 12, 1864), when Con- federates under General N. B.. Forrest attacked Negro troops and killed hundreds of them instead of taking them prisoners. (It was alleged and believed at the North, but denied by Forrest, that this amounted to a massacre of men of color who had surrendered.) There was considerable agitation about this incident, which was FOREWORD TO THE REVISED EDITION XVll of precisely the sort to stir up the war mind. Lincoln avoided retaliation after a very careful study of the subject in consulta- tion with his cabinet, whose opinions he requested in writing. (R. T. Lincoln Collection, Libr. of Cong., nos. 32780-32920.) In a letter to the Secretary of War which has recently come to light (May 17, 1864) he used the significant expression, "blood can not restore blood, and government should not act for revenge." (Not in Lincoln's Works; photostat in files of Abraham Lincoln Asso- ciation; and see Indianapolis Star, Dec. 12, 1948.) A conflict with "no weapons barred" was not his policy. This subject offers another example of difficulty arising from a study of history based on proclamations, orders, and other public documents without a full examination of the setting, circumstances, and sequel of such orders. On July 30, 1863, Lincoln issued an order of retaliation proclaiming that "for every soldier of the United States killed in violation of the laws of war, a rebel soldier shall be executed." Such execution of Confederate prisoners, however, did not take place, and it would be a mistake to interpret the order as indicating that the purpose of the President was to have these executions. The purpose was, by showing firmness and threaten- ing retaliation, to insure that rules of warfare as to the protection of prisoners, and as to non-discrimination because of race, would be observed. The pith and substance of the order is in the words: "The law of nations, and the usages and customs of war, as carried on by civilized powers, permit no distinction as to color in the treatment of prisoners of war . . . ." This matter of retaliation was one of the ugliest subjects of the war, in which Confederate declarations were angry and menacing, but the record is clear that Lincoln's main object was not actually to exercise retribution, but to make it unnecessary. In this connection one must consider with great caution the familiar principle, or slogan, of "military necessity." (See below, pp.26ff'., 512.) It is a tricky principle, having a conceivable element of truth, but being subject to great abuse and misapplication. There are times when public safety may require the use of other- wise illegal force. But procedures under martial law or military XVllI CONSTITUTIONAL PROBLEMS UNDER LINCOLN government are a matter of degree, of discretion, and of means chosen. Penalties and severity should be part and parcel of the emergency. They should not pass beyond what the situation actually demands. In thinking of "military necessity," one should ask: Necessity for what? If the necessity is for an aggressive attack as upon Belgium in 1914, or for beginning a needless war, the "justification" be- comes a self-condemnation. To uphold extreme and unlawful con- duct on the ground that "necessity knows no law," a commander should be required to show that the main object is justified, that the case is desperate, that the public urgency is imperative, that the means chosen are without a reasonable alternative, and that these means are conducive to an honorable result. If wrongly applied, military necessity may be a fraud. Order itself should not be bought at too high, or too brutal, a price. No reputable com- mander will do a deeply dishonorable thing. Even at its best the invoking of "military necessity" is an admission that something wrongful or at least irregular is being done. One does not plead military necessity for an act of unquestionable validity or of normal legality. This applies to the whole subject of war including com- bat between armed forces, which has been the subject of repeated international regulation; but, for our purpose, it is especially applic- able to matters of military government in its civil relationships. Among the fundamentals announced in George Mason's eloquent document of 1776, the Virginia Declaration of Rights, is the state- ment that "the military should be under strict subordination to, and governed by, the civil power." There is no principle in the American system that is more important. Allow the military to "take over," and the way is opened for a coup d'etat, for the flouting of a constitution, for the suppression of civil guarantees, and for armed force as the basis of setting up and overthrowing govern- ments. The coup d'etat is fortimately not an American custom. Military revolutions have not superseded elections. Even when a man of long-standing army service, and notable chiefly for that, has become President (a practice whose wisdom is rather doubtful), he is expected to function as a constitutional President, not as a military strong man. FOREWORD TO THE REVISED EDITION xix The conduct of Lincoln in recognition of this principle is of great interest. He gave orders for the governing of the army, but that meant, among other things, that he could overrule generals. The main significance of having the President serve as Commander in Chief is to make sure that ultimate control of the army belongs to the civil power. This principle was stated on July 5, 1861, by Edward Bates, attorney general under Lincoln: "He [the President] is the chief civil magistrate of the nation and being such and because he is such [author's italics] he is the constitutional Commander in Chief of the Army and Navy, and thus within the limits of the Constitution he rules in peace and commands in war . . . ." {War of the Rebellion: Official Records, set. H, vol. H, 29.) Lincoln was not in uniform. He was not in the armed services, 1861-65. He was nevertheless Commander in Chief. One should not be misled by this title. A word may have more than one mean- ing. The army was under military "command," but under civilian direction. The military arm was the instrument of the government. To suppose the opposite — that the government should be the foot- ball or creature of the army — would be a complete negation of the American democratic concept. Lincoln issued the emancipation proclamation of January 1, 1863, as "an act of justice, warranted by the Constitution upon military necessity," but the invoking of "military necessity" for emancipation was for a humanitarian purpose; it involved no army abuse. Over and over Lincoln insisted that military measures be employed with the utmost discretion and caution. Numerous examples of this are revealed in the records of his presidency. He rebuked one of the minor generals (J. G. Blunt) for "sending a military order . . . outside of your lines . . . to take men charged with no offense against the military, out of the hands of the courts, to be turned over to a mob to be hanged." Such action, said Lincoln, "can find no precedent or principle to justify it." (IX, 88.) In another case Lincoln wrote to General Butler warning against a military clash with the civil government of restored Virginia headed by Governor Pierpoint. He particularly objected to Butler's contemplated plan of conducting a vote of the people on a matter of wartime administration. A function of civil government, such XX CONSTITUTIONAL PROBLICMS UNDER LINCOLN as holding an election, ought not, in Lincoln's view, to be usurped by the military power. He added that this instruction did not cover "the case when the military commander, finding no friendly civil government existing, may, under the sanction or direction of the President, give assistance to the people to inaugurate one." (X, 321-323; and see Lincoln and the South, 121-123.) Lincoln differed fundamentally from those Republican radicals of his day who wished to use the war for reducing the inhabitants of the Southern states to an inferior status. He repudiated the idea of carpetbag rule, disliked the confiscation acts, intended to veto the act of 1862 though he finally signed it, and in freeing the slaves proposed that slaveholders be compensated at the expense of the general government. He did this without wavering in his basic conviction that slavery was an evil and a shameful social abuse. Democracy was Lincoln's lodestar in basic ethics, formal pro- cedures, working relations, and human attitudes. Among the American fathers Jefferson was his guide; to none other of the early leaders did he owe so much. Though it has often been stated that the Constitution did not provide full democracy and did not re-enact the Declaration of Independence, this was not a talking point with Lincoln. The great Declaration was for him the sub- ject of eloquent eulogy. He identified the Constitution with democ- racy, believing that the people of the nation were "the rightful masters of both congresses and courts, not to overthrow the Con- stitution, but to overthrow the men who pervert the Constitution." (V, 232.) In his speech at Kalamazoo, Michigan, August 27, 1856, he declared that the Constitution "must be maintained, for it is the only safeguard of our liberties." (Roy P. Easier, ed., Abraham Lincoln: His Speeches and Writings, 345; Thomas I. Starr, ed., Lin- coln'' s Kalamazoo Address Against Extending Slavery.) Lincoln was vigorous and eloquent in insisting on respect for law. This was the main theme of his address to the Young Men's Lyceum of Springfield in 1838 (sometimes misdated 1837), when KOREWORD TO THE REVISED EDITION XXI he said: "As the patriots of seventy-six did to the support of the Declaration of Independence, so to the support of the Constitu- tion and laws let every American pledge his life, his property, and his sacred honor. . . . Let reverence for the laws be breathed by every American mother to the lisping babe . . . ; let it be taught in schools, in seminaries, and in colleges; let it be written in primers, spelling-books, and in almanacs; let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice. And, in short, let it become the political religion of the nation . . . ." (I, 43.) Lincoln avoided the negative approach. He believed in purpose- ful government. He cautioned against that policy which is expressed in the words: "Do nothing at all, lest you do something wrong." (H, 31.) "Government," he said, "is a combination of the people of a country to effect certain objects by joint effort. . . . The legitimate object of government is 'to do for the people what needs to be done, but which they can not, by individual effort, do at all, or do so well, for themselves.' There are many such things . . . ." (H, 182-183.) Lincoln's idea that the government should serve the welfare of the people was implemented during his rule in emancipation, the homestead act, the creation of the department of agriculture, the land-grant-college measure, the national banking system, scientific support, government aid in the transcontinental railroad, and other measures. As a young man in the Illinois legislature in the 1830's he had gone "all out" for internal improvements at huge government expense. The Federal Constitution, in Lincoln's view, was for the Federal union. It did not envisage the destruction of that union. Secession in his view was "void." Violence against the authority of the United States was "insurrectionary or revolutionary, according to circumstances." (VI, 175.) To adopt secession, he thought, was to go all the way to revolution; it was not to act within the Con- stitution. Southerners, of course, affirmed the opposite doctrine. Lincoln himself recognized that devotion to the Constitution was "equally great on both sides of the [Ohio] river." (VI, 123.) This subject is treated in the first chapter. In applying the Constitution to changing conditions, Lincoln XXn CONSTirUTIONAL PROBLEMS UNDER LINCOLN favored a policy of reasonable adaptation. To this end he opposed a stultifying interpretation that would cause the nation to be hung up on excessive verbalisms or dialetic. It was his view that "nothing should ever be implied as law which leads to unjust or absurd consequences." (VI, 317.) Remembering the saying, "the devil takes care of his own," he added: "Much more should a good spirit — the spirit of the Constitution and the Union — take care of its own. I think it cannot do less and live." (VIII, 158-159.) On March 4, 1861, he said: "I take the official oath to-day with no mental reservations, and with no purpose to construe the Con- stitution or laws by any hypercritical rules." (VI, 172-173.) Lincoln had a high respect for the Supreme Court, but he had doubts as to the pontifical infallibility or the finality of its pro- nouncements. He protested against the notorious Dred Scott de- cision, not in any irreverent or factious sense, but simply as a refusal to consider the constitutional question closed by a decision which he regarded as undemocratic in efTect and erroneous in legal doctrine. He uttered thousands of words on this subject. (Archer H. Shaw, The Lincoln Encyclopedia, 87-92.) He considered the decision wrongful, objected to its becoming a precedent, and expected its reversal. In his first inaugural he made an interesting distinction which is significant because Lincoln offered it, though the legal profession would probably not accept it. He did not deny that a constitutional decision by the Supreme Court "must be binding . . . upon the parties to a suit, as to the object of that suit," but he protested against a situation in which "the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court . . . in ordinary litigation . . . ." If that should happen, he said, "the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal." (VI, 179-180.) The need for correlation of President, Congress, and Court, and of all these branches with the people, was well illustrated in the Lincoln administration. With all his other burdens pressing upon him, Lincoln had to consider how to choose justices with regard to fitness and at the same time recognize such a factor as geo- FOREWORD TO THE REVISED EDITION XXlll graphical location, how to leave the way open for recognition of the South in the membership of a tribunal that would survive the temporary shattering of the Union, how to arrange the circuits among the nine justices, some of whom were very old, how to bring the Far West into the pattern of judicial organization, and how to deal with the tangled and complicated litigation arising in California with regard to mineral and land titles holding over from the Mexican regime. Lincoln made five appointments of justices: Miller, Davis, Swayne, Field (for his understanding of California land questions), and Chase. There was a story with regard to each of these appoint- ments, though they cannot be discussed here, and also with regard to the whole panel of possibilities that the President had to con- sider in narrowing each choice to one man. In addition, two im- portant steps were taken by Lincoln which had a bearing upon the structural organization of the Court: circuit reorganization, and increase in membership. The law for the reorganization of the circuits (after discussion as to where to put Kentucky, whether to join Indiana with Ohio or with Illinois, how to equalize pop- ulation, et cetera) became law on July 15, 1862. After this. Congress made an all-time record as to the number of justices on the supreme bench. The law of March 3, 1863, provided that the Court should consist of ten justices, a tenth circuit being added to the existing nine, in order to provide for California and Oregon. After much pulling and hauling during the reconstruction period in the matter of legislation concerning the Court, the number of justices was again set at nine in 1869 and has remained so ever since. (On these matters the author has had the use of the manuscript doctoral dissertation, "The Supreme Court during the Civil War," by David M. Silver, University of Illinois, 1940. It is Dr. Silver's intention to publish a book on this subject.) Lincoln did not favor a weak executive. He was a strong Presi- dent. If one looks back over American history he will find that practically all the Presidents regarded as outstanding or great were strong executives who asserted their influence as leaders of opinion and guardians of the nation's welfare. Lincoln did not consider that strength and influence in the executive was inconsistent with XXIV CONSTITUTIONAL PROBLEMS UNDER LINCOLN democracy. As the Civil War was sui generis, so Lincoln's strength was unique. It was not, as with Wilson, a matter of effective leader- ship in legislation and cooperation with Congress. Congress usually went its way; Lincoln, his. It was rare for Congress to pass a major law because Lincoln sponsored or urged it, and there were very few instances in which Lincoln used the veto. The most famous case was that of the Wade-Davis reconstruction bill in 1864. The general situation under Lincoln, not a very favorable one, was that of a President and a Congress who did not precisely pull together and yet who avoided an upheaval or an open clash. There were times, it is true, when such a clash was narrowly averted. More than once Congress was in the mood to censure and thwart the President. The cabinet crisis of December 1862 was an example. (Lincoln the President, II, 241-249.) The manifesto by Wade and Davis in the summer of 1864 was not a congressional act, but it was a stinging denunciation of the President by two of the most influential leaders of the dominant element in Congress. Such a thing as a vote of confidence in the executive by the national legislature is foreign to the American practice. This presents an interesting speculation. If those who assail a chief of state must face up to the necessity of taking sides on a vote of confidence, and if, after carrying a vote in the negative, they are required to take over the responsibility of administration, as is true in the parliamentary type of government, that may clear the air, for it serves as an inhibition or sobering influence upon intemperate opponents and critics. Such, however, is not the American system. That Lincoln was a strong executive does not, of course, signify that he was a dictator. Elections went forward during war, in striking contrast to European practice. Under Lincoln the Con- stitution was not set aside. He submitted in 1864 to the free choice of the people and stood ready to relinquish his position without protest to a rival if the people so voted. His famous memorandum of August 23, 1864, indicated that at that time he expected to lose the election, and was studying what his policy should be between election and inauguration in the event of such defeat. A democracy accepts risks, and one of them was the chance — a strong chance it seemed in the summer of 1864 — that horses FOREWORD TO THE REVISED EDITION XXV would actually be changed crossing the stream. No dictator would have tolerated such a possibility. But one should not belabor a point which is obvious. Since the word "dictator" suggests a Hider or other totalitarian rulers, the contrast between their hideous methods and those of Lincoln is so evident that it needs no comment. It is not argued that Lincoln's administration was without fault, and it does no harm in the appraisal of American democracy to remember that there have been improvements since then, just as there are further improvements yet overdue. Where praise is ful- some, uninformed, and uncritical, it is historically unconvincing. Eulogy is of greatest value when tied down to reality, and a favor- able verdict carries more weight if both sides are heard. There were irregularities under Lincoln which have not become sound precedents, procedures which have not set the pattern for later executives. It would be idle to deny that mistakes occurred in the legislative, administrative, and military fields. Measures of that day would hardly be cited as models in such matters as cabinet government, relations between the Executive and Congress, State government in relation to the Federal, the formation of army units, the use of bounties in recruiting, or the Civil War type of conscription, whether considered from the standpoint of reasonable method or of results. There was fraud, profiteering, graft, and corruption. Lincoln was honest, but the same cannot be said of some who were concerned with army contracts, bounty brokerage, cotton manipulation, trading with the enemy, and the like. There were heartaches and disappointments under Lincoln. He was the target of savage, sarcastic, and belittling criticism. No President has suffered more abuse, much of it from his own party. It was a tragic time. He did not prevent war, and it was not his peace that was carried out. Failure to prevent war, however, was not his fault, and as to the pattern of peace he did not fail in plan- ning, while the dominant radicals of Congress, "successful" in the sense that they had their way, did fail both in planning and in execution. Against these factors, however, which can be ignored only if one is giving a superficial treatment, one must remember Lincoln's spokesmanship for democracy, his craftsmanship in the human art XXVI CONSTllUTIONAI, PROBLEMS UNDER LINCOLN of government, his manner of meeting and answering criticism instead of eliminating dissenters, his steps toward the elevation of the Negro race, his avoidance of dictatorial excess, his develop- ment of new governmental resources, his support of welfare meas- ures, his sense of balance, self control, skill of management, breadth of outlook, and concentration on the main issue. Not everyone can wear Lincoln's hat, nor should others try it, but no leader could fail to profit by a study of his spirit, his principles, and his method. That Lincoln's "stretching" of the Constitution did not cause the people to lose their liberties was due to a number of factors which will appear in later pages. Especially there was Lincoln's dislike of arbitrary rule, his reasonableness in practical adjustment, and his disinclination toward military excess. Severity of wartime control was tempered, clemency was readily bestowed, practice was milder than theory, and certain orders of army officers were overruled. One must avoid the mistake of supposing that every principle asserted for the sake of legal consistency, or of prestige abroad, was made effective, or that every harsh measure of Congress was carried into practical execution. The confiscation act of 1862, which should not be thought of as if intended to allot lands to Negroes (that was not the provision), occasioned a prodigious amount of congressional oratory, but it was not enforced by the tiny staff of Edward Bates, attorney general. Some of the district attorneys tried to enforce it, but the total result was very small. This non-enforcement of the act applied both to property in the usual sense, and to slaves of "persons ... in rebellion." Such slaves were pronounced "free," but this was by a loose legislative phrasing which did not amount to a legal divesting of title, nor a provision as to just how title should be divested in a situation where it was clear that not all slaves were included. In conse- quence, this feature of the law was not carried out; it amounted to little more than a paper declaration. (See below, pp. 362-363.) Nor should one place too much stress on the fact that the Con- FOREWORD TO THE REVISED EDITION XXVll federacy was not "recognized." It was not, to be sure, conceded to have international standing as an established nation, and it should be noted that no foreign country gave recognition of such standing. It was, of course, not admitted that the Richmond gov- ernment had supplanted or superseded the government of the United States for the South — i.e., that the Union was permanently broken. Human beings, however, were not made to suffer for such lack of recognition. Belligerent rights were "conceded," usages of war were applied to Southern armies, and Grant's terms to Lee in April 1865 included an important guarantee that men and officers would not be prosecuted. In the problem of subversive activity Lincoln did not forget that government through law is one of the fundamental American values. He understood the importance of effective loyalty tests instead of name calling, of fair-minded procedures in place of an irresponsible witch hunt. Referring to lawless outrages in his day, he warned against "the growing disposition to substitute the wild and furious passions in lieu of the sober judgment of courts, and the worse than savage mobs for the executive ministers of justice." (I, 37.) If persons were accused of disloyalty, he believed that they ought "not to be punished without regular trials in our duly constituted courts under the forms and all the substantial pro- visions of law and of the Constitution . . . ." (VII, 28L) Even in time of war he was "slow to adopt" extreme measures. (VIII, 303.) He realized that if "innocent persons" were arrested, the resulting "clamor" would be "of some service to the insurgent cause" (ibid.). He favored an oath of loyalty as a genuine pledge (a very simple one), and of course he recognized that a man could be prosecuted for what he had done in the past if criminal or illegal, but he wrote: "On principle I dislike an oath which requires a man to swear he has not done wrong. It rejects the Christian principle of forgiveness on terms of repentance. I think it is enough if the man does no wrong hereafter." (IX, 303.) In the case of Vallandigham, the most prominent and forceful of Northern agitators against the Union war effort, Lincoln avoided suppressive measures. The Supreme Court did not overrule the XXVlll CONSrlTUriONAI, I'ROBLEMS UNDER LINCOLN action of the military commission in this case, but Lincoln set aside the sentence of imprisonment and promptly substituted exile within the Confederate lines. Vallandigham soon reappeared in the North, bursting with anti-Lincoln propaganda, but in this later phase Lincoln simply let him alone. Under this silent treat- ment the agitator's degree of influence depended upon events and upon popular reaction to his attacks. That reaction was favorable to Lincoln, as was shown in the Ohio election for governor in 1863, when Vallandigham was defeated by a strong Unionist (John Brough), and in the presidential election of 1864, when Democratic defeat was due in part to a "peace platform" (deemed pro-Con- federate) adopted with the influence of the Vallandigham element in the Chicago convention. The whole episode showed that in permitting vigorous expression of dissent in war time, and in allowing opposition newspapers to operate (suppressions being ex- ceptional), the Lincoln government showed a high regard for citizens' rights under the most trying conditions. It is in keeping with Lincoln's view to hold that loyalty is not enforced conformity. "It is allegiance to the traditions that have guided our greatest statesmen and inspired our most eloquent poets — the traditions of freedom, equality, democracy, tolerance . . . . It is a realization that America was born of revolt, flourished on dissent, became great through experimentation." (Henry Steele Commager, "Who Is Loyal to America?" Harper's Magazine, Sep. 1947, p. 198.) After mentioning the "fast-failing efforts of our present totalitarian enemies," the Supreme Court of the United States, in the Barnette case, declared: "Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard." (319 U.S. 624; quoted by Commager in the article just cited.) In a period of terrific wartime agitation in Missouri Lincoln advised General Schofield to be cautious as to armed coercion and "to use it [the military establishment] as far as practicable to compel the excited people there to leave one another alone." (IX, 147-148.) The word "compel" in that passage is of special interest. It suggests the compulsion of democracy, of self control, of discipline, of give-and-take, of restraint among men FOREWORD TO THE REVISED EDITION XXIX whose opinions differ but who nevertheless have a common stake in the right to live and in the maintenance of public safety. It was in this connection that Lincoln gave his significant instruction against the use of suppressive measures in the realm of opinion. (See below, p. 508.) It has been well said of Lincoln: "He made effective weapons of truths as old as mankind, and as ever new as tomorrow morn- ing. . . . Neither time nor circumstance alters them." (Archer H. Shaw, ed., The Lincoln Encyclopedia, x.) Times change, but Lincoln's words are timeless, Often they have the quality of prov- erbs, but not as superficial truisms. Stereotypes, catchwords, or repetitious phrases of political cant were not his stock in trade. There has been, however, no intention to develop the lessons and parallels of Lincoln's problems for the decades that followed 1865. (See bibliography, below, under C. Herman Pritchett.) Problems under Wilson have been very briefly mentioned, but the tremendous issues of "World War II," and beyond, have not been canvassed. That is because they do not lie within the scope of this book. The midpoint of the "so-called twentieth century" can, of course, learn much from the past, and from Lincoln. Thoughts of present issues — occupation of enemy lands, peace making on a world basis, war-crime trials, and the colossal stupidity of war in an atomic age — come before us, and it is firmly believed that in the best of American political traditions, and in the United Nations, one may find the answer, but the tasks are so challenging and far reaching that facile treatment or superficial analogies would be a disservice. Military treatment of our mounting problems, and legal treat- ment, are not enough. Never before in American history has there been such a vast expansion of the armed forces in time of peace as since 1945. As Lincoln said, "we cannot escape history." (VIII, 131.) The dilemma of our time is to remember that weakness may invite war in a predatory world, but also to be ever alert so that preparations for possible war, and constant talk of such preparations, may not tend actually to touch off the explosion. Blame for war is not to be shifted or diffused into thin air by set- XXX CONSTITUTIONAL PROBLEMS UNDER LINCOLN ting up the orders of a "state," or a chief of state, as a shield for criminality; and by present standards — belatedly asserted in the Nuremberg trials — aggressive war is itself a crime. In the charter of the United Nations and elsewhere the United States is solemnly pledged not to commit that crime. It will be well to remember the spirit of Lincoln as we face a great moral issue: super-weapons on an incredible scale are constantly developed, but their true service for civilization is in terms of their not being used. It is said often, and it cannot for a moment be overlooked, that they are useful in the genuine American sense only as a deterrent. Their purpose is primarily to deter an aggressive nation from making an attack; their legitimate object would certainly not be to start a "preventive war." To read "the laws and customs of war" is a disheartening busi- ness. Not so long ago students of international law learned of established rules on a variety of subjects — the manner of begin- ning hostilities, treatment of prisoners, the sparing of non-com- batants, denying wholesale deportation, avoiding the bombard- ment of cities, guaranteeing neutral territory, and so on — but now the mere mention of such rules seems curiously dated, and if poison gas has been but little used in recent warfare, the main reason is not a sense of civilized restraint, but a fear of retaliation, and, more especially, the danger of poisoning the air for the nation's own troops. Hague conventions and their successors have not solved the ironic problem of mitigating the conduct of war. The idea that any nation may legitimately begin a war, but that methods of slaughter may be softened, is hopeless. The solu- tion must be found elsewhere. The only hope of free nations — not merely as a matter of "ideals," but of survival — lies in the prevention of war. One may deride the idea of "One World," but it is more evident now than ever that all peoples belong to the world fraternity; their concern as to the necessity of peace is universal. The United States foolishly wasted one of its greatest resources — the principle and program of Wilson for international order. Had the United States used its potent leadership thirty years ago through the League of Nations to maintain a united front of peace-minded countries, the overwhelming strength of those FOREWORD TO THE REVISED EDITION XXXI countries could have been asserted without an unreasonably large armament, the doom of a despotic aggressor could have been made certain in advance, and Hitler could have been stopped without war. Thus the untold confusion since 1939, and since 1945, would not have resulted. Wilson's great difficulty, as Lincoln's in planning for peace, was division at home. {Lincoln the Liberal Statesman, chap, vii.) Lin- coln and Wilson to the contrary notwithstanding, wars that could have been averted have been allowed to come, and each new war makes the problems of continued peace — or even of inaugurating a state of peace — more confused and difficult. It is a great irony that the wholesome sanity of the vast major- ity of nations and governments which might have been rallied to prevent the Axis War is now faced by the tragically overgrown power of a madly aggressive few who could plunge the world into another debacle of war, to be followed by another unpredictable postwar muddle. The President who was re-inaugurated in 1865 was not merely using beautiful words when he advised "a just and lasting peace among ourselves, and with all nations." (XI, 47.) In 1861 he had said: "this issue embraces more than the fate of these United States." (VI, 304.) His views, including his ideas of peace and war, and of constitutional democracy, are not to be discussed as if they had validity only for his country, or only for the 1860's. As the problems of each new era unfold, we recur, and never without profit, to fundamental principles as stated by Lincoln. June 20, 1950 j. g. r. ACKNOWLEDGMENTS In remembering those who have given guidance, comment, and help in specific research the writer reaHzes the deficiency of any acknowledgment. Friends who have given service cannot be adequately thanked, and some of them are no longer with us. Yet the author must record his debt to C. H. Van Tyne, A. C. Mc- Laughlin, William E. Dodd, Helen Nicolay, Avery Craven, A. J. Harno, C. A. Berdahl, W. S. Robertson, T. C. Pease, H. J. Ecken- rode, and Earl G. Swem. Of great value has been the assistance of the Library of Congress (divisions of law, legislative reference, bibliography, and manuscripts); the National Archives; the attor- ney general's office; and various agencies of the University of Illinois — the Library, the Research Board, and the Graduate College. Recent work pertaining to republication has been greatly assisted by Frank Freidel, especially with reference to Lieber; and by Charles M. Kneier with reference to military government. Special mention must be made of the capable work of Wayne Temple, graduate student and research assistant at Illinois. CONSTITUTIONAL PROBLEMS UNDER LINCOLN CHAPTER I INTRODUCTION I. The relation of constitutional questions to social motives and forces II. Growth and adaptation of the American Constitution to meet the needs of a developing nation III. Conditions and influences afTecting judicial decisions IV. Constitutional phases of the question of secession: Possibility of regarding the question as extra-consti- tutional The purpose of this volume is to examine those measures of the Lincoln Government which involved significant constitutional issues. The American Civil War began v^ith an elaborate constitutional discussion over the right of a State to secede from the Union, and as the great struggle progressed, a notable succession of legal problems demanded attention. Never before or since has the Government of the United States been subjected to such a severe test. While Lincoln spoke of the cause for which he contended as no less than the maintenance of democracy in the world, such a man as Wendell Phillips denounced Lincoln's government as a "fearful peril to democratic institutions" and character- ized the President as an "unlimited despot."^ In the 'As quoted by John Hay, Lincoln said: "I consider the central idea jjervading this struggle is the necessity ... of proving that popular 1 2 CONSTITUTIONAL PROBLEMS UNDER LINCOLN doubtful Struggle to preserve the Union, the war Con- gress and the war Cabinet had many a hard choice to make when measures out of harmony with American notions of civil liberty seemed the only alternative to defeat and disintegration. "Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?"^ was the question Lincoln propounded when making one of his difficult decisions, and this question embodied a real dilemma which his government continually confronted. To study in some detail, both historically and legally, the manner in which these constitutional problems of the Civil War presented themselves, to note the measures taken in solving them, and to offer such an appraisal of these measures as historical research may justify, is our task. In approaching this task, some introductory com- ment upon constitutional interpretation may be of profit. Whether any great question is primarily "constitu- tional" is doubtful. Laws and constitutions have im- portance not in themselves, but because of the social purposes which they embody. The question of nullifica- tion, for instance, was first of all social and economic; only in a secondary sense was it constitutional. In South Carolina there were certain conditions of society which government is not an absurdity." Diaries of John Hay, Dennett, ed., 19. On the eve of the Civil War W. H. Russell wrote to John Bigelow: "Every friend of despotism rejoices at your misfortune; . it is assuredly a grave and serious obstacle to the march of constitu- tional liberty." (Russell to Bigelow, London, Feb. 4, 1861: Bigelow, Retrospections of an Active Life, I, 346.) For Phillips' views see his speeches; also, Nicolay and Hay, Abraham Lincoln: A History, IX, 37, and J. F. Rhodes, History of the United States from the Compro- mise of 1850 to the Final Restoration of Home Rule at the South in 1877, III, 558. Joel Parker of the Harvard Law School referred to Lincoln as a government in himself, "an absolute, . . . uncontrollable government; a perfect military despotism." {Ibid., IV, 169.) 'Nicolay and Hay, Complete Works of Abraham Lincoln VI, 304. INTRODUCTION 3 the political leaders of the State deemed important; and the State-rights view, with the nullification theory as a corollary, was urged not for its own sake, but as an essential means of defending and preserving these con- ditions. The motives that produced the nullification principle, the real springs of action, were social and economic; the arguments were constitutional. Economic factors connected with secession cause scholars to regard it as more than a movement for constitutional rights. ^ For the Constitution itself there is the "economic inter- pretation," " and for Jeff'ersonian principles an economic basis has been argued.^ The desire to protect prop- erty interests, as a stabilizing social force, may in large part account for the constitutional views of Hamilton and his followers, and even of Washington himself; but if the constitutional opinions of these men be studied for their own sake, these underlying motives might well ^The theme that the South was the great producing section while the North was the wealth-accumulating section was eloquently though rather unscientifically developed by T. P. Kettell in Southern Wealth and Northern Profits, published on the eve of the Civil War. He set forth elaborate figures to show how the North kept the South in com- parative poverty and economic dependence through its control of manufacturing, shipping, banking, and international trade. There are many articles along the same line in the pages of DeBow's Review for the fifties. *"The members of the [constitutional] Convention were, with a few exceptions, . . . personally interested in . . . the establishment of the new system. The Constitution was essentially an economic doc- ument. . . . [It] was ratified by a vote of probably not more than one- sixth of the adult males. . . . The leaders who supported the Consti- tution in the ratifying conventions represented the same economic groups as the members of the Philadelphia convention. ... In the ratification, it became manifest that the line of cleavage for and against the Constitution was between substantial personalty interests and the small farming and debtor interests. . . . The Constitution . . was the work of a consolidated group whose interests knew no State boundaries and were truly national in their scope." (Charles A . Beard, An Economic Interpretation oj the Constitution of the United States, 324-325.) ^Charles A. Beard, Economic Origins of Jeffersonian Democracy. 4 CONSTITUTIONAL PROBLEMS UNDER LINCOLN escape notice. What Hamilton said about implied pow- ers should always be read in the light of the fact that Hamilton wanted a national bank, and that, in general, he wanted a strong government for the stabilization of the particular economic system to which hewas devoted. Not always do the words of a speech reveal the speak- er's motive. True historical insight must penetrate through the statements, writings, and arguments of po- litical leaders to the broad human purposes which they were seeking to accomplish.^ Viewed in this light, con- stitutional history becomes a part, and an important part, of social history. A familiar example showing how social motives control constitutional interpretation appears in connection with the tendency toward "rebuilding the nation on interstate commerce." As a social observer has written with some exaggeration, "Once ... we had need of a Con- stitution with many sections . . . and clauses: . . . now one is sufficient . . . the power to regulate interstate commerce." ' The suppression of rebates and discrimi- nating charges by railroads, the inspection of foodstuffs, the restriction of vice, the prevention of accidents — all these great social purposes have, so to speak, surged against the constitutional barriers until they have broken through; and the interstate commerce clause is the breach through which they have passed. This social utilization of the Constitution, so familiar in our own time, is not a new thing; and in the treat- ment of former periods of our history it is well to seek out the social motives constituting the reality of which constitutional arguments are but the reflection. Only •The development of political theories to meet political needs runs as a central theme through the pages of C. L. Becker, The Declaration of Independence. 'Shailcr Mathews, The Making oj Tomorrow, 180. INTRODUCTION SO may we preserve the important study of constitu- tional history, and yet retain a due sense of proportion toward those influences of social development which are the great factors of human progress. II It will profit the student of history and politics to broaden his view and definition of the Constitution. As Woodrow Wilson said, the Constitution "cannot be regarded as a legal document." It must be "a vehicle of life."^ Wholly apart from the matter of amendment, the Constitution is more than the instrument of 1.787. Just as the word "constitution" in England denotes the whole body of law covering fundamentals of government which successive generations of Englishmen have built up, so in America the Constitution is a matter of growth, development, and interpretation. Constitutional history is not the study of a document, but rather of a social process — the process by which a community re-expresses from time to time its will concerning its government, refitting, reinterpreting and expanding its fundamental law so as to keep abreast of new issues. In this process the Constitution is gradually being molded to fit the nation as a garment is shaped to fit the wearer. It is the nation wearing the Constitution, so to speak, and breathing and acting within it, that we should have in view; and it is only because the American Constitution is fortunately not a strait-jacket that the growing na- tion has been able substantially to preserve it. ' 'Woodrow Wilson, Constitutional Government in the United States, 192. '"The effort to continue uninterruptedly in accord with a federal Constitution . . . made at a time . . . before the railroad, before the telegraph, before the thousand and one changes that have broken 6 CONSTITUnONAI. PROBLEMS UNDER LINCOLN One of the Civil War writers, Whiiting, has given us an excellent statement of the adaptability of our Con- stitution. The narrow constructionists, he says, "have supposed it incapable of adaptation to our changing conditions, as if it were a form of clay, which the slight- est jar would shatter; or an iron chain girdling a living tree which could have no further growth unless by bursting its rigid ligature. But sounder judges believe that it more resembles the tree itself, native to the soil that bore it, waxing strong in sunshine and in storm, put- ting forth branches, leaves, and roots, according to the laws of its own growth. . . . Our Constitution, like that of England, contains all that is required to adapt itself to the present and future changes and wants of a free and advancing people." i" Where a constitution has this quality of adaptability, it becomes especially important to distinguish between the constitution on paper and the constitution in re- ality. The practical application of any document pre- scribing a fundamental law necessarily proceeds by a sort of "trial and error" system, and while certain clauses of the constitution are enormously expanded in their ap- plication, others are not put into practical effect. A stranger to our institutions would, in fact, obtain only an incorrect and artificial conception of our government if he confined his attention to the Constitution itself. He would have to be told that certain features of the Constitution are never carried out in practice, while some of the most fundamental powers of our govern- ment are exercised without any definite constitutional down State barriers in fact and welded us in reality, if not in law, into one mass in many . . . particulars . . . has . . demanded nu- merous adjustments. These adjustments have been made easy in part by the general terms in which the Constitution ... is framed." (A. C McLaughlin, The Courts, the Constitution, and Parties, 283-284.) • 'Whiting, War Powers under the Constitution, 9. INTRODUCTION 7 authorization. He would have to learn that the Presi- dent is not in reality chosen by the electoral college; that his power to adjourn Congress has never been ex- ercised; that taxes have rarely been apportioned accord- ing to population, and that certain reconstruction amend- ments have not been enforced; while the power of the courts to declare laws invalid, together with many other governmental powers, have no constitutional basis be- yond more or less reasonable inference. ^^ One of the frequent faults of constitutional discus- sion is an excessive reliance upon the political wisdom of a by-gone generation. In this attitude of mind one is apt to attach a particular sanctity to debates contem- poraneous with the generation which established the Constitution, as for instance the discussion that took place during Jefferson's administration concerning the suspension of the habeas corpus privilege. It cannot be denied that in the minds of judges, closeness to the time of the constitutional convention is often regarded as giv- ing special weight to a debate or an opinion. Nor is this tendency peculiar to conservatives, for the spectacle of radicals appealing to "the Fathers" is by no means un- usual. It is an old trick of reformers to preach a return to the purer and higher principles of the past. But is this backward look wholesome? Is there, after all, anything "sacred" about the Constitution? Time has amply attested the wisdom and even the remarkable "A. G. McLaughlin finds ample basis in the "natural right" philos- ophy, in the principle of separation of powers, and in American experi- ence prior to 1787, for the notion that the courts may declare a law unconstitutional. E. S. Corwin points out that "judicial review was rested by the framers . . . upon certain general principles which in their estimation made specific provisions for it unnecessary." (A. C McLaughlin, The Courts, the Constitution, and Parlies, 3-107; E. S. Corwin, The Doctrine of Judicial Review, 17.) See also G. G. Haines, The American Doctrine of Judicial Supremacy, and G. A. Beard, The Supreme Court and the Constitution. U CONSTITUTIONAL PROBLEMS DNDKR LINCOLN power of divination of the statesmen of 1787, but that is not to say that the product of their labor has a right to outlive its practical usefulness. To accept the sanc- tity of a document as one of the postulates of consti- tutional law would obviously be a cramping and paralyz- ing procedure. Our best tribute to the makers of the Constitution is not to preserve the work of their hands unchanged, but to emulate their efforts in bringing the best thought of the age to bear upon problems of politi- cal development. Ill There are special precautions to be observed in the use of court decisions for historical purposes. One must of course take into view the circumstances and condi- tions controlling a judge in the formation of his judi- cial conclusions. His opinion is conditioned by his own capability, his prejudices, the influence of his colleagues, the traditions and body of principles which have become a part of him.'^ Constitutional orthodoxy, if we may "Attorney General Bates's inner thoughts on the Supreme Court during the Civil War may be noted here. "Every day I am pained," he wrote, "at witnessing the proceedings in this highest of all courts — both the substance and the mode. Heretofore the maxim stare decisis was almost ostentatiously announced; but now, it looks as if cases were determined on grounds of policy only, and upon local and transient reasons." After referring to the California land cases and the Fossatt case, he continued: "The great and now comic error which has well nigh destroyed the dignity ... of the court is the extreme loo.seness ... of the courts below, allowed and encouraged here [so that] no man — not the Chief Justice — knows what is the true record of the court below." Bates also commented on the ex- treme age of the justices, remarking that five members were "fail- ing": Taney, Wayne, Catron, Grier, and Nelson. At that time retiring justices of the Supreme Court received no pensions. (MS. Diary of Edward Bates, April 10, 11, 1864.) After Chief Justice Taney's death Justice R. C. Grier wrote to Stanton as follows: "I think the President owes it to you that you should be suffered to retire in this honorable position." (Grier to Stanton, Oct. 13, 1864: Stanton INTRODUCTION use the expression, is always of great force in shaping judicial views. The distinction between orthodoxy and heresy in matters of constitutional law is of such im- portance that it is not easy for a judge to escape the or- thodox opinion. The liberal interpretation regarding "implied powers," for instance, is orthodox, while the strict-constructionist view that would treat the phrase "powers not delegated" as if it read "powers not expressly delegated," is heresy. It would take a most unusual mental effort for a judge in our own time to accept the Jeffersonian point of view on this question. This element of orthodoxy in constitutional interpreta- tion is given added force by the ingrained judicial habit of citing precedent.' ^ Decisions of former courts, though never conceded to be unalterable, are usually welcome; and if a former decision in an analogous case can be found, the court will often cease further inquiry. A recent legal writer speaks of "the old bogey man standing astride the road to . . . progress in the law of the land . . . that is, the custom of the courts ex- pressed in the old phrase stare decisis et non quieta movere — stand by precedents and do not disturb points settled by adjudications." "This," he says, "is to allow the dead hand of the primitive past to guide the progres- sive present," and he adds that it is mere custom, grow- Papers [MSS., Library of Congress], No. 55720.) In December, 1861, Congress considered a radical reorganization of the Supreme Court. Forfeiture of respect for tiie court seemed to be implied in the whole debate. '"'The law is progressive . . . , adapting itself to new relations . . . which are constantly springing up in the progress of society. But this progress must be by analogy to what is already settled." (Greene, C. J., in 1 R. I. 356.) "It was admitted . . . that the application . . . is without precedent. . . . The fact that no such application was ever before made in any case indicates the general judgment of the profession that no such application should be entertained." (Missis- sippi vs. Johnson, 4 Wall. 475. This was an application to enjoin Presi- dent Johnson against enforcing the Reconstruction Acts.) 10 C0NSIITU110NAI. l>ROBLKM.S UNUIvR LINCOLN ing out of the fact that judges are human, tending to follow beaten paths and to take the line of least resist- ance.^^ Of course it is also true that the courts are constantly developing the law along new lines, but it is much easier for a given doctrine to succeed if the precedents are with it than if they are against it. Nor should we deny that this conservation of existing judicial doctrine has its good side. Another important factor that must be borne in mind in seeking to evaluate judicial decisions is the unwilling- ness of a court to pass judgment upon a political ques- tion. Sometimes the line of distinction between politi- cal and justiciable questions may be difficult to draw; but when a given subject is understood to be political, the court will withhold judgment. On this subject Justice Nelson, announcing the Su- preme Court's decision in Georgia vs. Stanton, said: The judicial power is vested in one supreme court, and in such inferior courts as Congress may ordain and estabHsh; the pohtical power of the government in the other two depart- ments. The distinction between judicial and political power is so generally acknowledged in the jurisprudence both of England and of this country, that we need do no more than refer to some of the authorities on the subject. They are all in one direction. . . . [Quoting from Justice Thompson in Cherokee Nation vs. Georgia] "I certainly do not claim, as belonging to the judiciary, the exercise of political power. That belongs to another branch of the government. ... It is only where the rights of persons or property are involved, and when such rights can be presented under some judicial form of proceedings, that courts of justice can interpose relief.'"'' •\James M. Kerr, "Uniform State Laws and the Rule of Stare De- cisis," Am. Law Rev., LVI, 497. ">6 Wall, .50, 71, 75. (See also Luther vs. Borden, 7 How. 1) INTRODUCTION 11 This, it should be remembered, is a real limitation upon the judicial department. Where a policy of gov- ernment has been carried through and completed by Congress and the executive, so long as the question in- volved is primarily political, the court has no choice but to accept it as an accomplished fact. The judicial de- partment may assume the adjustment of details involv- ing personal or property rights, but as to the main policy, the judges are necessarily silent and acquiescent. In a constitutional study of great periods of stress and strain, such as the Civil War, there are many topics, as for instance the creation of West Virginia, concerning which the Supreme Court would attempt no independent decision. It is also worth remembering that the "war mind" affects even judicial decisions. The historian who has read many of the judicial utterances of the Civil War period cannot fail to be struck by this fact. Judges are human and the heat of war inevitably affects their thinking. When, for instance, a bitter partisan warfare was being waged in Indiana and the anti-war Democrats were seeking to force upon Governor Morton a special session of the legislature so that they might thwart his measures, the Supreme Court of the State was used as the tool of these scheming politicians.*^ The decision in Kneedler vs. Lane, declaring the con- scription law unconstitutional, when examined with ref- erence to the circumstances attending its issuance, ap- pears to be merely an incident of a better partisan war- fare. The Democratic party of Pennsylvania at this time was bitterly opposed to the Lincoln administration, and the Democratic judges denounced the law, while the "W. D. Foulke, Life of Oliver P. Morion, I, Ch. xxii. See also W. H. H. Terrell, Report of the Adjutant General of Indiana, I, 289 et seq., for the effect of war prejudices upon court decisions. 12 CONSTITUTIONAL PROBLEMS UNDER LINCOLN administration judges upheld it. Judge Woodward's adverse decision was so popular with his party that they nominated him for governor; but the ballots of pro- Lincoln men defeated him, and finally, after this Union triumph, the newly chosen Chief Justice Agnew, brought about a reversal of the Court's former position, which he referred to as having been "made in a one- sided hearing ... in a preliminary way, during a time of high excitement, when partisan rage was furiously assailing the law.''^^ In districts where, during the Civil War, ill will against the Lincoln administration was keen, such disaffection frequently found expression in court decisions which sought to obstruct essential processes of conducting the war, as for instance, decisions seeking to release by habeas corpus writ in a State court, men who had been drafted into the United States army. Though the high ideal of an impartial judiciary is one that has been closely approximated in this country, yet the historian cannot fail to note occasional lapses into partisanship, even on the part of our judges. IV In surveying the legal aspects of the Civil War, one of the first points to claim attention is the elaborate dis- cussion concerning the constitutional merits of seces- sion. It was not as a constitutional problem, however, that this question was settled, but rather as a practical political issue of the highest importance. As the pres- ent study is primarily devoted to constitutional prob- "Nicolay and Hay, Abraham Lincoln: A History, VII, 375; 45 Pa. 310. The New York Tribune referred to Woodward's decision as a "partisan harangue." (New York semi-weekly Tribune, Nov. 13, 1863, p. 4.) INTRODUCTION 13 lems which the prosecution of the war engendered, a strict definition of our field of inquiry might seem to ex- clude secession, which, from the writer's viewpoint, is an extra-constitutional matter. In view of the impor- tance of the issue, however, and the fact that the Su- preme Court made some notable pronouncements re- garding the constitutionality of secession, some com- ment on the subject may be appropriate. The proposition that secession might be grounded on fundamental principles as a basic popular right, received less attention than it deserved, while voluminous ar- guments were poured forth to show that secession was a lawful procedure within the Constitution. And in read- ing the able arguments of such men as Stephens and Davis one is impressed with the thought that their state- ment of the case for secession as a constitutional right was so strong that (for their purpose) the other grounds of justification, while not ignored, could be permitted to remain in the background. The States, as these Southerners contended, did not part with their sovereignty when they voluntarily en- tered the Union. Sovereignty is not a quality pertain- ing to government — that is the old feudal, monarchical view — in a democracy it is a quality inherent in the people. So State sovereignty does not mean sovereignty of State governments, but rather of the people of the States. Sovereignty cannot be surrendered by mere im- plication. A grant of any sort to be legally valid must be in express terms, and this is especially true in the case of a grant covering such an important matter as sovereignty. The Constitution, according to this view, was made by the States. The phrase "We the people of the United States" means the people of the States, for the "United States" is not a distinct people, but a union of several 14 CONSTITUTIONAL PROBLEMS UNDER LINCOLN peoples. The "supreme law clause" of the Constitution is no infringement upon State rights. There is a distinc- tion between "supreme law" and "paramount authority." Supreme law is exercised by the government, but para- mount authority resides with the people. To supreme law we owe obedience, but to paramount authority we owe something higher, namely, allegiance. The exer- cise of supreme power is by delegation from sovereign authority, and in the case of the powers of the United States Government they are supreme only so long as the authority delegating them continues the trust. The "su- preme law clause," it was urged, did not make the United States Government sovereign over the States. It was not a proposal of the nationalizing element within the constitutional convention, but a substitute measure pre- sented by the State-rights party in order to avoid the nationalists' proposal for a negative on State laws. The people, they said, may bestow supreme power where they will, and what they bestow they may recall. Thus the people of the States, possessing the right to be- stow supreme governmental power as they should see fit, conferred such power upon a general government as their agent, limiting, to that extent, their State govern- ments, but not limiting their own sovereignty. Accord- ing to this interpretation, the "supreme law clause" in- volved no diminution, much less a final surrender, of that sovereignty which resides in the people of the States, and the Articles of Confederation were as truly the Supreme law of the land as the Constitution. The ratification of the Constitution, according to the Southern argument, was by the States; and the instru- ment was binding only upon "the States so ratifying the same." Nine States might have formed the new union under the Constitution, leaving the other four out; and as a matter of fact eleven did "secede" from the old union INTRODUCTION 15 under the Articles of Confederation, and established the Constitution, leaving two of the States, North Caro- lina and Rhode Island, outside. Thus the Constitution itself originated by an act of secession! But not only was the Constitution ratified and established by States; its operation depends upon the States. The election of Senators, the choice of President and Vice President, and other important features of the Federal machinery, op- erate "by States." Some of the States, so the argument ran, reserved the right of withdrawal in their acts of ratification.^^ Vir- **Such was the argument of A. H. Stephens in his Constitutional View of the War between the States. A close study of the ratifying ordinance reveals a distinction between the phrase "people of Vir- ginia" and the phrase "people of the United States." The wording was as follows: "We the Delegates of the People of Virginia . . . now met in Convention. . . . Do in the name and in behalf of the People of Virginia declare . . . that the powers granted under the Consti- tution being derived from the people of the United States may be resumed by them whensoever the same shall be perverted to their in- jury or oppression." The New York convention declared that "all power is originally vested in and consequently derived from the people," and that "the powers of government may be reassumed by the people, whensoever it shall become necessary to their happiness." The Rhode Island act of ratification (dated May 29, 1790) made known "That there are certain natural Rights of which Men, when they form a social compact, cannot deprive or divest their Posterity, among which are the Enjoyment of Life and Liberty, with the means of acquiring, possessing and protecting Property and pursuing and ob- taining Happiness and Safety. That all power is naturally vested in and consequently derived from the People; that Magistrates, there- fore, are ... at all Times amenable to them. That the Powers of Government may be resumed by the People, whensoever it shall become necessary to their Happiness." In both Rhode Island and New York numerous reservations were inserted covering, in general, such points as were later embodied in the "bill of rights" — i.e., the first ten amendments. Massachusetts, New Hampshire, and Virginia ac- companied their acts of ratification with the recommendation of various amendments. South Carolina declared, following the formula of ratification, that the right to prescribe the manner of holding the elections to the Federal legislature should be "forever inseparably annexed to the sovereignty of the several States." Pennsylvania, New Jersey, Connecticut, Georgia, and Maryland made no reservations. The North Carolina convention on August 1, 1788, issued a "Declara- 16 CONSTITUTIONAL PROBLEMS UNDER LINCOLN ginia, it was said, stated in her ratifying ordinance that the powers granted under the Constitution, "being de- rived from the people of the United States may be re- sumed by them, whensoever the same shall be perverted to their injury or oppression." New York and Rhode Island made similar "reservations" and the other States, in accepting such ratification, assented to the principle that the right of withdrawal was retained. Besides, the Constitution being a "compact" between the States, if any of the confederated parties failed to live up to the terms of the compact, the other confederates were re- lieved of any further obligations.^^ On the Union side, the binding eflfect of the Consti- tution upon the States, and the impossibility of seces- tion of Rights" as a suggestion for amending the Constitution, "previ- ous to . . . Ratification on the part of . . . North Carolina." The actual ratification by North Carolina on December 21, 1789, was without reservation. The writer's study of this subject has led him to the conclusion that none of the commonwealths formally and explicitly reserved in its resolution of ratification the right of State withdrawal, though several of them put on record the right of the people of the United States to resume governmental powers granted in the Constitution. There still remains, however, the belief of many historical scholars that the majority of the American people assumed at the time of ratification that State withdrawal was possible if the Union should prove unsatisfactory. This view is by no means confined to Southern writers. (MacDonald, Jacksonian Democracy [The American Nation: A History, Vol. 15] 105 et seq,; Ratification of the Constitution [MS. in Libr. of Cong.], passim; Documentary History of the Constitution [published by the State Department,] Vol. II.) For the historical background in the discussion of State rights one should read the article on "Sovereignty in the American Revolu- tion: An Historical Study," by G. H. Van Tyne, in the Am. Hist. Rev., XII, 529-545. "These arguments supporting secession are chiefly to be found in Alexander H. Stephens, A Constitutional View of the War between the States, and Jefferson Davis, Rise and Fall of the Confederate States of America. For Davis' works, see Jefferson Davis, Constitu- tionalist: His Letters, Papers and Speeches, ed. by Dunbar Rowland. Stephens' replies to his critics are to be found in A. H. Stephens, The Reviewers Reviewed: A Supplement to the "War between the States" Documents on both sides are collected in Allen Johnson, Readings in American Constitutional History, 1776-1876, 454-463. INTRODUCTION 17 sion as a right within the Constitution, were vigorously argued. Though there were many able champions of this view, the arguments most worth quoting were, per- haps, that of President Lincoln in his message to the spe- cial session of Congress on the fourth of July, 1861, and Motley's able "Letter to the London Times,'''' published in 1861. What is "sovereignty" in the political sense of the term? [asked President Lincoln.] Would it be far wrong to define it "a political community without a political superior"? Tested by this, no one of our States, except Texas, ever was a sov- ereignty. And even Texas gave up the character on coming into the Union. . . . The States have their status in the Union, and they have no other legal status. If they break from this, they can only do so against law and by revolution. . . . The Union is older than any of the States, and, in fact it created them as States. . . . Unquestionably the States have the power and rights reserved to them in and by the Na- tional Constitution; but among these surely are not included all conceivable powers, however mischievous or destructive, but, at most, such only as were known in the world at the time as governmental powers; and certainly a power to destroy the government itself had never been known as a governmental . . . power. . . . Whatever concerns the whole should be con- fided to the whole — to the General Government; while what- ever concerns only the State should be left exclusively to the State. . . . Whether the National Constitution in defining boundaries between the two has applied the principle with exact accuracy is not to be questioned. We are all bound by that defining. . . . What is now combated is the position that secession is consistent with the Constitution — is lawful and peaceful. . . . The prinicple ... is one of disintegration, and upon which no government can possibly endure. '" '"Nicolay and Hay, Complete Works of Abraham Lincoln (Gettys- burg Edition), VI, 315-318. The portions quoted above give but a minor part of Lincoln's argument concerning the legal merits of secession. The historical argument that "the Union is much older 18 coNsrrrurioNAL problems under Lincoln Writing to an English audience, which found much in the Southern position to awaken sympathy and which applauded the aspirations of the Confederacy toward in- dependence in much the same way that public opinion in the World War period applauded the efforts of vari- ous European peoples for "self-determination," John Lothrop Motley set forth the reasons why the United States Government was under the necessity of forcibly resisting secession. His argument against the constitu- tional validity of secession is one of the ablest statements of the Union point of view. Motley stated that before 1787 we were a "league of petty sovereignties" and that in the few years of the league's existence we sank into a condition of impotence so that life and property were in- secure, laws could not be enforced, and we were unable either to guarantee the fulfillment of our part of the treaty with England or to obtain England's fulfillment of her obligations. But the sagacious men of that time, having "had enough of a confederacy," made a truly na- tional government, one that its opponents called a "con- solidated" government. As the chief concern of the men of the time was to cure the defects of the old confeder- acy, they made a government which operated not than the Constitution" was developed in his first inaugural; and the theme that the Union is older than the States was elaborated in a letter to A. H. Stephens which appears in Tracy, Uncollected Letters of Abraham Lincoln, 124-128. Lincoln also argued that no organic law had a provision for its own termination; that the Union is per- petual; and that "secession is the essence of anarchy." In the July message to Congress he further contended that no State was ever a "State out of the Union"; that large national sums spent for Florida and Texas created obligations that should not be escaped; that se- cession takes no account of the obligation to pay the national debt; that the Confederate Government itself faced disintegration if un- limited secession should be permitted; and that for all the States but one to drive that one out would be as justifiable as secession. See also Lincoln to the North American Review, January 16, 1864, in Nicolay and Hay, Works, IX, 284. INTRODUCTION 19 through the States, but directly upon every individual in the country, exercising supreme powers, while the States were "prohibited . . . from exercising any of the great functions of sovereignty." He continued r^^ The right of revolution is indisputable. . . . There can \)c nothing plainer . . . than the American right of revolution. But then it should be called revolution. "Secession, as a revo- lutionary right," said Daniel Webster . . "is intelligible. As a right to be proclaimed in the midst of civil commotions, and asserted at the head of armies, I can understand it. But as a practical right, existing under the Constitution, ... it seems to be nothing but an absurdity, for it supposes resistance to Government under the authority of Government itself; it supposes dismemberment without violating the principles of Union; it supposes opposition to law without crime; ... it supposes the total overthrow of Government without revolu- tion." Having noted the important clauses of the Constitu- tion by which the States were shorn of the attributes of sovereignty, being denied the power to coin money, main- tain armies, make compacts, and the like, Motley pro- ceeded thus: Could language be more Imperial? Could the claim to State "sovereignty" be more completely disposed of at a word? How can that be sovereign . . . which has voluntarily ac- cepted a supreme law from something which it acknowledges as superior? The Constitution is perpetual, not provisional or temporary. It is made for all time — "for ourselves and our posterity." It is absolute within its sphere. "This Constitution [ . . . ] shall be the supreme law of the land, anything in the Constitution or laws of any State to the contrary notwithstanding." Of ""J. L. M.," in London Times, May 23-24, 1861. (The text of Motley's letter as above given has been checked by comparison with the original in the Times.) 20 CONSTITUTIONAL PROBLEMS UNDER LINCOLN what value, then, is a law of a State declaring its connexion with the Union dissolved? The Constitution remains su- preme, and is bound to assert its supremacy till overpowered l)y force. . . . But it is sometimes asked why the Constitution did not make a special provision against the right of secession. ... It would have been puerile for the Constitution to say formally to each State, "Thou shalt not secede." . . . This Constitu- tion is supreme, whatever laws a State may enact, says the or- ganic law. Was it necessary to add, "and no State shall enact a law of secession"? To add to a great statute ... a phrase such as "and be it further enacted that the said law shall not be violated," would scarcely seem to strengthen the statute. It is strange that Englishmen should find difficulty in under- standing that the United States Government is a nation among the nations of the earth. . . . The "United States" happens to be a plural title, but the Commonwealth thus des- ignated, is a unit, "^ pluribus unum.^' The terms of the treaty between England and Scotland were perpetual, and so is the Constitution of the United States. The United Empire may be destroyed by revolu- tion and war, and so may the United States; but a peace- ful and legal dismemberment without the consent of the majority of the whole people is an impossibility. That great law [the Constitution] . . . was ratified by the people of all the land. ... It was promulgated in the name of the people. "We, the people of the United States ... do ordain and establish this Constitution." It was ratified by the people — not by the States acting through their Governments, . . . but by the people electing especial delegates within each State; and . . . in none of these ratifying Conventions was any reserve made of a State's right to repeal the Union or to secede. ^^ *2See note 18 of this chapter. INTRODUCTION 21 And thus, when the ratifications had been made, a new Commonweahh took its place among the nations of the earth. The effects of the new Constitution were ahnost magical. Order sprang out of chaos. Law resumed its reign, debts were collected, life and property became secure, the national debt was funded and . . . paid. ... At last we were a nation. Neither the opponents nor friends of the new Government in the first generation after its establishment held the doctrine of secession. . . . Each party continued to favor or to oppose a strict construction of the instrument; but the doctrine of nullification and secession was a plant of later growth. It was an accepted fact that the United States was not a con- federacy. Such, in brief outline, were the strongest arguments on both sides of this historic debate. To arbitrate the controversy is not the historian's function, but it is es- sential that both points of view be appreciated. It is recognized that the principle of State sovereignty perme- ated the old form of government under the Articles of Confederation. The wording was "Each State retains its sovereignty, freedom, and independence." The Con- stitution is usually set off in contrast to the Articles and regarded as the product of the nationalizing party which is supposed to have "triumphed" in the convention, as if the State-rights party had accepted defeat. But the outcome of the convention was not the complete "vic- tory" of one party over the other so much as a com- promise accepted by both sides, for the Constitution could not have been adopted without the votes of the State-rights element. It should not be forgotten that there was a national "side" to the purposes of the State-rights party. Men of this party were ready to make concessions in order to provide a more adequate government; but, if we accept 22 CONSTITUTIONAl- PROBLEMS UNDER LINCOLN their own interpretation of their acts, they did not know- ingly yield State sovereignty. Webster and Marshall argued with convincing logic that the people, in forming the Constitution, consciously abandoned their sover- eignty as State communities in favor of an all-inclusive national sovereignty; but is it not possible that the logic of Webster and Marshall was better than their history, and that they may have been reading back into the thought of that earlier time a view which was not after all the prevailing sentiment of "the Fathers"? It is an historic fact that the South did not accept the Webster- Marshall doctrine; and if historical continuity be made the test, it could be urged that the advocates of State rights fully believed in an unbroken continuity which linked their views with those of the architects of our government. Honesty and sincerity certainly character- ized this point of view, and shall we not say that it had a certain historical validity? At least we should under- stand it if we are to make a study of the war of seces- sion. Viewed after the lapse of more than half a century, the arguments for the "constitutionality" of secession hardly seem, on either side, to go to the core of the subject. The Southerners, in the broader sense, did not strike for State secession per se\ they struck for the larger object of a new union in which all the neighbors would be har- monious and congenial. Furthermore, instead of think- ing merely of the constitutional justification for their movement, they were virtually appealing to the court of world opinion on the basis of fundamental rights; for whatever motives would justify secession would also jus- tify an appeal to the right of revolution. The people of the North, on the other hand, gave freely of life and treasure not merely because they believed secession un- constitutional, but because the majority of them were de- INTRODUCTION 23 voted to the Union and believed that only by maintain- ing its integrity as one people could the United States realize its highest destiny. On each side the feeling for or against the desirability of secession was a stronger fac- tor than the attitude regarding its constitutionality. Even Lincoln's arguments on this subject should not be regarded as mere matters of legal reasoning, for Lin- coln's constitutional interpretation rested upon motives; and the significant fact which gave force to his leader- ship was not so much his belief in the unconstitutionality of secession as it was his fundamental conviction that the Union was bound up with the welfare of the country. The fact that so much was made of the constitutional argument may be attributed in part to the law-abiding instincts of the American people. The South, no less than the North, revered the Constitution, and to both sides it seemed a shocking thing to cast aside the restraints of the time-honored instrument; while in a less stable country the thought of revolution would have been readily accepted without any backward look of regret at the shattered fragments of the fundamental law. It need not be considered a reflection upon the earnestness of the contemporary arguments if the his- torian of the present should treat the whole subject of secession as extra-constitutional. It was but natural that the effects of Union triumph should be registered in our constitutional interpretation. The orthodox view which emerged from the Civil War was stated by the Supreme Court in the following words i'^ 3 The Constitution . . . looks to an indestructible Union composed of indestructible States. When, therefore, Texas became one of the United States, she entered into an indissolu- "Texas vs. White, 7 WaU. 724-726. 24 CONSTITUTIONAL PROBLEMS UNDER LINCOLN ble relation. . . . Considered ... as transactions under the Constitution, the ordinance of secession . . . and all the acts of [the] legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. In the settlement of that famous query "Can the Fed- eral Government coerce a State?" the emphasis was shifted, and the question "Can a State constitutionally withdraw from the Union?" was answered in the nega- tive. 2* In the practical and vital sense the most serious question in 1860-61 was not the constitutionality, but the wisdom of secession. To affirm that secession was constitutionally possible was not the same as believing that it was prudent or desirable. It was futile to present to the Southern mind the idea that secession was consti- tutionally invalid. Southerners (including Unionists) believed that "their national citizenship . . . came through their state citizenship. When their state seceded they lost their national citizenship, and not to go along with their state made them traitors or men without a country."^^ *^For further study of secession in its legal aspects the following points may be noted. The Constitution forbids a State from entering "into any . . . confederation," and from "entering into any agreement or compact with another State" without the consent of Congress. (Art. I, sec. 10, cl. 1 and cl. 3.) This section has been interpreted as rendering the Confederate States' Government illegal. (Williams vs. Bruffy, 96 U. S. 183; Lamar vs. Micou, 112 U. S. 476.) The answer of the South to this contention was that these prohibitions applied only so long as the States remained in the Union, and that they did not preclude withdrawal. In Dodge vs. Woolsey, 18 How. 331, 351, the Supreme Court declared that the States are not independent of each other in respect to the powers ceded to the United States; and it has been declared in various decisions that the States have but a qualified sovereignty. (See, for instance, Fletcher vs. Peck, 6 Cranch 136; U. S. vs. Rauscher, 119 U. S. 412.) For a full citation of cases on this subject, see Sen. Doc. No. 96, 67 Cong., 2 sess., pp. 261 et seq. and pp. 361 et seq. An elaborate report covering both sides is given in House Rep. No. 31, 36 Cong., 2 sess., and the debates of the Thirty-Sixth Congress should also be studied. "E. Merton Coulter, The Confederate States of America, 1861-1865, 17. CHAPTER II THE CONSTITUTION AND THE WAR POWERS I. The Anglo-Saxon disposition to hold the government under the law ev^en in time of war II. War powers under the Constitution of the United States III. Duration of the war powers IV. War powers of the President V. War powers of Congress VI. Leniency in the practical application of severe war measures Concerning governmental powers in time of war, there is a striking contrast between the view which prevailed in imperial Germany (to take an example of a militaristic nation) and that which holds in England or the United States. There is in English-speaking jurisdictions, for instance, nothing which corresponds to the German Kriegzustand. Under the old German system, it was within the competence of the Kaiser to proclaim a "state of war" throughout Germany, and thus to inaugurate a sweeping military re'gime under which the ordinary laws and the authority of the civil courts were superseded by the orders of the generals commanding the various dis- tricts into which the country was divided. This military re'gime, be it noticed, was launched purely by executive action, and covered the whole coun- try. It was universal martial law, not limited martial law based on the fact of invasion, or actual defiance of 25 26 C(tNS ri rUTIONAI, i-rdhucms unukk i.incdln authority in particular parts of the country. It applied everywhere, and rested merely on the Emperor's procla- mation of the state of war. Under it the commanders could make seizures and arrests without warrant, im- prison without judicial process, suppress newspapers, prevent political meetings, and do many similar things with entire disregard to the restraints of the civil law.' Such a condition actually existed in Germany through- out World War I and it may serve for us as a starting point to illustrate what is meant by the "war power" when carried to the extreme. In contrast to this expansion of executive action during war, the Anglo-Saxon tendency has been always to em- phasize the "rule of law," and to regard the military power as subordinate to the civil. In England, and also in the United States, martial law, which has been de- scribed as "no law at all," has been very sparingly used; and any general order, subjecting the whole nation to military rule for the duration of the war, regardless of any insurrection or threat of invasion, would be most unlikely. This disposition to hold the government at all times within the law, and this wariness in the exercise of military power over civilians, are fundamental postu- lates in any discussion of war powers in the United States. 2 The inevitable appeal from law to necessity was, of course, frequently presented during the Civil War. "Ne- •The legal basis for martial law in Germany was Article 68 of the German Imperial Constitution. Walter F. Dodd, Modern Constitu- tions, I, 348; Burt E. Howard, The German Empire, 46. Certain phases of this subject are discussed in the writer's article, "Germany's Cen- sorship and News Control," in the J\forth American Review, July, 1918. 'The subject of martial law as it is regarded in England and the United States is treated below in Chapter VII, and the citation of authorities is given in note 7 of that chapter. IHE CONSTITUTION AND THE WAR POWERS 27 cessity knows no law" — ^Hnter arma silent leges^'' were the oft-repeated slogans. Yet there are at least three ways in which military authority should be restrained (by law) in time of war: 1. By treaty obligations, except those which war terminates. Often treaty provisions are made for the special case of war. It is only in that sense that such treaties have significance. 2. By the so-called "laws of civilized warfare." ' For the Civil War the United States issued a comprehensive code which had a significant history. Those chiefly active in its preparation were Francis Lieber, noted German-American authority on public law, and Henry W. Halleck, general in chief of the Union armies. 3. By a due regard for citizens' rights, both in con- 'In this work Lieber's service, and his initial impulse, were of primary im- portance. With three sons in the army (one in Confederate service) he knew the agony of scanning casualty lists; one of his sons was killed and another severely wounded. He noted that usages of war were inadequately systematized and that many points required clarification: runaway slaves, pillage, espionage, the penalty for spies, retaliation, flags of truce, treatment of prisoners, stealing, burning of homes, attitudes toward non-combatants, seizure and destruction of private property, and newly arising questions of Nebro emancipation. Coming up through Lieber's elaborate study and his voluminous correspond- ence with Halleck, the military code took shape with the assistance of a special army board headed by General E. A. Hitchcock, and was issued in May 1863. It appeared as "General Orders No. 100: Instructions for the Government of the Armies of the United States in the Field." [ It was made binding upon all Union armies and enforceable through courts-martial. Though the making of "Rules for . . . the land and naval Forces" is a constitutional function of Congress, and though Congress has set up "Articles of War," these have tra- ditionally been supplemented by army regulations promulgated as an executive function; it is in the latter category that the "Lieber code" belongs. War oj the Rebellion: Official Records of the Union and Confederate Armies [hereafter cited as "O.R."J, sen II, vol. 5, pp. 671-682; ser. Ill, vol. 3, pp. 148-164. Corre- spondence between Halleck and Lieber is to be found in the Lieber MSS., Huntington Library, San Marino, California. On this subject the writer acknowledges the valuable counsel and assistance of Dr. Frank Freidel of the University of Illinois. His article in the Miss. Vail. Hist. Rev. for March 1946 is the best brief discussion of this involved subject. See also his book, Francis Lieber: Nineteenth Century Liberal. The Supreme Court has held that international law "is part of our law." (Hilton vs. Guyot, 159 U. S. 113, 163.) 28 CONSTITUTIONAL PROBLEMS UNDER LINCOLN quered territory and at home. Even during war the per- sonal and property rights of the citizen, according to the Anglo-Saxon viewpoint, must be preserved. Unless there is actual invasion or insurrection, the laws are not to be suspended by a military regime at home; and in the case of occupied enemy territory, the ordinary ad- ministration of the laws by the local authorities is sup- posed to continue, subject only to the intervention of military force in the case of a serious unlawful outbreak. To ignore these three restraints is simply to conduct war in an uncivilized manner. War, properly con- ducted, is not anarchy; and, though the maxim contains perhaps a kernel of truth, it is not in keeping with the American view to repeat that "necessity knows no law." II We may now ask: How far are the "war powers" con- sistent with the American Constitution?^ The perti- nent provisions of the Constitution are the following: The Congress shall have power ... to declare war; . . . to raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces; to provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions; to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States . . . the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress; . . . [and] to make all laws which shall be necessary and proper for carrying into ^Somc treatment of the "war powers" in the United States is given in House Rep. No. 262, 43 Cong., 1 sess., pp. 10-11. THE CONSTITUTION AND IHE WAR POWERS 29 execution the foregoing powers, and all other powers vested ... in the Government of the United States. In addition to these specific provisions, it should be mentioned that the executive power is vested in the President, that he takes oath "faithfully [to] execute the office of President," and to "preserve, protect and defend the Constitution of the United States," and that he is "Commander-in-Chief of the army and navy," and of the militia when in Federal service. These are provisions that relate directly to the sub- ject of war. But there are other provisions of a limiting sort, which seem inconsistent with the full exercise of the war power. There is the limitation which prohibits any law abridging freedom of speech or of the press, or the right of assembly; and in the fourth, fifth, and sixth amendments there are important guarantees covering security from unreasonable searches or unwarranted arrests, freedom from criminal punishment except upon indictment and trial, immunity of persons and property from interference without due process of law, and pro- tection of the accused by the use of those devices which tend to insure complete judicial determination of every fact, and absolute impartiality in the conduct of trials. These devices include speedy trial by an impartial jury, the right of the accused to be informed of the nature of the accusation, the right to summon witnesses in his behalf as well as to confront contrary witnesses, and the right of counsel. In the various discussions concerning the "war powers" during the Civil War, the first, fourth, fifth, and sixth amendments, and the habeas corpus clause were more particularly held in mind than any other parts of the Constitution. The reserved power theory, and the fact that the Constitution as a whole was a grant of power to Congress, while such power as 30 CONSTITUTIONAL PROBLEMS UNDER LINCOLN was not granted was withheld, were also frequently emphasized. Apart from particular provisions, the pacific, non- aggressive spirit of the Constitution was stressed. The Supreme Court itself has pointed out that the Consti- tution-makers wanted to make war difficult, and that the sentiment of opposition to wars of conquest or of aggression had much to do in shaping the provisions which relate to war. The convention definitely intended to preclude an aggressive war.* Instead of conferring upon Congress the power "to make war," the power to "declare war" was substituted; and while it is generally conceded that Congress also has the power to "wage war," to "carry on war," or to "prosecute war,"« still such power is to be derived rather by implication than by express mention. In attacking the problem of the war powers under the Constitution, the men of Civil War time were, in gen- eral, divided among three different opinions: 1 . Opponents of the Lincoln administration held that the Government should stick to the Constitution even in war; that a strict interpretation of the instrument should be adopted which would disallow many of the measures taken by the Government, and that these measures should therefore be abandoned. 2. Extreme advocates of the war power held that the Constitution is not operative during such a crisis as the Civil War presented. This was the view of Thaddeus Stevens, who said he "would not stultify" himself by supposing that a certain measure was constitutional, but he went ahead and voted for it regardless of its uncon- Tleming vs. Page, 9 How. 603; Chambrun, A. de, Le Pouvoir Execu- tif aux Etats Unis, Gh. v. 'See infra, p. 42, n. 26. THE CONSTITUTION AND THE WAR POWERS 31 stitutionality. ^ Senator Sumner agreed with this view. "War," he declared, "cannot be conducted in vinculis. In seeking to fasten upon it the restraints of the Con- stitution, you repeat the ancient tyranny which com- pelled its victims to fight in chains. Glorious as it is that the citizen is surrounded by the safeguards of the Constitution, yet this rule is superseded by war which brings into being other rights which know no master." ^ In such a view there is a quality of forthrightness and frankness which most statesmen of the time did not exhibit. Many there were who found everything legal which they desired to do. Such an attitude has been associated with the term "Jesuit ethics" and its motto has been thus stated: "Fix your mind and attention upon one object which you think a lawful one, and then all the means are lawful." ^ 3. A third position was to admit that the Constitu- tion is binding during war and yet to maintain that it sanctions extraordinary powers. Those supporting this view differed from the first group in adopting a liberal interpretation which would justify severe measures as lawful within the Constitution. On this broad issue the Supreme Court spoke as fol- lows in the Milligan case: "The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers ... all classes. . . . No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exi- gencies of government. Such a doctrine leads directly ''Cong. Globe, 37 Cong., 3 sess., pp. 30-51. mid., 37 Cong., 2 sess., p. 2196. Mnn. Cjc, 1863, p. 289. Much thinking is mere rationalizing: "finding arguments for going on believing as we already do." (J. H. Robinson, Mind in the Making, 41.) 32 CONSTITUTIONAL PROBLEMS UNDER LINCOLN to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence."^" A like opinion was expressed by Mr. Hughes, former justice of the Supreme Court, in 1917. "While we are at war," he said, "we are not in revolution. We are making war as a nation organized under the Constitu- tion, from which the established national authorities derive all their powers either in war or in peace. The Constitution is as effective to-day as it ever was and the oath to support it is just as binding. But the framers of the Constitution did not contrive an imposing spec- tacle of impotency. One of the objects of a 'more per- fect Union' was 'to provide for the common defense.' A nation which could not fight would be powerless to secure 'the Blessings of Liberty to Ourselves and our Posterity.' Self-preservation is the first law of national life and the Constitution itself provides the necessary powers in order to defend and preserve the United States. Otherwise, as Mr. Justice Story said, 'the coun- try would be in danger of losing both its liberty and its sovereignty from its dread of investing the public coun- cils with the power of defending it.' "" There is a passage in the opinion of Justice Agnew, of Pennsylvania, concerning the constitutionality of the draft, which is worth quoting in this connection. It announces what might be called the principle of the supremacy of a general power for vital purposes. The '"71 U. S. 2. One of the great doctrines of the Milligan case was that Congress is restrained by the Constitution even during war. See Chafee, Freedom of Speech, 33. ""War Powers under the Constitution," an address of Charles E. Hughes before the American Bar Association, Saratoga, N. Y., Sept., 1917. Sen. Doc. No. 705, 65 Cong., 1 sess., p. 3. THE CONSTITUTION AND THE WAR POWERS 33 judge said: "Where a general power is vested in plain and absolute language, without exception or proviso, for high, vital, and imperative purposes, which will be crip- pled by interpolating a limitation, the advocate of the restriction must be able to point out somewhere in the Constitution a clause which declares the restriction, or a higher purpose which demands it.''^^ It would be safe to sum up the prevailing views of our judges by saying that the war powers are entirely consistent with the Constitution, and that these war powers include all that is essential to the nation's preservation. Ill One of the questions that was much discussed during the period of the Civil War was that of the duration of the war powers, and on this point there was no little confusion of thought. Holding that war powers last only during war, many insisted that, once the conflict was concluded, the validity of rights acquired under wartime measures ceased. But it is a mistake to suppose that war powers include only those acts which have effect during war. Rights under the laws of war must, of course, be exercised only during war, but it does not follow that acts performed under such rights lose their effect and validity when the war ends. There are various things, such as the for- feiture of contraband goods and the seizure of enemy private property on enemy ships, which may be done once Jor all under the laws of war. If measures of this nature should be undone after the war, such a course would be unusual, not regular, and would be based most probably upon some special treaty provision. There are "45 Pa. 238. 34 CONSTITUTIONAL PROBLKMS UNDER LINCOLN various things which a belHgerent may lawfully do with permanent legal effect. Peace does not normally undo such acts. Many measures, of course, are in their very nature temporary. Such would be the occupation of private houses for billeting soldiers, the use of public buildings, the holding of prisoners, and the like. These measures are originally taken in the consciousness that they are limited to the duration of the war. But other measures, quite as clearly within the laws of war, do outlast the conflict. There was much doubt and argument as to the post- war validity of various acts performed as "war measures" during the Civil War, but in cases where such doubts were reasonable the measures in question were, to begin with, of doubtful validity, as, for instance, the Presi- dent's proclamation emancipating the slaves. If the permanent emancipation of enemies' slaves had been as universally recognized under the laws of war as the per- manent confiscation of contraband goods, there would have been less question as to the post-bellum effect of the proclamation. As a rule those who doubted the permanent validity of this edict of emancipation doubted its immediate law- worthiness as well. In gen- eral, those acts taken with an intention of permanency which fell within the category of proper war measures, were of lasting validity. IV In the next place we are led to inquire: What were the "war powers" during the Civil War? This is a sub- ject which will be elaborated in succeeding chapters, but a few general matters may be noted at this point. The Government had, of course, the power to use its THE CONSTITUTION AND THE WAR POWERS 35 army and navy against the army and navy of the enemy, but this use of military force against miUtary force is not v^hat is ordinarily meant by the "war power." The term usually relates to the use of governmental authority outside the usual and normal sphere. It is this extraor- dinary reach of the Government's strong arm, bearing upon civilians, that we usually have in mind when we speak of the "war power"; for the use of military meth- ods in dealing with military situations is too obvious to excite comment. It may be well to note first the war power of the President, and then consider that of the legislature. There is a certain looseness in the constitutional grant of executive power which is in sharp contrast to the specification of the powers of Congress. It is the "legis- lative powers herein grantecT^ that are bestowed upon Congress, but it is simply the "executive power" that is vested in the President. In consequence of the meager enumeration of presidential powers in the Constitution, this branch of our law has undergone a process of development by practice and by judicial decision. Some of the main lines of this development may be noted. The President, like every other officer, is under the law. "There is no undefined residuum of power which he can exercise because it seems to him to be in the public interest." The President's sources of power must be found in the Constitution or in some act of Congress.*^ Yet the President has large discretionary power — a power which assumes great importance in times of emergency. If not authorized to assume the role of dictator, he is at least clothed with latent powers which in time of war are capable of wide expansion. It seems to have been the definite intention of the Con- 'W. H. Taft, Our Chief Magistrate and His Powers, 139-140. 36 CONSTITUTIONAL PROBI.KMS UNDER LINCOLN stitution-makers that the power to repel sudden attacks should be lodged in the President, and it is reasonably maintained that he has authority to wage a defensive war without direct authorization from Congress. The President controls the army and navy and may order them where he thinks best. In addition to his authority over military persons, he has great power over the rights of civilians, a power especially related to the declaration of martial law and the establishment of military com- missions. "Powers of police control" have been assumed by various presidents and this sometimes involves the withholding of certain individual rights normally guar- anteed, as when aliens are held under surveillance, dangerous citizens summarily arrested, or censorship imposed in the interest of public safety.''* As interpreted by President Lincoln, the war power specifically included the right to determine the existence of "rebellion" and call forth the militia to suppress it; the right to increase the regular army by calling for vol- unteers beyond the authorized total; the right to sus- pend the habeas corpus privilege; the right to proclaim martial law; the right to place persons under arrest without warrant and without judicially showing the cause of detention; the right to seize citizens' property if such seizure should become indispensable to the suc- cessful prosecution of the war; the right to spend money from the treasury of the United States without con- gressional appropriation;'^ the right to suppress news- '*For an able and comprehensive discussion of this whole subject, see G. A. Berdahl, War Powers of the Executive in the United States {Univ. oj III. Studies in the Social Sciences, Vol. IX). '*In reporting to Congress various measures talcen to meet the na- tional emergency, Lincoln stated that early in the war he gave large powers to certain trusted citizens who were to make arrangements for transporting troops and supplies and otherwise providing for the public defense. Doubting the loyalty of certain persons in the gov- ernment departments, he directed the Secretary of the Treasury to THE CONSTITUTION AND THE WAR POWERS 37 papers; and the right to do unusual things by proclama- tion, expecially to proclaim freedom to the slaves of those in arms against the Government. These were some of the conspicuous powers which President Lincoln exer- cised, and in the exercise of which he was as a rule, though not without exception, sustained in the courts. Analyzing the President's war power further, we find that besides the executive power, which during the war expanded enormously, there was a considerable amount of "presidential legislation" (for in many cases it vir- tually amounted to that), and there were also notable instances of presidential justice. The subject of presidential legislation is difficult, be- cause the President's power of issuing regulations and executive orders shades almost imperceptibly into the exercise of the legislative function itself. President Lin- coln issued "regulations" for the enforcement of the Militia Act of 1862 which established conscription for the first time during the war. The act itself did not specifically authorize conscription at all, and so far as the draft was used in 1862 (in Indiana, Wisconsin, and other States) it rested upon these executive regulations. What is more, these regulations permitted State gov- ernors to devise for their States compulsory systems of raising the militia if they preferred not to follow the plan included within the President's regulations. In advance two million dollars of public money without security to John A. Dix, George Opdyke, and Richard H. Blatchford, of New York, to pay the expenses of certain "military and naval measures necessary for the defense and support of the Government." This would seem to have been in violation of that clause of the Consti- tution (Art. I, sec. 9, par. 7) which provides that "no money shall be drawn from the Treasury but in consequence of appropriations made by law." Lincoln confessed the irregularity of this procedure when he said, "I am not aware that a dollar of the public funds thus confided without authority of law to unofficial persons was either lost or wasted." (Lincoln's message to Congress, May 26, 1862: Nicolay and Hay, Works, VII, 189-194.) 38 CONSTITUTIONAL PROBLEMS UNDER LINCOLN another chapter this subject will be more fully dis- cussed,^" but for our present purpose it is important to notice that the President was accused of usurping the legislative power in promulgating such far-reaching regulations. Other instances of presidential action resembling leg- islation were not lacking. On May 3, 1861, the Presi- dent enlarged the army of the United States by his call for volunteers,'^ an act which is to be carefully distin- guished from the earlier call, on April 15, for 75,000 militia. The May call was of the sort that usually fol- lows congressional action authorizing the increase of the army. It was made in anticipation of congressional au- thority, which was later given in the short special session of '61. A still more striking instance, which was widely regarded as executive assumption of legislative power, was the proclamation of December 8, 1863, in which Lincoln promulgated a comprehensive plan of recon- struction, outlining in detail the method by which the States of the South were to be restored to the Union. '» One more example of presidential legislation may be noted. In issuing a "general order" embodying the rules of war applicable to armies in the field, Lincoln was promulgating a whole code of laws. It could be argued with good reason that in so doing he was per- forming that function which the Constitution gives to Congress of making "rules for the government and regu- lation of the land and naval forces." •« In England such rules are established by Parliament, as in the •sChapter XI. ""I never met anyone who claimed that the President could, by proclamation, increase the regular army." (John Sherman in letter to Cincinnati Gazette, Aug. 12, 1861, New York Tribune, Aug. 23, 1861, p. 7.) I'Nicolay and Hay, Works, IX, 218. *'i/. S. Constitution, Art. I, sec. 8, par. 14. THE CONSTITUTION AND THE WAR POWERS 39 Mutiny Act, while at various times our own Congress has put forth a mihtary code in its "Articles of War." Though the code was derived from existing interna- tional law, its promulgation was none the less a truly legislative function. Though the President did not hesitate to act if neces- sary without congressional authorization, it is also to be noted that, in part, the President's war power is derived from Congress. This fact is well expressed by Mr. Hughes in the following words: It is . . .to be observed that the power exercised by the President in time of war is greatly augmented outside of his functions as Commander-in-Chief through legislation of Con- gress increasing his administrative authority. War demands efficient organization, and Congress in the nature of things cannot prescribe many important details as it legislates for the purpose of meeting the exigencies of war. Never is adaptation of legislation to practical ends so urgently re- quired, and hence Congress naturally in very large measure confers upon the President the authority to ascertain and determine various states of fact to which legislative measures are addressed. . . . We thus . . . find ... a vast increase of administrative authority through legislative action springing from the necessities of v/ar.'" As to presidential justice, we should note in the first place that the separation of the executive and judicial branches is not as complete as is often supposed. Not only does the President have the power of pardon, which may undo any punishment decreed by a Federal court; he has also, through his Attorney General and the dis- trict attorneys, the important function of initiating and conducting prosecutions. The extent to which cases shall be prosecuted judicially is a matter resting with "Charles E. Hughes, op. cit., p. 9. 40 CONSTITUTIONAL PROBLEMS UNDER LINCOLN the President. He may favor a vigorous enforcement, or he may let the laws be violated with impunity. Even while a case is pending, the Government's attorney may bring about a dismissal of the proceeding by a nolle prosequi, which terminates the case as effectively as if a decree for the defendant had been pronounced by the court. This, of course, is a normal, regular function of the executive; but its special importance in war, when unusual penal statutes are to be carried out, will be readily recognized. The President is the fountainhead of military jus- tice, and as such has the power of review over the deci- sions of military courts. Through the declaration of martial law, and the establishment of military commis- sions to try civilians, the authority of the military courts is greatly expanded, and the ordinary civil courts are for the time superseded. That this can all be accom- plished in war time by the President is but another way of saying that presidential justice during war is an im- portant factor. It was the view of the Supreme Court that this expansion of the executive power was carried too far under Lincoln's administration, and that excep- tional tribunals in districts not affected by actual insurrection were illegal. '^^ As a further illustration of presidential justice, it may be noticed that various "special war courts" were cre- ated by the authority of President Lincoln. The mili- tary power in conquered territory was interpreted as conferring the right to create civil and criminal courts to handle the sorts of cases that are normally handled by the ordinary State courts. Department commanders had the right to create such courts under the authority of the President. The provost court of the United ^^Ex parte Milligan, 4 Wall. 106. THE CONSTITUTION AND THE WAR POWERS 41 States army for the city of New Orleans had a general criminal jurisdiction (not confined to military cases), and the more important "provisional court of Louisi- ana," created by President Lincoln in December, 1862, had an almost unlimited jurisdiction, its powers being confined only "by the limits of human acts and trans- actions capable of becoming subjects of judicial inves- tigation."" Dealing with matters that ordinarily fall within State jurisdiction it enforced Federal laws as well. In addition to these cases of judicial authority exerted by the President, there were various acts of Congress which conferred judicial, or quasi-judicial, functions upon executive officers. The Freedmen's Bureau, for instance, had its own courts, whose authority overbore that of the State tribunals; and the Secretary of the Treasury, as a consequence of his administration of the act concerning captured and abandoned property, exer- cised, for a while, the judicial function of determining individual cases where claims were made for the res- toration of property on the basis of loyalty. Taking it all together then, it will be seen that President Lin- coln's acts and the acts of those under his authority, extended far beyond the executive sphere, and trenched upon the domain of Congress and of the courts. When we turn to the war power of Congress, we encounter a subject which has been widely debated. It was contended by Senator Sumner in 1862 that the war powers of the national legislature were virtually without "^Judge Charles A. Peabody, "United States Provisional Court for . . . Louisiana, 1862-1865," Amer. Hist. Ass. Ann. Rep. 1892, pp. 199- 210; Ann. Cyc, 1864, pp. 480 et seq. 42 CONSri'l U IIONAI, l'R()HI,l,MS UNDER LINCOLN limit. "There is not one of the rights of war," said he, "which Congress may not exercise; there is not a weapon in its terrible arsenal that Congress may not grasp. "^^ Sumner's contention was that whatever powers are to be found within belligerent rights may be assumed by Congress during war. This matter was threshed out in a notable debate between Sumner and Browning of Illinois in the Senate on June 25, 1862.2* Browning's contention was that rights of war were not legislative, but executive; and that, by their very nature, questions of military necessity were to be decided by the military commanders acting under the authority of the Com- mander-in-Chief of the army. Browning agreed that the Government of the United States was clothed with full belligerent powers during war, but he insisted that these powers were confided in the President, who was answerable to the people, whereas, if Congress usurped power, the citizens, he maintained, were without a remedy. Browning even went so far as to "defy . . . any man to point to one single word ... in the Con- stitution which confers upon Congress any power to do any act in the exigency of war which it cannot do in times of peace."" The judicial interpretation of this question lends sup- port to the Sumner, rather than the Browning, view. Full powers of sovereignty in the conduct of war have been conceded by the courts to belong to the national legislature. Congress has the power to provide for the conduct of war, as well as to declare war." When it comes to measures to be taken against the enemy, the ^'Cong. Globe, 37 Cong., 2 sess., p. 2918. ^*Ibid., pp. 29\7 etseq. ^'Ihid., p. 2923. *'"Of course the power to declare war involves the power to prose- cute it ... in any manner in which war may be legitimately prose- cuted." (Miller vs. U. S., 78 U. S. 305.) THE CONSTITUTION AND THE WAR POWERS 43 limit of the authority of Congress is to be found only in the definition of "belligerent powers." It has been held by the Supreme Court that in the use of the bel- ligerent powers, Congress is not bound by the Fifth and Sixth Amendments of the Constitution; in other words, constitutional guarantees do not extend to the enemy. In this connection, a distinction has been drawn be- tween "municipal regulations," meaning acts relating to the nation's own citizens, and measures taken against the enemy." Only with regard to the former have constitutional guarantees been held to apply. When we consider, therefore, the powers of Congress over citizens in loyal, peaceful communities at home, we have the Supreme Court's authority for the statement that the limitations of the Constitution are in full force here.^^ If the ex- traordinary war power is to be extended over citizens in territory outside the war area it must be through the power of Congress to suspend the habeas corpus privi- lege, and to institute martial law. These are questions of such great dispute that they will require a careful and detailed treatment later; but in passing we may note that the decision in the Milligan case, denying these extraordinary powers over districts distant from the war, was pronounced with a certain hesitation and tendency to waver, and that four of the justices de- clared that, if Congress had deemed it expedient to set up military rule in such territory on the ground of imminent public danger (even though actual threat of invasion might be wanting), it would have been per- fectly competent to do so. If we should seek to enumerate the war powers exer- cised by Congress during the sectional struggle, we -Ubid., pp. 304-305. ■^"Ex parte Milligan, 4 Wall. 106. 44 CONSTITUTIONAL PROBLEMS UNDER LINCOLN would find that they included the confiscation of prop- erty; the creation of special war crimes, such as rebel- lion, conspiracy, and obstructing the draft; the raising of an armed force by conscription, including even aliens who had declared their intention of becoming citizens; the admission of the newly formed state of West Vir- ginia in spite of widespread doubt as to the constitu- tionality of such a procedure; the approval of the President's suspension of the habeas corpus privilege, as well as many other executive acts savoring of legisla- tion; the taxation of the enemy by the use of an unusual kind of "direct tax" which enabled particular pieces of real estate to be virtually confiscated by the United States; the protection of officers committing wrongs by extending immunity for acts performed under the Presi- dent's orders; the extension of the jurisdiction of Fed- eral courts so as to permit cases involving official immunity to be transferred from State to Federal tribu- nals; the issuance of paper money with the legal tender quality; the authorization of the President to take possession of the railroads and telegraph lines when the public safety should require it, and numerous other unusual and extraordinary measures. In addition to all this, Congress broke over into the executive field through its "Committee on the Conduct of the War" and sought to exercise control even over military operations. In this enumeration we have omitted those powers which Congress assumed during the reconstruction period, since that falls outside the scope of this book. If we chose to examine these reconstruction measures, we would find perhaps the most far-reaching powers that Congress ever assumed, including the creation of a military regime in the South by which the functions of the State governments were superseded. THE CONSTITUTION AND THE WAR POWERS 45 VI In the actual use of the war powers, great circum- spection and leniency were manifested by President Lincoln's administration, and the Government showed a wholesome regard for individual liberty. There was, for instance, no such invasion of private rights as was involved in England's Defense of the Realm Act of 1914^29 while the comparison with military government within Germany during the World War makes the Union administration seem mild indeed. It is true that dangerous possibilities lurked in the executive "suspen- sion of the writ"; that civilians were made prisoners of state by the thousand without judicial process; that some of the Union military officers out of touch with Lincoln's spirit had the erroneous notion that war breaks down the rule of law and substitutes the rule of force; and that as a consequence of imperfect central control over subordinate officers many frivolous arrests were made and unwarranted orders executed. The alarm raised by such an agitator as Vallandigham and his "peace party" may even have had, here and there, some justification. Yet, in the main, the limitations of gov- ernmental power were carefully heeded, so carefully that at times it did seem that war was actually being conducted in vinculis, which may, after all, be the best way for it to be conducted. The extreme caution regarding emancipation may serve as an illustration. Not only was scrupulous care exercised to place the whole policy frankly on the basis of the war power — i.e., the authority appropriate to the military occupation of conquered territory — but even 2'Thomas Baty and J. H. Morgan, War: Its Conduct and Legal Results (London, 1915). 46 CONSTITUTIONAL PROBLEMS UNDER LINCOLN the power so restricted was not fully used, several im- portant sections then held by Union arms being spe- cifically exempted from the proclamation. The long delay in adopting emancipation and the Government's offer of compensation in the case of slaves freed by vol- untary State action, show a disposition to proceed cau- tiously and legally, as well as a recognition of the vested interests involved. In other fields also, the Government's action showed great restraint. Though disloyal newspapers, such as the Columbus (Ohio) Crisis, the New York Daily News, the New York World, and many others, were very out- spoken in their denunciation not only of the Govern- ment but of the whole Union cause, yet respect for the "freedom" of the press was shown. The harmful ac- tivity of many disaffected journalists was tolerated, and instances of suppression were not sufficiently numerous to argue a general repressive policy.^" The treatment of political prisoners was mild, and such hardships as they suffered were attributable to the prevailing customs in prison discipline, some of which still exist. Often the release of individual prisoners was so freely ordered as to seem almost capricious, and early in 1862 all prisoners of state were released from mili- tary custody by a sweeping order, an oath of loyalty and a recognizance being the only terms exacted. Lin- coln's intention, it must be remembered, was often milder than that of his officers. In the case of Vallandig- ham, for instance, there is good evidence that he would not have sanctioned the original order for the arrest had the matter been referred to him. In the punishment of those who committed what might be called "war crimes," being guilty under the law '"This subject is treated in Chapter XIX. THE CONSTITUTION AND THE WAR POWERS 47 of "treason," "conspiracy," "obstructing the draft," and the like, action was decidedly lax. The severer measures were not carried into practical execution. The Treason Act, for example, was not enforced, even though the penalty for this crime had been softened from death to fine and imprisonment. Another severe measure, the con- fiscation of property, was but lightly applied. Everywhere during the war one finds this tempering of severe rules. Deserters were somehow saved from death; orders against disloyal persons were enforced with discretion; extenuating circumstances were given weight; escape from penalties was made possible by taking the oath of allegiance; ignorance of the law was often accepted as an excuse; first offenses were passed over; and spies even were released on the acceptance of stipulated terms. The Government, moreover, took the people into its confidence; the motives back of war measures were frankly avowed, and Lincoln often argued with great care to justify the use of unusual powers. On the whole, the prosecution of this grim war revealed a democratic regard for human feeling and a wholesome respect for individual liberty. When one reflects how much further the administration could have gone with popular and congressional support, and when one recalls the serious proportions of Northern disaflfection, executive restraint in the use of the war power will be considered more worthy of comment than individual instances of harshness. If Lincoln was a dictator, it must be admitted that he was a benevolent dictator. Yet in a democracy it is a serious question how far even a benevolent dictator- ship should be encouraged. CHAPTER III THE LEGAL NATURE OF THE CIVIL WAR I. Legal determination of the dates for the beginning and ending of the war II. Controversy concerning the presidential "dictator- ship" III. The insurrectionary theory of the war IV. The concession of belligerent rights to the Confederacy V. The dual character of the war In its legal characteristics, the war of the States pre- sents various unique features. Unlike a foreign war, it began without a declaration or "breach of relations," and it closed without a treaty. Conflicting notions ex- isted as to its legal nature, and no single theory of the war was exclusively maintained by the Union Govern- ment. The subject will be somewhat enlightened if the reader will bear in mind that war brings its civil conse- quences, and that a "state of war" on the civil side may be discussed apart from the military phases of the struggle. Being a domestic conflict, yet with all the proportions of a foreign war, the struggle naturally engendered legal complications which would be con- fusing to an outside observer. As in the Revolution, where it was remarked that the colonists "took up arms against a preamble," much attention was devoted to matters of form, and many things were done, or said, for mere theory's sake. As a consequence, the laws and 48 THE LEGAL NATURE OF THE CIVIL WAR 49 the debates usually sounded extreme and harsh, whereas the actual conduct of the war and the enforcement of the laws was greatly tempered by practical and humane considerations. The fact that certain rights were claimed, does not signify that they were exercised, and is is necessary to distinguish between the rights that were made legally available, and those that were enforced. Concerning the date of its beginning, the war pre- sented certain legal difficulties. Neither side chose to issue a declaration of war; for, according to the South- ern, State-sovereignty view, secession was a peaceable act, while by the Northern theory such secession was a pretended right having no legal effect and was best resisted by the maintenance of a waiting attitude, with a readiness to strike back in case any overt act of resist- ance to national authority should be committed. When one remembers, however, the legal importance of the distinction between a state of war and a state of peace, not only in domestic but also in international aspects, the necessity of fixing some legal date for the opening of of the war will be recognized. War and peace being antagonistic legal conditions which cannot coexist, some definite point of time had to be selected which would mark the termination of the one and the beginning of the other. The actual fixing of such a time rested with the Presi- dent and Congress, but the judicial department found the matter of such importance in the determination of controversies that it was necessarily called upon to define the period of the war.* In its search for some public act to mark the legal opening of the war, the court selected the President's two proclamations of iPhillips vs. Hatch. 1 Dillon 571; U. S. vs. Anderson, 9 Wall. 56, 71. 50 CONSTITUTIONAL PROBLEMS UNDER t.INCOLN blockade (that of the 19th of April, 1861, applying to South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana and Texas; and that of April 27th applying to Virginia and North Carolina) and declared that these were the dates at which the legal state of war began for the States concerned. Two presidential proclamations were also held to have determined the legal close of the war: the proclamation of April 2, 1866, declaring the insurrection to be at an end in every State except Texas, and the final proclama- tion of August 20, 1866, declaring the insurrection to have ceased in every State. It will thus be seen that the legal termination of the war followed about a year after its effective termination through the military surrenders of Lee and Johnston. ^ ^The decision as to both the beginning and the end of the war was made in the case of the Protector, 12 Wall. 700. The question at issue was whether an appeal from a decree of the United States Circuit Court for Louisiana should be allowed, a motion having been brought from the United States Circuit Court for the southern district of Ala- bama that the appeal be dismissed. As the law stood, appeals had to be brought within five years from the time of the decree com- plained of. The decree in this case was rendered April 5, 1861, and the appeal taken on May 17, 1871. Since the statute of limitations did not run during the "rebellion," it was necessary for the court to ascertain the exact duration of the war in order to determine the period to be deducted in calculating the amount of time that had elapsed. The court decided that the war began in Alabama on April 19, 1861, and ended April 2, 1866. It was thus found that, disre- garding the war, more than five years had elapsed, and the appeal was therefore denied. Several points in this decision are worth noting: (1) The court chose the proclamations of blockade rather than the proclamation calling out the militia as the opening date. (2) It was the President's act, rather than any act of Congress, that was selected. The minority of the court, however, in the Prize Cases, thought that the war legally began on July 13, 1861, when Congress recognized the insurrection. (3) The war was held to have begun in different States at different times. Neither of the above-mentioned proclamations of blockade applied to Tennessee or Arkansas. It would appear that the first proclamation declaring an insurrection in those two States was that of August 16, 1861, in which all the eleven States of the Con- federacy were declared in insurrection and commercial intercourse THE I.EGAI, NATURE OF THE CIVIL WAR 51 In studying the legal nature of the war, one must dis- tinguish two elements of the problem. There is first the controversy concerning the manner of its beginning, — whether this was not so irregular as to invalidate the "state of war" as a legal condition. Secondly, a vast amount of discussion centered upon the question whether the conflict was a public war or a mere domestic insurrection. Taking up the first of these problems we find that the conflict began during a recess of Congress and that for nearly three months all the necessary measures of re- sistance were executive acts, performed in the absence of legislative authorization. To that extent it was a "presidential war." Between the firing at Sumter, April 12, 1861, and the assembling of Congress on July 4, all the measures taken to protect the national cause and prosecute the war against the Confederacy were taken by or upon the authority of the President. Some of these measures, such as the call for the militia, were not likely to be seriously questioned as a part of the Presi- with them prohibited. (4) While holding that the President's procla- mation of blockade served to mark the legal beginning of the war, the court held elsewhere (in the Prize Gases) that the President, in proclaiming the blockade and doing other things to meet the emer- gency, was not creating a war, but was merely taking measures to protect the United States in a war that was thrust upon the Gov- ernment. The few days between the firing of Gonfederate guns on Fort Sumter and the President's proclamation of blockade were dis- regarded by the Supreme Gourt in judicially defining the opening date; and yet in the Treaty of Washington (concerning wartime claims against Great Britain) the commencement of the war was fixed at April 13, 1861. For a legal discussion of the beginning and ending of the war, see House Rep. No. 262, 43 Gong., 1 sess., pp. 2-3. This document gives schedules of proclamations by Presidents Lincoln and Johnson concerning the condition of the insurgent States at various times from 1861 to 1866. 52 CONSTITUTIONAL PROBLEMS UNDER LINCOLN dent's proper functions, but certainly the enlargement of the army and navy and the suspension of the habeas corpus privilege were open to grave doubts, while the proclamations of blockade were widely regarded as un- warranted. In referring to his proclamation of May 4, 1861, calling for enlistments in the regular army far beyond the existing legal limits, Lincoln himself frankly admitted that he had overstepped his authority.^ It was such acts as these that gave rise to the charge of ^'military dictatorship," and this charge seemed to gain weight from the President's deliberate postponement of the special session of Congress until July 4, though the call for such session was issued on April 15. The alleged "unconstitutionality" of this conduct of President Lincoln was urged as a leading argument by those who contended that the whole process by which the "war" began was illegal. This matter was elabor- ately threshed out before the Supreme Court in the Prize Cases.* Certain ships had been captured for vio- lating the President's blockade proclamations of April 19 and 27 and in the contentions as to the lawfulness of these prizes the whole issue of the legality of the war in its early stages was drawn into controversy. ^ War, it 'Nicolay and Hay, Works, VI, 308. %1 U. S. 635. ^Charles Warren, the able historian of the Supreme Court, em- phasizes the far-reaching poHtical importance of the decision in the Prize Cases. In this connection he quotes R. H. Dana, Jr., who pri- vately wrote in 1863: "In all States but ours . . . the function of the judiciary is to interpret the acts of the Government. In ours it is to decide their legality. . . . Contemplate . . . the possibility of a Supreme Court deciding that this blockade is illegal! ... It would end the war, and liow it would leave us with neutral powers, it is fearful to contemplate! . . . The . . . contemplation of such a possi- bility makes us pause in our boastful assertion that our written Con- stitution is clearly the best adapted to all exigencies, the last, best gift to man." (Charles Warren, The Supreme Court in United States History, III, 104.) Dana was overstating it. See below, pp. 54, 55. THE LEGAL NATURE OF THE CIVIL WAR 53 was argued, must begin with a declaration; Congress alone has the power of declaring war; the President's power of suppressing an insurrection is not tantamount to the war power; and his right to promulgate a blockade order becomes valid only after war has become a legal fact through a congressional declaration. War, there- fore, did not lawfully exist, it was said, when these early captures were made; hence there could be no valid blockade and no prize jurisdiction in the Federal courts. As was naturally to be expected, these arguments were brushed aside, and the court upheld the legality of the war from the time of the President's blockade orders, sustaining fully the executive acts taken during the legislative recess. A civil war [said the court] is never solemnly declared; it becomes such by its accidents — the number, power, and or- ganization of the persons who originate and carry it on. When the party in rebellion occupy and hold in a hostile manner a certain portion of territory; have declared their independence; have cast off their allegiance; have organized armies; have commenced hostilities against their former sovereign, the world acknowledges them as belligerents and the contest is war. They claim to be in arms to establish their liberty and inde- pendence in order to become a sovereign state, while the sov- ereign party treats them as insurgents and rebels who owe alle- giance and should be punished with death for their treason. . . . As a civil war is never publicly proclaimed eo nomine against insurgents, its actual existence is a fact in our domestic history which the court is bound to notice and to know. Turning to the President's acts. Justice Grier, speak- ing for the majority of the court, declared that while the President does not initiate war, he must resist force by force. Domestic rebellion may be war, and war may be unilateral. Here he quoted Lord Stowell that "war 54 CONSTITUTIONAL PROBLEMS UNDER LINCOLN may exist without a declaration on either side." ... A declaration of war by one country alone is not a mere challenge to be accepted or refused at pleasure by the other." The President, Grier maintained, was bound to meet the war in the shape it presented itself "without waiting for Congress to baptize it with a name." For- eign powers, he pointed out, had recognized the struggle to be war, and it was unreasonable to ask the court "to affect a technical ignorance of a war which all the world acknowledges to be the greatest civil war knovv^n in all the history of the human race." On the basis of this reasoning the court held that a state of war legally existed at the time of the President's blockade orders in April, 1861, and that such blockade orders were valid. It is a significant fact that four judges out of nine, including the Chief Justice, dissented from this opinion. The grounds of their dissent were that the legal change from peace to war profoundly affects private relations; that a declaration is necessary; that a civil war must be recogiiized by the war-making power within the Gov- ernment; that the President's power to deal with an insurrection (being an exercise of power under the mu- nicipal laws of the country, not under the law of nations) is by no means equivalent to the war power, and that Congress alone has the power of declaring, or legally recognizing, war. According to the dissenting view, the act of Congress of July 13, 1861, which recognized a state of war as between the Governinent of the United States and that of the Confederate States, was the legal beginning of the war, and captures before that date were invalid. It will be noticed that the point on which the court divided was as to the existence of a legal state of war 8 1 Dodson 247. THE LEGAL NATURE OF THE CIVIL WAR 55 between April and July. The whole court agreed that from July 13, 1861, when Congress officially recognized a state of war, the President became invested with the war power, and the legal concomitants of a state of war were in force. They divided, with the Chief Justice in the minority, on the question of the President's power and of the legality of the war before that time. One of the fundamental points covered in this im- portant decision was the legal effect of the action of Congress approving the President's war measures. The language of the act in which Congress ratified the Presi- dent's acts is as follows:^ . . . be it . . . enacted, That all the acts, proclamations, and orders of the President . . . [after March 4, 1861] re- specting the army and navy of the United States, and calling out or relating to the militia or volunteers from the States, are hereby approved and in all respects legalized and made valid . . . as if they had been issued and done under the pre- vious express authority and direction of the Congress of the United States. What was the force of this subsequent ratification of acts which many claimed to be unconstitutional? Hav- ing held that the President's course in meeting the emergency with warlike measures was entirely legal in itself, the court was under the necessity of proceeding circumspectly in dealing with a legislative provision which seemed to imply some defect in the measures taken by the executive, ^ and which was denounced as 'Act of Aug. 6, 1861 "to increase the Pay of the Privates in the Regular Army and . . . Volunteers in the Service of the United States, and for other Purposes," sec. 3. {U. S. Slat, at Large, XII, 326.) ^Senator Sherman, while vindicating the President, assumed that his acts were illegal. "I am going to vote," he said, "for the resolution [to approve and confirm the President's acts], and I am going to vote for it upon the assumption that the different acts of the Admin- istration recited in this preamble were illegal. ... I am willing to 56 CONSTITUTIONAL PROBLEMS UNDER LINCOLN creating a war ''^ex post facto. "^^ The counsel for the claimants of the vessels refused to recognize the prin- ciple of a retroactive legalization of the presidential proclamation of blockade. Such a principle they de- clared to be entirely out of harmony with the theory of our government; for it would make the President the "impersonation of the country," would erect a dictator- ship, and would put constitutional government at an end whenever the President should think that the life of the nation was in danger. The Supreme Court upheld this ratifying measure, but at the same time prudently refused to admit that it was necessary. "If it were necessary to the technical existence of a war that it should have a legislative sanc- tion," said the court, "we find it in almost every act passed at the extraordinary session of ... 1861 .. . and finally, ... we find Congress . . . passing an act 'approving, legalizing and making valid all the acts . . . of the President, as if they had been issued and done . . . under the previous express authority and direction of the Congress.' "^ The position of the court was that there was no defect in the action of the President, but that, if such a defect had existed, this subsequent legis- lation of Congress would have sufficed to cure it. It would perhaps be a mistake to spin out an academic discussion of all that seems to be implied in this portion of the decision in the Prize Cases. Had there been a defect in the measures adopted by the President, said the court, the later action of Congress would have cured it. This would seem to mean that the President may do make them as legal and valid as if they had the previous sanction of Congress." (Quoted in Upton, Military Policy of the United States, 231.) »67 U. S. 670-671. (In the text of the decision the italics are used as above, but the quotation marks are employed loosely.) THE LEGAL NATURE OF THE CIVIL WAR 57 illegal things, things quite beyond the scope of his power; and yet, in case these acts are within the legisla- tive power. Congress is competent to cover them with the mantle of legality. The decision does not quite imply all this. The significant thing is that the court did not consider that the President had exceeded his power. Had they so decided, and then proceeded to interpret the subsequent ratification of Congress as cur- ing all illegality, the decision would have had a very far-reaching effect indeed, and would have seemed to legitimize a dictatorship analogous to that of Bismarck from 1862 to 1866, when parliamentary life in Prussia was suspended and an army budget was carried through by the king and the upper house against the opposition of the popular branch of the legislature. It should be noted that, according to the court's view, President Lincoln had not initiated a war, but had taken measures to resist a war that was thrust upon the Government, and that it was his duty to do so. In evaluating the significance of a court decision, the fair method is to note above all what the court holds, and not to place undue stress upon what may be implied in the secondary arguments by which the court amplifies its opinion. What the Supreme Court held in the Prize Cases was that war legally existed in spite of the fact that Con- gress had not acted, and that the blockade was legal. The decision should be interpreted in view of these pro- nouncements; and any form of refined comment which would elaborate all the asides and parentheses of the decision is likely to lead to mistaken conclusions. To say that the decision upheld the principle of presidential dictatorship would be incorrect. This question of the dictatorship, however, should not be passed over lightly, and some of Lincoln's arguments in his own defense may have gone beyond the limits 58 CONSIIIUTIONAI. HRCiBLEMS UNUER LINCOLN which sound legal reasoning would recognize. Lincoln's defense was two-fold : first, that the national safety im- peratively demanded that these vigorous measures be taken; and second (and here is the doubtful part), that as he had not exceeded the power of Congress, he sup- posed that all would be made right by subsequent legis- lative approval.'" Lincoln's course was undoubtedly patriotic, capable, and forceful, for which reasons it has been generally applauded; and yet it argues a curious commingling of legislative and executive functions for a President to perform an act which he adjudges to be within the competence of Congress and then, when the lueasure has been irrevocably taken, to present Congress with an accomplished fact for its subsequent sanction. For not only is there the well-known principle that a legislature may not delegate legislative powers, but the possession of a constitutional power implies the right to withhold as well as the right to perform it. In other words, when a certain branch of the Government is given an optional, not a mandatory, power, it is thereby given full discretion to decide whether or not the power shall be used; and if the decision is in the affirmative it has discretion as to the circumstances, the extent, and the method of its use. This much of legislative discre- tion is entirely denied when Congress is confronted with an accomplished fact for its approval. Though Lincoln's acts have not generally been re- garded as an abuse of power, yet jurists would probably agree that the exercise of legislative power by an executive officer in anticipation of subsequent ratifica- "^'These measures, whether strictly legal or not, were ventured upon, under what appeared to be a popular demand and a public neces- sity; trusting that Congress would readily ratify them. It is believed that nothing has been done beyond the constitutional com- petency of Congress." (Lincoln, in message to Congress in special session, July 4, 1861: Nicolay and Hay, Works, VI, 308.) THE LEGAL NATURE OF THE CIVIL WAR 59 tion of his acts is a bad practice. A President is often reluctant to have a Congress "on his hands" in time of grave emergency, and for this very reason it might be dangerous to our democratic institutions to attach too much weight to the Lincoln precedent of 1861. The whole proceeding savors too much of "forcing the hand" of the legislature, and the fact that President Lincoln could adopt this irregular course in such a way as to avoid offense, does not argue that this sort of conduct is essentially sound. The matter becomes even more serious when it is remembered that in such cases the Supreme Court is hardly an effective barrier against executive usurpation. Questions of this sort are politi- cal and by their very nature they create a situation in which the attitude of the court is necessarily that of acquiescence. Ill Having noted the controversy concerning the execu- tive measures taken at the outset of the war, we are now led to inquire into the legal character of the conflict itself. Was it a domestic uprising by mere insurgents who owed allegiance to the sovereign power whose authority they were endeavoring to overthrow, or was it a public war between recognized belligerents? In other words, was the struggle a clash between govern- ments, or was it a conflict waged by a combination of individuals against their government? The legal bearings of this problem were far-reaching. Upon its solution depended the Government's official attitude toward the Confederate States. The decision as to whether belligerent powers should be accorded to the Southern Government was involved, and this would in- evitably engender foreign difficulties in case other nations 60 CONSTITUTIONAL PROBLEMS UNDER LINCOLN should adopt a theory of the war at variance with the theory of the Washington Government. The propriety of various acts of the President would be involved also, for the President's powers and duties in case of insur- rection are different from those which obtain in time of recognized war. Many other questions would be involved: the treatment of captured "insurgents" as criminals instead of prisoners of war; the possible pun- ishment of such "insurgents" as traitors, and the con- fiscation of their property; the use of the municipal power over the territory claimed by the insurgents when such territory should be captured; the legality of Con- federate captures at sea, and the disposition to be made of the crews of Confederate warships and privateers. The decision of these and other important issues de- pended upon the fundamental principle that should be adopted as to what the existing conflict was in its legal character. Insurrection, it will be readily recognized, is not the same as war. There are varying degrees of disturbances with which a government may be confronted: riot; in- surrection; rebellion; civil war. A riot is a minor dis- turbance of the peace which is perpetrated by a mob. An insurrection is an organized armed uprising which seriously threatens the stability of government and en- dangers social order. An insurgent has been defined as "one who in combination with others takes part in active and forcible opposition to the constituted authorities, where there has been no recognition of belligerency."" Insurrection is distinguished from rebellion in that it is less extensive and its political and military organization "Bouvier, Law Dictionary. See also U. S. vs. Fries, 9 Fed. Cas. 826; Prize Cases, 67 U. S. 635; U. S. vs. Smith, 27 Fed. Cas. 1134; Charge to Grand Jury, 30 Fed. Cas. 997; U. S. vs. 100 Barrels of Cement, 27 Fed. Cas. 292; 65 Ky. 296. THE LEGAL NATURE OF THE CIVIL WAR 61 is less highly developed. The term insurrection would be appropriate for a movement directed against the enforcement of particular laws, while the word rebellion denotes an attempt to overthrow the government itself, at least in a particular part of the country. War, by the legal theory of the 1860's, was a conflict between recognized belligerents; it was "that state in which a nation prosecutes its right by force." ^^ It was not in the legal sense a coercion of individuals, but a con- dition in which individuals are relieved from respon- sibility for acts that would otherwise be criminal — a condition in which force is exerted either between established nations or between organized groups whose character as belligerent powers is conceded. A nation does not claim the municipal power over its enemies in a public war, but it does assert that claim in the case of insurrection or rebellion. Not only must this distinction between insurrection and war in general be recognized, but certain factors should be noted which are incidental to insurrection as it has come to be treated in the United States. Insur- rection in this country constitutes treason. It is true that insurrection, strictly speaking, is not war; but our courts have, in connection with the question of treason, expanded the phrase "levying war" to include organized, forcible resistance to the Government." It should also be remembered that the American President has certain peculiar and specific powers which come into being at the time of an insurrection. The President may not declare war, but he may proclaim the existence of a rebellion or insurrection, and in doing so he determines, entirely on his own discretion, whether an insurrection '^Grier, in Prize Cases, 67 U. S. 635, 666. ''U. S. 7'.f. Vigol, U. S. vs. Mitchell, 2 Hall. 346, 348. Sec infra, p. 76. 62 CONSTITUTIONAL PROBLEMS UNDER LINCOLN exists. He creates the legal state of insurrection, and when he has declared the insurrection to exist, the courts will accept his action in the matter as conclusive and binding upon them.'^ When the existence of rebellion or insurrection has thus been established, the President has the constitutional authority to call out the militia for its suppression. He then becomes the Commander- in-Chief of the militia thus summoned. Moreover, it has been strongly urged that, in case of rebellion, the President may suspend the habeas corpus privilege. This suspension carries with it very sweeping powers over the districts in which the suspension applies, for officials acting under the authority of the President may then make arrests without warrant for offenses undefined in the laws, without having to answer for such acts before the regular courts. It was therefore a matter of considerable legal signifi- cance that, from the standpoint of the Government at Washington, the Civil War began as an "insurrection." The execution of the laws, as Lincoln proclaimed, was obstructed "by combinations too powerful to be sup- pressed by the ordinary course of judicial proceedings."''^ This was the administration theory in a nutshell. The Government had to deal not with an independent power, not even with States, but with unauthorized individuals who had combined to resist the laws. Nor did the tre- mendous proportions of the war dislodge this theory from the minds of those in direction of affairs; for long after the guns at Sumter had united the South in solid array, the administration still spoke of the Southern »^t/. S. Constitution, Art. IV, sec. 4; Act oi Feb. 28, 1795, U. S. Stat, at Large, I, 424; Act of Mar. 3, 1807, ibid., II, 443; Luther vs. Borden et al., 1 How. 1. '"Proclamation of Apr. 15, 1861: Richardson, Messages . . . of the Presidents, VI,|13. THE LEGAL NATURE OF THE CIVIL WAR 63 movement as an "insurrection," a "rebellion," or a "pri- vate combination of persons." This theory of the war as an insurrection was thus stated by the Supreme Court: "The rebellion out of which the war grew was without any legal sanction. In the eye of the law, it had the same properties as if it had been the insurrection of a county or smaller municipal territory against the State to which it belonged. The proportions and dura- tion of the struggle did not affect its character." ^^ As a further illustration of the insurrection theory, the meticulous care on the part of the Union Govern- ment to avoid any act remotely suggestive of a recogni- tion of the "Confederate States of America," will be recalled. When the commissioners appointed by the Confederate President in conformity with a resolution of the Confederate Congress, sought audience with Sec- retary Seward in March, 1861, in order to settle "all matters between the States forming the Confederacy and their other late confederates of the United States in relation to the public property and the public debt," they were neither received in person nor officially rec- ognized by the Secretary of State (not even as repre- sentatives of a de facto government), and the intercourse which took place between them and the administration consisted of memoranda placed "on file" for their pe- rusal, or of indirect and misleading interchanges through unauthorized go-betweens." A wholly unreasonable re- sentment was felt against England at the time of the Queen's proclamation of neutrality, because the view prevailed at Washington that foreign powers ought to "Hickman vs. Jones et al., 9 Wall, 197, 200. "Justice J. A. Campbell's memorandum entitled "Facts of History" is a source concerning these unofficial communications. (H. G. Connor, John Archibald Campbell, 122 et seq.; Jefferson Davis, Constitutionalist, cd. by Dunbar Rowland, V, 85 et seq.) 64 CONSTITUTIONAL PROBLEMS UNDER LINCOLN regard the struggle as merely domestic and the Southern "insurgents" should not be given the dignity of belliger- ents.^^ When Napoleon III of France formally pro- posed "mediation" between the United States and the Confederate States, Secretary Seward uttered an indig- nant though respectful protest/' while Congress echoed his sentiments in a resolution which denounced such mediation as foreign "interference," and declared that any further attempt in the same direction would be deemed "an unfriendly act/'^" Concerning the ex- change of prisoners, as in all matters suggesting official relations with the Confederate States, there was an excessive wariness on the part of the Union Government which left this important question in an unsatisfactory shape. On those occasions during the war when the question of negotiating for terms of peace with the Southern Government presented itself, President Lin- coln, while manifesting generosity on collateral points, carefully avoided any recognition of the Confederacy and invariably imposed a condition which amounted to surrender — i.e., the complete reunion of the warring States with the North. It was for this reason that these attempted negotiations, notably the Hampton Roads Conference, ended in failure. Thus throughout the war, all recognition of authority was denied to the Confed- eracy, and in the Northern official view it remained the i8Seward to C. F. Adams, June 3, 1861: Dipl. Con., 1861, p. 97. >9"The United States cannot . . . allow the French government to rest under the delusive belief that they will be content to have the Confederate States recognized as a belligerent power. . . . No media- tion could modify in the least degree the convictions . . . under which this government is acting." Seward to Dayton, May 30, 1861. {Dipl. Con., 1861, p. 215; The Diplomatic History oj the War jor the Union, being the Fifth Volume of the Works of W. H. Seward, ed. by G. E. Baker, 259. For later dispatches on the same subject, see ibid., pp. 359 et seq.; 376-381.) ^'>Cong. Globe, Mar. 3, 1863, 37 Cong., 3 sess., p. 1360. THE LEGAL NATURE OF THE CIVIL WAR 65 "pretended government" of the "so-called Confederate States of America." IV To leave the discussion here, however, would give a misleading idea as to the actual treatment given to the Confederacy. It was not contemplated that the full con- sequences of the insurrectionary theory should be car- ried out, and side by side with this theory one finds a working attitude which allowed belligerent rights to the Southern Government, The practical and humanitarian aspects of the ques- tion were of primary importance here. As Justice Clif- ford declared, "Should the sovereign conceive that he has a right to hang up his prisoners as rebels, the oppo- site party will make reprisals. . . . Should he burn and ravage, they will follow his example, and the war will become cruel, horrible, and in every way more destruc- tive to the nation. "21 An attempt was made early in the war, before the policy of the Government had matured, to treat Con- federate naval officers and seamen as pirates, and this of course involved the death penalty. President Lin- coln's proclamation of April 19, 1861, declared the crews and officers of Confederate naval vessels, and of vessels operating under letters of marque issued by the Con- federacy, to be guilty of piracy; and, in protesting against the British proclamation of neutrality, one of the points strongly urged by Secretary Seward was that the recognition of belligerency would preclude attaching the piratical character to Confederate ships. But from every standpoint it was found impolitic and indeed impossible to carry out this policy of punishing "Clifford, in Ford vs. Siirget, 97 II. S. 613. 66 CONSTITUTIONAL PROBLEMS UNDER LINCOLN for piracy those who were in the Confederate service. It is thoroughly recognized in international law that those who operate at sea under the authority of an organized responsible government observing the rules of war may not be treated as pirates.'*'' Internationally, the Confederacy was a recognized belligerent, and to have its ships deemed piratical under the jus gentium was entirely out of the question. To treat them as pirates under the municipal law was practically equiva- lent to treating them as traitors, and, as we shall see when we come to discuss the subject of treason, the Union Government never carried its treason theory into actual practice as against those acting under the official authority of the Confederacy. Besides, when it became known that Southern privateersmen were being held for piracy, retaliation was at once threatened, and certain Union captives were selected as hostages, on whom the Richmond Government intended to retaliate in case the Federals should actually prosecute the piracy charge. The practical alternatives as to captured crews were either to treat them as prisoners of war or to release them. Usually they were released. In this matter the bel- ligerency of the South was virtually conceded, and this concession of belligerent rights was naturally extended to other matters connected with the prosecution of the war. The refusal of the Union Government formally to acknowledge Confederate belligerency thus appears to be hardly more than a stickling for theory. In matters relating to the conduct of armies in accordance with the laws of war, the American struggle was not distinguish- *^President Jefferson Davis protested against the proposal to treat the crew of the Savannah, a Confederate privateer captured off Charleston, as pirates. (Davis to Lincoln, July 9, 1861: Rowland, Davis, V, 109.) IHE LEGAL NATURE OF THE ClVir, WAR ({] able from a conflict between independent, civilized na- tions, for the formalities of war were observed on both sides. The Union Government treated the Confederate forces as belligerents even though it did not inten- tionally recognize their belligerency in any direct, formal manner. This allowance of belligerent rights to the Confed- eracy was thus stated by the Supreme Court: "To the Confederate army [were] conceded, in the interest of humanity . . . such belligerent rights as belonged under the laws of nations, to the armies of independent gov- ernments engaged in war against each other, . . . The Confederate States were belligerents in the sense attached to that word by the law of nations."" The fully matured attitude of the Washington Gov- ernment toward the Government of the Confederacy may be summarized as follows: According to the Wash- ington view secession was a nullity and the whole South- ern movement illegal. Those who took part in it were insurgents warring against their rightful government. They were technically traitors and were amenable to the municipal power for crimes in the same sense that the Whiskey insurgents in Washington's administration were amenable. But besides this, they were enemies in the same sense in which the word "enemy" is used in a public war. The district declared by the constituted authorities to be in insurrection was "enemies' territory" and all persons residing in it were liable to be treated by the United States as "enemies.""" With regard to these enemies the National Government could exercise both "Opinion of Harlan in Ford vs. Surget, 97 U. S. 605, 612. **The harsh rule that all persons residing in the eleven "insurrec- tionary States" were enemies during the Civil War was held to include even foreigners and those who were in fact loyal to the flag. For citations and arguments on this subject, see House Rep. No. 262, 43 Ck}ng., 1 sess., pp. 6 et seq. 68 CONSTITUTIONAL PROBLEMS UNDER LINCOLN belligerent and sovereign rights. It could employ the belligerent power of blockading Southern ports, and the sovereign power of prosecuting Southerners for treason. The Confederate States' Govcrninent could make no valid law against the United States, but this govern- ment was to be regarded simply as the military repre- sentative of the insurrection against the Federal au- thority. To avoid cruelties and inhuman practices, however, belligerent rights were "conceded" to the Con- federate armed forces, and this concession placed the soldiers and officers of the "rebel army," as to all matters directly connected with the "mode of prosecuting the war," "on the footing of those engaged in lawful war." For legitimate acts of war, therefore. Confederate officers and soldiers were relieved from individual civil responsi- bility. This relief from responsibility was based not upon the validity of Confederate legislation, but upon the fact that rights arising from the usages of war were "conceded" by the United States to the Confederate army. One of the distinguished justices of the Supreme Court went so far as to refer to the Confederate States as a de Jacto government. ^^ This contention is borne out by certain decisions involving the liability of marine insur- ance companies to pay losses in the case of captures made by Confederate cruisers and privateers. If the authority of the Confederacy were utterly null and its government wholly irresponsible, then its ships were piratical and were not entitled to the belligerent right of capture, and in that case the insurers would not be liable. But the courts have held that seizures by a de facto government constitute captures to the extent that insurers become liable, and this was the rule applied in "Clifford, in Ford vs. Surget, 97 U. S. 620, 623. THE LEGAL NATURE OF THE CIVIL WAR 69 regard to Confederate captures. ^^ As has been often pointed out, the blockade of Southern ports was tanta- mount to a recognition of belUgerency, for the simulta- neous attempt to stigmatize Confederate cruisers and privateers as pirates was promptly abandoned. One would not go far wrong in saying that the de facto char- acter which was fully recognized by other nations as belonging to the Confederacy, was in effect conceded by the Government at Washington, though to admit this in principle was more than the political branches of the Washington Government were willing to grant. It thus appears that from one angle the adherents of the Confederacy were regarded as insurgents and trai- tors, while from another angle they were considered bel- ligerents and public enemies. These two possible views toward the Southern movement were fully developed in the voluminous debate in Congress on the Confiscation Acts. Forfeiture of property was urged on the one hand as a punishment for crime — the crime of participating in a domestic rebellion. Those in revolt were deemed to be citizens of the country against whose government they were revolting; this revolt was therefore treason, and confiscation was appropriate as a penalty against persons, and as a punishment of their guilt. The manner in which the bald principle of "traitor status" was con- fidently advanced by some of the more radical speakers may be illustrated by a few quotations. Senator Howard of Michigan made a sharp distinction between the ex- isting rebellion and a national war. "We are not waging it," said he, "against public or foreign enemies, . . . but ^iFifield vs. Ins. Co. of Pa., 47 Pa. 166, cited in 97 U. S. 620. 7U CONsrri'UIIONAL PROBI.KMS under LINCOLN against persons who owe obedience to this government and are rightfully subject to it. . . . In rebellions the lawful government is not restricted to the instrumen- talities prescribed to independent nations. It may not, it is true, violate the laws of humanity, . . . but it may on account of their violated allegiance . . . impose upon [the rebels] such restraining or punitive burdens as the government may think best fitted to repel their violence, to subdue their rebellion, and restore peace and order."" And this fiery outbreak from Elliot in the House of Representatives was but typical of many: "Are not these rebels, red-handed and black-hearted, as bad as pirates?"-^ "When this rebellion shall have ceased," he declared, "the parties guilty as chief traitors will be punished. "29 In contrast with these expressions denouncing the "rebels" as traitors we find certain supporters of con- fiscation who were quite willing to treat the conflict as a public war instead of a domestic uprising. Said Blair of Pennsylvania: "What are our relations to these rebel- lious people? They are at war with us, having an organ- ized government in the cabinet and an organized army in the field, and I hold that in the conduct and manage- ment of the war on our part we are compelled to act in most respects toward them as if they were a foreign government of a thousand years' existence, between whom and us hostilities have broken out."'" Even those, therefore, who were voting together in favor of confiscation failed to concur as to the principle upon which they justified the measure. After following speech upon speech in which attempts were made to rest "Cong. Globe, 37 Cong., 2 scss., p. 1717. ^mid., p. 2235. ^'Ibid., p. 2234. 3 0/Ak/., p. 2299. THE LEGAL NATURt OF THE CIVIL WAR 71 the confiscation policy upon some theory or other as to the nature of the war or the standing of the "rebels," one is likely to doubt the value of extended deliberation upon points of legal theory and to reach an attitude of mind in which the avowal of any theory at all — since theory in such cases usually lags so far behind practical intention — seems almost superfluous. In such an attitude of mind the "double status" theory seems the least objectionable, since it represents a desire to rise above the restraints of rigid consistency and allow a flexible and adaptable line of policy. This principle was well presented by Blair in the same speech from which we have already quoted. To him it did not in the slightest degree affect our "belligerent relations" with the Confederates "that those of them actively engaged in the . . . war are at the same time traitors who, when reduced to our subjection, are amenable to the civil au- thorities for the crime of treason. Indeed, it is because . . . they are belligerents that they become traitors."'^ The conflict was thus conceived both as a war and as a rebellion; the Southerners were "rebels," yet belliger- ents; the legal relations might be at once international and municipal. "Our case is double," said Sumner, "and you may call it rebellion or war as you please, or you may call it both." The war was "mixed." To use Grotius' classification it was at the same time a "pri- vate" and a "public" war.'^ This "double status" principle was not only the basis of Union policy; it was fully affirmed by the Supreme Court. Justice Grier in the Prize Cases thus stated the view of the majority of the court: The law of nations . . . contains no such anomalous doc- trine as that which this Court [is] now for the first time de- 3'/67(f., p. 2299. «/WCong. Globe, "hi Cong., 2 sess., p. 3317. Sumner, while urging mildness in general, declared: "But the tallest poppies must drop. For the conspirators, who organized this great crime and let slip the dogs of war, there can be no penalty too great" {Ibid., p. 2196). Trumbull wrote to President Johnson on April 21, 1865: "Any as- sistance I can render to bring to punishment the leaders of the rebellion . . will be cheerfully given." (Johnson Papers [MSS., Library of Congress], Vol. 59, No. 2865.) 100 CONSTITUTIONAL PROBLEMS UNDER LINCOLN restoring the worst of them to their homes and . . . priv- iliges. Death is the proper penaUy and atonement, and will be enduringly beneficial in its influence." ^^ Speed, Attorney General at the close of the war, thought it was "the plain duty of the President to cause criminal prose- cutions to be instituted . . . against some of those who were mainly instrumental in inaugurating and most con- spicuous in conducting the late hostilities." He would regard it as a "dire calamity," he said, "if many whom the sword has spared the law would spare also."^^ Besides many speeches to this effect by various leaders in Washington, there were resolutions of State legisla- tures, newspaper editorials, and letters from individuals to public men emphasizing the need of trying the more prominent Southerners. Lincoln, of course, did not share these views. He showed clearly in his last Cabi- net meeting and on other occasions a disposition to deal kindly with the enemy;' ^ but Johnson declared, in April, 1865, that "treason must be made odious" and "traitors must be punished. "i"* Without quoting other expressions of sentiment along the same line, it is sufficient to note that in 1865 the punishment of a few of the Confederate leaders seemed to be a half-formed policy of the administration. In- dictment and trial for treason was the method commonly suggested. ^^Diary of Gideon Welles, II, 43 (June 1, 1864). In the manu- script of the diary the words "penalty and" bear the appearance of later insertion. '"Speed to Johnson, Jan. 4, 1866. Frankfort, (Ky.) Commonwealth, Jan. 16, 1866. But at the same time, in particular cases convictions were not definitely sought. ''In Lincoln's last Cabinet meeting, says F. W. Seward, all thought that there should be "as few judicial proceedings as possible." "Kindly feelings toward the vanquished . . . pervaded the whole discussion." (F. W. Seward, Reminiscences of a War-time Statesman and Diplomat, (254-257.) >*Rhodes, History oj the United States, V, 521. THE TREATMENT OF CONFEDERATE LEADERS 101 One of the perplexing questions which arose in this connection was whether Confederate prisoners surren- dered by Generals Lee and Johnston in the spring of 1865 and released on parole could be arrested and tried for treason. In the terms of surrender allowed by Grant, Lee and his army were permitted to return to their homes, "not to be disturbed by U.S. authority so long as they observe their paroles and the laws in force where they may reside," and when Johnston surrendered to Sherman, this pledge was repeated as to his army.^^ Since General Alexander P. Stewart and various other Confederate officers and soldiers paroled under the terms of the military capitulations, were under indictment, the question as to the legal effect of the terms of surrender attracted widespread attention. In a lengthy and pon- derous letter to President Johnson, Benjamin F. Butler argued the criminal liability of Lee's officers and men and urged that they be tried under the municipal law." Such a course, however, met the emphatic disapproval of General Grant. He wrote as follows on June 16, 1865: In my opinion the officers and men paroled at Appomattox Court House, and since upon the same terms given to Lee, can- not be tried for treason so long as they observe the terms of their parole. This is my understanding. Good faith, as well as true policy, dictates that we should observe the conditions of that convention. Bad faith on the part of the government or a construction of that convention svibjecting officers to trial for treason, would produce a feeline of insecurity in tlie minds of the paroled officers and men. In an endorsement dated August 26, 1867, on the '^Ibid., V, 126, 170. ^^Correspondence oj B. F. Butler, V, 602-605. 102 CONSTITUTIONAI, PROBLEMS UNDER LINCOLN papers regarding the treason indictment of General Alexander P. Stewart in Tennessee, Grant quoted the foregoing letter and continued: The terms granted by me met with the hearty approval of the President at the time, and the country generally. The action of Judge Underwood in Norfolk [in encouraging prose- cutions] has already had an injurious effect, and I would ask that he be ordered to quash all indictments found against pa- roled prisoners of war and to desist from further prosecution of them." Ordering the judge to quash indictments! This is a rather amusing illustration of the military attitude, but on the main point Grant's position was consistently maintained, and it apparently exerted a controlling in- fluence upon the administration. Directly after the receipt of the aforementioned endorsement, the acting Attorney General wrote to the district attorney in Mid- dle Tennessee: "I have to say in deference to these views of the General of the Army, to which this oflice takes no legal exception, that you are directed not to press a prosecution for treason against any person in the situa- tion of Mr. Stewart."'^ This advice harmonized with an earlier instruction sent by Attorney General Speed to one of his district attorneys to the eff'ect that no officers or soldiers paroled by the capitulation should be arrested." "Enclosure in letter of Acting Attorney General Binckley to U. S. Atty. for Middle Dist., Tcnn., Aug. 28, 1867: Attorney General's papers. ^^Ibid. A Federal grand jury at Norfolk in 1865, though indicting Jefferson Davis for treason, refused to proceed against any who had surrendered to commanding generals on parole and had faithfully kept the terms of such parole: Rowland, Davis, VII, 142. 1 "Attorney General Speed to L. H. Chandler, U. S. Dist. Atty. at Norfolk, Va., June 20, 1865: Attorney General's papers. THE TREATMENT OF CONFEDERATE LEADERS 103 m Though a few other leaders were placed in confine- ment, interest naturally centered upon President Jeffer- son Davis,2o whose case was not without its sensational features. On May 2, 1865, President Johnson issued a proclamation offering a reward for Davis' arrest. In this proclamation mention was made of Davis' sus- pected complicity in the assassination of Lincoln, and this groundless suspicion (which was shared by many persons) strongly affected the official attitude toward the Confederate chieftain. When the matter was re- ferred to a committee of the lower house, the investi- gators, in a long document which included much irrelevant matter, reported "probable cause to believe *°Ainong the Confederate leaders imprisoned at the close of the war were Alexander H. Stephens, Clement G. Clay, Jr., John A. Campbell, Z. V. Vance, John H. Reagan, Joseph Wheeler, William Preston Johnston, F. R. Lubbock, S. P. Mallory, and Burton H. Harrison. (For a fuller list, see Oberholtzer, History of the United States Since the Civil War, I, 11-14.) After short periods of military imprisonment these men were released. General Robert E. Lee was not imprisoned. Special interest attaches to the case of Alexander H. Stephens, Vice President of the Confederacy. While in custody at Fort Warren, Boston Harbor, Stephens wrote a very long, polite letter to President Johnson, petitioning for release and reviewing his whole political career and creed. He had been brought up, he said, in the "straitest sect of the Crawford-Troup-JefTerson States' rights school of politics," and considered that reserved sovereignty resided with the people of each State. "If my position in the Confederate Government," he added, "was still retained after I clearly saw that the great objects in view by me in accepting it were not likely to be obtained even by the success of the Confederate Arms — after I saw that the Administration of the New Government was pursuing a line of policy leading to directly opposite results to those I was aiming at, . . . it was mainly with the . . . hope that some occasion might arise when my Counsels might be of more avail than they had been." In concluding, he pointed out that the war was inaugurated against his judgment, and that he accepted its results. (Alexander H. Stephens to President Johnson, Ft. Warren, June 8, 1865: Johnson Papers.) The following month Stephens was released. 104 CONSTITUTIONAL PROBLEMS UNDER LINCOLN that he [Davis] was privy to tlie measures which led to the commission of the deed" [i.e., the murder of the President]. According to this report the testimony "jus- tified the inference that the murder of Mr. Lincoln was procured by the use of money furnished by the Rich- mond government," but the report was based upon per- jured testimony which the witnesses themselves later retracted and declared to be false. ^i Though killing the President, or conspiracy in connec- tion with such killing, is not treason, ^^ yet the determi- nation to prosecute for treason was intensified in the case of Davis by those unsupported rumors which impli- cated him in the assassination. Davis was captured on May 10, 1865, in Georgia and placed in confinement under military authority at Fortress Monroe. His treat- ment while in prison, though not inhumane, was not particularly generous. He was far from enjoying the favorable treatment allowed to Aaron Burr, yet the com- plaints as to his "suff'erings," when narrowed down to specific details, refer chiefly to such matters as noise, light in the room at night, and the denial of visitors. ^^ 2'Gordon, Jefferson Davis, Ch. xx; Rowland, Davis, VII, 160; R. F. Nichols, "United States vs. Jefferson Davis," Am. Hist. Rev., XXXI, 266. ^^Hare points out that the safeguards of the Constitution were sus- pended when the conspirators responsible for Lincoln's assassination were tried by military commission. He then suggests that assault on the President with intent to kill should be declared treason. (Hare, American Constitutional Law, II, 1126.) To do this, however, would necessitate amending the Constitution, in which the crime of treason is defined. ^•Tor a time no one was permitted to visit Davis, but this rule was later relaxed. After earnest pleadings, addressed to President Johnson and other men of influence, Mrs. Davis was permitted to visit her husband, and he was allowed to confer with his counsel. While the Attorney General claimed to have no jurisdiction over Davis, yet he gave much thought to the question of his detention and trial, and received weekly reports from the military surgeon, George E. Cooper, as to the distinguished prisoner's health. During Davis' THE TREATMENT OF CONFEDERATE LEADERS 105 It was for only a short time that he was kept in shackles. In the later stages of his confinement he was allowed considerable freedom within the fortress grounds, and was given airy rooms in Carroll Hall, a building formerly used for officers' quarters. During this imprisonment, plans were being matured for Davis' trial. 2" When the question was discussed in Johnson's Cabinet, the chief problem for decision was whether the trial should be by military commission or before the ordinary civil tribunals. Seward favored a military trial and had no faith in the civil courts. Welles doubted whether resort to a military commission would be justified, and favored a civil trial. '^^ Opinions diff'ered as to what the charge should be, some favoring the charge of treason, and others, murder. As suggestions poured in from many sources it became evident that those who were most eager for the fallen leader's pun- confinement his correspondence went through the office of the Secre- tary of War. The mihtary imprisonment of the former Confederate President, which covered two years, was, of course, a severe hardship. Had he been under the civil courts, he would have been admitted to bail while awaiting trial. ^^Among the sources which the writer has used for the Davis trial are the records of the Federal Circuit Court at Richmond (which he examined personally and of which transcripts were made for his use); the papers and letter books of the Attorney General's office; the Johnson papers; the Diary of Orville H. Browning; the Stanton papers; the "Records and Briefs of the United States Supreme Court"; the original docket of that tribunal; and the extensive collection of Davis papers edited by Dunbar Rowland. Turning from sources to historical studies, one finds a useful survey in Armistead C. Gordon, Jefferson Davis, Ch. xx, and a definitive treatment in an article en- titled "United States vs. Jefferson Davis," by Roy F. Nichols in the Am. Hist. Rev., XXXI, 266-284. See also: D. K. Watson, "The Trial of Jefferson Davis: An Interesting Constitutional Question," Tale Law Jour., XXIV, 669-676; H. H. Hagan, "United States vs. Jefferson Davis," Sewanee Rev., XXV, 220-225; E. P. Oberholtzer, History of the United States, Vol. I; Southern Hist. Sac. Papers, I, 319-325; John J. Craven, Prison Lije oj Jefferson Davis. ^^Diary oj Gideon Welles, II, 335-336. 106 CONSriTUTlONAl, I'RORI.KMS UNDER LINCOLN ishment wanted a military tribunal; while others, who desired a trial but at the same time wished every con- cession to fair play, favored a civil proceeding. In one of the many letters which the President received on the subject the suggestion was made that the "treason" was committed by the State of Mississippi before Davis "made war"; that in obeying the order of that State he was but obeying his sovereign; and that, having recog- nized him as a belligerent, the United States could not consistently charge him with treason. The same writer, however, claimed that as belligerent, Davis had com- mitted various atrocities, such as the Fort Pillow mas- sacre, and that for these "crimes" he could be tried by court-martial. 26 The decision as to method of trial was deferred from time to time, and gradually the idea of a military proceeding was abandoned. The hesitating attitude of the administration was doubtless due in part to serious divergences of opinion throughout the country with regard to the policy toward Davis. Greeley, with his New York Tribune^ strong in its influence upon certain sections of Northern opinion, favored a generous treatment, and was emphatic in his advocacy of civil over military tribunals in the case of political off'enders. The Chicago Tribune^ on the other hand, voiced radical opinion in urging severe punish- ^'Former Governor E. D. Morgan of New York to President John- son, May 31, 1865 (referred to Attorney General Speed): Attorney General's Papers. This argument as to the inappropriateness of the treason charge when applied to acts performed by a recognized belliger- ent government, was also used by Davis' friends. On this subject James M. Mason of Virginia wrote to Davis as follows: "The prin- ciple which they (the Federal authorities] can never get round . . . is, that whatever you did in wielding the Army, and whatever others did in counsel, were acts of war — immediately and all the time recognized by a power competent in law to conduct War, and en- titling those bona fide so acting to all immunities arising from Acts of War. . . ." (Mason to Davis, Ap. 22, 1868: Rowland, Davis, VII, 239.) THE TREATMENT OF CONFEDERATE LEADERS 107 merit. '^^ Among the resolutions of State legislatures in Davis' behalf, those of Kentucky are particularly worth noting. After announcing the principle that a "brave people should ever be generous, and an enlightened nation never know revenge," the legislature resolved that Davis had committed no crime greater than that of thousands who had received pardon, and that his con- viction was not necessary "to settle the legal estimate of treason" nor "to determine whether secession be treason or a right. "^^ IV After many delays, the Government at Washington finally turned its attention to actual preparations for the Davis prosecution. For this purpose the Govern- ment was reenforced by an unusual array of legal talent. Stanbery, Attorney General in 1867, finding that his official duties left no time for the details of the prosecu- tion, and desiring to avoid all active connection with it, appointed William M. Evarts as the leading special counsel for the United States, and R. H. Dana, Jr. was made his associate. ^^ In addition to these distinguished lawyers, the Government also engaged on its side H. H. Wells, who had been military governor of Virginia, and the work of these men was supplemented by the official activities of S. Ferguson Beach and L. H. Chandler, who served at different times as Federal district attorney at Richmond. When, on July 18, 1868, Evarts himself became Attorney General, the situation was only slightly changed, for in this new capacity he still continued his "Chicago Tribune, Oct. 3, 1865, p. 2. -"Resolution of Kentucky Legislature, Dec. 8, 1865. -'In the earlier stages of the case, J. H. ClifTord and L. H. Rousseau acted as special counsel for the Government. 108 CONSTITUTIONAL PROBLEMS UNDER LINCOLN general direction of the prosecution. The appointment of such special counsel, involving a considerable outlay of money, and the frequent conferences and correspond- ence which took place on the subject, indicate that the trial of Davis was a matter in which the administration took an active interest. Certain indictments against Davis that were brought at Norfolk and at Washington in 1865 were dropped; but on May 10, 1866, he was again indicted for treason by the grand jury in the United States Circuit Court at Richmond, Virginia. A year ensued before any steps were taken to prosecute this charge, this delay being due to the military rule which prevailed in Virginia, the un- willingness of Chief Justice Chase to take charge of the case, and the uncertainty of policy as to what should be done with the distinguished prisoner. In order that the Federal Court at Richmond obtain custody of Davis, it was necessary to release him from the military authorities. This was done by habeas corpus writ issued by the Federal Circuit Court at Rich- mond to General Henry S. Burton, in charge of the prisoner.'" The importance of this great writ is illus- trated by the fact that by means of it Davis' imprison- ment under executive and military power was terminated through the normal operation of a judicial process. On May 13, 1867, as the record reads,'' "the said Jefferson Davis was led to the bar in custody of the marshal, and, the prosecution not being ready for trial, the defendant, through his counsel, . . . moved that he be admitted to bail, and there being no objection on the '"The habeas corpus writ directing the release of Davis from military custody, and General Burton's return thereto, are given in Rowland, Davis, VII, 168, 169. For proceedings in the President's Cabinet on this subject, see "Notes of Col. W. G. Moore," Am. Hist. Rev., XIX, 99. ''Records of the Circuit Court of the United States, Richmond, Va. THE TREATMENT OF CONFEDERATE LEADERS 109 part of the Government, Mr. Davis gave bond in the sum of $100,000 to appear in court on November 4."^2 "The prosecution not being ready for trial" — this was always the obstacle in the Davis proceedings. ^^ Again in November, 1867, the Government was unready, and the case was "continued." Elaborate plans were by this time on foot for the preparation of a new indictment. According to arrangements made by the Government's lawyers. General Wells and District Attorney Chandler conducted the day-to-day examination of witnesses be- fore the grand jury, and the evidence so collected, in connection with documents drawn from the Confeder- ate archives at Washington, was to be placed before Evarts and Dana, whose task it was to draw the indict- ment.^" On March 26, 1868, the grand jury "appeared in court and upon their oaths presented 'A Bill of In- dictment against Jefferson Davis for treason, a true bill.' " In this lengthy and tiresome indictment the charge is treason under the Act of 1790 and the specifications relate to various acts of a military sort and otherwise, connected with the war. It reads in part as follows: The grand jurors . . . upon their oaths . . . respectively . . . find and present that Jefferson Davis, late of the city of Richmond in the county of Henrico and District of Virginia, '^Among the sureties on Davis' bond were Gerrit Smith, Horace Greeley, and Cornelius Vanderbilt. ''One reads between the lines of the proceedings considerable em- barrassment on the part of the Government when faced with the problem of actually trying Davis on the treason charge. The record of June 5, 1866, in the Circuit Court at Richmond shows the counsel for the defense vigorously pressing the question as to what the gen- tlemen representing the United States proposed to do with reference to the indictment for treason then pending, while the prosecution re- plied with excuses for delaying the trial. See Rowland, Davis, VII, 152-153. '*Evarts to Chandler, Feb. 18, 1868: Attorney General's papers. 110 CONSTITUTIONAL PROBLEMS UNDER LINCOLN Gentleman, being a citizen . . . of . . . the United States . . and owing allegiance and fidelity to the said United States, not being mindful of his said duty of allegiance, and wickedly devising and intending the peace of the United States to disturb, and to excite and levy war against the said United States, on the first day of June in the year [1861], at Richmond . . . did . . . traitorously collect and assist in collecting great numbers of persons armed, equipped and organized as military forces for the purpose of levying war against the said United States, and did assume the command-in-chief of the said forces, and with said forces did unlawfully and traitorously take forcible possession of the said city of Richmond and the said county of Henrico. ... That the said Jefferson Davis . . . did maliciou.sly and traitorously levy war against the said United States and did commit the crime of treason against the said United States . . . contrary to the . . . statute . . . ap- proved on the thirteenth day of April, [1790]. That on the first day of August in the year . . . [1862], a great many persons whose names are to the grand jurors im- known, to the number of [100,000] and more, were assembled, armed, . . . equipped and organized as military forces . . . and were maliciously and traitorously engaged in levying war against the said United States in . . . Virginia . . . and in . . . North Carolina, South Carolina, Georgia, Florida, Ala- bama, Mississippi, Louisiana, Texas, Arkansas, Tennessee, and Missouri. And that the said Jefferson Davis . . . did send to and procure for the said forces munitions of war, provisions, and clothing, and did give to said forces information, counsel, and advice ... to assist them in the levying of war as afore- said.-^^ "This indictment was copied by the writer from the original in the files of the Circuit Court of tfie United States at Richmond. The whole document is so elaborate and verbose as to be unreadable. It is given in full in Rowland, Davis, VII, 179-195. The indictment was found on the testimony of Robert E. Lee, James A. Seddon, John Letcher, George Wythe and others by a grand jury composed of recently, emancipated Negroes and whites who could take the "test oath." THE TREATMENT OF CONFEDERATE LEADERS 111 The indictment also mentions the first battle of Manassas, and Davis is charged with having traitor- ously cooperated with Lee, Benjamin, Breckinridge, and other specified Confederate leaders. His address of February 10, 1864, to Confederate soldiers, is further cited in a legalistic and tautological enumeration of matters selected somewhat at random. It is noteworthy that instead of treason being charged under the act of July 17, 1862, which allowed fine and imprisonment as an alternative to the death penalty, the charge was brought under the Treason Act of 1790; so that if conviction had been obtained the penalty would necessarily have been death. In that case, pardon alone would have saved Davis' life. This fact made conviction less likely. In spite of the gravity of the offense with which he was charged, Davis was again admitted to bail. Being permitted to choose his counsel, he had selected Charles O'Conor, William B. Reed, R. Ould, and James Lyons. These men had singled out one constitutional point above all others as the principal basis for the defense. They took care to have Davis' oath to support the Con- stitution of the United States (taken in 1845 as a mem- ber of the House of Representatives) made a part of the record. Then, in a paper filed with the Court, they de- clared that the defendant alleged in bar of any pro- ceedings upon the said indictment the penalties and disabilities denounced against him in the third section of the Fourteenth Amendment to the Constitution, "and he insists that any judicial pain, penalty or punishment upon him for such alleged offense is not admissible by the Constitution and laws of the United States." 112 CONSTITUTIONAL PROBLEMS UNDER LINCOLN The Fourteenth Amendment contains the following provision : No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Con- gress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. It was arguable that the case of such leaders as Davis had already been dealt with in a constitutional amend- ment which took into view the violation of a Federal oath, and that disability from office-holding was in the nature of a punishment for the offense of violated alle- giance. Not death, nor even fine and imprisonment, was indicated as the penalty, but only disability from holding office, and this disability was removable by action of Congress. Any further punishment seemed to be out of harmony with the amendment, and the disabilities named therein would indeed seem absurd if the purpose were to prosecute the offenders for treason under the old act of 1790 and inflict the penalty of death. '« '*The issue hinged upon the question as to whether the disability feature of the Fourteenth Amendment amounted to a punishment. Davis' counsel argued that it did, and that this was the only punish- ment that could be legally indicted; for to add to the existing penalty would be an ex post Jacto provision, increasing the punishment of a crime previously committed. Dana replied for the Government that the amendment did not inflict a punishment, but established "a gen- eral permanent provision respecting classes of persons entitled to office," and that it did not repeal existing penalties for treason. Though this point was never settled by the Supreme Court, yet Chief Justice Chase put on record his opinion that the indictment should THE TREATMENT OF CONFEDERATE LEADERS 113 In contrast to the confident tone on the part of Davis' counsel, one finds a certain weakening among the Gov- ernment's lawyers. On August 24, 1868, while the prose- cution was still pending, Dana wrote to Evarts, then Attorney General, expressing grave misgivings as to the wisdom of proceeding further with the prosecution. Because of the important points of law and policy which he touched upon it may be well to note rather fully the trend of his comments." Dana began his letter by pointing out how much his mind had been moved from the first by doubts as to the expediency of trying Davis at all. At length, he said, these doubts had ripened into convictions. He could see no good reason why the Government should make any question whether the late Civil War was treason and whether Davis took any part in it, submitting questions of that nature to the decision of a petit jury at Rich- mond. The only constitutional question seemed to be whether a levying of war which would otherwise be treason was relieved of that character by the fact that it took the form of secession from the Union by State authority — in other words, whether the secession of a State was a constitutional right. That issue, however, have been quashed and that further proceedings should have been de- clared to be barred by the amendment. (Rowland, Davis, VII, 200- 227.) Strangely enough, it has been maintained that this disability feature of the Fourteenth Amendment v/as not confined to the Civil War, and is still in force. When, during World War I, the Socialist Congressman, Victor L. Berger, was excluded from the House of Rep- resentatives, the committee reporting on his case held section 3 of the Fourteenth Amendment to be effective against him. For able comments, see Chafee, Freedom of Speech, 322 et seq. 3'This notable letter by Dana is found in the Attorney General's papers, now in the National Archives. A copy was sent to President Johnson, who wrote thereon the following indorsement: "Richard Dana's opinion in ref. to Jeff. Davis' release. This opinion must be filed with care. A. J." (Johnson Papers, Vol. 144, No. 22377.) Dr. Nichols, in his article above cited, shows that Clifford had doubts similar to those of Dana. (Amer. Hist. Rev., XXXI, 274.) 114 CONSTITUTIONAL I'ROBLEMS UNDER LINCOLN he supposed to be already settled. The Supreme Court in the Prize Cases had held that acts of States could not be pleaded as justification for the war and had no legal effect on the character of the war. He regarded it as a matter of history that the law-making and executive de- partments had treated the secession and the war as treason. The only question of fact submitted to the jury would be whether Davis took any part in the war. This he did not consider a fact appropriate for the jury to decide. The indictment would be tried in a region formerly within enemy's territory, a region which was not yet restored to the exercise of all its political functions and where the fires were not extinct. It would only require one juror to defeat the Government and give Jeflferson Davis and his favorers a triumph. Such a favorer might get upon the jury, or a fear of personal violence or ostracism might be enough to induce at least one juror to withhold assent to a verdict of conviction. This pos- sible result, said Dana, would be most humiliating to the Government, and none the less so from the fact that it would be absurd. Then, too, the question of the death penalty pre- sented a difficulty. It would be beneath the dignity of the Government and of the issue to inflict a minor pun- ishment; and as to a sentence of death, Dana felt sure that after the lapse of time which had occurred since the war the people would not desire to see it enforced. By pursuing the trial, Dana urged, the Government could get only a reaffirmation by a circuit court at nisi prius of a rule of public law already settled for this country in every way that such a matter could be set- tled. In the needless pursuit of this object, the Gov- ernment would be giving to a jury within the region of the "rebellion" a chance to disregard the law when an- THE TREAIMENT OK CONFEDERATE LEADERS 115 nounced. The jury would also have the opportunity to ignore the fact that Davis took any part in the late Civil War. To assume the risk of such an absurd and discreditable issue of a great state trial for the sake of a verdict, which, if obtained, would settle nothing new, either in law or fact, and which would probably never be executed, seemed to Dana extremely unwise. Attorney General Evarts transmitted Dana's letter to President Johnson, 3** and there seems little doubt that the views so expressed had influence upon the adminis- tration in its attitude toward the Davis proceedings. VI The later phases of the Davis case may be briefly stated. The defense moved the quashing of the indict- ment on the ground of its inconsistency with the dis- ability clause of the Fourteenth Amendment, and the Government opposed the motion. ^^ On the constitu- tional point involved in connection with the motion to quash, the court disagreed and certified their disagree- ment to the Supreme Court of the United States. At last it seemed that this important case, or rather a particular phase of it, was about to be heard by the highest tri- bunal of the land; but on December 25, 1868, an uncon- ditional pardon of all who had participated in the war was issued by the President, and shortly afterward the ^'Dr. Nichols points out that this letter was read in Cabinet on November 6, 1868. {Am. Hist. Rev., XXXI, 281.) ''These last proceedings on the motion to quash the indictment were presided over by Chief Justice Chase who had, in the earlier stages, refused to preside over the Circuit Court in Virginia because of the military power exercised in that State. It would be unbecoming in the Chief Justice of the United States, he thought, to preside over a quasi-military court. (Rowland, Davis, VII, 157.) Some attributed this attitude of Chase to a reluctance to preside at Davis' trial: ibid., 239. 116 CONSTITUTIONAL PROBLEMS UNDER LINCOLN indictment was dismissed by the Circuit Court at Rich- mond, and the case was also dropped from the docket of the Supreme Court at Washington/" Following two years of imprisonment, and nineteen months on bail, Jefferson Davis was at last a free man. His persistent demand, however, that his case be tried, was not com- plied with. Looking back over the various phases of this abortive prosecution, one finds it hard to understand why serious efforts should have been made to obtain a conviction of Davis. The usual practice in such cases is amnesty for political ofTenses, and in fact this policy of amnesty had been proclaimed and adhered to with regard to those who had supported the Confederacy. The proclamations of amnesty prior to December, 1868, had been qualified by certain conditions and exceptions, but thousands of special pardons were granted to those excluded from the general proclamations. Finally, on Christmas day, 1868, came an amnesty proclamation which covered every one. Other indictments for treason were dismissed, and the active promotion of Davis' prosecution up to the time of the proclamation of unconditional amnesty was un- usual. If at any time the word had been sent from Wash- ington to move the dismissal of the indictment, it would have been dismissed, but instead the administration con- tinued its efTorts toward a prosecution. As Dr. R. F. Nichols^' has shown in his excellent study of this sub- ■"•On the unpublished docket of the United States Supreme Court, under the date of February 19, 1869, there is this entry: "on motion of the Attorney General, Adjudged to be dismissed." (Case 327, Dec. term, 1868, Docket 1868, Sup. Court of U. S.) ^'After having made an independent study of the Davis case from the sources, the author was fortunately able, when on the point of sending his book to the press, to use in the final revision the scholarly and exhaustive article by Dr. Roy Franklin Nichols in the Am. Hist. Rev., XXXI, 266-284. For a full discussion of the subject one should read this article. THE TREATMENT OF CONFEDERATE LEADERS 117 ject, the Davis case was entangled in Reconstruction politics; and the influence of the radicals in Congress was a factor which tended to prevent an earlier release. Johnson, however, with certain of his Cabinet supporters, did not hesitate to brook these radicals, and they were mindful of the fact that in various quarters the political eflfect of universal amnesty would be desirable; while continued eflforts to prosecute the case involved the like- lihood of an adverse decision by the Supreme Court or an acquittal by a Virginia jury. Governmental success before both court and jury seemed a remote possibility (except, perhaps, to such a man as John C. Under- wood "2); but such success would itself have been most embarrassing, for it would have involved the death penalty for the President of the Confederacy. In the strong probability of presidential pardon, the conviction of Davis, obtained at considerable cost and with great irritation, would have been futile. Release by the dis- missal of the indictment seemed the only way out; and as we have seen in our general survey of the treason cases, this was the regular procedure. "^ *yohn C. Underwood, Federal district judge in Virginia, had pro- moted tlie indictment against Davis, and had been active in procuring confiscations in Virginia. His attitude seems not to have been charac- terized by judicial detachment. Had Davis been brought to trial, it would presumably have been before Judge Underwood and Chief Justice Chase in the Circuit Court at Richmond. R. F. Nichols, op. cit., pp. 267, 269. "Even after Johnson's proclamation of full pardon and amnesty, all who had sworn officially to support the Constitution and had later engaged in the "rebellion" were under the disqualification of the Four- teenth Amendment as to State or Federal office-holding. In 1898 Congress removed the existing disability, though the wording of the act seemed to recognize that similar disabilities would apply to a possible future insurrection or rebellion. U. S. Stat, at Large, XXX, 432. CHAPTER VI THE POWER TO SUSPEND THE HABEAS CORPUS PRIVILEGE I. Statement of the constitutional prol)Iem regarding the suspension of the privilege of the habeas corpus writ II. Principal arguments for and against the President's power of suspension III. Amljiguous action of Congress IV. Inconclusive character of the Civil War precedent V. Present status of the controversy This chapter and the three following deal with topics that are virtually parts of the same subject. The pres- ent chapter has to do with the President's power of sus- pending the habeas corpus privilege as against that of Congress; Chapters VII and VIII will treat the actual measures resulting from the suspension and involving military control over civilians, while the succeeding chap- ter will be devoted to the protection of officials from ju- dicial liability for acts, otherwise unwarranted, which were committed during the period of suspension. The question as to whether Congress or the President has the authority to suspend the privilege of the writ is one of the most famous and familiar controversies in our constitutional history. Perhaps no other feature of Union policy was more widely criticized nor more stren- uously defended, and the whole subject has been elabor- ately debated by statesmen, editors, jurists, generals, pamphleteers, and historians. 118 THE HABEAS CORPUS PRIVILEGE 119 The provision of the Constitution reads as follows: The privilege of the writ of habeas corpus shall not be sus- pended, unless when in cases of rebellion or invasion the pub- lic safety may require it.^ Plainly the intention is that, in the specified emergen- cies — rebellion or invasion — this vital privilege may, for the preservation of public safety, be suspended. But various questions immediately arise. Who is to judge of the existence of rebellion or invasion within the mean- ing of the Constitution? Recognizing that the privilege is to be suspended only when its continued maintenance would menace public safety, who is to determine when that point has been reached? Does the silence of the Constitution regarding the authority to suspend signify that the question was left open, or does a fair construc- tion require one to conclude that the power to suspend was understood by the framers to rest with Congress and that an explicit statement was avoided only because this point of law seemed already established beyond a reason- able doubt? If not an exclusive congressional function, could the suspending power be considered "concurrent" as between the President and Congress, so that the Presi- dent might act in the absence of congressional provision? Still other questions would arise, assuming that the foregoing had been settled, as, for instance, whether Congress could delegate the power to the President, whether the President could delegate it to his subordi- nates, and whether a rebellion in one part of the country could justify the suspension in a remote and loyal part. Such, in broad outline, were the main points at issue in this much-discussed problem. W. S. Constitution, Art. I, sec. 9, par. 2. 120 CONSTl I iniONAl. I'ROULEM.S UNDER LINCOLN In support of the view that the suspending power lies exclusively in Congress, Chief Justice Taney's well- known decision in the Merryman case stands as perhaps the most vigorous exposition. The details of the case, which are reserved for later consideration, mark it as a typical instance of conflict between the military and judicial authorities.* The essential fact was that a general had resisted the execu- tion of the writ of habeas corpus and that in so doing he appealed to the President's suspending order. The Chief Justice in "filing" his opinion argued strenuously that the President had no lawful power to issue such an order. English and colonial precedents were adduced to support this contention. The colonists were shown to have been extremely jealous of executive usurpation, while in Eng- land no power short of Parliament could authorize the suspension. Invoking the rule of construction according to context, Taney pointed out that the provision regard- ing habeas corpus appears in that portion of the Consti- tution which pertains to legislative powers. Story was quoted as authority for the view that Congress has the power to suspend as well as the exclusive right to judge of the exigency requiring suspension. Marshall's opinion in the Bollman and Swartwout case was cited to the efl'ect that "if . . . the public safety should require the sus- pension it is for the legislature to say so."^ Since the courts were uninterrupted, Taney maintained that any suspected treason should have been reported to the dis- trict attorney and dealt with by judicial process. The * Ex parte Mrrryman, 17 Fed. Cas. 144. Sec infra, pp. 161-162. M Cranch 101. THE HABEAS CORPUS PRIVILEGE 121 overriding of such process in loyal parts of the country he denounced as military usurpation. If such usurpation be permitted, he said, "the people of the United States are no longer living under a government of laws; but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found." Putting the matter solemnly up to the President, he declared that it would "remain for that high officer, in fulfillment of his constitutional obligation to 'take care that the laws be faithfully executed,' to determine what measures he will take to cause the civil process of the United States to be respected and enforced." The extent to which President Lincoln stood in need of this solemn admonition may best be judged by his atti- tude at the time the suspension was authorized. As a matter of fact few measures of the Lincoln administra- tion were adopted with more reluctance than this sus- pension of the citizen's safeguard against arbitrary arrest. This reluctance appears in the fact that only a qualified suspension was ordered in 1861, that the military au- thorities were enjoined to use the power sparingly, that the action was taken during a recess of Congress, and that an early opportunity was taken to lay the matter before the special session of Congress convened for the emergency in the summer of '61. Lincoln's secretaries have preserved for us the original autograph draft of his message to this special session, and it is an instructive exercise to compare this draft with the revised and published form of the message. Selected portions of the earlier and later forms of the message are placed in parallel columns below: * ^Nicolay and Hay, Lincoln, IV, 176; Richardson, Messages . . of the Presidents, VI, 24. 122 t'ONSirrUTIONAI, I'ROIU.KMS UNDKlt UlNCOI-N Original Autograph Published Form Soon after the first call for militia, / felt it my duty to authorize the commanding general, in proper cases . . . to suspend the privilege of the writ of habeas corpus. . . . At my verbal request, as well as by the generaVs own in- clination, this authority has been exercised but very spar- ingly. Nevertheless, .. . I have been reminded from a high quarter that one who is sworn to "take care that the laws be faithfully executed" should not himself be one to violate them. Of course / gave some consideration to the questions of power and propriety before I acted in this matter. The whole of the laws which I was sworn to [execute^ were being resisted ... in nearly one-third of the States. Must I have al- lowed them to finally fail of execution? Are all the laws but one to go unexecuted, and the Government itself go to pieces, lest that one be vio- lated? . . . But . . . I was not, in my own judgment, driven to this ground. In my opinion, I violated no law. The provision of the Consti- tution ... is equivalent to a provision that [the] privilege may be suspended when, in cases of rebellion or invasion, the public safety does require it. ... / decided that we have a case of rebellion. it was considered a duty This authority has purposely been exercised . . . sparingly. the attention of the country has been called to the propo- sition, etc. . some consideration was given . . . before this matter was acted upon. The whole of the laws which were required to be . . . exe- cuted. Must they be allowed to finally fail? But it was not believed that this question was presented. It was not believed that any law was violated. It was decided, etc. THE HABEAS CORPUS PRIVILEGE 123 In the original autograph one may read, as it were, the President's mental struggling at the time the decision was taken. In this remarkable document may be seen the clearest indication that the appearance of military dictatorship was a matter of deep concern to the nation's war chief and that his action was determined by what he believed to be the imperative demands of the actual situation. His course in this matter was in keeping with other acts, such as the call for troops and the blockade, in which momentous decisions had to be reached during the recess of the legislature. ^ In justification of his course Lincoln argued his para- mount duty as chief executive to preserve the integrity of the Government, a duty on whose performance the life of the whole Constitution rested. In Lincoln's view there was no violation of the Constitution, since the Constitu- tion permits suspension when the public safety requires it during a rebellion and does not specify what branch of the Government is to exercise the suspending power. As the provision was plainly made for an emergency, he argued, the natural inference is that the President should use his discretion, not that the danger should run its course till Congress could be called together. When the public safety does require it, the suspension is constitu- tional. After mature thought he decided that a rebellion existed and that the public safety did require a qualified suspension. It was therefore authorized. Such was Lincoln's answer to the opinion of Chief Justice Taney. For a more detailed defense of the Presi- ^On this point Lincoln's critics would reply that the long recess of the national legislature in 1861 was an unfortunate condition for which the President himself was responsible, since he might have called Congress into session at once on the outbreak of war. While his proclamation convening the extra session of Congress was issued on April 15, 1861, the day set for the opening of the session was July 4. (U. S. Slat, at Large, XII, 1258.) 124 CONSTITUTIONAl, PROBLEMS UNDER LINCOLN dent's course one may turn to such documents as the opinion of Attorney General Bates and the elaborate pamphlets of Horace Binney. Bates contended" that the three great branches of the Government are coordi- nate and that the executive cannot rightly be subjected to the judiciary, as would be the case if a high executive function should be obstructed by a judicial writ. The President, he maintained, is in a peculiar manner the preserver, protector and defender of the Constitution; and it is particularly his duty to put down a rebellion because the courts are too weak to do so, while all the means of suppression arc in his hands. That the Presi- dent is judge of the exigency and of the manner of dis- charging his duty has been already held by the Supreme Court, said Bates, in an analogous case. ^ Granted that the power opens the way for possible abuse, it is just as true that a legislature may be factious or a court corrupt. The President cannot be required to appear before a judge to answer for his official acts. A habeas corpus hearing is like an appeal, and a judge at chambers can- not entertain an appeal from a decision of the President of the United States, especially in a case purely political. In spite, therefore, of the Chief Justice's decision limit- ing the right of suspending the habeas corpus privilege to the legislature. Bates contended that, as a temporary and exceptional matter in an emergency, the President has the power to order a suspension and is under no obli- gation to obey a writ of a court after capturing insurgents or spies. For any breach of trust, he said, the President is answerable before the high court of impeachment and before no other tribunal. In the writings of the contemporary legal pamphleteer, "Opinion of Attorney General Bates, July 5, 1861: O. R., Ser. II, Vol. 2, pp. 20-30. 'Martin vs. Mott, 12 Wheaton 19. THE HABEAS CORPUS PRIVILEGE 125 Horace Binney, executive suspension finds learned sup- port. « By way of contrast rather than analogy, Binney begins with a discussion of English practice. He shows that, for centuries before 1679 and in spite of the pro- hibition of Magna Carta, arbitrary imprisonment existed in England, For general and unspecified "high treason," imprisonment by executive warrant, without bail or trial, was practiced; and even Coke admits the propriety of such a proceeding. Under the old rule, "there was no danger of state, whether there was rebellion or invasion or not, in which the Crown could not issue a warrant to arrest and imprison a suspected traitor or conspirator of treason and hold him imprisoned with a practical indefi- niteness." By the act of 1679 this power was taken away from the monarch and the guardianship of the habeas corpus privilege has since rested with Parliament. But in this respect American and English law are not analogous. The restriction in England is not a general prohibition of the suspension of the writ, but rather a limitation upon the King, since Parliament may suspend at any time, regardless of whether there is rebellion or not. The motive back of the English law was jealousy of the Crown, while in America, Binney argued, there was nothing in the feeble oflEice of the President that could excite jealousy.^ It is only by legislative act that the writ may be over- ruled in England, but in the United States the Constitu- tion itself authorizes the suspension and no further au- thorization is needed. All that remains is to bring about the suspension in the conditioned case. In this whole matter, continued Binney, the Constitution must be 'Horace Binney, The Privilege of the Writ of Habeas Corpus under the Constitution (Philadelphia, 1862). ^In this portion of his argument Binney quoted Bulwer-Lytton and De Tocquevilie to show that the American executive is "feeble." 126 CONSTITUTIONAL PROBLEMS UNDER LINCOLN judged by itself and not by the English constitution or by the powers of Parliament. In the debates and records of the constitutional con- vention there seemed to Binney something inysterious about the habeas corpus clause. In his opinion there appeared to be a deliberate hushing of the subject, which was concealed as a sort of skeleton in the closet. The silence regarding such matters as executive imprison- ment, the period of time during which the suspension might obtain, the nature of the offense for which the privilege might be withdrawn, the authority to suspend, and the process of warrant and arrest to be pursued — all this inexactness seemed to result from a reluctance to dwell upon the subject. The framers in Binney' s view should have been more explicit, for it is a timid horseman who puts a blind upon his horse. The clause as written by Pinckney had pro- vided that the privilege should not be "suspended by the legislature except on the most urgent and pressing conditions and for a limited time not exceeding months." (The number of months was left blank.) Later Gouverneur Morris moved the clause practically as it now stands while the powers of the judiciary were under consideration. It was the Committee on Style and Arrangement which grouped it with the clauses concern- ing Congress. Thus, according to Binney, the word leg- islature was "struck out" and the clause as it stands is a substitute for Pinckney's wording which would have placed the power with Congress.'" In determining which department has the power to '"The selection ol Monis' wording inslcad ol Pinckney's seems to indicate that the convention consciously and deliberately rejected a phraseology that would have attached the suspending function to the national legislature. (Gaillard Hunt and J. B. Scott, editors, The Debates in the Federal Convention of 1787 Reported by Jame^ Madison, a Delegate from Virginia, 221 , All .) THE HABEAS CORPUS PRIVILEGE 127 suspend, the vital question, as Binney saw it, is as to which department is more particularly charged with care for the public safety. Does it require an act of Congress, he asked, to declare that a rebellion or invasion exists? No, it is the President's power and duty to decide the existence of a rebellion. So far as the calling out of the militia is concerned, this fact has been fully established, as in the Whisky Rebellion, the Martin vs. Mott de- cision, and on other occasions. In an actual rebellion or invasion the declaration and proclamation of the fact rest unquestionably with the executive, and no other depart- ment could appropriately decide the fact. What is true as regards the calling of the militia is equally true concern- ing the suspension of the habeas corpus privilege, for considering the methods and devices of rebellion, open and covert, the power of suspending is a most reasonable attribution to the executive power. History, it was pointed out, attests the justice of this interpretation, for during the time of the Burr conspiracy the Senate, from motives of partisanship, passed a bill suspending the privilege for three months in the case of men who had committed treason, nothing being said of rebellion or invasion. From this may be argued the unwisdom of leaving such a function to Congress. It is a mistake, said Binney, to assume that the Con- stitution authorized only such things as can be carried into effect by statute. In this matter of withdrawing the writ, the Constitution takes the place of the English Parliament. The Constitution itself, by clear implica- tion legalizes the suspension. "The Constitution does not authorize any department of the Government to authorize it. The Constitution itself authorizes it." 128 CONSTITUriONAl. PROBLEMS UNDER LINCOLN III It is a striking fact that at the time of heated contro- versy over this subject, when nearly all were doubting, and many flatly denying the President's right. Congress made no declaration indicative of its will. In Dr. Sellery's scholarly monograph^' the conclusion is reached that this long inaction served as a tacit sanction of the President's right; but many who were supporting Lincoln, as notably Lyman Trumbull, maintained in principle the exclusive power of Congress, and the inaction may just as well have been due to failure to find any formula upon which a majority could unite. In the search for a com- promise that would save the face of the President with- out sanctioning the principle on which he acted, actual legislation was long delayed, and when it was finally accomplished, a non-committal phraseology was adopted. In all three of the sessions of the thirty-seventh Con- gress the subject of the suspension was considered in one form or another. In the hurried special session during the summer of 1861 the previous orders of the President were ratified so far as they related to the army and navy and the calling out of the militia. '^ This bit of legislation has usually been interpreted as a sanction of the President's suspension of the habeas corpus privilege. The ratifying clause, however, made no mention of this suspension, and this omission is all the inore remarkable in view of the fact that the ques- tion of arbitrary arrests had been made a matter of debate. As if still further to emphasize the reticence of Congress on the subject, the provision was irrelevantly "George Clark Scllcry, "Lincoln's Suspension of Habeas Corpus as Viewed by Congress," Bull, of Univ. of Wis., Hist. Ser., I, No. 3, pp. 213-286. "f/. .S'. Slal. of Lmgr, XII, ^26; srifira, p. 55. THE HABEAS CORPUS PRIVILEGE 129 tucked away in an act to increase the pay of privates in the army. Even if this measure could be regarded as a satisfac- tory ratification of the President's previous acts, it still did not touch the main issue. The question was not merely the President's power to suspend during a recess of Congress, but his assumption of that power even when Congress is in session. Over and above the brief and defective measure of 1861, which covered an emergency, it remained for Congress to formulate some act of legisla- tion that would apply at least as long as the war con- tinued, and would state the way in which, and the basis upon which, the privilege of the writ might be suspended, assuming, of course, that such suspension was to be approved. In the second session of the thirty-seventh Congress, extending from December, 1861, to July, 1862, there was also a failure to enact any law on this subject. The House passed a bill directing dismissal of all prisoners except those who might be regularly indicted, and de- claring further: That it is and shall be lawful for the President of the United States, whenever in his judgment by reason of "re- bellion or invasion the public safety may require it," to sus- pend, by proclamation, the privilege of the writ of habeas corpus throughout the United States or in any part thereof, and whenever the said writ shall be suspended . . . , it shall be unlawful for any of the judges of the several courts of the United States or of any State, to allow said writ." This proposed measure was quite inconclusive as to the President's constitutional right. By this bill, said one Senator, "you declare that it is the right of the President already, and shall continue to be his right to suspend the ^Knng. Globe, ]u\y 3, 1862, 37 Cong., 2 scss., p. 3106. 130 CONSTITUTIONAL PROBLEMS UNDF.R LINCOLN writ of habeas corpus. You do not propose to confer that right upon him, but to recognize it as his."^^ And yet, speaking of the very same bill, a member of the House said: "Congress now gives a general power to the President to suspend the writ of habeas corpus, and by . . . implication we may thence infer that he does not possess it of his own power or prerogative."'^ The Senate Judiciary Committee reported the bill favorably, and Senator Trumbull labored hard to push it to a vote, but the Senate adjourned without action. The matter dragged on until the third session, and even then the "Habeas Corpus Act" narrowly escaped defeat. Finally in the early hours of March 3, 1863,i^ after a tiresome all-night session, a bare quorum of an over- worked Senate by a piece of sharp practice on the part of the presiding officer outwitted those who were fili- bustering against the measure and passed Senator Trum- bull's conference bill which had been slowly evolved through weary months of wrangling. The act so passed declared in oracular phrase that "during the present rebellion the President of the United States, whenever, in his judgment, the public safety may require it, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United States or any part thereof."'^ As has been often pointed out, these words are capable of a double interpretation. Congress, in declaring that the President "is authorized to suspend," might have been recognizing a presidential power or exercising a legislative one. The ambiguous wording, which was '^Remarks of Senator Howe, July 15, 1862: Cong. Globe, 37 Cong., 2 sess., p. 3362. •^Remarks of Representative Biddle, July 8, 1862: Cong. Globe, yi Cong., 2 sess., p. 3183. ' '■Infra, pp. 190-191. "f/. .S'. Slat, at Large, XII, TSf"). •JHE HABEAS CORPUS FRlVlLEtiE 13J intentional, stamps the measure as essentially a com- promise between divergent views prevailing among sup- porters of the administration. (The anti-administration members, of course, voted solidly against the act.) The essence of the compromise lay in the fact that the bill could be voted for both by those who favored and by those who opposed the principle of the exclusive power of Congress to suspend. Thus the only measure passed on this subject during the war left matters precisely where they had been before it was placed on the statute book, so far as the main constitutional issue was concerned. ^^ IV In the light of Civil War experience, it is doubtful whether any clear-cut principle of undisputed legal authority can be said to exist in American jurisprudence with reference to this fundamental point of law. The Supreme Court has never definitely made a conclusive pronouncement upon the central issue as to whether the suspending power rests with the President or with Con- gress. The Merryman decision was not that of the Supreme Court; but it was an opinion of one member of the Court, Taney, in a case which he heard while on circuit. Furthermore, it was in chambers, not in open court, that the decision was rendered. The decision is not to be found in the reports of cases tried before the Supreme Court, but in those of the circuit courts. ^^ At the time it was rendered it was not at all regarded as a settlement of the matter. On this point the evidence is convincing, for, after Taney's opinion had been rendered, "Other features of the Habeas Corpus Act of 1863, bringing into view the whole question of arbitrary arrests, are dealt with in the succeeding chapters. "17 Fed. Cas. 144. 132 CONSriTUrlONAL j'Robli:ms UNDEK I.INCOLN there were various discussions as to an apprehended decision by the Supreme Court on the President's sus- pending power. A confidential and unpublished com- munication from Attorney General Bates to Secretary of War Stanton, dated January 31, 1863, has a significant bearing on this point. Having heard that the Secretary contemplated bringing before the Supreme Court for review certain proceedings of the Supreme Court of Wisconsin involving the President's suspending power, Bates advised emphatically against it, urging that a decision of the Court pronouncing the arbitrary arrests illegal would "do more to paralyze the Executive . . . than the worst defeat our armies have yet sustained," and that such an adverse decision was to be anticipated, in view of the "antecedents and present proclivities" of a majority of the court, taken in connection with the expressed opinion of certain of its members. 2" Again in February of 1865, there was talk in Lincoln's Cabinet of an apprehended decision to be written by Chief Justice Chase which would definitely maintain the exclusive power of Congress. In consultations between President Lincoln and Attorney General Speed the ap- prehension was expressed that Chief Justice Chase, who had had various differences with the President, would "fail the administration" on this matter. As reported by Secretary Welles, the President was astonished at such a suggestion in view of Chase's previous commit- ments, but Welles considered that an adroit intriguer could escape these commitments and that Chase would not hesitate to use the bench for ambitious purposes. ^^ "Letter of Bates to Stanton (marked "Confidential"), Jan. 31, 1863: Stanton Papers, No. 52223. The Wisconsin decision had been given in the Kemp case, which is discussed later in this chapter. ^'Diary of Gideon Welles, II, 242, 245-246. (Feb. 21-22, 1865.) On Feb. 21, 1865, Welles wrote regarding Chase's apprehended decision on the habeas corpus question: "Some intimation comes that THE HABEAS CORPUS l'RlVlLEt;E 133 If Chase intended to promote any such decision he either failed to find an opportunity or was unable to carry the court with him, for no such decision was issued. In this Cabinet consuUation it is possible that the pend- ing Milligan case was referred to, but in this case the question of the President's power of suspension did not arise." These apprehensions regarding possible deci- sions concerning the President's right show that the question as to where the suspending power lay was regarded as an open one so far as the Supreme Court was concerned. It is true that Marshall's opinion in the Bollman case has often been cited as a sanctioning by the Supreme Court of the congressional power of suspension. In that opinion Marshall wrote: "If . . . the public safety should require the suspension ... it is for the legisla- ture to say so. "23 Taney, as we have seen, cited this passage as a precedent and authority in the Merryman case. But, as the whole context shows, Marshall's mean- ing was: it is not for the court to say so. The question before the court was not the power of suspending the privilege of the writ, but the provision of the Judiciary Act of 1789 giving courts of the United States the power to issue the writ of habeas corpus. As to the withhold- ing of the writ, Marshall argued that this was a political, not a judicial function. In other words, it was not within the discretion of the court to withhold the writ under the the Chief Justice intends to make himself felt by the Administration. . . . I shall not be surprised, for he is ambitious and intriguing." The word "intriguing" was then deleted and the word "able" substituted. The manuscript in the Library of Congress reveals many such changes. **As a matter of fact, Chase dissented from the Milligan decision, being unable to concur in the view that Congress had no power to authorise a military commission in Indiana. (Charles Warren, The Supreme Court in United States History, III, 148.) Infra, p. 182. "4 Cranch 101. 134 CONS iriUllONAL PROBLEMS UNIJKR LINCOLN circumstances of the case. It was in this connection that the passage in question occurs, and the whole passage reads as follows: If at any time the public safety should require the suspen- sion of the powers vested by this act in the courts of the United States, it is for the legislature to say so. That ques- tion depends on political considerations, on which the legis- lature is to decide. Until the legislative will be expressed, this court can only see its duty, and must obey the laws. It is obvious, therefore, that neither the facts of the Bollman case nor the oft-quoted passage of Marshall's opinion have any bearing upon the controversy as to whether Congress or the President has the suspending power. The fact that many able judges of the period placed the power exclusively with Congress is, however, signifi- cant of the trend of judicial opinion. In the Kemp case in Wisconsin, where State judges in separate decisions each asserted the exclusive legislative power of sus- pension, ^^ Jijdge Paine declared that there were other clangers to be looked to besides success of the rebellion — namely, acquisition of extraordinary powers, and the establishment of dangerous precedents." Though a judge's voice may not be heeded, he said, yet he could only decide according to the Constitution and the law. He held that military arrest on the basis of presidential suspension of the writ could be justified only on the assumption that the President may abrogate the Con- stitution. But, as the judge argued, the President is to execute the laws only by such means as the Constitution gives him, and war does not break down the distinction between the branches of government. Taking issue with «V« re Kemp, 16 Wis. 382. «'/6iU. S. Constitution, Art. Ill, sec. 1. "22 WaU. 295. 234 CONSIII UriONAI. PROBLKMS under LINCOLN makes the military usurpers more bold and insolent. Hereafter, in open, gross cases, I will press the matter to issue." "2 When, in 1867, Chief Justice Chase ad- dressed the bar at the time of the reopening of the Fed- eral court in North Carolina, he explained why the members of the Supreme Court had not come into the State sooner in the discharge of their circuit duties. All the courts, he said, had been for a considerable period subordinated to military supremacy, and the military tribunals had enjoyed an unusual extent of jurisdiction. Under such circumstances he thought it would not be fitting that the highest judicial officers of the land should exercise their jurisdiction under the supervision and con- trol of the executive department. ^^ VI What was the constitutional basis for the abnormal governments of occupation in the South? There were some who would have justified Federal assumption of temporary governmental powers in the occupied States on the basis of the "guarantee clause" — the clause by which the States are guaranteed a republican form of government, and, for the preservation of such a gov- ernment, are protected against domestic violence and invasion. ^^ To aff'ord this protection. Federal power may be used within a State. The people of the South were not aware of their unrepublican tendencies, but the Union authorities considered them to be under a «MS. Diary of Edward Bates, Aug. 20, 1864. *^Whiting, yVar Powers under the Constitution, 596-597. On October 13, 1865, Chase wrote to President Johnson advising against the hold- ing of the United States Circuit Court in Virginia until military au- thority should be superseded by the civil. (Johnson Papers, Vol. 79, No. 7354.) **U. S. Constitution, Art. IV, sec. 4. OCCUPATION OF THE SOUTH 235 "pretended government" maintained by a "slave aris- tocracy. It is of interest to notice that President Lincoln was explicit in citing the guaranty clause as a jus- tification for the military occupation of Tennessee. Writing in September, 1863, to Governor Andrew John- son, he said:" . . . you are hereby authorized to exercise such powers as may be necessary and proper to enable the loyal people of Tennessee to present such a republican form of State govern- ment as will entitle the State to the guaranty of the United States therefor, and to be protected under such State govern- nient by the United States against invasion and domestic violence, all according to the fourth section of the fourth article of the Constitution of the United States. Had the occupied districts been deemed to be within the country and under the operation of the Constitu- tion, the guaranty clause might well have been made the basis of Federal intervention in local affairs. The Supreme Court, however, upheld the occupation, not on the basis of the guaranty clause, but on the principle "Nicolay and Hay, Works, IX, 127; 0. R., Ser. Ill, Vol. 3, pp. 789, 819. Lincoln's statement to Johnson was sent in response to a tele- gram from the latter asking for such a statement. (Stanton Papers, XIV, No. 52987.) Johnson's appeal of March 18, 1862, to the people of Tennessee was in the same spirit. Referring to the disappearance of State government, the abandonment of the ship of state, the desecration of the archives and the seizure of public property, he declared that, "the Government of the United States could not be unmindful of its high constitutional obligation to guarantee to every State ... a repub- lican form of Government," adding that his purpose in Tennessee was "as speedily as may be, to restore her government to the same con- dition as before the existing rebellion." (C. R. Hall, Andrew Johnson, Military Governor of Tennessee, 39; Johnson Papers, XVI, No. 3725 a.) Johnson's action as President in appointing provisional governors in the Southern States in 1865 was also based on the guaranty clause. (Richardson, Messages . . . oj the Presidents, VI, 314.) 236 CONSTITUTIONAL PROBLEMS UNDER LINCOLN of conquest. In Coleman vs. Tennessee the Court said:*^ The doctrine of international law on the effect of miHtary occupation of enemy's territory upon its former laws is well established. Though the late war was not between inde- pendent nations, but between different portions of the same nation, yet having taken the proportions of a territorial war, the insurgents having become formidable enough to be recog- nized as belligerents, the same doctrine must be held to apply. The right to govern the territory of the enemy during its military occupation is one of the incidents of war . . . ; and the character and form of the government to be established depend entirely upon the laws of the conquering State or the orders of its military commander. This application of the conquest theory, it should be noted, gave the occupied districts of the South a miH- tary regime such as the North did not have. In the Milligan case the establishment of a military regime in Indiana was declared illegal; but such a regime existed in Louisiana, Tennessee, Virginia, and other occupied re- gions. It existed also, it is true, in those districts where martial law was established in the North, as in Ken- tucky and Missouri. ^^ But in these Northern districts military rule was declared to be justified because of the prevalence of bushwhacking, because of invasion, or for other reasons which would make martial law ap- propriate, while such rule in the South was sustained simply on the ground of conquest. The Supreme Court's decision denouncing the military commission which con- demned Milligan did not aff'ect the validity of that under which Mumford was executed; for in such a matter Louisiana was held to be subject to a different law from that prevailing in Indiana. "97 U. S. 509, 517. *'>Supra, Chapter VIII. OCCUPATION OF THE SOUTH 237 This subject of military occupation naturally blends into the subject of reconstruction, which is not treated in this book. Though Lincoln's purpose was to use military occupation as a way of setting up loyal State governments, thus hastening and simplifying the restora- tion of the "proper practical relation" of the States to the Union, "» the reversal of his policy by the radicals under such leaders as Sumner, Stanton and Stevens de- feated this magnanimous purpose; and, as the event proved, the military occupation was unnecessarily pro- longed after the war. Southern territory, in general, thus passed through a series of governmental stages, and the following condi- tions of rule may be noted: (1) Normal Federal and State authority existed before the war. (2) Independ- ent State authority prevailed, or was asserted, between the time of secession and entrance into the Confed- eracy.''^ (3) Confederate and State authority held sway until overthrown by Federal force. The practical valid- ity of the governments of the individual Southern States and even of the "Confederate States of America" in the ordinary control of human relations was upheld, though they were declared incapable of enforcing any right as against the United States.^" (4) Military occupation, 4 8"YVe all agree that the seceded States, so called, are out of their proper practical relation with the Union, and that the sole object of the Government, civil and military, in regard to those States, is to again get them into that proper practical relation." (President Lincoln's last public address, April 11, 1865: Nicolay and Hay, Lincoln, IX, 460.) *°This statement refers particularly to those States which seceded prior to the Montgomery convention of February, 1861, in which the Government of the Confederate States was organized. * "Insurrection and war do not loosen the bonds of society, and the Supreme Court treated the ordinary acts of the individual Southern States during the war for maintaining police regulations, punishing crime, protecting property, etc., as valid and binding. (Horn vs. Lockhart, 17 Wall. 570. See also 6 Wall. 443; 7 Wall. 700; 20 Wall. 238 CONSTITUTIONAL PROBLEMS UNDER LINCOLN on the basis of the laws of war and under the authority of the President, succeeded when the Union forces took possession. (5) During the period of confusion that was called "reconstruction," military government was continued; but in a legal sense this was hardly the same thing as belligerent occupation. It was justified on the basis of a variety of "theories of reconstruction," such as "State suicide," "reversion to territorial status," and the like. (6) After the completion of reconstruc- tion, normal Federal and State authority was resumed on the basis of an amended Constitution, the amend- ments having been made in the period of confusion. ^^ 459; 22 Wall. 99.) In Thorington vs. Smith (8 Wall. 1) the Supreme Court declared the Confederate States to be a "government of para- mount force" maintaining a supremacy which made obedience to its authority, in civil and local matters, both a necessity and a duty. In this case a contract for the payment of Confederate money was de- clared enforceable in the courts of the United States. "Governmental obligations of the Confederacy were extinguished by the Fourteenth Amendment of the Constitution of the United States, which provided that "neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States . . . ; but all such debts [and] obligations . . . shall be held illegal and void." The United States did not assume the r61e of the "successor" of the Confederate States; and it would be inappropriate to discuss the conduct of the Washington Gov- ernment toward the extinguished Confederacy on the basis of those practices of international law which pertain to "continuity of states," "state-succession," and the like. It is the successor-state that some- times (though not always) assumes the obligations of its predecessor; and to argue tiiat the United States should have taken over the Con- federate debt would be to assume that the Confederate States had existed before the war as an established international person, and had then been conquered and absorbed by the United States. Even then, prevailing international practice would have suggested that Confederate debts incurred for the war itself should not be assumed. Historically, the Confederacy never achieved full international standing; and it was treated by the United States as a rival and contending government which sought unsuccessfully to become, as to the South, the "suc- cessor" of the United States. The defeat of such a rival government did not amount to the overthrow or absorption of an existing "state" in the international sense. As to the principle of state-continuity, it was preserved in the fact that the United States was not supplanted in its control over the South. CHAPTER XI LEGAL AND CONSTITUTIONAL BEARINGS OF CONSCRIPTION I. American tradition and American law regarding conscription in 1861 II. Conscription by presidential regulation and through State authority in 1862 III. Conscription Law of 1863 IV. Discretionary power of the President V. Military custody over drafted men VI. Use of State militia for suppressing draft troubles VII. The conscientious objector VIII. Liability of aliens under the draft IX. Constitutionality of the Conscription Acts English and American tradition has long opposed mili- tary conscription. Back of this opposition there is a mental attitude which has been bluntly characterized as the Briton's insistence on the right to "do what he likes, . . . march where he likes, meet where he likes, . . . hoot as he likes, threaten as he likes, smash as he likes," ^ but it may perhaps be more favorably viewed ^Matthew Arnold, in "Culture and Anarchy." (Arnold, Works [Mac- millan, London, 1903], VI, 50.) In the first Agreement of the People, 1647, a paragraph was devoted to the subject of conscription, which was declared to be outside the powers of Parliament, being "reserved by the represented to themselves." The second paragraph of the Agree- ment reads as follows: "That the matter of impressing and constrain- ing any of us to serve in the wars is against our freedom; and there- fore we do not allow it in our Representatives; the rather, because money (the sinews of war), being always at their disposal, they can never want numbers of men apt enough to engage in any just cause." (T. C. Pease, The Leveller Afovement: A Study in the History and Political Theory of the English Great Civil War, p. 208.) 239 240 CONSTITUTIONAL PROBLEMS UNDER LINCOLN as a manifestation of the Anglo-Saxon's sense of the sanctity of the individual, his repugnance to outside coercion, and his preference for the inner compulsion of patriotism as a motive for military service. Michelet referred to the French as "a nation of bar- barians civilized by the conscription, "^ suggesting by this exaggerated phrase the idea that a conception of national duty and a habit of discipline have been in- culcated through military service; but for centuries, until recent times, the typical Anglo-Saxon resisted the claims of compulsory service under arms. It was with diffi- culty that conscription was adopted in England a year and a half after the opening of World War I; and even then the exclusion of Ireland indicated that the Government preferred not to carry the principle to its logical extreme, while the violent opposition to com- pulsory service in Canada and the decision of the great Australian commonwealth to rely wholly upon volun- teering, emphasized the well-known British tradition. The Selective Service Act of 1917 in the United States stands out as a surprising triumph of the Wilson ad- ministration, and as the first example in American history in which the policy of universal military service proved truly successful. Prior to the Civil War conscription had never been applied by the national law. During the Revolution some of the States filled their Continental quotas by means of the draft,' and a conscription law was considered ''Quoted by Matthew Arnold, op. cit., VI, 49. Arnold adds that during the Crimean War the manager of the Clay Cross Works in Derbyshire informed him "that sooner than submit to a conscription, the population of that district would flock to the mines and lead a sort of Robin Hood life underground." See also, for general comment on this subject, The Independent, Jan. 18, 1915. 'In North Carolina, for instance, there was passed in May, 1778, "An Act for Raising Men to Complete the Continental Battalions belong- ing to this State" which provided that the Continental quota for the CONSCRIPTION 241 during the War of 1812; but the opposition of New England and the failure of the two houses of Congress to agree caused the abandonment of the measure. For the Mexican War the army was fully recruited by vol- untary enlistment. When the Civil War broke out, three forms of mili- tary organization had become definitely established by law and precedent: the regular army, the "volunteers," and the State militia. (1) The regular army, recruited by voluntary enlistment, had been kept within narrow bounds as a small, though highly efficient, peace estab- lishment. In the spring of 1861, after many Southerners had withdrawn, it numbered about 13,000 men. This might be called the normal Federal army. (2) In case of war, the recognized method of expanding the na- tional forces was through a system of volunteering for limited periods of service. In contrast to the regular army, which consisted of professional soldiers, these vol- unteers were merely citizens coming to their country's defense in time of need and expecting to return to civil life after the need had passed. (3) The third branch, the militia, deserves more particular attention in con- nection with the subject matter of this chapter. In keeping with that peculiar federal system which char- acterizes the American republic, the militia was at once a State and a Federal organization. The militia forces were created by State law; their officers were appointed under State authority; and their services were at the command of the State governor. But the "State militia" was at the same time the State should be raised from the various mlHtia companies by first making a call for volunteers, for whom a liberal bounty was offered; and, if the required number was not raised by this means, the companies were to ballot for the rest, and the men so chosen were compelled to go or provide substitutes. (JV. C. Colonial Records XIII, 411.) 242 coNsirrirnoNAi, problems under i.incoln "uniform militia," and constituted a definite part of the national system of defense. Its organization and discipline were prescribed by Congress; the arms were supplied by the Federal Government; and the Presi- dent had the constitutional authority to call them out for national purposes. The militia might be described as a reserve force under State control, but invested with a national character and available for extraordinary na- tional uses. A series of Federal laws had been passed with the intention of making the militia a really effective agency of the Federal Government. The first of these laws was that of May 8, 1792, which provided (indirectly) for the enrollment of "every free able-bodied white male citizen of the respective States"^ between the ages of eighteen and forty-five, and then proceeded to indicate a plan of organization (which the State legislatures were to carry into effect) and to prescribe the rules of discipline to be observed. Another act of 1792,'* superseded in 1795,^ carried important provisions for calling forth the militia for those distinctly Federal pur- poses which the Constitution contemplated: executing the laws of the Union, suppressing insurrections, and repelling invasions. This act provided that, whenever the laws of the United States should be opposed in any State by "combinations too powerful to be sup- pressed by the ordinary course of judicial proceedings," the President might use the State militia to put down .such combinations. Other laws had been passed^ which indicate that it was the intention of Congress to make *U. S. Slat, at Large, I, 271. (A constitutional definition of Federal citizenship did not then exist.) ''Ibid., I, 264. *Ibid., I, 424. Ubid., I, 119, 403, 522, 576; II, 207. CONSCRIPTION 243 the militia an actual, and not merely a nominal, part of the national forces. An examination of these laws will present two con- siderations giving the militia a special significance in 1861. In the first place, it will be noticed that the emergency, as interpreted by the Lincoln administra- tion, was precisely that for which the use of militia had been expressly authorized. To execute the laws, to sup- press an insurrection, to put down combinations too powerful for judicial methods — these were the purposes for which the Government needed troops. In the sec- ond place, the militia was a universal organization, comprising (roughly) all white males of military age. Why, then, did not the Government use the militia — an instrument already existing under the law — as the means of expanding the army, instead of calling for vol- unteers and later resorting to conscription? In part, of course, the answer is that the militia was used. The first appeal for troops, President Lincoln's proclama- tion of April 15, 1861, called for 75,000 "militia," and the wording of the proclamation conformed to the militia law of 1795 under whose authority the call was made.* Approximately 80,000 troops were raised under this call.^ In prosecuting a serious war of large proportions, however, the militia system proved inadequate. The fact was that the "militia of the United States" had hardly more than a paper existence in 1861. The actual organization under the uniform law of Congress had been ^U. S. Stat, at Large, XII, 1258. In Lincoln's message to the special session of Congress, July 4, 1861, he referred to all three branches of the military service. "At first," he said, "a call was made for 75,000 militia. . . . Other calls were made for volunteers to serve three years . . . , and also for large additions to the Regular Army." (Richardson, Messages . . . of the Presidents, VI, 24.) 'Report of the Secretary of War, July 1, 1861: Sen. Ex. Doc. No. 1, 37 Cong., 1 sess., p. 21. 244 CONSTITUTIONAL PROBLEMS UNDER LINCOLN left to the States, and they had neglected in many cases to make the miUtia a living, effective force. The pro- vision for giving the State governors the appointing of officers was unsatisfactory from the national standpoint, while the three months' limitation offered a further difBculty. In the second call for troops, that of May 3, 1861,>*' the militia was not asked for, but the President re- quested volunteers for three years together with addi- tions to the regular army and navy. The President ad- mitted that this call was made without authority of law,^' in the expectation of later ratification by Con- gress. This ratification was cheerfully given'^ and from this time on, the volunteers made up the major part of the forces which sustained the Union. II It might have been supposed that the transition from the militia system to the volunteering system, which was thus made so early by the Lincoln administration, would have eclipsed the militia once for all as a Fed- eral instrument for conducting the war. This, how- ever, was not the case. On July 17, 1862, Congress passed a halting and poorly devised measure which proved to be the basis for conscription as first used during the Civil War.'^ This law "amended" the stat- ute of February 25, 1795, and provided that whenever the President should call the militia into Federal serv- ice he might specify the period of such service (not to •"Nicolay and Hay, Works, VI, 263. "Message to Congress, July 4, 1861: Nicolay and Hay, Works, VI, 308. ^^Sufira, p. 55. "The "Militia Act of 1862" seems the best designation for this measure: U S. Stat, at Large, XII, 597. CONSCRIPTION 245 exceed nine months) and might issue rules to cover defects in State laws to provide for enrolling the militia and putting the act into execution. All male citizens between the ages of eighteen and forty-five were in- cluded, and the apportionment among the States was to be according to population. Volunteers for this service were to be accepted and rewarded with bounties. On August 4, 1862, this act was applied when President Lincoln ordered a "draft" of 300,000 militia, with quotas assigned to the States.'^ It is interesting as a matter of legal history to ponder the method by which conscription was authorized in 1862. The law of that year did not expressly provide conscription. Compulsory service could be read into the act in only two ways: first, the President's authority to issue regulations could be (and, in fact, was) con- strued to include the power of ordering a draft; and second, the provision that the militia "shall include all male citizens between the ages of eighteen and forty- five" involved universal military liability. This latter provision, however (at least as far as white citizens were concerned), was included in the Act of 1792 and had long been a part of established law. So far as the militia was concerned, the nominal principle of univer- sal liability already existed, and Congress was merely taking advantage of this fact. It was applying con- scription by the line of least resistance. As the national legislature was not ready for a drastic and thorough conscription law, it merely employed the inefficient militia system, instead of creating a purely national army; and, instead of providing a nation-wide method of conscription, reliance was placed upon State laws ^*0. R., Ser. Ill, Vol. 2, p. 291. A statement of the method indi- cated in executive orders for the application of conscription under the Militia Act of 1862 is given below, pp. 252-253. 246 CONSTITUTIONAL PROBLEMS UNDER LINCOLN which were to be supplemented by presidential regu- lations. When carried into actual practice, the Militia Act of 1862 developed all the defects that were to be ex- pected from such a measure. Where the States had their own systems for enrolling and drafting the militia, as was usually not the case, these systems were to be employed; but any deficiencies in State law or practice were to be made up by executive regulations from Washington. The system actually in use in any State, then, might have rested on State law, on plans made by the governor, or upon instructions issued by the War Department. In the correspondence on the subject be- tween Governor Morton of Indiana and Secretary Stan- ton, it appears that in the absence of any State law on the subject Governor Morton devised a complete scheme for enforcing the act, and afterward received "Order No. 99" from Washington, containing conflicting regula- tions. He was, however, informed by Stanton that the order from Washington was designed only as a guide where no system existed, and that, as Morton's plan was particularly adapted to the local needs, it was to be followed instead of the executive order. '^ In a military sense this law of 1862 stands condemned because of its inefficiency. Viewed from the constitu- tional standpoint it is chiefly significant as an applica- '^Morton's plan involved the appointment of a commissioner in each county and a deputy commissioner in each township, the actual prepara- tion of the lists to be in the hands of the township officials. The de- cision to appoint special commissioners instead of relying upon county sheriffs was due to the unreliability of many of the latter, for in Indiana disaffection was a serious menace. The county and township officers together were to act as boards for determining exemptions and the actual draft was to be supervised by the county commissioners. On October 6, 1862, a draft was conducted in Indiana on this basis. (Foulke, Life oj Oliver P. Morton, I, 198; W. H. H. Terrell, Report of the Adjutant General oj Indiana I, 40 et seq.) CONSCRIPTION 247 tion of conscription on a large scale by the very mini- mum of statutory provision. In other words, the act demonstrated how little had to be done in American law in 1862 to produce at least one form of conscrip- tion — that is, the liability attaching to the "militia." ^^ It was a conscription law without a conscription clause. The all-inclusiveness of the militia was the essential prin- ciple upon which the law rested, and that principle had existed from the time of Washington's presidency. The law was a transitional step in the direction of more complete national conscription and, as we shall see, it gave rise to difficulties in the courts.*' The insufficiency of this half-way measure indicates that Congress had not yet arrived at an attitude of assurance and deter- mination in the matter of compulsory service. Ill The drastic act of March 3, 1863, was of quite a dif- ferent sort.** It specifically provided universal liability for service in the national army, no reference being made to the militia, and established complete Federal ma- ^'The nature and purpose of the Militia Act of 1862 may be inferred from tlie following statement of Senator Wilson of Massachusetts at the time of its consideration: "This bill contemplates drafting from the body of the militia of the country a force sufficient to support the country. [It] contemplates calling out the militia in case we fail to obtain the number of men required by the present system of volun- teering. It provides that the President, if he calls the militia, shall not be limited to the time specified in existing laws, but may fix the time." (Cong. Globe, 37 Cong., 2 sess., p. 3202.) This law, says General Emory Upton, "reads like a chapter from the Journals of the Continental Congress during the darkest days of the Revolution," and he adds that in passing the measure Congress was returning to the •'impotent and extravagant" policy which had led in the past to serious military disaster. Commenting in general on the military leg- islation of 1862, he remarks that Congress "exercised the power to support armies, but the power to raise them it conferred on the gov- ernors." (Upton, Military Policy oj the United States, 434, 436.) ^Unjra, pp. 252-256. >8f/. 5. Stat, at Large, XII, 731. 248 CONSTITUTIONAL PROBLEMS UNDER LINCOLN chinery of administration. All able-bodied male citi- zens between twenty and forty-five, and foreigners who had declared their intention to become citizens, were "to constitute the national forces," and were declared liable to military service. Exemptions were carefully defined and married men were placed in a class that would be subject to call only after the unmarried had been taken. For the enforcement of the act the coun- try was to be divided into enrollment districts, in each of which a Federal provost marshal and a Federal board of enrollment were to be established. The dis- tricts were subdivided for enrollment purposes and local enrolling officers were to make full lists of eligible citi- zens. Men so enrolled were subject "to be called into the military service of the United States" during the continuance of the "rebellion," but in no case was their service to exceed three years. Conscripts were to have the same advance pay and the same Federal bounties as three-year volunteers. In conducting the draft, offi- cers were to take into consideration the number already enlisted, so as to equalize the contributions of men from the various States. Those drafted might be excused either by furnishing substitutes or paying S300 com- mutation money, 18 both of which practices had been allowed in the old militia systems. If any person should fail to respond to notice he was to be deemed a de- serter, arrested and tried by court-martial. For en- couraging or harboring deserters or for obstructing the draft, fines and imprisonments were imposed. Though the method followed was unnecessarily la- borious, the work had been so far completed that the first draft under the new law was made in July, 1863. "In a supplemental conscription act of July 4, 1864, this provision for exemption by the payment of commutation money was dropped: U. S. Stat, at Large, XIII, 379. CONSCRIPTION 249 Hundreds of enrolling officers collected the names, which were corrected and amplified by consulting polling lists, assessment books, pay-rolls, and the like. These names were turned over to the headquarters of the enrollment bureaus, which then proceeded to the work of reducing the lists to those actually subject to call, eliminating all who were disqualified, or were entitled to exemp- tion. The number of men called for at the time of each draft was apportioned among the States according to population, and in filling these quotas credit was given for volunteers. A considerable interval was usually allowed between the time of the call and the final date for completing the quota, and during this interval volunteering was actively stimulated with the object of supplying the required number without compulsion if possible. One community vied with another to make the best show- ing, and this swelling of the number of volunteers was one of the important indirect effects of the draft. Everywhere throughout the country local political units incurred heavy debts in order to pay bounties for vol- unteers and thus reduce the number of men to be drafted. 20 In the State of New Jersey there were more than one hundred laws passed at one session of the leg- islature authorizing various districts to incur obliga- tions for this purpose, and laws of a similar sort were passed in other States. ^i Incidentally this bounty sys- ^''The bounty problem, together with other matters pertaining to con- scription, was ably and wittily presented by Fred A. Shannon in a paper entitled "Conscription and the Bounty Problem," read at the meeting of the American Historical Association at Ann Arbor, Michi- gan, December, 1925. "31 Af. J. Law Reps. 193; Booth vs. Town of Woodbury, 32 Conn. 118; Speer vs. School Directors ... of Blairsville, 50 Pa. St. Reps. 150; Taylor vs. Thompson et al., 42 III. 9; Ferguson vs. Landram, 64 Ky. 548; Laws of Delaware, 1861-65, Ch. 462; Local and Private Acts of Ky., 1865., Chs. 610, 648. 250 CONSJ'ITUTIONAL PROBLEMS UNDER LINCOLN tem proved to be most unfortunate, because the mer- cenary motive was hardly the proper incentive for vol- unteering and the resources of the people were drained for an unessential expenditure. The system raised the price of substitutes, and also encouraged the vile prac- tice of deserting to obtain bounties on re-enlistment. Enlistment was actually retarded to a certain extent by the bounty system; for in those districts where the bounties were low, enlistments would fall off, and in any case where there seemed a prospect of an increase in the amount of the bounty, men who were enlisting for that motive would wait till they could command a higher price. When the time came for drafting, the names of all cligibles were placed on cards and then drawn from a wheel by blindfolded officers, this part of the procedure being conducted in as public a manner as possible. Men thus drafted were given notice, and a period of time was allowed during which they could establish exeinp- tion, provide substitutes or pay commutation money. Those who did not escape by any of these methods would be served with a notice from the provost marshal di- recting them to appear at a specified rendezvous at a certain time. It was at this point that military control over the men began. The difficult conditions under which the Conscription Act was administered are matters of familiar history. In many districts, where passion had been aroused to a high pitch by the war, and where disloyalty was loudly proclaimed in the newspapers, it was hard to get officers to face the personal dangers which threatened any who were connected with the draft. To prevent the re- enforcement of the armies great numbers of disaffected citizens paid the commutation money or adopted less justifiable methods of evasion, such as misrepresenting CONSCRIPTION 251 their age, feigning sickness, pretending imbecility, or departing for Canada. Firms existed for the purpose of establishing physical or mental disability, an experi- enced attorney and an "elastic" country doctor being all that was needed to supply the required affidavits. Plots of secret societies and outspoken opposition on the part of "peace advocates" and other disaffected men proved extremely irritating to the Government and offered continual temptation to the use of despotic meas- ures. As to actual mob violence, this was not particu- larly alarming in itself; since it was always strictly local, and broke down on the first appearance of troops. It was only where such violence coincided with a sympa- thetic attitude on the part of the civil authorities that the situation boded serious trouble. In the case of the draft riot in New York in July, 1863, the most alarming feature in the situation was not the overpowering of the police and the provost marshal's guard by the mob.-^ It was rather the friendly attitude of Governor Seymour toward the rioters and his declaration that he would use his influence to have the draft suspended. Else- where, as in Indiana, Ohio, and Wisconsin, ^^ forcible 2'For the draft riot in New York, see Nicolay and Hay, Lincoln, VII, 32-57; Rhodes, History oj the United States, IV, 320 et seq.; Horace Greeley, American Conflict, II, 501 et seq. ^'The correspondence of Governor Morton (among the State ar- chives at Indianapolis) and the life of Morton by W. D. Foulke con- tain important information concerning military affairs in Indiana. The best published source on this subject is W. H. H. Terrell, Report oJ the Adjutant General of Indiana. Similar information for Wisconsin is to be found among the governors' letter books, preserved by the Wisconsin Historical Society at Madison. The facts in Druecker vs. Salomon, 21 Wis. 628, reveal circumstances connected with draft riots. Concern- ing disturbances in Ohio, see O. R., Ser. I, Vol. 23, pt. 1, pp. 395- 397. There was trouble in various other States. Halleck addressed Grant concerning the withdrawal of troops from the field to cope with resistance to the draft in disaffected districts. (Halleck to Grant, Aug. 11, 1864, 0. R., Ser. I, Vol. 42, pt. 2, p. 11 1 .) Grant replied oppos- ing such a use of his forces. {Ibid., p. 193.) 252 CONSTITUTIONAL PROBLEMS UNDER LINCOLN resistance to the draft found similar approval on tlie part of the local authorities, and Federal troops had to be sent to the scenes of trouble in order to clear the atmosphere. All of these conditions need to be borne in mind in studying the legal aspects of the draft, for sometimes the antagonistic attitude of certain State judges toward the Conscription Act was merely a part of the many-sided campaign of obstruction which this measure encountered in regions where the Union cause or the Lincoln administration was unpopular. ^^ IV As was naturally to be expected, conscription pro- duced many legal perplexities. Satisfactory judicial precedents were lacking and many unforeseen problems of interpretation arose. The President's wide discre- tionary power under the acts was contested; habeas corpus proceedings were interposed to release drafted men; the right to employ the militia in suppressing draft troubles was controverted; the liability of aliens was debated; and the constitutionality of the conscription acts was in many quarters disputed. Often the cases under this head touched other questions than the draft, such as military control over civilians, conflicts of State and Federal authority, the nature of the war powers, and the legality of executive procedure during the war. On the subject of executive discretion most of the controversy centered around the act of 1862, which, as we have seen, left many iinportant details of execu- tion to the President and the State governors. The regulations which the War Department issued upon the authority of the President, in accordance with the *^For a comprehensive official account of the enforcement of the Con- scription Act, see historical report of the Operations of the Enroll- ment Branch, Provost Marshal General's Bureau, Washington, D. C, Mar. 17, 1866: O. R., Ser. Ill, Vol. 5, pp. 712 et seq. CONSCRIPTION 253 act, named the quotas of the States and called upon the governors to fill these quotas either according to State law or by following a specified method contained in the regulations. According to this method, enrollment lists were to be filed with the sheriffs, and the gov- ernors of the States were to appoint commissioners for the counties, whose duty it was to hear proofs of ex- emption, grant excuses, conduct the draft, and accept substitutes; while provost marshals in the States, ap- pointed by the War Department on nomination of the governors, were to put down disturbances, enforce attendance at rendezvous, keep the men in custody and perform similar functions.-^ The validity of these orders under the President's au- thority, involving that of the governors' acts in accord- ance therewith, was in various cases presented for ju- dicial determination. It was argued in a Wisconsin case that, in view of the division of our Government into three branches, the creation of such a large field of executive discretion in a matter of such high im- portance as conscription amounted to a delegation of legislative power to the President, and that for this reason the Militia Act of 1862 was unconstitutional. The State court held otherwise and pointed to the dis- tinction between "those important subjects which must be entirely regulated by the legislature itself, and those of less interest in which a general provision may be made and power given to those who are to act under such general provision to fill up detail." When the militia were once called forth [said the court], it was a matter of no vital importance how they should be detached and drafted. Congress indicated an intention of '"General Orders, War Department, Nos. 94, 99, Aug. 4 and Aug. 9, 1862: O. R., Ser. Ill, Vol. 2, pp. 291, 333-335. 254 CONSTITUTIONAL PROBLEMS UNDER LINCOLN adopting the State laws upon the subject, as far as they were apphcable. When they were not appUcablc, or none existed, the President was authorized to make proper rules and regula- tions for enrolling the militia and drafting them. And this no more partakes of legislative power than that discretionary authority intrusted to every department of the Government in a variety of cases. This practice of giving discretionary power to other departments or agencies who were intrusted with the duty of carrying into efTect some general provisions of law, had its origin at the adoption of the Constitution, and in the action of the first Congress under it. . . . It was un- doubtedly in strict conformity to the views entertained by the great statesmen of that day.^^ In order to appreciate the extent and meaning of the court's doctrine in this case, one must remember that the act of 1862 not only failed to cover details but it did not even specifically provide for a draft. The act referred to "enrolling" and "calling forth" the militia; but the drafting, or the use of compulsion, was deducible from the law only by inference. Nor can one find in the Militia Act of 1795, of which the act of 1862 was an amendment, any provision for a "draft" of the militia. The Federal statutes contained, in 1862, no specific provision for a draft. Notwithstanding this, Federal drafts were conducted in various States in that year. 2^ Even where the draft of this year was conducted upon State authority, this was done under the Presi- dent's order. It is therefore apparent that the first draft for the raising of Federal troops ever conducted in our history under the Constitution was a presidential «/n re Griner, 16 Wis. 447, 458. *^For an account of the draft of November, 1862, in Wisconsin, which occasioned serious trouble, see Sen. Mis. Doc. Mo. 77, 38 Cong., 1 sess. (This draft was made not in pursuance of State law, but under regu- lations issued by the War Department.) CONSCRIPTION 255 draft. It was instituted by rules and regulations which the President promulgated through the War Depart- ment upon authority derived only inferentially from an act of Congress. This was a truly remarkable exten- sion of executive power in a democratic state, and the legality of the draft of 1862 was a matter of grave question in the minds of many thoughtful men. The same question of executive discretion under the draft law came up in a later Wisconsin case — that of Druecker vs. Salomon,^^ the specific point at issue being the governor's power to make arrests to suppress a draft riot. Again the discretionary power of the President was upheld. The well-known cases of Martin vs. Mott^^ and Luther vs. Borden^° were cited to illustrate the dis- cretionary authority lodged with the executive and to show that the President is the exclusive judge of the existence of an insurrection and of the necessity of calling out the militia. A distinction was drawn between discretionary and ministerial acts. In the case of the former, the determination on the part of the executive is final. Such a power is to be exercised only by the executive and there is no chance for judicial examina- tion or review. In the latter the executive is limited to a given line of conduct and must not misuse his au- thority. In the case in hand, the governor's order for the arrest was within the proper field of executive dis- cretion, the governor being clothed with the discretionary power of the President pro hac vice. On this ground the court held that the governor's acts must be regarded in a certain sense as the acts of the President, adding that, though such power was "dangerous to liberty," it was "absolutely necessary to every free government." 2«21 Wis. 628. »12 Wheaton 19. »7 How. 1. 256 CONSTITUTIONAL PROBLEMS UNDER LINCOLN In McCall's case, which arose in a Federal district court in Pennsylvania, the delegation of the regulating power to the President in matters touching the draft was sustained; and the President's right to act through the Secretary of War, governors, and commissioners was also upheld. The court said: Of course, Congress cannot constitutionally delegate to the President legislative powers. But it may in conferring powers constitutionally exercisable by him prescribe . . special rules of their administration; or may authorize him to make the rules. . . . When . . . Congress, in conferring a power . . . not only omits to prescribe regulations of its exercise, but, as in the present case, expressly authorizes him to make them, he may, . . consistently with the legislative purpose de- clared, make any such regulations ... as Congress might have specially prescribed.^' V Conscription necessarily involved custody over drafted men not in active military service, and this proved a troublesome issue which frequently found its way into the courts in various forms. If there appeared any defect in the military claim to any person held by the provost marshal, injunction or habeas corpus proceed- ings were likely to be instituted to obtain that person's discharge; and in this way the legality of this military custody was subjected to judicial inquiry. The issue became seriously complicated in cases where proceed- ings for discharge were brought in the State courts, for this would result in holding Federal officers account- able to State tribunals. Though such jurisdiction on the part of State courts was defeated, it was vigorously claimed, and presented an irritating source of friction. Usually and regularly, however, proceedings looking to release from custody were brought in the lower Fed- "15 Fed. Cas. 1230. CONSCRIPTION 257 eral courts, and they commonly arose from habeas corpus petitions. '2 \\_ rnay be said that provost mar- shals everywhere had to defend before the civil tri- bunals their control over men whom they claimed to hold under the draft, and that the Federal courts were at all times open to petitioners who felt they had a case justifying discharge. The fundamental fact of the provost marshal's cus- tody and of the Federal court's jurisdiction in the matter of release was treated in the case of Daniel Irons, which arose in the circuit court of the northern district of New York in September, 1863.^^ In this case the court held that a drafted person remains in the custody of the provost marshal from the time of his report for duty till the time of his discharge, and that a Federal court may decree the discharge through habeas corpus proceedings. The exact time when the military cus- tody began was the hour at which the drafted man was required to report to the provost marshal as indicated in the notice sent to him, and this control could be legally exercised whether the man actually appeared or not. Thus military control as a legal fact was in- dependent of actual possession of the men involved. It was claimed that under the act of 1862 a drafted militiaman had the option to appear at rendezvous or pay a fine. The courts denied this claim, however, and the President's orders which gave provost marshals the power to force attendance at rendezvous were upheld.'^ It sometimes happened that State governors were re- "When examining the files and dockets of the Federal district court at Cleveland, Ohio, the writer found numerous habeas corpus hearings in the war years by means of which men under military authority were released. Many of these were minors who enlisted without their parents' consent. "13 Fed. Cas. 98. "Case, 2 Wendt's Pittsburgh Reports 402. 258 CONSTITUTIONAL PROBLEMS UNDER LINCOLN quested to release men who had been taken under the conscription law. When Governor Morton of Indiana received such a request from the wife of a drafted man he informed her that soldiers in the service of the United States were beyond the control of the governor, and that the Secretary of War alone could discharge them.'* His statement would have been more accurate if he had said that the matter of discharge lay with the War Department or with the Federal courts. It followed as a necessary corollary of the military control over drafted men that those who failed to report became deserters. This uncomfortable status applying to men never mustered into the service aroused wide- spread opposition, but the legal principle was perfectly clear and was supported by incontestable precedents. So early an opinion as that of Justice Bushrod Washing- ton in the case of Houston vs. Moore, heard by the Supreme Court in 1820, authoritatively disposed of the question by declaring men to be in military service from the time of rendezvous. '* In the act of 1863 this question was not left to ju- dicial interpretation, but the law specified that any drafted person failing to respond to notice was to be deemed a deserter, and sent to the nearest military post for trial and punishment. This harsh, though logical, '^Letter of Governor Morton to a lady in Blackford County, No- vember 26, 1864: Morton Correspondence, MSS., Indiana State Library. ^'This was a case brought up for review from the Pennsylvania Supreme Court to the Supreme Court of the United States, and it involved the constitutionality of a Pennsylvania law providing that a State court-martial could discipline militia delinquents when called into Federal service. While admitting that a State legislature could not fix penalties against militiamen when Congress had acted for this purpose, the court held that power could be conferred by State law upon State courts-martial to enforce Federal law upon delinquents in the militia. The delinquency in this case consisted in failure to join the militia at the time and place of rendezvous. (18 U. S. 1.) CONSCRIPTION 259 provision proved a source of considerable difficulty, and in some cases arguments which went so far as to deny the constitutionality of the Conscription Act seem to have been prompted by a desire to save drafted boys from the penalties of "desertion," In one of the prominent cases a State judge denied that Congress had the right to have provost marshals treat freemen as deserters directly after serving notice upon them. To bring the militia into "actual service," he argued, there must be obedience to the call and some act of organization, mustering, rendezvous or marching done in pursuance of the national appeal. As a practical matter it is hard to see how conscription could have been made effective on any such basis; for, if these limitations had been observed, the filling up of the army would have rested upon a process quite as voluntary as that of enlistment, and the only compul- sion permitted by the National Government would have been such as applies equally to enlisted and drafted men. It is significant that the judge who argued so was opposed to national conscription in toto and could see no way by which such conscription could be legally accomplished." VI Another source of difficulty was the use of the militia for suppressing draft troubles. There were various com- munities in which the provisions of the draft could be executed only by the use of force. Troops were needed not only to put down riots but to protect officers en- gaged in conducting the enrollment, drawing the names, serving notices and guarding men on their way to and from rendezvous. The National Government was fre- ^^This was the case of Kncedler vs. Lane, 45 Pa. 238. 260 CONSTITUTIONAL PROBl-EMS UNDER I-INCOLN quently called upon to supply these troops; but Union commanders strenuously opposed withdrawing forces from the field for this purpose, and State governors were expected to do all in their power to inaintain the orderly operation of the draft without asking for Fed- eral assistance. As a consequence the State militia was called upon for this disagreeable duty. An example of this occurred in connection with the draft disturbances in Ozaukee County, Wisconsin, in December, 1 862, where a mob attacked the commissioner with guns, clubs, and stones so that intervention by the State militia became necessary. A militia captain complained of such serv- ice, but the Wisconsin governor took the ground that the militiamen were liable for such duty and should re- spond where needed,-^^ VII The inevitable question of exemption because of con- scientious scruples arose, as it is sure to do in all cases where compulsory military service is adopted. In the Militia Act of 1862 there was no clause covering the subject and the granting of such exemption seems to have been left largely to the discretion of the State governors through whom, as we have seen, the law was enforced. The working rule in Indiana, as drafted by Governor Morton and approved by the War Depart- ment, was that no sweeping exemption on this ground should be permitted, but that ministers in actual charge of pastoral duties should be excused from service.'" "Governor Salomon to Lincoln, Dec. 1, 1862; Same to Commander of Ozaukee Guards, Jan. 17, 1863; Governors' Correspondence, MSS., Wisconsin State Historical Library. '^Governor Morton to Secretary Stanton, August 30, 1862: Morton Correspondence (MSS., Indiana State Library.) By agreement between the Indiana Friends and Governor Morton, a plan was devised in CONSCRIPTION 261 The law of 1863 enumerated exhaustively the condi- tions of exemption, but made no provision for the con- scientious objector. Not even ministers were exempt. The result was that Quakers and others whose beliefs forbade warlike effort of any sort were placed in a very difficult position. There is evidence of real suffering on the part of some who rigidly adhered to their conscientious scruples. A most remarkable case was that of one Pringle,^" a Vermont Quaker whose piety was so deep and whose objections to war so pronounced that when he was drafted in the summer of 1863 he not only flatly re- fused to violate the Scriptures by serving himself, but was too conscientious to hire a substitute, thus tempt- ing a fellow being to sin. Neither would he pay com- mutation money. ^^ It was a case of Pringle versus the United States. He was hustled by force into a car with other conscripts and carried to a camp of rendezvous near Boston. Being assigned to fatigue duty, he re- fused, and stood his ground like a martyr. No amount of bullying or argument could shake him, since in fact he stood ready to die rather than conform to military discipline. In consequence of this remarkable stand he was thrust into the guardhouse along with vile and desperate men. An attempt to induce him to be trans- accordance with which many Quakers paid the sum of $200 each for exemption in 1862, but this was found to be without authority of law, and the money was refunded. (Foulke, Life of Oliver P. Morton, I, 199.) *°Cyrus G. Pringle, Record oj a Quaker Conscience (N. Y. Mac- millan, 1918); "The United States versus Pringle," Atlantic Monthly, Vol. Ill, pp. 145-162 (Feb., 1913). '^Quaker principles during the war were interpreted by the official bodies of that denomination as opposed to the payment of commutation money. Many individual Quakers, however, adopted this plan of avoiding service and were leniently treated by their brethren. (R. M. Jones, Later Periods oj Quakerism, II, 729-730.) 262 CONSTITUTIONAL PROBLEMS UNDER LINCOLN ferred to hospital service and later to the work of the bureau for colored refugees in the South was without avail. He would not "purchase life at the cost of peace of soul." When the conscripts were carried to Alexandria, Vir- ginia, to be equipped, Pringle refused to receive a gun. In the hurried excitement of equipping a regiment his arguments were wasted on the petty officers to whom they were directed, and the equipment, including the gun, was forcibly buckled on him. He was gagged for refusal to clean his gun; but, in general, this inflexible, serene Quaker was not seriously mistreated by the of- ficers who had to deal with him. Finally the problem was referred to Lincoln himself, who disposed of the matter by directing that the man be sent home. ^^ So Pringle won his case. The trials of such as Pringle finally claimed the at- tention of Congress and the question of modifying the law in their favor was debated in January, 1864.^' It developed in the debate that the clergy had made no strenuous objection to their lack of exemption. There had been some petitions for the relief of ministers from military service, but this represented only a small frac- tion of the clergy of the country. On the other hand, many of the clergy had expressed gratitude to Congress for requiring them to perform military duty, and had congratulated themselves on this recognition of their manhood. The suggestion to exempt ministers struck a snag in the Senate when it was shown that in the wealthy ^^Lincoln's sympathy for the Quakers was often shown, and his letter to Mrs. Gurney, widow of a distinguished Quaker minister, is a classic. (Nicolay and Hay, Lincoln, VI, 326 et seq.; R. M. Jones, Later Periods of Quakerism, II, 736; F. G. Cartland, Southern Heroes, or the Friends in War Time, 137.) *^Cong. Globe, 38 Cong., 1 sess., pp. 204 */ seq. CONSCRIPTION 263 Amana Society (numerous in Erie County, New York) every member was a minister ! * * As the lawmakers sought some consistent basis on which to oflfer reHef to conscientious objectors, the more serious phases of the question appeared. While piteous stories were told of the sufferings of this class of peo- ple — stories of moral heroism among humble men — yet, as Senator Anthony of Rhode Island pointed out, not one efficient soldier had been added to the army by the impressment of men conscientiously scrupulous against bearing arms.** Something, he said, should be conceded to a class of people that had consistently opposed slavery and had not been slaveholders even in slaveholding States. The importance of such considerations was conceded, and an act was passed, February 24, 1864, which af- forded a qualified exemption on religious grounds. ■** Members of religious denominations whose articles of faith opposed the bearing of arms were to be considered "non-combatants" when "drafted into the military serv- ice," and were to be assigned to duty in hospitals, or in the care of freedmen, or they were to pay $300 for the benefit of sick and wounded soldiers. Satisfactory evi- dence was required showing conduct consistent with their declaration of scruples. This half-way measure was ac- cepted as a well-meant concession by Congress, in spite of the fact that the alternative of non-combatant service already existed in practice as a matter of executive policy, and had been made available in a number of instances. *^ *mid., p. 207. *^Ibid., p. 204. *^U. S. Stat, at Large, XIII, 9, sec. 17. ^^An excellent study of both Northern and Southern conscientious objectors is to be found in The Treatment of Conscientious Objectors during the Civil War, by Gertrude Ady, an unpublished master's dis- 264 CONSTITUTIONAL PROBLEMS UNDER LINCOLN VIII A still more difficult question of exemption presented itself in the case of foreigners. It was generally con- ceded that the doctrine of inalienable allegiance was dead, and that expatriation was a recognized right. This principle, however, merely meant that those for- mer aliens whose change of allegiance had been com- pleted, and who were therefore citizens of the United States, were liable to military service. This did not go far enough. There were many thousands of for- eign settlers in the country who were to all intents and purposes Americans, having adopted the new land as their permanent home. These men had lived for years under the protection of our laws, and many of them had exercised political rights. Some of the newer States of the West made their laws particularly liberal in order to attract immigrants, and had admitted unnaturalized aliens to the voting privilege. In view of these facts it was very natural that the question of claiming the service of these foreign inhabitants should be raised. To raise the question, however, was to present both con- stitutional and international difficulties. The question whether non-citizens could be drafted into the army was a serious constitutional problem, and it was also a grave issue of international law as to whether one nation may impress for military duty the subjects of other nations residing within its borders. It was in Wisconsin that this question appeared in sertation prepared at the University of Illinois in 1922. Some of the books dealing with this subject are Rufus M. Jones, Later Periods of Quakerism; Ethan Foster, Conscript Quakers; Pringle, The Record of a Quaker Conscience (Macmillan, 1918); Memoir and Corresponderue of Eliza P. Gurney; Edward N. Wright, Conscientious Objectors in the Civil War; Margaret E. Hirst, The Quakers in Peace and War. CONSCRIPTION 265 its most acute form. The laws of that State permitted alien declarants to vote after one year's residence, and there had been a flood of German immigration into the State during the fifties. The foreign element of the State was so large that the exemption of those who were unnaturalized would have made it a real hard- ship for the State to raise its quota estimated on the basis of general population. The draft of 1862 was conducted in Wisconsin in accordance with Federal ex- ecutive regulations under the militia law which has already been discussed/^ and with regard to the Ger- mans a mass of correspondence passed between the gov- ernor and Secretary Seward at Washington. The first decision of policy in this matter was there- fore made by the Secretary of State. *^ Having given particular attention to the Wisconsin correspondence, and having sent a special messenger to confer with Gov- ernor Salomon, he announced in November, 1862, that all who had voted in the State should be held liable to the draft, regardless of alienage, and that doubtful cases should be referred to the Department of State, not that of War. Investigations were conducted for the State Department by local draft commissioners, and election records were searched for this purpose. On the other side the various consuls (e.g., the Consul of Wiirttemberg at Milwaukee) also took part in these in- vestigations. Since the consuls had been fully advised as to the necessity of making a declaration regarding voting, it was considered a "safe presumption" that the applicant had voted in those cases where there was **See above, pp. 252-253. *'The governors' letter books in the Wisconsin State Historical Li- brary at Madison (especially from November, 1862, to January, 1863) and the "domestic letters" of the Department of State at Washington form the chief bcisis for this part of the discussion. 266 CONSTlTUriONAI. PROBLEMS UNDER LINCOLN no statement bearing on that point. As the governor stated, there was also a strong presumption that aliens of more than six years' residence had voted, and the consuls so understood it. In all of the cases investi- gated, the application for exemption on the ground of alienage was denied where it was found that the applicant had exercised the franchise. Up to March, 1863, there had been no legislation by Congress covering the case of foreigners, but the Con- scription Act passed at that time was made to include "persons of foreign birth who shall have declared . . . their intention to become citizens."^" Doubts were ex- pressed at the time as to the wisdom as well as the constitutionality of this provision." The opponents of the measure argued that the United States has no right to compel aliens who have taken the preliminary oath to do military service, but that this right of compulsion applies only to citizens. Though they admitted the right of expatriation, they pointed out that the trans- fer of allegiance was not completed until the final oath had been taken. The United States could not, for in- stance, require an alien declarant to serve in war against his home country, and the right assumed in this pro- vision of the law amounted to that. That our Government should have made the declara- tion of intention to become an American citizen the basis for forcing aliens into military service seems the more remarkable when one examines the legal efiect of such declaration. So far as the privileges or rights of nationality are concerned, this legal effect is nil. It has been often held in our courts that "mere declara- tion of intention" does not confer citizenship. Such a *«f/. S. Stat, at Large, XII, 731, sec. 1. "For the debates on this subject, see Cong. Globe, 37 Cong., 3 sess., pp. 992, 1001, 1384; 38 Cong., 1 sess., pp. 228 et seq. CONSCRIPTION 267 declaration, for instance, does not entitle a man to a passport; and it has no international value in the event of the declarant returning to his native country. In other words this preliminary oath of declaration confers none of the rights of American citizenship; and yet in the Conscription Act it was made the basis of imposing the heaviest obligation of citizenship — namely, military service. ^^ The best justification for the provision, perhaps, was that some of the States conferred the voting privilege upon those who had made the declaration, and that such persons had become "State citizens." There was at this time, of course, no constitutional definition of United States citizenship; and the whole matter was in considerable confusion, owing to the principle announced in the Dred Scott case that citizenship in a State did not involve, in the full sense, citizenship in the United States. Yet, in spite of the fact that the constitutional defini- tion of United States citizenship had not been intro- duced, such citizenship was a distinct reality. In such things as the issuance of passports and the protection of our nationals abroad, citizenship in the United States was as real before the adoption of the Fourteenth Amend- ment as afterward. So far as former aliens were con- cerned, the case was covered entirely by the uniform naturalization laws of Congress, and this phase of the question was in no way aff"ected by State action. In its proper meaning the phrase "State citizenship" re- lated to matters within the competence of State govern- ments, certainly not to such a matter as the naturaliza- tion of aliens, in which international complications were sure to arise. One could hardly appeal to this "State citizenship," then, in justification of the national law »»Moorc, Digest of International Law, III, 336, 338, 343. 268 CONSTITUTIONAL PROBLEMS UNDER LINCOLN which imposed military service upon unnaturalized for- eigners. Having once adopted the principle that aliens could be liable to the draft, Congress took a further step in application of the principle. By the act of February 24, 1864, voting was made an absolute basis for mili- tary liability." According to this act, no foreigner was to be exempt "who [had] at any time assumed the rights of a citizen by voting" at any State, Federal, or territorial election. The fact of voting was to be con- clusive against any claim for exemption on the basis of alienage, and the same was true with regard to office- holding. This provision, as we have already seen, had originated with Secretary Seward, and had long existed as a matter of executive regulation. Here again the peculiar dual system characteristic of the American Government was manifest in the fact that the exercise of a right con- ferred by State law was made the basis of a Federal obligation. IX Were the conscription laws of the Civil War "constitu- tional"? It is now, of course, generally conceded that Congress has the power of conscription, but in the sixties this power was emphatically disputed." As the laws "f/. S. Stat, at Large, XIII, 9, sec. 18. '*In 1863 the famous editor of the New York Tribune wrote to Secre- tary of War Stanton: "It is folly to close our eyes to the signs of the times. The people have been educated to the idea of individual sov- ereignty, & the principle of conscription is repugnant to their feelings & cannot be carried out except at great peril to the free States. . . . The entire system must be changed. . . . Drafting is an anomaly in a free State; it oppresses the masses. Like imprisonment for debt . . . it must and will be reformed out of our system of political economy." (Horace Greeley to Stanton, June 12, 1863: Stanton Papers, No. 52634.) CONSCRIPTION 269 were never tested as to constitutionality before the Su- preme Court, the question must be discussed on the basis of prevaiHng legal opinion. In 1814 James Monroe, Secretary of War, presented to Congress a plan for increasing the army involving compulsory enrollment. Touching the constitutional question he said: The idea that the United States cannot raise a regular army in any other mode than by accepting the voluntary service of individuals is believed to be repugnant to the uniform con- struction of all grants of power. . . . An unqualified grant of power gives the means necessary to carry it into effect. . . . The commonwealth has a right to the service of all its citizens, or rather the citizens . . . have a right collectively and individually to the service of each other to repel any danger which may be menaced. The manner in which this service is to be apportioned among the citizens, and rendered by them, are objects of legislation. . . . The power of the United States over the militia has been limited, and for rais- ing regular armies granted without limitation.*^ In a paper that w^as not published during his life- time, Lincoln elaborated his view^s on the subject. ** He wrote: They tell us the law is unconstitutional. It is the first instance, I believe, in which the power of Congress to do a thing has ever been questioned in a case when the power is given by the Constitution in express terms. Whether a power can be implied when it is not expressed has often been the subject of controversy; but this is the first case in which the degree of effrontery has been ventured upon, of denying a power which is plainly and distinctly written down in the Constitution. . . . The case simply is, the Constitution pro- vides that the Congress shall have power to raise and support ".M7m' Weekly Register, VII, 138-139. **Nicolay and Hay, Lincoln, VII, 49-57. 270 CONSTITUTIONAL PROBLEMS UNDER LINCOLN armies; and by this act the Congress has exercised the power to raise and support armies. This is the whole of it. . . . The Constitution gives Congress the power, but it does not prescribe the mode or expressly declare who shall prescribe it. In such case Congress must prescribe the mode, or relinquish the power. There is no alternative. ... If the Constitution had prescribed a mode, Congress could and must follow that mode; but, as it is, the mode necessarily goes to Congress, with the power expressly given. The power is given fully, completely, unconditionally. It is not a power to raise armies if State authorities consent, nor if the men to compose the armies are entirely willing; but it is a power to raise and support armies . . . without an "if." These views indicate the convictions of the adminis- tration, while the passage of the act by substantial ma- jorities in both houses shows the preponderance of leg- islative opinion in its favor. " That Congress gave particular attention to the matter of constitutionality is shown by the debates and by the unusual preamble, in which the "duty" of the Government "under the Con- stitution" is mentioned. For judicial interpretation on the point of constitu- tionality we must turn to the decisions of State courts; and, instead of following these decisions case by case, it will be better for our purpose to review the principal arguments on both sides. ^^ "In the House the vote on the Conscription Act was 115 yeas and 49 nays. {Cong. Globe, 37 Cong., 3 sess., p. 1293.) The yeas and nays were not taken on the final passage of the bill in the Senate, but the sentiment of the upper house may be judged by the vote on the motion of Senator Bayard of Delaware "to postpone indefinitely the considera- tion of the bill." This motion was defeated by a vote of 11 to 35. {Ibid., p. 1389.) *^For the cases whose arguments are summarized in the following paragraphs, see Ferguson vs. Landram, 64 Ky. 548; Druecker vs. Salomon, 21 Wis. 628; The Conscription Cases, 9 Wright (Pa.) 238; In re Griner, 16 Wis. 447; Kneedler vs. Lane, 45 Pa. 238. The cita- CONSCRIPTION 271 The opponents of conscription usually adopted the State-rights, strict-constructionist line of argument and made much of the distinction between the militia and the army. The militia, they argued, is a State institu- tion. Congress is limited to calling it out and providing its discipline when in "actual service" of the United States. The extent to which the conscription law in- terferes with this State institution by bringing State militiamen and State officers within the draft, amounts to a breach of the Constitution. The Fathers never contemplated giving to Congress so sweeping a power as conscription, knowing, as they did, the arbitrary abuse to which this might lead ; and if they had so con- templated, they would have introduced some check upon the power. They meant to guard against a war of con- quest. By limiting Congress to voluntary enlistment they made it certain that no war could be fought that was not a people's war. If Congress had this power of conscription, then it could raise troops by compul- sion in time of peace, and this is wholly inconsistent with the well-known jealousy of standing armies which obtained at the time the Constitution was adopted. If Congress may compel military service, then it may com- pel people to lend money — it may take their horses, their lands, their ships, their homes! Where will you stop? During the War of 1812 conscription was de- feated. But that was a foreign war. The present con- tions contained in these decisions offer a sufficient guide to the legal literature on the subject. In some of the Southern States there were notable decisions concerning the constitutionality of conscription, the legal principles involved being the same as those at the North. Sec, for instance, Ex parte Hill, 38 Ala. 429; Barber vs. Irwin, 34 Ga. 27; Ex parte Coupland, 26 Tex. 386; Jeffers vs. Fair, 33 Ga. 369. For cx- President Buchanan's views in support of the constitutionality of the conscription law, see Works of James Buchanan, ed. by J. B. Moore, XI, 341. 272 CONSTITUTIONAL PROBLKMS UNDER LINCOLN flict, however, is but an insurrection, or rebellion. For insurrections and rebellions a specified method is pro- vided in the Constitution — namely, the calling out of the State militia. To establish a draft in order to "sup- press insurrection" is a dangerous innovation without constitutional warrant. In time of rebellion the Gov- ernment should not imitate the rebels by violating the Constitution, but should stick to the fundamental law, so as not to dishearten the friends of constitutional order. It was also urged that the Conscription Act was un- constitutional in that it subjected the citizen to martial law and overthrew fundamental guarantees intended to protect individual rights. Only when "in actual serv- ice," it was urged, can State militiamen be subjected to military discipline prescribed by Congress. To treat men as military deserters because they do not respond to the draft is to deny the right of trial by jury and to deprive them of various kindred guarantees. In spite of these objections the national power was up- held by a strong preponderance of judicial opinion. That this is a government of limited powers was conceded; but, in language reminiscent of Hamilton, Marshall, and Webster, it was argued that the general government is supreme in those activities for which it was created, and that such powers as are granted may be exercised to an unlimited extent. The power to "declare war" and to "raise armies" are given without qualification as to means, and conscription is a "necessary and proper" means to "carry into eff'ect" these powers. As to the intention of the "Fathers," history shows that the Con- stitution was created to correct one of the most flagrant defects of the old Articles of Confederation under which Congress was given power to declare war, but was power- less to conduct a war on its own authority, since it could CONSCRIPTION 273 only request troops from the States. It was to avoid this embarrassment that the general government was given an independent power to "raise . . . armies." The army and the militia are distinct and separate, and the authority of Congress over the army is superior to the authority of the States over the militia. Ordi- narily, there is no conflict between these two institu- tions and they may exist peaceably side by side; but in times of great emergency, when they do conflict, a local and subordinate power must always bow to a general power granted for vital purposes. Service in the State militia does not exhaust the liabilities of citizenship, and Congress is not deterred from calling a State militiaman into the army. It is true that the will of the people should be the controlling factor in these matters; but the people, through their representa- tives in Congress, must have the power to lay the bur- dens of national defense equally upon the willing and the unwilling. Abuse is to be avoided not by with- holding this essential power, but by so shaping the gen- eral structure of the Government as to make it respon- sive to the popular will. In every free government the citizen must surrender some portion of his absolute right for the general good. The power of conscription must lie somewhere; and it can only lie with the National Government, which has the power of war and peace and the control of foreign relations, as well as the power of raising armies. The conscription law does not violate the clauses which guarantee jury trial and prohibit un- reasonable seizures and searches. The drafted soldier is under military discipline, and the Constitution gives him no more protection against court-martial proceed- ings if he fails to report for duty than it gives a deserter from the army. In the large sense, of course, it may be said that 274 CONSTITUTIONAI, PROBLEMS UNDER LINCOLN the conscription law did stand the test of constitutional- ity. The law of 1863 was not challenged as to constitu- tionality before the Supreme Court. If this had happened it is unlikely that a Court which sustained the war power in the Prize Cases, and which withheld disapproval of the military trial of Vallandigham, would have taken the drastic wartime step of invalidating the national law for the raising of the army. Chief Justice Taney, however, would have done so. In fact he was, so to speak, loaded for the purpose. ^^ Judicial doctrine as to compulsory military service has now been definitely settled in the Selective Draft Law Cases in which the validity of the Selective Service Act of 1917 was upheld. In de- livering the opinion of the court in these cases Chief Justice White characterised the contention of the opposi- tion as simply a denial to Congress of the power to raise armies which the Constitution gives and an assailing of the wisdom of the framers in conferring authority on Con- gress and not leaving it with the States. The army power he held to be in no way controlled by State functions con- cerning the militia, and he referred to the strengthening of the principle of national conscription by the Four- teenth Amendment which "broadened the national scope of the Governiuent under the Constitution by causing citizenship of the United States to be paramount and dominant instead of being subordinate and deriva- tive, . . ." In 1918, when this opinion of a unanimous court was announced, the country was much more willing to receive it than in Civil War times. ^^ ^'Taney actually prepared an opinion declaring the conscription act un- constitutional. It was, of course, undelivered, and remained for many years unpublished and virtually unknown. See P. G. Auchampaugh, Tyler's Quar. Hist. andGemal. Mag., XVIII, 72-87 (Oct. 1936). ""Selective Draft Law Cases (Arver vs. U. S., etc.), 245 U. S. 366. CHAPTER XII THE POLICY OF CONFISCATION I. The confiscation acts of 1861 and 1862 II. Process of instituting and conducting confiscation cases III. Duration of the forfeiture: Reversionary rights in confiscated property IV. Extent and results of confiscation One of the questionable war measures adopted by both sides in the Civil War was the confiscation of the prop- erty of individuals adhering to the enemy. ^ Two laws for the forfeiture of enemy property were passed by the Confederate Congress, and the Government of the United States retaliated with two confiscation acts. Thus both belligerents carried the eflfects of war over into the field of civil life, and punished non-combatants with legal processes of doubtful validity. By a Confederate statute of May 21, 1861, debts due to Northerners were confiscated; and a further act of August 30, 1861, sequestered the property of "aliens," ^The basis for Chapters XII, XIII, and XIV is the writer's study en- titled "The Confiscation of Property during the Civil War," a doctoral thesis presented to the University of Chicago in 1911. Only a minor part of the thesis was printed. The writer has published two articles on this subject: "Some Legal Aspects of the Confiscation Acts of the Civil War," Am. Hist. Rev., XVIII, 79-96, and "Captured and Aban- doned Property during the Civil War," ibid., XIX, 65-79. 275 276 CONSTITUTIONAL PROBLEMS UNDER LINCOLN by which was meant those adhering to the Union. ^ In passing the act of August 6, 1861,' the United States Congress began its confiscation policy with a measure of Umited scope directed only against property devoted to hostile use. Condemnation of such property was to take place in the district or circuit courts of the United States. The district attorney might institute proceed- ings; or any person might file an information with the attorney, in which latter case half the proceeds went to the informer.^ Though this measure was eclipsed by the more comprehensive act of July 17, 1862, it remained law during the war. The Federal confiscation law of 1862 diff'ered both in degree and in kind from that of 1861; for it was a punitive measure directed against persons, taking their property by way of penalty, and it embraced in its terms all those who adhered to the "rebellion." The law was under consideration during the whole of the long session of the Thirty-Seventh Congress, and an amazing volume of oratory was poured forth in its dis- cussion. Each member of House and Senate, it seemed, had a confiscation speech in his pocket; and so numer- ous were the orations on this subject that many mem- bers had to be content with "leave to print" their re- marks in the appendix of the Congressional Globe, with the privilege of distributing printed copies to their con- stituents. The spirit animating the radicals who urged *For the Confederate confiscation acts, see Stat, at Large, Provis'l Gov't oj C. S. A., 201; O. R., Ser. IV, Vol. 1, p. 586; McPherson, Political History of the Rebellion, 205; Moore, Rebellion Record, IV, P. 7, VI, Diary of Events, 13; XII, Doc. 3 and Doc. 34; J. W. Draper, Civil War in America, I, 537; J. G. Schwab, The Confederate States oj America, A Financial and Industrial History of the South during the Civil War, i\0 et seq. *U. S. Stat, at Large, XII, 319. *A later portion of the act related to slaves used in hostilities against the United States. {In/ra, p. 357.) THE POLICY OF CONFISCATION 277 confiscation was expressed by Senator Morrill who de- clared that "clemency on the lips of an American Sen- ator to the malignant enemy of the Republic is cruelty to its friends."* There was much extreme talk about punishing "rebels," crippling the financial resources of the Confederacy, and increasing Federal revenue; but on constitutional and legal matters there was little clear reasoning. To raise such points as the war power of Congress, the status of the "rebels," the legal character of the Civil War, the restrictions of the attainder clause of the Constitution, or the belligerent rights as against the municipal power of Congress, was to reveal a de- plorable confusion of logic, and a jarring of opinions even among those who voted together. United in their notion as to the principal result sought, the supporters of confiscation, it would seem, had as many different views regarding the constitutional justification of their measure as there were individual speakers. To the opponents of confiscation, who were chiefly border-State men and Democrats, such an extreme meas- ure seemed a shocking thing. "Such a sweeping proposi- tion," said Senator Carlile, "so unjust and cruel a measure, one better calculated to continue the war for- ever and exhaust the whole country, never has been in the history of the world, and I predict never will be again, proposed to any legislative assembly representing a civilized community. "« "The sure and certain eff'ect of this bill," said Senator Browning, "would be to make peace and reunion an impossible thing."' He argued that a majority of those acting against the Union were constrained by circumstances beyond their control; and he was in favor of measures that would win back his ^Cong. Globe, 37 C!ong., 2 scss., p. 1074. «/ii«f/. S. Stat, at Large, XII, 627. THE POLICY OF CONFISCATION 281 ing the war. Though the act of 1862 was far more sweeping and drastic than that of 1861, yet it did not entirely supersede the earlier law; and prosecutions in a given case might be instituted under either act, or under both. ^^ By the terms of each of the statutes the forfeiture of property was made a strictly judicial proc- ess, enforced through the Federal courts under the direc- tion of the Attorney General and the district attorneys. The Senate substitute bill had contemplated a special board of commissioners to enforce confiscation, but this plan, which would have provided personnel and adminis- trative machinery intended particularly for the seizure of property, was not followed. In beginning suit, a libel of information, analogous to that directed against smuggled goods, would be filed by the district attorney. A monition or public adver- tisement would then be issued by the marshal, summon- ing the owner to appear in court and establish his loyalty. If the owner appeared to answer the libel, a hearing of both sides would usually follow, though there were cases where the owner was not permitted any hearing. Where the owner did not appear, an ex parte hearing was conducted. In case of condemnation, the marshal would be directed to sell the property at public auction, turning the proceeds, after payment of costs, into the public treasury. The methods by which the Government obtained in- formation concerning confiscable property were vari- ous. ^^ Written depositions were sometimes taken by United States commissioners, but much of the informa- tion came from less regular and reliable sources. A citi- *^In the Wiley case (27 Fed. Cas. 337) the libel was under the act of 1861 and the proofs under that of 1862. *'The instances here cited are selected from data found in the cor- espondence of the Attorney General's office. 282 CONSIITU riONAl. I-ROBI-KMS under LINCOLN zen of Philadelphia, to take a typical instance, volun- teers information concerning "a million dollars invested in the North by citizens of Charleston, S. C," with the suggestion that this property is "probably confiscable," and that further particulars will be gladly given. Or, again, letters are received from citizens in Illinois and Wisconsin, alleging that the Hon. J. C Breckinridge of Kentucky, the late Vice President, has considerable lands in those States, against which the Government should proceed. A district attorney in Minnesota proposes a trip to New Bern, N, C, for which he requests a Gov- ernment pass that he may obtain evidence against sev- eral persons of high rank who own valuable property in Minnesota. The Union authorities intercept a letter written by a "rebel" prisoner in Washington to his uncle in Germany, and discover that this "rebel" owns con- siderable property in Memphis, Tennessee, then in the Union lines. A dispatch is received by the United States consul at St. Petersburg regarding "rebel" prop- erty in New Orleans, and the information is transmitted by Secretary of State Seward to Attorney General Bates. These scattered instances suggest how various were the sources, and how indirect the routes by which informa- tion came into the hands of the Government for pur- poses of confiscation. Sometimes useful clues would be secured in this irregular way, but no legal action could be safely begun without a laborious search for such records of ownership and such proof of disloyalty as would afi^ord a definite basis for prosecution. It was under great difficulties that the law officers per- formed their unwelcome duty of enforcing the confisca- tion laws. Confused by perplexing legal questions, the district attorneys received little help from the Attorney General, who invariably "declined to advise the law oflB- cers ... as to what constitutes a proper case for action THE POLICY OF CONFISCATION 283 under the law.''^^ The local officers, thus left to their own responsibility, naturally hesitated to begin suit; and this difficulty was augmented by the lack of pro- vision for defraying the expense of preparing suit in cases where the Government should fail to obtain judg- ment. The very correctness and completeness of ju- dicial procedure was an obstacle in a strenuous time when things had to be done quickly and when a dilatory execution would defeat the whole purpose of the law. It was natural under the circumstances for an impatient general or provost marshal to take the law into his own hands and thus become involved in a dispute with the judiciary. These vigorous men regarded confiscation as a war measure, and proceeded to carry it out as such.^^ It was on the whole fortunate that so formidable a power, and one that might have been so easily abused, had been carefully guarded by Congress. In determining the authority of the court in any given case of confiscation, the leading factor was the location "Acting Attorney General T. J. Coffee to R. I. Milton, U. S. Com- missioner, Albany, N. Y., Sept. 2, 1861: Attorney General's Letter Books. (A series of such letters was issued to district attorneys and marshals during the same month. The one cited is merely typical.) ^^Instances of military efforts to enforce confiscations were numerous. When a provost marshal at St. Louis seized securities owned by a sus- pected "rebel," his action was denounced by the acting Attorney Gen- eral as "unjustifiable, absurd, illegal, and null." (Acting Attorney General Coffee to Acting Secretary of War Scott, Nov. 12, 1861, At- torney General's Letter Books.) An attempt by the military governor of the District of Columbia to seize the furniture of John A. Campbell led to a miniature state of war between court officers attempting to execute a v^rit of replevin to restore the property and a military force of six men who guarded it. (House Ex. Doc. No. 44, 37 Cong., 3 sess.) Determined attempts were made by General Wallace in Maryland and General Butler in Louisiana to carry out the confiscation acts, and the naval authorities also made extensive seizures in their river expeditions. (0. /?., Ser. Ill, Vol. 4, pp. 407 et seq., Ser. L Vol. 15, pp. 571 et seq.; Ser. I, Vol. 34, pt. 1, p. 213; Mrs. Alexander's Cotton, 2 Wall. 404-408; Cong. Globe, 37 Cong., 3 sess., pp. 1431 et seq.) 284 CONSTITUTIONAL PROBLEMS UNDER LINCOLN of the property. Jurisdiction, in other words, depended on situs. The court could proceed against only such property as lay within the bounds of its district. A district court in New York, for instance, could not acquire jurisdiction over the stock of an Illinois cor- poration.^® Actual confiscation was therefore limited to those districts where Federal courts were in operation; and naturally the greater amount of the property seized during the war was located in the North, though owned by "rebels." Actual seizure or "arrest" of the property was neces- sary in order to begin suit, but minor irregularities in the marshal's action were not construed as fatal defects. Since manual seizure was impossible in the case of intan- gible property, a sort of "stoppage at the source" was adopted. The court ignored the paper evidence of the property in the hands of the owner, and proceeded by means of attachments upon those from whom the obliga- tion was due. A promissory note would be "seized" by notifying the signer, possession of the note itself being unnecessary. Where the property consisted of commer- cial stock, seizure meant serving notice upon the cor- poration. In the case of a debt owed by an individual, process was served upon the debtor, subjecting him to the order of the court with regard to the debt. A debt owed by a city could be seized by serving notice upon the proper officer of the City. For the seizure of a de- posit due by a Northern to a Southern bank, an attach- ment upon the deposit with notification to one of the oflficers of the Southern bank was sufl^cient.^" I'U. S. vs. 1756 Shares of Stock, 27 Fed. Cas. 337. ^"Concerning procedure in confiscation cases, see Tyler vs. Defrecs, 78 U. S. 331; Instructions of Attorney General Bates to district at- torneys, Ann. Cyc, 1863, p. 219; Bragg vs. Lorio, 4 Fed. Cas. 2; Miller vs. U. S., 78 U. S. 268. THE POLICY OF CONFISCATION 285 In developing a procedure for the trial of confiscation cases, the courts were confronted with the fact that for- feiture is ordinarily a proceeding in rem and that ad- miralty procedure was indicated in both of the acts, while at the same time the punitive character of the sec- ond Confiscation Act seemed to call for those features of criminal procedure that are intended as safeguards for the accused. Strict conformity to admiralty rules was given up and the advantages of a common law remedy were extended to the defendant. Judgments of lower courts were sometimes overruled by the Supreme Court on the ground that the proceedings had been erroneously conducted on the admiralty instead of the common law side of the court." The main resemblance to admiralty practice lay in the detailed process of instituting suit^ — i.e., the filing of the libel, the seizure by the marshal, the publication of the monition, and the summoning of the owner — and in the ex parte hearing in case of default. ^'The chief reason for insisting on the common law remedy was to preserve the right of trial by jury. It was therefore held that, in cases where either party should demand it, issues of fact should be so tried. This point was definitely expressed in the case of United States vs. Athens Armory: "This court [i.e., the Supreme Ciourt] cannot under- take to say that the national legislature in passing this statute [the act of 1862] contemplated the expansion of the jurisdiction of the admiralty so far beyond what was understood and intended by it at the time of the formation of the Constitution, as to withdraw from the suitor, in a seizure like this, the right of a trial by jury, and to transfer the determination of the cause to the breast of a single judge." (24 Fed. Cas. 881.) This preservation of a common law remedy was demanded not only on the grounds of general justice but also as a compliance with that clause of the Judiciary Act of 1789 which pro- vided that practice in the district courts in connection with for- feitures should be such as to save to suitors in all cases the right to a common law remedy, where the common law is competent to give it. (U. S. Stat, at Large, I, 76; The Case of Moses Taylor, 71 U. S. 411. See also: Union Ins. Co. vs. U. S., 6 Wall. 759; Armstrong's Foundry, 6 Wall. 767; U. S. vs. Hart, 6 Wall. 770, 773 n.; Morris' Cotton, 8 Wall. 507.) 286 CONSTITUTIONAL PROBLEMS UNDER LINCOLN III When the actual effects of forfeiture came to be deter- mined in the courts, there were various problems that had to be settled. A matter of considerable dispute, for instance, was the question as to the duration of the for- feiture under the act of 1862. Though Congress had taken pains to be explicit on this point, passing an ex- planatory resolution which limited the forfeiture to the offender's lifetime, there still remained some doubt as to whether decrees of confiscation involved surrender of the full title or of merely a life interest. ^^ This difficulty was met by the Supreme Court in the case of Bigelow vs. Forrest, in which it was decided that a decree of con- demnation and order of sale under the second Confisca- tion Act conveyed only a "right to the property . . . terminating with the life of the person for whose act it had been seized."^^ No title could therefore be con- ferred which would outlast the life of the original offender. As to forfeitures under the act of 1861, their effect was held to be absolute, permitting no recovery of the prop- erty by the owner's heirs. ^^ The reasoning of the Su- "A Federal judge in Virginia held that the absolute forfeiture of real estate was in keeping with the intention of the Constitution and the statute. Congress did not mean, he declared, that the "traitor" should merely surrender a life interest, but rather that the forfeiture must be perfected during his life. As for the joint resolution, he interpreted it as merely intended to keep the legislation within the constitutional rights of Congress which permit no attainder of treason that shall work corruption of blood or forfeiture except during the life of the person attainted. In his mind the words "except during" applied to the specific legal act by which the forfeiture was accomplished, rather than to its duration. (Opinion of Judge Underwood in the Hugh Latham case: Ann. Cyc., 1863, p. 221.) "9 Wall. 339. *For typical decisions of the Court of Claims on this subject, see Ct. of Cls. Reps, as follows: III, 19. 177, 218, 240, 390; IV, 337; V, 412, 586, 706. RESTORATION OF PROPERTY 337 The Court of Claims thus became the tribunal for judging the facts as to the conduct of thousands of professed Unionists in the South; and its hearings as- sumed somewhat the character of a judgment-day pro- ceeding, where, after the deeds of all had been laid bare, the faithful were rewarded and the rebellious turned away. The voluminous testimony which the court examined constitutes a significant body of mate- rial revealing in detail the conduct of "loyal" South- erners; and for the historian who takes up the study of the Civil War loyalists it will have a value similar to that of the papers of the New York royal commis- sion for the study of the corresponding topic in the Revolutionary War. ^^ Men and women of Union sympathies, as this testi- mony shows, were scattered in considerable numbers throughout the South. Surrounded as they were by a repressing and persecuting majority, they naturally found it difficult to express their loyalty in any active, organized form. They had to be content, therefore, with a negative attitude, a sort of "passive resistance," refusing to take any voluntary measures against the Government at Washington, and performing individual acts of friendship to the Federal troops. We find them resisting the Confederate draft, carrying provisions and medicine to Union soldiers, contributing to funds for the welfare of the blue-coats, attending the boys in the hospitals, and in other ways befriending the Union cause. This "loyalty," which meant treason from the Con- federate standpoint, naturally incurred local persecu- tion; and the Unionist of the South moved constantly in an atmosphere of scorn and prejudice, continually "C. H. Van Tyne, The Loyalists in the American Revolution. 338 CONSTITUTIONAL PROBLEMS UNDER I-INCOLN disturbed by threats of personal violence. Furthermore, he was often compelled against his will to give support to the Southern cause. It was an exceptional Unionist indeed who was not pressed into the conscript lines, compelled to subscribe to a Confederate loan, or forced to labor on intrenchments; and in addition to all this, he must pay taxes into the "rebel" treasury. Children even caught up the feud, and the refusal of one daring youth to give up the Stars and Stripes for the neighbor boys to spit upon resulted in a severe laceration, and later a fatal blow from a brickbat. In conducting these suits, the Court of Claims found its docket well crowded. The total amount paid out in judgments in such cases up to February, 1888, was re- ported as $9,864,300. "3 When we remember that the sum involved in each case was usually small, and that these figures represent only the claims which were al- lowed, we can form an idea of the vast amount of this litigation which the court handled. The central point of law touching these claims was the effect of pardon and amnesty upon the rights of claimants for property seized during the war. Were disloyal owners permanently divested of their property by that proviso which required proof that the owner had "never given any aid or comfort to the . . . rebel- lion,"^" or could the consequences of disloyalty be avoided by the President's proclamation of pardon and amnesty, and the owner's acceptance of the oath of al- legiance? This question was presented in the case of United States vs. Klein, appealed from the Court of Claims to the Supreme Court. "« The most liberal view ^^Treasury Department Circular, Jan. 9, 1900, No. 4. For a list of judgments by the Court of Claims from 1863 to 1867, see House Misc. Doc. No. 50, 40 Cong., 1 sess., pp. 2-9. <«Sec. 3 of the Captured Property Act: U. S. Stat, at Large, XII, 820. ^"13 Wall. 128. RESTORATION OF PROPERTV 339 was sustained. In main substance the opinion was that Congress had intended to restore property not only to loyal owners, but to those who had been hostile and might later become loyal; that after the proclamation of general amnesty the restoration of property to all bona fide owners claiming under the Captured Property Act became the duty of the Government; and that such restoration became the "absolute right of the persons pardoned," the Government having constituted itself the trustee, not only for claimants protected by the original act, but for all who might later be recognized as en- titled to their property. "Pardon and restoration of political rights," declared the court, "were in return for the oath and its fulfillment. To refuse it would be a breach of faith not less cruel and astounding than to abandon the freed people whom the executive had promised to maintain in their freedom." After this decision of the Supreme Court, therefore, all claimants who had been dispossessed through the operation of the Captured Property Act were, regard- less of original loyalty, entitled to restoration. There was, however, another proviso in the act which more seriously aflfected the claimant's prospect of recovery. Suit for recovery must be brought, according to the law, within two years "after the suppression of the rebel- lion."^^ The President's proclamation of August 20, 1866, in which for the first time the entire suppression of the rebellion throughout the country was declared, was taken by the court as marking the legal termina- tion of the war.^^ Unfortunately for the claimants, the decision in the Klein case did not come until 1871, so that those who could not claim original loyalty first *^U. S. Stat, at Large, XII, 820, sec. 3. «'U. S. vs. Anderson, 9 Wall. 56. 340 CONSTITUTIONAL PROBLEMS UNDER LINCOLN learned of the restoring effect of pardon too late for a claim to be allowed, supposing that the two-year limitation should be insisted upon. Agitation was be- gun to obtain relief for those claimants who, under the former requirement of loyalty, had allowed the two- year limitation to lapse without taking advantage of their right to plead before the Court of Claims. Various bills to revive the right of such claimants have been presented to Congress, and the House Committee on Judiciary has at various times reported favorably on such legislation; but the proposed bills and committee reports have been lost in the general oblivion of the congressional calendar.^* As to abandoned estates, restoration moved much more swiftly. The chief agency for this purpose was the Bureau of Refugees, Freedmen and Abandoned Lands. This institution was created by Congress, March 3, 1865, to provide protection and support for emanci- pated Negroes; and abandoned real property, as well as certain other property, was entrusted to its adminis- tration." Estates which had been administered on a lease system by treasury agents were placed in charge of the bureau, with the intention that deserted lands should be allotted in small holdings to individual freed- men. Some land was actually assigned in South Caro- lina and Georgia, but in general the bureau either used its land for colonies of freedmen or continued the lease system until, by President Johnson's order, it was in- structed in August, 1865, to return the property of all who had been pardoned. As Commissioner Howard's reports show, the uncertainty of tenure over the bu- ■•sThe bill introduced on April 30, 1921, by Mr. Overstreet is typical. H. R. 5592, (tl Cong., 1 sess. See also House Reports as follows: 51 Cong., 1 sess., No. 784; 52 Cong., 1 sess., No. 1377. *9f/. S. Stat, at Large, XIII, 507. RESTORATION OF PROPERTY 341 reau's holdings defeated the plan of allotments to freed- men; and the occupation of these estates was only tem- porary. The bureau restored 15,452 acres of land seized under the second Confiscation Act, 14,652 acres received as abandoned and allotted to freedmen, and 400,000 acres of abandoned property which had never been allotted. Thus the total restorations amounted to 430,104 acres. 6° Taking the subject of restoration as a whole, it may be said that the policy pursued by Congress and the courts left much to be desired. In particular, the fail- ure to allow the restoration of property taken under the second Confiscation Act, and the inaction which has allowed a minor proviso in the Captured Property Act, regarding a mere time limitation for the filing of a claim, to defeat a recognized right of recovery, are sources of disappointment. Though the general notion as to the number of dispossessed owners is doubtless ex- aggerated, yet one cannot but wish that the general oblivion which has removed former disabilities from those who adhered to the Southern cause, could have brought restoration for every case of confiscated or cap- tured property. ^"Auliobiography of Oliver O. Howard, II, Ch. xlix; House Exec. Docs., 39 Ck)ng., 1 sess., Nos. 11, 70, 99. CHAPTER XV STEPS TOWARD EMANCIPATION I. The belligerent right of emancipation: The war power of Congress over slavery II. How the war forced the question of emancipation upon the government: Policy with regard to military emancipation and the return of fugitive slaves III. Emancipation in relation to confiscation IV. Liberation of slave-soldiers: Other emancipating meas- ures of Congress V. Lincoln's plan of gradual abolition by State action with Federal compensation We shall consider in this and the following chapter not the general bearings of the oft-discussed subject of emancipation as a matter of policy, but rather those questions of governmental power and authority which the subject involves. Our first inquiry will concern itself with the problem of the war power over slavery. The authority which the National Government was led to assume by the compulsion of circumstances in op- position to an avowed policy of non-interference will then be examined and this will be found to involve tentative steps toward emancipation, as in the confisca- tion acts. Our attention will then turn to Lincoln's earnestly advocated proposal for gradual abolition by State action with Federal compensation to slave own- ers. An analysis of the executive proclamation of free- dom will follow, after which we will note those conflicts of authority which were characteristic of that transi- tional stage when the question of slavery, though dealt 342 STEPS TOWARD EMANCIPATION 343 with piecemeal by various national measures, was still within the domain of State jurisdiction. Finally, our attention will be directed to the constitutional amend- ment which was adopted as the only way out of the un- certainty and confusion touching slavery which the war bequeathed. It was a generally accepted axiom of American con- stitutional law in 1861 that slavery was a domestic in- stitution of the States, and that as a State institution it was outside Federal jurisdiction. When the Civil War came, however, it was widely believed that the Government acquired a power in this field which in peace times it did not have. This extraordinary author- ity to strike at slavery during the great national emer- gency is what we mean by the "war power over slavery." Some there were who justified this war power by claim- ing the "belligerent right" of emancipating an enemy's slaves — a right which they held to be within the laws of war — while others maintained that the question was domestic, not international, and that control over local affairs normally lying within State jurisdiction could be assumed by the National Government as an enlarged municipal power growing out of insurrection and civil war. Prior to the Civil War the American tendency had been to deny the right of liberating an enemy's slaves as coming within the recognized laws and usages of modern warfare. This was a natural attitude for the principal slaveholding country in the world where the domestic slaveholding interest inevitably aff'ected inter- national policy. Lord Dunnmore's proclamation decree- ing freedom to the slaves of Virginia "rebels" was a 344 CONSTITUTIONAL PROBLEMS UNDER LINCOLN familiar theme for denunciatory comment by the patriots of the Revolution; and the activity of the Brit- ish commanders in deporting American slaves at the close of the Revolutionary War occasioned a wordy con- troversy betw^een the United States and England. But perhaps the chief instance v^hich came to mind when the subject was broached was the action of the British in enticing slaves from American masters during the War of 1812 and in carrying them off in alleged viola- tion of the Treaty of Ghent.' It will be worth our while to observe how this situation drew from John Quincy Adams, our Secretary of State, an emphatic pro- test and a vigorous denial of the belligerent right of emancipation. Thus the New England statesman who has been credited with originating the policy which took form in Lincoln's Emancipation Proclamation was, strangely enough, the author of the most weighty ut- terances opposing the war power over slavery. In 1814 Cochrane, the British Admiral, issued a proc- lamation which referred to the desire of "many persons now resident in the United States ... to withdraw therefrom, with a view of entering his Majesty's service, or of being received as free settlers in some of his Majesty's Colonies." The proclamation continued in these words: This is therefore to give notice That all those who may be disposed to emigrate from the United States will, with their families, be received on board his Majesty's . . . vessels of war, or at the military posts that may be established upon or near the coast of the United States where they will have the choice of either entering into his Majesty's sea or land forces, or of being sent free settlers 'J. B. Moore, Digest of Internatiorml Arbitrations, I, 350 et seq. STEPS TOWARD EMANCIPATION 345 to the British possessions in North America, or the West Indies, where they will meet with all due encouragement.^ The main purpose and effect of this proclamation was to entice slaves from American masters and liberate them. In the Treaty of Ghent the restoration of such slaves along with other "private property" was stipu- lated; but, in spite of the treaty, slaves were carried away in the process of British evacuation. Since the precise meaning of the treaty provision was a matter of disagreement between the two nations, the question was referred to arbitration by the Emperor of Russia; and it is in the dispatches pertaining to this arbitra- tion that Adams' most significant statements are found. He sent a carefully worded instruction on this subject to Henry Middleton^ in 1820, which contained the fol- lowing passage: The distinction in the language of the Article [i.e., the first article of the treaty of Ghent], as strong as words can make it, between public property . . . and private property in- cluding slaves is this. Public property by the Laws of War is liable to be taken, and applied by the captor to his own use. Private property on shore by the same Laws of War is protected from capture, and ought not to be taken at all. With the exception of maritime captures, private property in captured places is by the usages of civilized nations re- spected. . . . The British nation as well as the United States consider slaves as property . . . ; millions of such slaves are held as property in the British Dominions and they are recog- nized as such by the terms of the Article. ^Ibid., I, 350. 'U. S. Minister at St. Petersburg. 346 CONSnTU'lIONAL I'ROBLKMS UNDER LINCOLN Mr. Adams then referred to Cochrane's proclamation and continued as follows: It is not openly addressed to slaves, nor does it avow its real object. From the use of the phraseology which it adopts, the inference is conclusive that the real object was such as the Admiral did not choose to avow, and the only supposable motive for the disguise is the consciousness that it was not conformable to the established usages of war among civilized nations. The wrong was in the proclamation. Admiral Coch- rane had no lawful authority to give freedom to the slaves belonging to the citizens of the United States* The recognition of them by Great Britain, in the treaty, as property, is a com- plete disclaimer of the right to destroy that property by mak- ing them free.^ Writing again to Middleton on the same subject, on November 6, 1820, Mr. Adams said: In the statement of the British ground of argument . . . , they have broadly asserted the right of emancipating slaves — private property — as a legitimate right of war. This is utterly incomprehensible on the part of a nation whose subjects hold slaves by millions, and who in this very Treaty recognize them as private property. No such right is acknowledged as a Law of War by writers who admit any limitation. The right of putting to death all prisoners in cold blood and without special cause might as well be pretended to be a Law of War, or the right to use poisoned weapons, or to assassinate. I think the Emperor will not recognize the right of emancipa- tion as legitimate warfare, and am persuaded you will present *The italics are in the original. ^Letter of instruction by John Quincy Adams to Henry Middleton, United States Minister at St. Petersburg, July 5, 1820: U. S. Ministers' Instructions (MSS., Dept. of State), Vol. 9, pp. 18 et seq. In W. G. Ford's edition of the Writings of John Quincy Adams (VII, 46-52) this letter is printed in part, but the whole section concerning the carrying away of slaves is omitted. STEPS TOWARD EMANCIPATION 347 the argument against it, in all its force, and yet without prolixity.^ The American contention was borne out in the settle- ment of this matter; and, since this was the chief in- stance in which the belKgerent right of emancipation was discussed as it affected the United States, it is correct to think of Adams' statements as expressing the official American doctrine on the subject up to the time of the Civil War. It may be added that the British in this controversy did not seek to justify emancipa- tion under the laws of war, but merely argued for a narrow construction of the wording of the treaty as to the slaves which were to be restored, and that the de- cision of the arbitrator was restricted to a question of grammar. In spite of this official statement of Adams, the bel- ligerent right of emancipation as a matter of interna- tional law was frequently asserted during the Civil War, as for instance by Representative Sedgwick of New York, who said in debate: "The law of nations clearly sanctions the emancipation of the enemy's slaves by military force and authority. It is an understood and received doctrine."^ Disagreement as to what the "laws of war" permit is a common thing, and it is not re- markable that many who considered emancipation an expedient measure justified it on this ground.^ *U. S. Ministers' Instructions (MSS., Dept. of State), Vol. 9, p. 57; W. G. Ford, Writings of J. Q. Adams, VII, 83. An interesting com- mentary on this whole subject is to be found in Henry Wheaton, Elements of International Laiv (ed. by W. B. Lawrence, Boston, 1863), p. 495, note 167, p. 611, note 189. ''Cong. Globe, }ax\. 30, 1863, 37 Cong., 3 sess., p. 629. *A careful reading of Vattel, Wheaton and Halleck, who were per- haps the three authorities on international law most frequently cited at the time of the Civil War, fails to reveal any sanction of the bel- ligerent right of emancipation. None of the three gives any specific 348 CONSTITUTIONAL PROBLEMS UNDER LINCOLN There were, however, other grounds, besides the "laws of war," on which the war power over slavery was asserted. It was urged that Congress had the power to legislate against slavery in States engaged in insur- rection. Whiting, Solicitor of the War Department, declared: "Whenever, in the judgment of Congress, the 'common defense' and 'public welfare,' in time of war, require the removal of the condition of slavery, it is within the scope of its constitutional authority to pass laws for that purpose."^ American constitutional law- yers do not, in general, cite the phraseology of the pre- amble as equivalent to a grant of power to Congress; but it must be remembered that much of the argument of the time was of this broad, inclusive nature. Whiting continued by declaring that the treaty-making power may abolish slavery. "A clause in any treaty abolish- ing slavery would, ipso facto, become the supreme law of the land, and there is no power whatever that could interfere with or prevent its operation."^" By this reasoning, the Government may do any unconstitutional thing, so long as it embodies such action in a treaty! In his further discussion of the subject Whiting as- serted that Congress could abolish slavery in the States under the law of eminent domain (taking property for a public use or purpose) ;i* and that Congress could treatment of the subject, but they all emphasize the respect paid to private property. (Vattel, The Law of Nations, ed. by J. Chitty [Philadelphia, T. and J. W. Johnson, 1844], 364-370; Henry Wheaton, Elements oj International Law, ed. by W. B. Lawrence [Boston, 1863], p. 597; H. W. Halleck, International Law [New York, 1861], p. 456.) »W. Whiting, War Powers under the Constitution (Boston, 1871), 28. ^Hbid., p. 135. ^^Ibid., Ch. i. To base emancipation upon the right of eminent domain would require compensation for the slaves so taken. The committee on war claims of the House of Representatives declared in 1874 that emancipation was "not a taking for public use," and they held that no basis for compensation existed on this ground. {House Report No. 262, 43 Cong., 1 sess., p. 53, n. 109.) STEPS TOWARD EMANCIPATION 349 emancipate to secure "domestic tranquillity," to "sup- press insurrection," or to maintain a "republican form of government." The fugitive slave clause he regarded as a prohibition upon the States; and, since there was a prohibition upon Congress in connection with the slave trade, the omission of any prohibition regarding slavery itself convinced him that the framers designed that Con- gress should control slavery. "Laws passed for that purpose," he said, "in good faith, against belligerent subjects, not being within any express prohibition of the Constitution, cannot lawfully be declared void by any department of government."" Such a statement, of course, ignores the whole funda- mental principle of delegated powers. The powers of Congress depend not upon absence of prohibition, but upon either express or implied grant. Such defective reasoning, however, runs through the whole of Whiting's treatment of the subject. In the debates concerning the slavery question the constitutional arguments of the Congressmen and Sena- tors varied according to the policies which they urged. Some radicals, like Thaddeus Stevens, proposed to take the action whether constitutional or not; while others, like Trumbull, asserted that the Constitution conferred this as well as every other power "necessary for the suppression of the rebellion."*' Still others adopted Sumner's formula of "State suicide" and declared that the States, by seceding, had forfeited their Statehood and reverted to a territorial status under national con- trol. This State-suicide principle of Sumner, it should be noted, offered no basis for nation-wide action against slavery, but only for abolition within the seceded States. Of course to those who considered that war gave 'Whiting, War Powers, 132. ^^Ann. Cyc, 1862, p. 282. 350 CONSTITUTIONAI, PROBI-EMS UNDER LINCOLN the right to do illegal things, constitutional difficulties concerning slavery offered no embarrassment. Quoting the maxim ^Unter arma silent leges,^^ they could say with Sumner: "... the Constitution itself is only a higher law; nor can it claim to speak in time of war, , . . more than any other law.''^* Conservatives in Congress in denying the war power of Congress over slavery usually based their objections on the well understood principle that the Constitution made slavery within the States a State matter. Speak- ing of the emancipating features of the confiscation bill of 1862, Senator Garret Davis of Kentucky said: "Con- gress has neither the expressly delegated nor implied power to liberate these slaves." "On the pretext of in- voking assistance to execute an express power, Congress cannot assume a greater and more extensive one, par- ticularly one so formidable as to enable it ... to break down the great principle of our complicated system — that all the internal affairs of the States are exclusively under their own governments."^^ In like vein Senator Carlile of Virginia said: "The slaves are to be emanci- pated in violation of the Constitution. . . . The want of power in Congress to interfere with slavery in the States where it exists has always heretofore been admitted; the most ultra abolitionists admit that Congress cannot inter- fere with slavery in the States, and because this is so, they denounce the Constitution as a covenant with death and a league with hell."^^ It is of interest to notice that the war did not swerve President Lincoln from the view that he had previously expressed (in the debate with Douglas and elsewhere) that Congress had no constitutional power to overthrow ^*Cong. Globe, Jan. 27, 1862, 37 Cong., 2 sess., p. 2964. ^^Ibid., p. 1762. »Mrjn. Cyc, 1862, p. 355. STEPS TOWARD EMANCIPATION 351 slavery in the States. ^^ In his pubHc pronouncement concerning the Wade-Davis bill of 1864, of which he disapproved because of its drastic process of "reconstruc- tion," Lincoln said: "I am . . . unprepared ... to de- clare a constitutional competency in Congress to abolish slavery in [the] States." ^^ He added that he hoped the object would be achieved by constitutional amend- ment.'^ II We must now examine some of the earlier measures of interference with slavery which the war situation pro- duced. In the first stages of the war the administra- tion was committed to the policy of non-interference in this field. ^^ Lincoln's disclaimer of any intention to interfere with slavery in the States, previously made on various occasions, was repeated in the inaugural address of 1861.21 ''In conversation with Senator Browning of Illinois, Lincoln ex- pressed his conviction that Congress had no power over slavery in the States. Diary of Orville H. Browning, July 1, 1862. •'Section 12 of the Wade-Davis reconstruction bill, which passed Con- gress in July, 1864, but was not signed by the President, provided for the emancipation of the slaves of the "rebel" States, and their posterity, {Cong. Globe, 38 Cong., 1 sess., p. 3449.) For Lincoln's view, see his "proclamation" concerning the Wade-Davis bill, July 8, 1864: Nicolay and Hay, Works, X, 153. "Further questions closely related to the belligerent right of emanci- pation are discussed below, pp. 373-378. '"As an indication of Lincoln's conservatism concerning slavery early in the war it is of interest to notice that before he issued his Emanci- pation Proclamation • he expressed the view that so much of slavery as should remain after the war would be in the same state as before the war. Diary of Orville H. Browning, July 1, 1862. ^'Lincoln's views regarding slavery cannot be dealt with at length here. He was not an "abolitionist." He did not favor the repeal of the fugitive slave law; he did not oppose the admission of slave States, for he felt that the States should make such constitutions as their people might see fit; he did not, as senatorial candidate in 1858, "stand pledged" to abolition of the slave trade between the States. He did 352 CONSTITUTIONAL PROBLEMS UNDER LINCOLN Congress uttered a similar disclaimer when it adopted, almost without dissent, the Crittenden resolution of July 22, 1861, which declared that "this war is not waged ... in any spirit of oppression, or for any purpose of conquest or subjugation, or ... of overthrowing or in- terfering with the rights or established institutions of [the]" States, but to defend and maintain the su- premacy of the Constitution, and to preserve the Union with all the . . . rights of the several States unim- paired."^^ The scope of this book does not include a discussion of the reasons why this policy of non-interference was abandoned for one of active emancipation. There were enough factors which contributed to this result with- out supposing any lack of good faith on the part of the Government. It is sufficient to recall that Con- gress, and to a certain extent the executive, became in- creasingly radical under the influence of the "war not consider that Congress had any right to interfere with slavery in the States where it existed. He thought Congress had the right to aboHsh slavery in the District of Columbia, but he favored such abolution only if gradual and accompanied by compensation as well as a referendum to obtain an expression of the sentiment of the people. He regarded slavery as an evil; but considered that, as it was in process of extinction, it was sufficient to look forward to its peaceable disappearance. A careful reading of all of Lincoln's utterances on the subject shows that his "house-divided-against-itself" speech cannot fairly be interpreted as a threat of interference with slavery in the South. When it came to extending slavery, Lincoln felt that this should be resisted; and he considered it the right and duty of Congress to pro- hibit slavery in the territories. The Drcd Scott dictum that Congress had no such right he refused to accept; and he looked forward to the time when the reverse of this doctrine would be approved by the Su- preme Court itself. Such were, in the main, Lincoln's views at the time when he became President. ("The Lincoln-Douglas Debates" [Illinois Historical Collections, Vol. HI], passim, especially pp. 150- 152; Nicolay and Hay, Works, Vols. HI, IV, V, especially III, 273 et seq.) "The wording in the resolution is "those States," referring to the States in "insurrection." ^^Cong. Globe, July 22, 1861, 37 Con.g, 1 sess., p. 222. STEPS TOWARD EMANCIPATION 353 mind"; that the purpose of the war widened as the months of desperate fighting passed;" that the for- eign situation seemed to call for a more definite declara- tion concerning slavery; and that, in order to deal with various practical phases of the slavery problem as they came up, the Government found itself forced either to take some steps toward emancipation or to become both its own enemy and an active promoter of slavery. Lincoln's references to non-interference with slavery in his first inaugural are not to be interpreted as a pre- diction of governmental policy in the event of civil war, but as a pledge oflfered in the hope of keeping the slave States in the Union. It is not the part of states- manship to adhere stubbornly to a given policy after all chances for its success have been lost; and as far as President Lincoln was concerned the policy of non- interference was at least given a fair trial during the first year and a half of the war. When the Emancipation Proclamation of September 22, 1862, indicated that this former policy was abandoned, there was not only a hundred-day warning given, but there was also the pledge of Federal pecuniary aid to any State that should adopt emancipation by its own laws." ^^Lincoln's view as to the inevitable alteration of policy because of war was expressed in the following words: "In the annual message last December, I thought fit to say, 'The Union must be preserved; and hence all indispensable means must be employed'. I said this, not hastily, but deliberately. War has been made, and continues to be, an indispensable means. A practical reacknowledgment of the national authority would render war unnecessary, and it would at once cease. If, however, resistance continues, the war must also continue; and it is impossible to forsee all the incidents which may attend and all the ruin which may follow it. Such as may seem indispensable, or may obviously promise great efficiency toward ending the struggle, must, and will, come." (Message of March 6, 1862: Nicolay and Hay, Lincoln, V, 209.) See also Randall, Lincoln the President, II, 126-203. ''"There was more than a year and a half of trial to suppress the rebellion before the proclamation issued; the last one hundred days of 354 CONSTITUTIONAL PROBLEMS UNDER LINCOLN The President acted with decision when it was a mat- ter of overruHng generals who exceeded their military authority by taking the question of emancipation into their hands. When, on August 30, 1861, General Fre- mont declared the confiscation of the property "of all persons in the State of Missouri who shall take up arms against the United States, or who shall be directly proven to have taken an active part with their enemies in the field," and declared their slaves free. President Lincoln ordered that the proclamation be so modified as to conform to the Confiscation Act of 1861, which applied only to slaves and other property put to hostile use. 2* Similarly, when General Hunter inMay, 1862, declared that "slavery and martial law in a free country are alto- gether incompatible," and added that "the persons in . . . Georgia, Florida, and South Carolina heretofore held as slaves are therefore declared forever free," the President gave public notice that the order was unauthorized and void." Both Fremont's and Hunter's orders were in essence political; for, instead of dealing with any specific military problem concerning slaves, they proclaimed a comprehensive and sweeping policy of emancipation far beyond any immediate military necessity. When it came, however, to the question of returning fugitive slaves who found their way within the Union lines, quite a different problem was presented. Just after General Benjamin F. Butler assumed control at which passed under an explicit notice that it was coming." (Lincoln, August 26, 1863, to Union men at Springfield, Illinois. Quoted in Rhodes, History of the United States, IV, 410. And see also Lincoln's letter to McGlernand, Jan. 8, 1863: Nicolay and Hay, Works, VIII, 181.) ^^Ibid., VI, 353. ^Ubid., VII, 171. STEPS TOWARD EMANCIPATION 355 Fortress Monroe, there came within his lines three slaves, the property of Colonel Mallory, in command of the Confederate force in that region. Because he needed workmen and because he was "credibly informed that the negroes in this neighborhood are employed in the erection of batteries and other works by the rebels, which it would be nearly or quite impossible to construct without their labor," Butler decided to hold them and employ their services. In an interview under flag of truce with Major Carey of the Virginia troops, Butler stated his position as follows: . . . he [Major Carey] desired to know if I did not feel my- self bound by my constitutional obligations to deliver up fugitives under the Fugitive Slave Act. To this I replied that the Fugitive Slave Act did not aflfect a foreign country, which Virginia claimed to be, and that she must reckon it one of the infelicities of her position that, in so far at least, she was taken at her word.^^ It was in these words that General Butler reported the matter to General Scott at Washington, and in this report he said nothing about having referred to the Negroes as "contraband of war," Both Butler and Major Carey, however, have testified that this phrase was used by Butler in the interview. Referring to this famous phrase in later years, Butler said: "as a lawyer I was never very proud of it, but as an executive officer I was very much comforted with it as a means of doing my duty."29 The problem involved here was not that of "contra- ^^Private and Official Correspondence oj General Benjamin F. Butler, I, 104. ^sjohn Hay refused to credit Butler with authorship of the word "contraband" as applied to Negroes in hostile service, but Butler, reply- ing vigorously in his autobiography, said: "If he had put the question 356 CONSTITUTIONAI, PROBLEMS UNDER LINCOLN band" in the strict sense, but the problem of deahng with fugitive slaves, belonging to "rebel" owners, and finding their way into the Union lines. In the early part of the war, some of the generals adopted Butler's course; while others, as for instance Halleck in Mis- souri and General Williams in Louisiana, refused to receive such fugitives into their lines.''" The matter was finally settled by Congress. On March 13, 1862, Congress enacted an "additional article of war" prohibit- ing persons in the military or naval service "from employ- ing any of the forces . . . for the purpose of returning fugitives from service or labor, who may have escaped."'' A further step was taken on July 17, 1862, when Congress enacted that no slave escaping into any State from another State should be delivered up except for crime, unless to a loyal owner. Slaves of "rebel" own- ers coming into the Union lines were by this act declared free. 32 This fugitive slave question off'ers an excellent ex- ample of the manner in which the unavoidable inci- dents of a war over a vastly extended front with a slaveholding power inevitably forced upon the Govern- ment the question of emancipation. As to the opera- tion of the Federal fugitive slave law, it is sufficient to say that the state of war made that law inapplicable as between the United States and the Confederate to me I should have answered: 'A poor thing, sir, but my own'. If he had inquired of Major Carey, that gentleman would have answered that 'contraband' was the ground upon which I refused to release Mai- lory's slaves." To confirm this, Butler produced a letter from Major Carey written in 1891. (Butler^s Book [Autobiography and Personal Reminiscences of Major General Benj. F. Butler], Ch. vi; Nicolay and Hay, Lincoln, IV, Ch. xxii.) ^oAnn. Cyc, 1862, p. 754. ^^U. S. Slat, at Large, XII, 354. ^Ibid., p. 589. STEPS TOWARD EMANCIPATION 357 States; while loyal slave owners within such Union States as Kentucky and Missouri were permitted to re- cover their slaves until late in the war, when the fugi- tive slave acts were repealed. ^^ III Another form in which the emancipation question pre- sented itself was in connection with the subject of con- fiscation. The first Confiscation Act, passed on August 6, 1861, provided that "whenever . . . any person claimed to be held to labor or service . . . shall be required or permitted ... to take up arms against the United States or ... to work ... in any military or naval service whatsoever against the Government and lawful authority of the United States, . . . the person to whom such labor or service is claimed to be due shall forfeit his claim to such labor."" It is perhaps a just criticism of this act to say that it should not have gone so far as it did without going farther. The act did not specifically say that such slaves should be free, though this was the plain inference; and no provision was made for carrying into effect the forfeiture of this particular class of property. The act as it related to slaves was of little practical importance, •''^ yet it should be noted as one of the earlier steps which pointed toward a fuller policy of emancipation. The emancipating feature of the second Confiscation ''The act of June 28, 1864, declared that the fugitive slave acts of 1793 and 1850 "are hereby repealed." {Ibid., XIII, 200.) ^*Ibid., XII, 319. "Senator Trumbull, on March 29, 1864, said of the first Confiscation Act: "That act . . . has not been executed. So far as I am advised not a single slave has been set at liberty under it." (Cong. Globe, 38 Cong., 1 sess., p. 1313.) 358 CONSTITUTIONAL PROBLEMS UNDER LINCOLN Act, that of July 17, 1862, must now be examined. This was, primarily, a treason act and a confiscation act. The provisions concerning slaves must be considered in re- lation to all the other provisions. The law provided that any one thereafter committing treason should "suffer death, and all his slaves, if any, [should] be declared and made free"; or, at the discretion of the court, imprisonment and fine might be imposed instead of death, in which case also the slaves were to be made free, and the fine was to be levied on the property, excluding slaves. In its later sections the law imposed confiscation upon all persons engaged in or aiding the rebellion, and provided in some detail for the condemna- tion of property by proceedings in rem in the Federal district courts, as well as for its sale and the depositing of the proceeds in the treasury. Then, in section nine, the following provision was added : And be it further enacted, That all slaves of persons who shall hereafter be engaged in rebellion against the Government of the United States, or who shall in any way give aid or comfort thereto, escaping from such persons and taking refuge within the lines of the army; and all slaves captured from such persons or deserted by them and coming into the control of the Government of the United States; and all slaves of such per- sons found on or being within any place occupied by rebel forces and afterwards occupied by the forces of the United States, shall be deemed captives of war, and shall be forever free of their servitude, and not again held as slaves.'^® An examination of the whole act shows that the emancipation of slaves is provided for separately from the confiscation of property; and the distinction between the confiscating and the emancipating features of the act is important. The act does not confiscate slaves "i/. S. Stat, at Large, XII, 589-592. • STEPS TOWARD EMANCIPATION 359 as property. The earlier sections (which provide in detail for the condemnation in the Federal courts of all the estate and property, money, stocks, credits, and effects of the offender, for its sale and the disposition of the proceeds) make no reference to slaves, and the provision regarding the "sale" of the "property" would be inapplicable to slaves, when freed. It is therefore a puzzling question as to how, in the intention of Congress, this Confiscation Act was to be used as a measure of emancipation. There are no pro- visions whatever for making this emancipation effective. It was not an act of general emancipation, but one de- claring freedom in such a way that certain facts would have to be shown in regard to any individual slaves who should claim freedom under it — especially the fact of ownership by a particular person and of the rebellious character of that person. To determine such facts would be essentially a judicial function; and it has been held by the Supreme Court that forfeiture of property under the laws of Congress is a question whose de- cision belongs to the courts." If it had been seriously contemplated that the courts were actually to enforce the emancipating features of the act, something would presumably have been said regarding procedure; for, as to the confiscation of property, the procedure was care- fully specified. 3^ It was provided that proceedings in rem were to be brought, with conformity, as nearly as possible, to admiralty actions. Certainly in such an unfamiliar field as this a definite provision as to pro- cedure was to be expected. Section fourteen of the act, it is true, declared that "the courts . . . shall have full power to institute proceedings, make orders and "Gelston vs. Hoyt, 3 Wheaton 246; Slocum vs. Maybeiry, 2 Wheaton 3. ^<^Supra, p. 285. 360 CONSTITUriONAI. PROBLEMS UNDER LINCOLN decrees, issue process, and do all things necessary to carry tliis act into effect," but this provision seems to apply to the clauses relating to confiscation, for the act did not even say that the courts had any functions whatever as regards slaves. It is a general rule, of course, that where a right is guaranteed by Federal law, the Federal courts are available to a suitor claiming such a right; ^' and it might be said that a slave could bring a civil action in a Federal court to obtain free- dom, or possibly, to obtain damages for illegal detention in servitude, citing the Confiscation Act as justification for such a suit; but, to mention only a few of the difl^culties involved here, this would have put an onerous and expensive burden upon the slave; it would have in- volved one-sided suits in which, under the existing cir- cumstances, the masters would not have been heard; the number of such suits would have exceeded the ca- pacity of the courts; and such civil actions would have ignored the punitive features of a law which imposed emancipation as a penalty for supporting the "rebellion." No court may seize anything beyond its reach nor de- termine anything outside its jurisdiction. If the courts were to have enforced the emancipating clause of the act, the following steps would have been necessary: 1 . The courts would have had to develop a procedure for the purpose, under the doubtful authority of the fourteenth section. We have already noted the diflli- culties which this would have involved. 2. Physical possession of the slaves would have had to be acquired. The law said that all slaves of "rebels" taking refuge within the military lines, and by certain ''"The judicial power shall extend to all Cases . . . arising under this Constitution, the Laws of the United States," etc. {Constitution of the United States, Art. Ill, sec. 2). See also the Judiciary Act of 1789, U. S. Stat, at Large, I, 85-86. STEPS TOWARD EMANCIPATION 361 Other means coming within military possession, were to be deemed "captives of war" and to be "forever free." The rather eccentric phrase "captives of war" in this connection emphasized the fact that control of those slaves was to be obtained through military action, though that was not the case concerning confiscable property. It is evident, however, that the actual free- ing of the slaves by military authority was not in- tended; and that the determination of rebel ownership and the issuing of decrees of freedom were in the nature of judicial, rather than military, functions. Yet the law did not say that the military authorities should turn the slaves over to the courts. What should be done with them was left in doubt. It is true that the Emanci- pation Proclamation of September 22, 1862, enjoined upon the military officers the enforcement of the emancipating clause of the second Confiscation Act; but this injunction was unaccompanied by specific instruc- tions as to how the clause was to be enforced, or as to the many puzzling questions that would arise in seeking to apply both ihe confiscation law and the proc- lamation. In response to an inquiry by General Scho- field. Judge Advocate General Holt gave the opinion that military protection should be given to slaves desig- nated as free by the confiscation law of 1862, and that "certificates" of freedom be issued to such slaves; ^^ but this policy advised by a law officer of the War Depart- ment does not seem to have been put into practical eff'ect. Neither the military authorities nor the courts had any clear understanding as to how they were to carry out the confiscation law in its relation to the liberation of slaves. 3. In the third place, the courts would have had to "0. /?., Ser. Ill, Vol. 3, p. 525; Scr. II, Vol. 6, p. 209. 362 CONSTITUTIONAL PROBLEMS UNDER LINCOLN make good their jurisdiction in dealing with the slaves. As to confiscable property, it was held that jurisdiction depended upon situs — i.e., only such property as was found within the boundaries of a particular district court's jurisdiction could be seized and condemned by that court. Senator Trumbull pointed out that his Con- fiscation Act did not itself divest title to property, and that judicial action against the property*' located in loyal States within reach of the Federal courts (while the "rebels" themselves were out of such reach) was necessary in order to complete the confiscation. "' Under such limitations, the use of the courts under the Confiscation Act for emancipating slaves would have been impracticable. 4. Having developed a procedure, obtained the slaves, and established jurisdiction, the courts would have had to determine the essential facts. Had they done this in the manner that was adopted regarding confiscable property, this determination of facts (as to ownership of the slave and the "rebel" character of the owner) would have been performed in the owner's absence and, as was the practice in some cases, without giving even his agent a hearing; for a "rebel," it was said, has no persona standi in a Federal court. ''^ 5. Finally, the courts would have had to issue some decree of emancipation for particularly designated ^'Proceedings for confiscation were in rem against the property, not in personam against the offender. Yet the offender's guilt was the basis of the confiscation. The Supreme Court's decision that a "rebel" should not be denied "standing in court" in an action concern- ing his property came after the war, too late to affect the for- feitures; and even this decision did not overcome the difficulty in- volved in condemning the property on default when the owner, as was usual, did not try to appear. All this has been treated elsewhere. (Supra, pp., 307-312.) *^Cong. Globe, 37 Cong., 2 srss., p. 1571. *^Supra, p. 310. STEPS TOWARD EMANCIPATION 363 slaves. Some document suitable for legal record would have been necessary, divesting the title, as a realty deed conveying a piece of land or a decree of condemnation and sale in the case of forfeited goods. Since the act itself did not divest the title, the need of such a decree is evident. It appears that the United States courts did not consider such decrees of liberation proper; and there is no instance, within the writer's knowledge, of any such decree having been issued. In fact there is no evidence of the actual enforcement of the emanci- pating clause of the act. ^^ On close analysis, therefore, it is hard to see by what process any particular slaves could have legally estab- lished that freedom which the second Confiscation Act "declared." The emancipating clause of the act is an example of loose legislation which is the more remark- able in view of the voluminous debates which every phase of this closely contested bill called forth in both houses. IV Simultaneously with the second Confiscation Act Con- gress passed another law which involved emancipation. This was the measure which conferred freedom upon slave-soldiers. The Militia Act of July 17, 1862, pro- vided that when any slave belonging to an enemy of the United States should render military service, he should be forever thereafter free; and his mother, wife, and children (unless belonging to loyal owners) should be free.^^ It would seem that this act really added **Lincoln said concerning the second Confiscation Act: "I cannot learn that that law has caused a single slave to come over to us." (Sept. 13, 1862: Nicolay and Hay, Works, VIII, 30.) ^^Section 13 of the act calling forth the militia: U. S. Slat, at Large, XII, 599. 364 CONSTITUTIONAL PROBLEMS UNDER LINCOLN nothing to the emancipating clause of the Confiscation Act, which declared all such slaves free on the ground of "rebel" ownership, except that an additional reason for this freedom was now found in military service; and, as military service is a matter of record, it would be a useful basis of establishing freedom in the legal sense, in case the war should close without any more com- prehensive measure of liberation. It was rather surpris- ing that this law did not at the same time provide similar freedom for slave-soldiers owned by loyal masters, with compensation to such masters,'*® for it was widely rec- ognized that no Negro who had served under the colors should be reenslaved. It will thus be seen that before the issuance of the Emancipation Proclamation in September, 1862, Con- gress had provided manumission by various measures, the provisions of which to a certain extent overlapped. The liberation of slaves of "rebel" ownership coming within the Union lines, the liberation of slaves belong- ing to "rebels" under the Confiscation Act of July, 1862, and the emancipation of slave-soldiers of "rebel" owner- ship — all this had been provided for by Congress before the President issued his famous edict. For these reasons the comment has sometimes been made that the freeing of slaves during the war was accomplished by Con- gress rather than by the President. These measures of Congress struck at slavery as a State institution. But Congress did not stop here. In the national field also, where its normal jurisdiction applied (unless one should accept the Dred Scott "This defect was cured in the act of February 24, 1864, amending the "act for enrolling and calling out the national forces." The twenty-fourth section provided freedom for drafted slaves belonging to loyal owners, with bounties to the owners. Compensation was also made available for loyal owners of colored volunteers, and such vol- unteers were made free. {U. S. Stat, at Large, XIII, 11.) STEPS TOWARD EMANCIPATION 365 "dictum" to the contrary) Congress acted in the inter- est of freedom. Slavery in the District of Columbia was abolished, with compensation to loyal owners, on April 16, 1862; and emancipation in the territories (but without compensation) was provided by act of June 19, of the same year.*^ Our attention must now turn to that form of emanci- pation which Lincoln favored in preference to any other because it came nearest to satisfying his sense of what was statesmanlike, equitable, and legally sound. This was gradual emancipation by voluntary action of the States with Federal cooperation and compensation. In recommending, on March 6, 1862,^^ that Congress should pass a resolution pledging financial aid for this pur- pose, the President pointed out that the matter was one of perfectly free choice with the States; and that his proposition involved "no claim of a right by Fed- eral authority to interfere with slavery within State limits, referring, as it does, the absolute control of the subject ... to the State and its people." Lincoln was too good a lawyer to ignore the constitutional limita- tions as to the power of Congress over slavery in the States, and the legal importance of the vested rights of slave owners which called for compensation. On ^W. S. Stat, at Large, XII, 376, 432, 538, 665. In an able analysis of the Dred Scott case, E. S. Corwin has shown that Taney's denial of con- gressional power to prohibit slavery in the territories was not an "obiter dictum," but a canvassing afresh of the question of jurisdiction. He points out, however, the irrelevancy of Taney's argument in invoking the doctrine of "vested rights" in the interpretation of the "due process" clause, and thus denouncing the Missouri Compromise as a violation of the Fifth Amendment. (Am. Hist. Rev., XVII, 52-69.) *^Cong. Globe, 37 Cong., 2 sess., p. 1102. 366 CONSTITUTIONAL PROBLEMS UNDER LINCOLN April 10, 1862, Congress passed the following resolu- tion,^* in the identical form proposed by the President. Be it resolved . . . That the United States ought to co- operate with any State which may adopt gradual aboHshment of slavery, giving to such State pecuniary aid, to be used by such State in its discretion, to compensate for the incon- veniences, pubUc and private, produced by such a change of system. This joint resolution was directed primarily to the border States, but it offered pecuniary assistance to any State that should abolish slavery. An unfavorable reply to the proposal was made by a congressional delegation from the border States,^" and the scheme was never carried out. It came very near, however, to being put to a practical test in Missouri. Even before that State had passed an emancipation law, both houses of Con- gress passed bills giving actual financial aid to the State for the purpose of emancipation. The bills disagreed in form, and time was lacking in the short session end- ing in March, 1863, to perfect and pass the same bill through the two houses; but the affirmative action of both houses on the actual appropriation of money is significant of the serious purpose of Congress to fulfill the Federal side of the proposal. ^^ Five months after the initiation of the scheme for compensated abolition, the executive proclamation of emancipation, which we will consider on a later page, *^Ibid., Appendix, p. 420. 6Mnn. Cyc, 1862, p. 722. 6'In the House bill Federal bonds to the amount of ten million dollars were provided. The Senate bill provided bonds up to twrenty million dollars; but, if emancipation should not be effected before July 4, 1865, the amount to be delivered was to be only ten million. (Cong. Globe, Jan. 6, 1863, 37 Cong., 3 sess., p. 209; Senate Journal, Feb. 12, 1863, p. 243.) STEPS TOWARD EMANCIPATION 367 was issued (September 22, 1862). The proclamation, however, did not apply in the border States, nor uni- versally within the Confederate States; and its issu- ance by no means indicated an abandonment of the scheme for State abolition with Federal compensation. In the September proclamation the President specifically declared his intention to "recommend the adoption of a practical measure tendering pecuniary aid" to loyal slave States voluntarily adopting immediate or gradual abolishment. The compensation scheme was his idea of the proper method for the permanent eradication of slavery, while the proclamation was a measure of par- tial application whose legal effect after the war he regarded as doubtful. As a side light on the President's policy of making compensation to slave owners, it is interesting to study a general order concerning the military use of property and slaves in the Southern States, which he issued on the very day when the Emancipation Proclamation was broached in Cabinet meeting (July 22, 1862). He ordered that property be used where necessary for mili- tary purposes, but that "none shall be destroyed in wantonness or malice." He further directed "that . . . commanders employ ... so many persons of African descent as can be advantageously used for military or naval purposes, giving them reasonable wages for their labor," and ordered "that, as to both property and per- sons of African descent, accounts shall be kept ... as a basis upon which compensation can be made in proper cases." This order was written in Lincoln's hand- writing and was issued as a general order by the War Department. ^^ It is of interest as showing how the President, while occupied with the subject of emancipa- ""^^Sunton Papers, VIII, No. 51769; 0. R., Ser. Ill, Vol. 2, p. 397; Nicolay and Hay, Works, VII, 287. 368 CONSTITUTIONAL PROBLEMS UNDER LINCOLN tion by proclamation, was at the same time mindful of the property rights of slave owners. In his annual message of December 1, 1862, Lincoln presented at some length a detailed project for com- pensated emancipation which he wished to have adopted as articles amendatory of the Constitution. These pro- posed amendments provided for the delivery of United States bonds to every State which should abolish slavery before the year 1900. All slaves made free by the chances of war were to be forever free, but loyal own- ers of such slaves were to be compensated. The Presi- dent, in this message, argued elaborately and eloquently for the adoption of his scheme." An examination of this able message reveals much concerning the legal phases of emancipation as viewed by the President. He treated the subject of the libera- tion of slaves as one still to be decided, showing that he did not regard the Emancipation Proclamation as a settlement or solution of the question in the large sense. State action was still to be relied upon for the legal accomplishment of emancipation; and this was in har- mony with the statement which the President is re- ported to have made in his interview with the border- State delegation on March 10, 1862, "that emancipation was a subject exclusively under the control of the States, and must be adopted or rejected by each for itself; that he did not claim, nor had this Government any right to coerce them for that purpose." ^^ The message shows further that he considered com- pensation the correct procedure; and believed that such compensation by the Federal Government, the expense of which would be borne by the whole country, was s'Nicolay and Hay, Works, VIII, 93-131. "McPherson, Political History oj the Rebellion, 210 et seq. STEPS TOWARD EMANCIPATION 369 equitable. He would set constitutional discussions at rest by writing his plan of liberation (even to the amount and interest rate of the bonds and the terms of their delivery) into the fundamental law. Yet, though he was proceeding by constitutional amendment, his method was not to emancipate by purely national action; for the matter was still to be left to the States and would apply only in those States which should choose to cooperate. It was to be voluntary emancipation by the States with compensation by the nation. For even so much national action as was involved in "coopera- tion" with States desiring to give freedom to their slaves, Lincoln favored the adoption of a constitutional amend- ment, though this financial "cooperation" is the sort of thing that Congress nowadays regards as a part of an ordinary day's work. We need not, of course, conclude that the President, in his own mind, doubted the constitutionality of the proposal for compensated emancipation; though, as we have seen, he did doubt the constitutional power of Congress to impose liberation upon a State. He said in communicating his original proposal to the border- State delegation that his proposition, since it merely con- templated cooperation with States which should vol- untarily act, involved no constitutional difficulty. ^^ In his December message he made no reference to any de- fect in the constitutional power of Congress to act as he proposed. The plain inference is, not that the Presi- dent considered an amendment necessary to legalize his project; but that he wished the scruples of those who did think so satisfied, and also that he wished so grave and important a matter to be dealt with by a solemn, fundamental, act. *'Nicolay and Hay, IVorks, VII, 125-126. 370 CONSTITUriONAI- PROBLEMS UNDER LINCOLN Since this project for State abolition with Federal aid was never adopted, we need not dwell further upon the many interesting questions which it presented. Per- haps its chief interest is to be found in the light it throws upon Lincoln's lawyerlike caution in dealing with the slavery question as a matter of permanent law. All these cautious legal considerations in Lincoln's mind and this circumspection in his official acts should not be regarded as dimming his intense conviction as to the moral wrong and shameful social abuse of slavery. To review his works is to find emphatic and numerous expressions of this conviction. Space is lacking for a full showing of these statements, but a few typical ones may be noted here. In 1854: "This declared indifference . . . for the spread of slavery, I cannot but hate. I hate it because of the monstrous injustice of slavery itself. I hate it because it . . . enables the enemies of free institut- ions ... to taunt us as hypocrites . . . ." In 1855: "I hate to see the poor creatures hunted down and caught . . . ." In 1859: "Never forget that we have before us this whole matter of the right or wrong of slavery in this Union . . . ." In 1864: "I am naturally antislavery. If slavery is not wrong, nothing is wrong. I cannot remember when I did not so think and feel . . . ."^^ These sentiments were among the deep fundamentals of Lincoln's liberal thought. Tor these statements see Nicolay and Hay, Works, II, 205, 282; V, 122; X, 65. For a full and useful compilation of Lincoln's many utterances on slavery (with references), see Archer H. Shaw, ed., Lincoln Encyclopedia, 298-339. CHAPTER XVI EMANCIPATION COMPLETED I. Legal basis of the Emancipation Proclamation II. Effect and validity of the proclamation III. Legal confusion arising where Federal laws of emanci- pation encountered slave codes in loyal States IV. Action of the border States concerning slavery V. The anti-slavery amendment: Controversy concerning such use of the "amending power" VI. Legality of the process by which the Thirteenth Amendment was ratified VII. Considerations concerning the lack of compensation to slaveholders Our attention will be directed in this chapter to the public measures by which the eradication of slavery in this country was actually accomplished. President Lincoln issued a preliminary proclamation of emancipa- tion on September 22, 1862, from which we may quote the following words: I, Abraham Lincoln, President of the United States . . . , and Commander-in-Chief of the army and navy thereof, do hereby proclaim . . . that hereafter, as heretofore, the war will be prosecuted for the object of practically restoring the constitutional relation between the United States and each of the States. ... [In the next paragraph the President states that he will again recommend to Congress the adoption of a practical measure giving pecuniary aid to States not in re- bellion which may abolish slavery.] That on the first day of January [1863], all persons held as slaves within any State, or designated part of a State, the 371 372 CONSriTUriONAL problems under LINCOLN people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever free; and the Executive Government of the United States, including the military and naval authority thereof, will recognize and main- tain the freedom of such persons, and will do no act ... to repress such persons ... in any efforts they may make for their actual freedom. [The proclamation then quotes the act of Congress prohibiting the use of the military forces to return fugitive slaves, and the emancipating clauses of the second Confiscation Act, and enjoins the armed forces of the United States to obey and enforce these enactments.] And the Executive will in due time recommend that all [loyal] citizens . . . shall (upon the restoration of the con- stitutional relation between the United States and their re- spective States and people, if that relation shall have been suspended or disturbed) be compensated for all losses by acts of the United States, including the loss of slaves.^ One hundred days later, on January 1, 1863, the defini- tive proclamation was issued. Beginning with a pre- amble referring to the earlier proclamation of warning, the President continued i^ Now therefore I ... by virtue of the power in me vested as Commander-in-Chief of the Army and Navy ... in time of actual armed rebellion . . . , and as a fit and necessary war measure for suppressing said rebellion, do . . . order and designate . . . the following [as rebellious districts], to-wit: Arkansas, Texas, Louisiana [except certain designated par- ishes], Mississippi, Alabama, Florida, Georgia, South Carolina, North Carolina, and Virginia [except "West Virginia" and certain other designated portions].'' •Nicolay and Hay, Works, VIII, 36-41. mid., pp. 161-164. 'The excepted portions of Virginia, besides "tlie forty-eight counties designated as West Virginia" (for which the process of separate state- hood had not yet been completed), were "the counties of Berkeley, Accomac, Northampton, Elizabeth City, York, Princess Anne, and Norfolk, including the cities of Norfolk and Portsmouth." It should be noted that Tennessee was omitted from the proclamation. EMANCIPATION COMPLETED 373 And . . . I do order and declare that all persons held as slaves within said designated States and parts of States are, and henceforward shall be, free; and that the Executive Gov- ernment of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons. [The President then enjoins orderly conduct upon frcedmen and offers to receive them into the armed service for garrison and naval duty.] And upon this act, sincerely believed to be an act of justice, warranted by the Constitution upon military necessity, I in- voke the considerate judgment of mankind, and the gracious favor of Almighty God. An extensive controversy was waged as to the legal basis for this "edict" of freedom. It was urged in opposition that slavery was a State affair;* that the only source of power for the Federal Government was the Constitution, and that under it the Government had no authority over slavery within the States; that pre- serving the Constitution, not breaking it, was the pur- pose of the war; that under international law private property on land was exempt from seizure; that emancipation was especially discredited as a belligerent right; that it amounted to the taking of property with- out "due process of law"; and that such action in the form of a proclamation was a mere usurpation of power on the part of the executive. On the affirmative side it was admitted that the right of emancipation was not specifically granted by the Constitution; but it was urged that that instrument au- thorizes the Government to wage war, and thus to ^Lincoln admitted this as a rule applying in peace times, and in time of war as a limitation upon Congress, but not upon the executive. Rigid consistency would, perhaps, have required him to veto certain emancipating measures of Congress which, nevertheless, he signed. 374 CONSTITUTIONAL PROBLEMS UNDER LINCOLN exert war powers against an enemy. International law, so the argument ran, is at all times an available part of our Government's legal resources; and in time of war the "usages of war" which are a part of international law must always be included among the legitimate sources of governmental authority. During the Civil War belligerent rights were declared by the Supreme Court to belong to the United States in its dealings with the secessionist power; and all the inhabitants of the States in "insurrection" were, in the eyes of the law, "enemies." The seizure of an enemy's property is a right as well as a necessary result of war, it was argued; and, if necessary for military purposes, such property may be destroyed. Those humane considera- tions which, in modern times, modify the right of seiz- ure and limit it to such property as is useful in the prose- cution of war are not to be ignored; but emancipation is a humane measure, striking at a kind of "property" which modern nations have ceased to recognize; and the military importance of slavery to the enemy constitutes it a legitimate target against which the right over en- emy property may be exerted. As to the President's exercise of the power by proclamation, that was held to be justified by the general rule that the President's powers as commander-in-chief include belligerent rights derived from the usages of war, as, for example, the authority to proclaim a blockade of the enemy's coast. The proclaiming of such a blockade, it was urged, though not specifically authorized by the Constitution, is gen- erally conceded to be within the President's war power; and emancipation was claimed as an analogous right. The right to free an enemy's slaves, it was also argued, is embraced within the law of military occupation. In support of this view it was a common thing to quote certain well-known statements of John Quincy Adams EMANCIPATION COMPLETED 375 regarding slavery and "martial law."^ We need not pause here to comment on the lack of harmony between these later views of Adams as an anti-slavery leader and the earlier arguments which as Secretary of State he urged against the belligerent right of emancipation. Whether he regarded these seemingly opposite views as consistent, or whether he had changed his mind, is a matter that need not detain us; but during the Civil War he was cited as a convincing authority by both the supporters and the opponents of military emancipa- tion. In 1842 Adams argued that an invaded country has all its laws swept away and is subjected to martial law. When two hostile armies are set in martial array, the commanders of both, he declared, have the power to emancipate all the slaves in the invaded territory. Citing an instance of military abolition of slavery in South America, he observed, "It was abolished by . . . military command . . . and its abolition continues to be law to this day. It was abolished by the laws of war, and not by municipal enactments."^ Military au- thority, said Adams, takes the place of municipal in- stitutions, slavery among the rest. "From the instant ^C. F. Adams, "John Quincy Adams and Martial Law," Mass. Hist. Soc. Proceedings, second series, XV (1901-1902), 436-478. ^Ibid., p. 442. It appears that Adams was in error in his use of South American examples. He evidently referred to the action of Bolivar in 1816 in proclaiming freedom to slaves in certain parts of Venezuela which was at that time united with Colombia. This action, however, was but partial, and it did not put an end to slavery in that country; for Bolivar himself requested the Venezuelan Congress to abolish slavery in later years, and Codazzi, the geographer, calculated that there were 49,000 slaves in Venezuela in 1839. Effectual abolition of slavery did not come in Venezuela until 1854, nor in New Granada (Colombia) until 1851. Thus when Adams spoke in 1842 of abolition by military authority in South America, slavery actually existed in those countries to which he was referring. (M. Landaeta Resales, La Libertad de los Esclavos en Venezuela; W. S. Robertson, History of the Latin American Nations, 366, 409.) 376 coNsirruiioNAi. im^oblkms under Lincoln your slave State becomes a theater of war, servile, civil or foreign, the war powers of Congress extend to inter- ference with slavery in every way." An examination of the context and the historical setting of these utterances, which were made in debate in the House of Representatives in 1837 and 1842, shows that Mr. Adams was contending primarily at this time for the right of those opposed to slavery to present petitions to Congress; that he objected to the extreme wording of a proposed resolution to the effect that Con- gress had no power to interfere "in any way" with the subject of slavery; and that, in justifying interference with slavery in time of war, he seems to have had in mind a situation in which the people of the free States would be called upon to aid in putting down servile insurrection in the South, thus giving their lives and money for the purpose, as he said, of keeping the blacks in slavery. Under these circumstances, he would con- sider the freeing of the slaves by military power justi- fied; but such a situation differed materially from that which really existed during the Civil War. It should be added that, in using the expression "martial law," he intended to refer to the law of military occupation, though his statements as Secretary of State, in 1820, certainly excluded manumission of slaves as a right of a military occupant. Some of the arguments justifying the proclamation showed considerable flexibility of interpretation. It was argued, for instance, that the Constitution did not rec- ognize slaves at all, considering the Negro in the South on the same basis as the apprentice.' It was also said 'It was argued in the report of the American Freedmen's Inquiry Commission, in May, 1864, that, in the section referring to the ap- portionment of Representatives and direct taxes, the words "other persons" were used in contrast to "free persons" precisely in the same EMANCIPATION COMPLETED 377 that property in slaves was a debt, similar to "the debt an artisan might contract, if he gave ... his promis- sory note for so many months' labor." ^ It was then added that the emancipation of slaves was merely the confiscation of debts! Such champions of the Presi- dent's power also argued that if, as Commander-in-Chief, he should violate the rules of war concerning the prop- erty of non-combatants, it would be "an offense, not against the Constitution, but against international law." "The legality of his acts" in that case might be "called in question, not their constitutionality." ^ In considering the grounds on which Lincoln himself justified the proclamation, we must remember that he really favored emancipation by State action with Fed- eral compensation to the owners, but realized that there was no prospect of this proposal being adopted by the seceded States. We must remember, also, that prior to the issuance of the proclamation he had been "prompt and emphatic in denouncing any interference by the gen- eral Government with the subject." i° On various occa- sions he declared his conviction that Congress (even dur- ing the war) had no legal power to strike at slavery in the States. He thought, however, that the executive had powers which Congress did not have. He based his proclamation solely upon the "war power." He issued it "by virtue of the power in me vested as Commander-in-Chief of the Army and Navy sense that the phrase "those bound to service for a term of years" was so used. It was then stated that the Constitution did not recog* nize the Negro as a slave any more than the apprentice. (0. R., Ser. Ill, Vol. 4, pp. 345-346.) mid., p. 349. *Ibid., p. 352. ^'^Diary oj Gideon Welles, I, 70-71. (July 13, 1862.) Welles adds: "This was, I think, the sentiment of every member of the Cabinet, all of whom, including the President, considered it [slavery] a local, domestic question." 378 CONSTITUTIONAL PROBLEMS UNDER LINCOLN . . . and as a fit and necessary war measure." He char- acterized it as an act "warranted by the Constitution upon military necessity ^^^ "As Commander-in-Chief," he once said, rather loosely, "I suppose I have a right to take any measure which may best subdue the enemy."*'' Again he said, "I think the Constitution invests its Com- mander-in-Chief with the law of war in time of war," and he added that the law of war gives the right to take property "whenever taking it helps us or hurts the enemy."*" In fact, he considered military necessity the only just basis for the proclamation,** and he even justi- fied it on the ground that the war at times necessi- tated things that were normally "unconstitutional." "I felt that measures otherwise unconstitutional," he said, "might become lawful by becoming indispensable to the preservation of the Constitution through the preserva- tion of the nation."*^ In these extracts we have the gist of Lincoln's views on the subject. It is perhaps sufficient to say that he considered liberation of the enemy's slaves an appropriate and necessary military measure coming within the laws of war. II Having observed the basis upon which the proclama- tion rested, we must now inquire as to its legal effect and validity. In this connection the limitations within the proclamation itself should be carefully noted. Those "The words in italics were, as Rhodes points out, inserted by Lin- coln in a passage suggested by Chase. (Rhodes, History of the United States, IV, 213, n.) '^Nicolay and Hay, Works, VIII, 32. ^Ubid., IX, 98. '♦"The . . . proclamation has no constitutional or legal justification, except as a military measure," said Lincoln. {Ibid., IX, 109.) »»/6j of Gideon Welles, I, 403. (Aug. 13, 1863.) EMANCIPATION COMPLETED 391 and effect of the President's proclamation were matters of controversy. The opponents of the proclamation, Trumbull said, declared "that it was issued without com- petent authority, and . . . cannot effect the emancipa- tion of a single slave." Moreover, the proclamation excepted from its provisions "almost half the slave States."^^ Some more effectual way of getting rid of slavery, he said, must be found. As to the suggestion that Congress pass such a law, Trumbull pointed out that the inability of Congress to interfere with slavery in the States had long been an "admitted axiom" in peace times and that the war power conferred no such right. Constitutional amendment he found to be "the only effectual way of ridding the country of slavery ... so that it cannot be resuscitated." "This amendment adopted," he said, "not only does slavery cease, but it can never be reestablished by State authority, or in any other way than by again amending the Constitution." He therefore proposed the submission to the States of the following amendment: Article XIII Sec. 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Sec. 2. Congress shall have power to enforce this article by appropriate legislation. This amendment was the first example of the use of the amending process to accomplish a specific reform on a nation-wide scale, outside what may be called, in a narrow sense, the strictly constitutional function, which *''Cong. Globe, 38 Cong., 1 sess., p. 1314. 392 CONSTITUTIONAI, F'ROBI.KMS UNDER LINCOLN is to declare what the government shall be, how it shall be formed in its various branches, and how far its au- thority shall extend. The first ten amendments, estab- lishing fundamental limitations upon the Federal power; the Eleventh, limiting the jurisdiction of the Federal courts; and the Twelfth, perfecting the process of choos- ing the President, had all dealt with matters of a truly constitutional, as distinct from a legislative, character. To many minds, therefore, the Thirteenth Amendment represented a new use of the "amending power." In the congressional debates upon the resolution of proposal, not only the expediency and wisdom of such an amend- ment, but also its "constitutionality" was elaborately discussed. That process which Trumbull advocated to silence all legal doubts was thus assailed as being itself invalid. The abolition of slavery, it was said, was outside the scope of the Constitution altogether. Slavery was a domestic institution, lying wholly within the field of State jurisdiction, an institution which did not exist by virtue of the Federal compact, but had its roots far back in colonial times. With such an institution the Federal Government had nothing to do, except, indeed, to "pro- tect" it in the particular ways specified by the Constitu- tion itself. If such an omnipotent power be granted, it could be used "to blot out of existence any State in this Union." It was not to be supposed that the "Fathers" would have entered into the Federal agreement if it had been suggested that in the future the rights of property or the relation of master and slave within the States would be invaded. Being asked whether it was not competent for the framers originally to have prohibited slavery by consti- tutional provision, an opponent of the amendment an- swered: Yes, all the States in making the Constitution EMANCIPATION COMPLETED 393 could have done this; but it does not follow that what the original parties to the agreement could have done by unanimous action can now be effected by three- fourths of the States and imposed upon the dissenting ones. Regarding the Constitution as being in the nature of a contract, such action would be in fraud of the orig- inal agreement, being contrary to the purposes that all had in view when the agreement was made. It would be similar to a case where various parties unanimously form a contract for given purposes and then three- fourths of the parties, having in view a matter beyond the original agreement, turn and say to the dissenting fourth: "We will bind you because you have entered in." Such action, it was urged, would be regarded as fraud by the courts. ^^ As Congressman Pendleton of Ohio expressed it, ''neither three-fourths of the States, nor all the States save one, can abolish slavery in that dissenting State; because it lies within the domain reserved entirely to each State for itself, and upon it the other States cannot enter. "^^ "The Constitution," declared Pruyn of New York, "would never have been ratified had it been sup- posed by the States that, under the power to amend, their reserved rights might one by one be swept away. This is the first time in our history in which an attempt of this kind has been made, and should it be successful it will ... be an alarming invasion of the principles of the Constitution." The matter, he added, should be left with the States, or there should be passed "a supplemen- tary article to the Constitution, not as an amendment. "Speech of Senator Saulsbury: Cong. Globe, 38 Cong., 1 sess., p. 1441. This passage in Senator Saubbury's speech is paraphrased, not directly quoted, above. *^Am. Cyc, 1865, p. 207. 394 CONSTITUTIONAL PROBLEMS UNDER LINCOLN but as the grant of a new power based on the consent of all the States, as the Constitution itself ?.$•."*" Pruyn's idea was that where so fundamental a change is involved, something more than an amendment is nec- essary. He therefore introduced the suggestion of "a supplementary article" which would have the assent of all the States, as did the "Constitution itself." He thought of a mere amendment as something different from the Constitution. The idea of such a distinction is natural enough, and it is indeed hard in our ordinary thought to exalt a constitutional amendment to the height of one of the great articles of the original Con- stitution. It may be natural also for those in the mi- nority to feel a certain resentment against an instrument of government which was agreed to as a whole by every State entering the Union, ^^ and yet which allows an amendment to be made by only three-fourths of the States and two-thirds of Congress. Yet political scientists would recognize no such dis- tinction. Aside from the restriction concerning the "equal suffrage" ^^ of the States in the Senate, the Con- stitution, since 1808, has contained no unamendable part, and it designates no field of legislation that may not be reached by the amending power. An amendment prop- ^^Cong. Globe, 38 Gong., 2 scss., p. 154. The italics are in the original. "When each State entered the Union, it accepted the whole Con- stitution at the time of entering. *^Even the provision regarding equal representation of the States in the Senate is not, in the strictest sense, "unamendable." The con- stitutional requirement is not that this feature of the government shall remain unchanged, but that the consent of a State is necessary before that State's equal suffrage in the upper house can be denied. {Con- stitution of the United States, Art. V.) Furthermore, it has been argued that no constitution should contain unamendable parts, and that a provision declaring a certain part "unamendable" is not bind- ing, since the constitution-making power is one of full and unre- strained sovereignty. (J. A. Woodburn, The American Republic, 209- 210; J. W. Burgess, The Civil War and the Constitution, I, 134.) EMANCIPATION COMPLETED 395 erly made becomes "valid, to all intents and purposes, as part of this Constitution," having as much force as any other article. There is no valid distinction between "the Constitution itself" and the amendments. The Constitution at any given time includes all up to the latest amendments, and excludes portions that have not survived the amending process. We should think not of "the Constitution and its amendments,''^ but of "the Constitution as amended'' This is especially true when we reflect that certain of the amendments supplant or construe portions of the original document." Those who, in the discussion we have just noted, argued against any amendment that would fundamen- tally alter the "Constitution itself," had in mind, pri- marily, the reserved power principle, and denied that, by the "amending power," the "general government" would have a right to do away with the reserved rights of the States. There is a confusion of thought here, for there is no "amending power" belonging to the Federal Government. When an amendment is adopted it is done not by the "general government," but by the supreme sovereign power of the nation — i.e., the people — acting through State legislatures or State conventions. Even the reserved power principle (which, by the way, is ex- pressed in the Tenth Amendment) is within the amend- ing power of the people. This amending power, it may be noted, is equivalent to the constitution-making power and is wholly above the authority of the Federal Government. An alterna- tive method of amending the Constitution is permitted in which Congress has practically no participation; for ^'The Eleventh Amendment is not so much an alteration of the Constitution as it is a rule of construction. It would have been unnec- essary if the original Constitution had not been given an interpretation which many regarded as unreasonable even though a literal application of the words of the Constitution seemed to justify it. 396 CONSTITUTIONAL PROBLEMS UNDER LINCOLN an amendment may be proposed by a convention which Congress is required to call upon the application of the legislatures of two-thirds of the States, and it then be- comes valid when ratified by legislatures or conventions in three-fourths of the States." The function of Con- gress in such a case would be merely to issue the call for the convention (which would be obligatory) and to propose one of two possible modes of ratification. It will thus be seen that the Federal Government not only lacks the "amending power," but it does not even possess the exclusive right to initiate an amendment. VI The contention, therefore, that the question of slavery constituted subject matter beyond the reach of consti- tutional amendment, while supported by very ingenious arguments, will hardly bear analysis. But there was another ground on which the validity of the anti-slavery article was attacked. It was urged that the method of adoption prescribed by the Constitution was not com- plied with, in that the valid ratification of three-fourths of all the States was not in fact obtained. It is significant that Trumbull himself, the author of the amendment, expressed doubts as to whether the Constitution could be legally amended during the Civil War. When, in 1863, an amendment suggested by another Senator was under discussion, he raised the question whether the United States had "authority in enough of the States of this Union to obtain the expres- sion of their opinion as to whether they would consent to a change or not."^^ When he presented the Thir- teenth Amendment, however, in March, 1864, the proba- bilities for obtaining a legal ratification seemed stronger. ^^Constitution of the United States, Art. V. ''^Cong. G/o6^, January 29, 1863, 37 Cong., 3 scss., p. 592. EMANCIPATION COMPLETED 397 His calculations were based upon the acceptance of the amendment by three-fourths of all the States, including those which had seceded, but which for this purpose, he considered "States of the Union." The following table gives the complete showing as to the status and the ratifying action of all the States. Table Showing States at the Time of the Adoption of the Thirteenth Amendment, December 18, 1865 Note. Italics indicate those States whose ratifications were counted in Seward's proclamation of December 18, 1865, declaring the amend- ment in force. Slave States of States of the Former Free St ates of the Union the Union Confederacy Cal. Md. Ohio Del. Ark. La. Conn. Mich. Ore. Ky. Tenn. Miss. III. Minn. Pa. JV. c. Ala. Ind. Mo. R. I. Va.* Ga. la. N.H. Vt. Tex. S. C. Kas. N.J. W. Va. Fla. Me. N. r. Wis. Mass. JVev. Total, 23 Total, 2 Total, 1 1 Total of all the States, 36. *The United States Government recognized the "restored govern- ment" of Virginia; and that State was, rather fictitiously, represented in the Federal Congress in the early part of the war. It was not, however, considered to be in the Union in 1865. In December, 1865, when the amendment went into force, the thirty-six States came within the following classification: slave States of the former Confederacy, 11; free States of the Union, 23; slave States of the Union, 2 (Delaware and Kentucky). As Delaware and Kentucky refused to ratify, it would be necessary to have the favorable action of at least four of the States 398 CONSTITUTIONAL PROBLEMS UNDER LINCOLN once belonging to the Confederacy in addition to all the free States to make up the full three-fourths. As a mat- ter of fact, while action in four of the free States was still being awaited, Secretary Seward, counting the rati- fications of eight of the former Confederate States, in addition to that of 19 of the free States, proclaimed, on December 18, 1865, that the amendment was in force. ^^ As to the justice of submitting an amendment at a time when the Southern States were in no position to consider it, and "imposing it upon one-fourth which had not ratified it," the friends of the amendment pointed out that all the States in entering the Union had agreed to abide by such amendments as three-fourths should make; that the Southern States could not plead disabil- ity to vote, since no one was denying them the opportu- nity to return to the Union and express themselves on the question; and that all States not voting for the amendment were in fact counted as being against it, inasmuch as no action at all was equivalent to negative action." The question as to the validity of the amendment at the time of Seward's proclamation of adoption hinges upon the competency of the States formerly within the Confederacy to pass valid resolutions of ratification. In a letter to the Senate, on December 18, 1865, President Johnson explained that all the seceded States except Florida and Texas had reorganized their governments and were "yielding obedience to the laws and Govern- ment of the United States."^" He then enumerated ^'Constitution of the United States, as amended to January 1, 1923, (Annotated): Sen. Doc. No. 96, 67 Cong., 2 sess., p. 28. See also George Ticknor Curtis, Constitutional History of the United States, II, 653- 654. ••'Argument of Senator Harlan: Cong. Globe, 38 Cong., 1 scss., p. 1437. 6M«n. Cj/c, 1866, p. 131. EMANCIPATION COMPLETED 399 those which had ratified the Thirteenth Amendment. If these ratifications were to be accepted, it must be on the ground that competent governments existed within the States in question at the time of ratification. It is mat- ter of famihar history that the governments in these States were of a provisional character, created by con- ventions which had assembled in compliance with John- son's generous plan of reconstruction, and that the radi- cals of Congress, rather unfortunately, took the matter out of Johnson's hands and refused recognition to these reorganized governments. Without pursuing to the limit all the legal phases of a question which, after all, contains many matters of idle speculation, it may suffice to notice the various in- gredients that must be included in any argument which would maintain that the Thirteenth Amendment was valid as declared by Seward's proclamation. Such an argument affirms the following points: 1. All the States, including those which seceded, should be reckoned in the total, three-fourths of which must ratify. 2. The ratifying action of the eight seceded States was competent and legal. 3. The Secretary of State's proclamation, declaring that the amendment was in force on December 18, 1865, was valid. (No resolution by Congress, for instance, was necessary.) 4. The subsequent refusal of Congress to recognize "Johnson's reorganized States" did not invalidate the amendment. It is of course a well-known fact that, at the moment when the amendment was proclaimed as ratified by the votes of various States of the former Confederacy, there were many radicals in Congress declaring that there 400 CONSTITUTIONAL PROBLEMS UNDER LINCOLN were no such States in existence.*'' The plan of such radicals as to the amendment was to leave the "rebel" States out of the count in estimating the total, three- fourths of which would be necessary to declare the amendment in force. '^° Such a plan had, perhaps, more of consistency than that which Congress actually adopted — that is, "quietly assenting" «' to Seward's proclama- tion which assumed that most of the seceded States were back in the Union, and then denying to such States rep- resentation in Congress and otherwise holding them out of the Union for a period of years. ^^ Inconsistencies and legal fictions offered no obstacle in that period when, for instance, Virginia was permitted representation in the Senate while kept out of the electoral College, and a ^'Concerning these radicals Edward Bates thus wrote: "... in de- bate in H of R old Thad. [Stevens] amidst other ravings declared that 'The Stale of Tennessee is not known to this House or to Congress/' A very ignorant House it would seem — ignorant alike of the Con- stitution & of Geography. . . . And in the Senate Mr. Howard of Michigan refused to 'recognize them as States' ! I And so it seems that they are not States in the Union, yet they can enact a Constitution for the United States! Are these men mad?" (MS. Diary of Ed- ward Bates, Dec. 12 and Dec. 21, 1865.) '"Strangely enough, Nicolay and Hay speak of the Thirteenth Amend- ment as having been "ratified by 21 out of the 26 States." (Nicolay and Hay, Works, X, 352, n.) ''Rhodes, History of the United States, V, 554; Blaine, Twenty Tears oj Congress, H, 140. '^Two weeks before Seward's proclamation of December 18, 1865, Senator Sumner proposed a joint resolution declaring that sundry States "by reason of rebellion were without legislatures," and that it belonged to Congress to determine when the process of constitutional amendment is complete. The question of counting State resolutions of ratification was, in his opinion, bound up with the problem of re- construction, wliich rested with Congress. On these premises his resolution declared "that the amendment abolishing slavery has be- come and is a part of the Constitution of the United States." This eccentric resolution (by which Congress would have assumed a merely ministerial function belonging to the Secretary of State) was not passed. (Cong. Globe, Dec. 4, 1865, 39 Cong., 1 sess., p. 2.) EMANCIPATION COMPLETED 401 Vice-President was declared elected from a State which was excluded from the electoral count. " As to the main question in the case of the Thirteenth Amendment, enough States ultimately ratified it to re- move all doubts as to its validity; and, historically, this validity has dated from Seward's proclamation of December 18, 1865. «" VII Emancipation was thus effected in the United States without any compensation to the slaveholders. It may be pertinent to recall in this connection that the English Parliament, in passing the emancipation act of 1833,*^ granted the amount of £20,000,000 as compensation for what was regarded as the "destruction" of slave prop- erty. In addition to the value of the slaves themselves, it was explained in Parliament that other matters should be considered, such as the value of the land which was principally maintained by slave labor, and the prospec- tive value of children to be born. As a matter of fact, the actual amount of compensation granted was hit upon in a sort of dicker with the West Indian proprie- *'In February, 1865, Congress declared that Tennessee was not en- titled to representation in the electoral college which chose the Presi- dent and Vice-President. In this election Andrew Johnson, a citizen of Tennessee, was elected Vice-President. {Cong. Globe, 38 Cong., 2 sess., appendix, p. 159.) **In construing the Thirteenth Amendment the courts have held that slavery and involuntary servitude in general (not merely in the case of Negroes) is prohibited; that laws establishing peonage are uncon- stitutional; that a law merely recognizing a distinction between the races is not invalid; that it is unconstitutional for Congress to prohibit such a distinction in public conveyances; that all within the jurisdic- tion of the National Government, as well as within the States, arc cov- ered by the amendment; and that the Selective Service Act of 1917 did not establish involuntary servitude. Some of these decisions have been modi- fied. Sen. Doc. No. 96, 67 Cong., 2 sess., pp. 621-623. •'[British] Annual Register, 1833, pp. 197 et seq. 402 CONSTITUriONAL PROBLEMS UNDER LINCOLN tors; but the fundamental fact is that the EngHsh Government considered that in aboHshing slavery there were property interests involved which demanded com- pensation. As we have seen, Lincoln thought so too; and Con- gress accepted the principle of compensation in a resolu- tion pledging pecuniary aid to those States which should liberate their slaves. An interesting question arises as to whether this pledge of support, made in 1862, was binding or applicable in 1865 when nation-wide emanci- pation was accomplished. Those border States which adopted emancipation prior to the ratification of the Thirteenth Amendment certainly believed that they were entitled to compensation from the Federal Gov- ernment, in spite of the rejection of the proposal by their own representatives. As Governor Swann of Maryland pointed out in January, 1865, "the first and only authorized response of the people of Maryland to the offer of Congress was the abolition of slavery in accordance with the terms of the resolution." ^^ And Bradford, the outgoing Governor, in referring to the President's recommendation concerning pecuniary aid and the joint resolution of Congress on the subject, de- clared: "If there can be any meaning in the language quoted, it expressed a promise to that eff"ect, and if any State can conscientiously claim a fulfillment of that promise, Maryland can." " The Maryland legislature in February, 1865, created a committee to go to Washington and confer with the President to see whether influence might be brought to bear to induce Congress to give aid to the State. In taking this action the legislature, in a series of whereas clauses, put it on record that the ofl'er of aid had been ^^House Journal and Documents, Maryland, 1865, Document C. ^''Ihid., Document A. EMANCIPATION COMPLETED 403 used to induce voters to support abolition in the State, and that the people of Maryland, "acting under" the President's recommendation and the offer of Congress, had in fact abolished slavery, ^s If Maryland should claim such compensation, Mis- souri could make a similar claim, while even in Ken- tucky, where the abolition of slavery was resisted to the last, the possibility of compensation seems to have been envisaged; for that State, in 1866, passed a law to obtain and preserve evidence as to slave property of which the citizens of the State had been deprived. «^ After the war, however, the matter of compensation for emancipated slaves was given little thought. Presi- dent Lincoln, as late as February of 1865, still favored compensation, even to the States of the South at the close of the war; but, even if he had lived, it is doubtful whether this object could have been accomplished. ^° The joint resolution of Congress expressing a willingness in 1862 to cooperate with any State that would free its slaves, represents simply a stage in the rapidly develop- ing policy regarding abolition. It was perhaps not felt that the offer should hold good indefinitely, since a cer- ^^Journal of the Proceedings of the House of Delegates, Maryland, 1865, pp. 190, 336. *'" Whereas the people of Kentucky ... by proclamations, military orders, and the Thirteenth Amendment to the Federal Constitution, [had] been deprived of their slave property without compensation" etc., it was enacted that persons so deprived should offer proof before the county courts, and the records were to be filed. ("Act to preserve evidence of claims to slave property in Kentucky," February 17, 1866: Laws of Ky., 1865-1866, p. 64.) '"At the Hampton Roads Conference Lincoln is reported to have said that he "would be willing to be taxed to remunerate the Southern people for their slaves"; that "he believed the people of the North were as responsible for slavery as the people of the South"; and that he would be in favor "of the Government paying a fair indemnity for the loss to the owners." (Nicolay and Hay, Lincoln, X, 124.) The Presi- dent's statements are thus reported by Alexander H. Stephens, one of the Southern commissioners at the conference. 404 CONSTITUTIONAL PROBLEMS UNDER LINCOLN tain amount of promptness on the part of the States was desired in order to influence the outcome of the war. At a time when Lincoln was laboring hard to put the scheme into practical efi'ect, the border-State Congress- men and Senators contributed their part to the burial of the project. In 1865 the question of abolition had acquired a dif- ferent horizon; for a new policy, namely, abolition by constitutional amendment, had been put forth. The amendment was a mandate to the National Govern- ment, not an act of that government; and it was very different from State action, for which alone compensa- tion had been promised. Under these circumstances, the obligation, if such existed, toward those few States whose independent abolition of slavery occurred just before the adoption of the nation-wide amendment, was lost sight of. Had slavery been abolished in time of peace, it is not unlikely that compensation might have been pro- vided, for the arguments and precedents favoring such compensation were sound; but the war mind of 1865 gave little heed to the property rights of slaveholders. " "The Fourteenth Amendment of the Constitution provides that "neither the United States nor any State shall assume or pay . . . any claim for the loss or emancipation of any slave." CHAPTER XVII STATE AND FEDERAL RELATIONS DURING THE CIVIL WAR I. Great importance of State action during the war II, The question of State "neutrality" III. Military problems of the State and nation IV. Federal relationships of the State governors V. Financial questions VI. Jurisdictional conflicts engendered by action of State courts "It is a fact of our national history that the Civil War put the separate States definitely and irrevocably in subordination to the central government." — H. G. Pearson, Life of John A. Andrew, II, 122. This quotation exemplifies a point of view wliich is quite general among historians. It is customary to em- phasize the "presidential dictatorship" and the excessive tendency tow^ard centralization of power at Washington as fundamental facts in treating the history of the Civil War. So much has been said concerning this national- izing tendency that the other side of the actual situation obtaining during the war has been obscured. It is not generally realized how far the National Government did act by and through the States. Taking the war as a whole, one does find a certain gathering-in of governmental activities by the Federal authorities. But early in the war — in general until the spring of 1863 — things were done, or attempted to be 405 406 CONSTITUTIONAL PROBLEMS UNDER LINCOLN done, "by States." In the field of finance, we have the "direct tax" for which quotas were levied upon the States; and the actual raising of the tax was to be accom- plished by the States after the fashion of Revolutionary days. Even in the vitally important domain of military affairs, the expanding of the army was primarily "by States," as seen in the Militia Act of 1862, and in the drafts made during that year. The national administration, especially in the early part of the war, showed a scrupulous regard for State functions, this attitude being carried even to the point of hampering the Government, On the other side, the States were jealous of retaining important activities; and their action frequently encroached upon Federal jurisdiction, as in the case of State trespass suits or habeas corpus proceedings instituted against Federal officers. It was far from true that the Government at Wash- ington deliberately used the war as an opportunity to increase its power. Lincoln's Cabinet contained men who stoutly upheld State rights; and Lincoln himself, both because of his clear perception of constitutional questions and because of his anxiety to avoid offending border-State sentiment, showed a wholesome regard for the proper authority of the States. What happened was rather that, as the war progressed, more and more responsibility was gradually and reluctantly assumed by the Federal Government because of the necessities aris- ing out of State jealousy and administrative deadlock. The nationalizing laws of the Civil War period, such as the Conscription Act and the act creating the system of national banks, begin with the year 1863. It was not until State action had proved a failure following two years of actual practice— sometimes because of enthu- siasm for the war, and sometimes because of opposition STATE AND FEDERAL RELATIONS 407 to it — that the National Government was drawn into the performance of functions without which the national cause would have failed. While recognizing the fact of nationalization as an incident of the war, we should avoid the mistake of attributing this to a persistent and deliberate purpose. II One of the strange anomalies of the war was Ken- tucky's attempted policy of neutrality. Without reciting the details of this interesting episode it will be sufficient to recall that a majority of the people of Kentucky were probably friendly to the States of the Confederacy, and, while devoted to the Union, were yet believers in the principle of State sovereignty and the right of secession. Had a convention been called in January, 1861, as Gov- ernor Magoffin desired, the State would probably have seceded. When Lincoln issued his call for troops on April 15, 1861, the Governor sent an emphatic refusal; and, shortly after, the policy of neutrality was set forth in a resolution passed by the State senate which declared that Kentucky would neither sever connection with the National Government nor take up arms for either party, but would "arm herself for the one purpose of preserving tranquillity and peace within her own borders." * It is outside the scope of this book to examine the purposes or conditions which prompted this neutral atti- tude. Sometimes it has been denounced as an anti- Union measure, while again it has been referred to as a "trick" by which the Union men saved the day in Ken- tucky at a time when no other device could have pre- iA>. House Jour., May 24, 1861, p. 182; Ky . Sen. Jour., May 24, 1861, pp. 143-144; W. P. Shortridge, in Miss. Vail. Hist. Rev., Mar., 1923; A. C. Quisenberry, in Ky. State Hist. Soc. Register, XV, 9 (Jan., 1917); W. D. Foulke, Life of Oliver P. Morton, I, Ch. xi; Nicolay and Hay, Lincoln, IV, Ch. xii; E. Merton Coulter, Civil War ...in Ky., 35-124. 408 CONSTITUTIONAL PROBLEMS UNDER LINCOLN vented secession. It is undoubtedly true that good Union men supported the ncutraHty policy, and it has even been contended that Lincoln was its originator. The national administration showed a disposition to respect this neutral position, at least up to a certain point, but the plan quickly broke down because of its utterly impracticable character. What concerns us more particularly here is to note the legal implications that are wrapped up in this neu- tral attitude. Does not the power of declaring neutrality presuppose independence? Does it not involve the war- making power? But the power of making war is one of the functions which the States renounced and gave over to the National Government by the plain terms of the Constitution. For the purpose of making war the nation is a unit. This does not mean that State action is dic- tated from above so much as that for federal purposes the people act, not by States, but through the National Government which they create and control. War is a federal function par excellence. It may be practicable that certain things be done by States, but war-making is not one of them. A war in which only a portion of the nation takes part, or in which some States go to war while others are "neutral," is wholly inconsistent with the peculiar federal system as provided by the American Constitution. As Lincoln showed, this so-called "neutrality" would really amount to taking sides. It would be disunion completed, this erecting of an impassable wall of separa- tion between the Unionist and the secessionist forces — yet not quite impassable, "for under the guise of neu- trality it would tie the hands of Union men and freely pass supplies from among them to the insurrec- tionists, which it could not do as an open enemy. . . . It would do for the disuinionists that which . . . they STATE AND FEDERAL RELATIONS 409 most desire — feed them well, and give them disunion without a struggle of their own."^ It is only fair to say that many who promoted the policy of neutrality thought differently, and conceived of their measure as tending toward peace, mediation, and ultimate reunion without a serious war; and there is much to be said for the patriotic purpose which inspired their course. When the matter is regarded as a problem of constitutional interpretation, however, many difficul- ties appear. Our States are not independent, separate nations. They are parts of a union; and, in their char- acter as such, certain obligations and limitations are in- curred, one of which is that the power of war (which includes the power of neutrality) has been intrusted to the central government. To insist upon separate State action which would keep one of the States "neutral" in a war to preserve the Union is to go the whole way with the theory of secession. There is no such middle ground as the action of Kentucky would presuppose. Analogous to the case of Kentucky's "neutrality" is the action of Maryland authorities in seeking to obstruct the passage of Federal troops over the territory of the State. In these matters of sovereignty which belonged to the United States, the Federal authority must be, as Marshall showed, supreme. When the States perform their rightful functions, they should be unmolested; and it is equally true that the Federal government must not be impeded by State interference when it acts within its proper domain. Interference in the movement of the nation's armies would be as truly unwarranted as ob- structing the nation's business by means of State taxa- tion, which was so convincingly denounced by John Marshall. The language which he employed in dis- »Nicolay and Hay, Works, VI, 307. 410 CONSTITUTIONAL PROBLEMS UNDER LINCOLN allowing the tax imposed by Maryland upon the United States Bank' could be used with equal force in dealing with the contemplated attempt by the same State to stop the national forces on a mission that was vital to the preservation of the nation. Ill The most numerous as well as the most serious prob- lems of adjustment between the Federal and State gov- ernments arose in the sphere of military affairs.* The militia is at once a national and a State institution. In its main features, the division of function touching the militia was about as follows during the Civil War: Con- gress defined what constituted the enrolled militia, pro- vided the armament, prescribed the drill and tactical organization, and had the power of discipline (i.e., the punishing of offenses by courts-martial) over such part of the militia as was actually employed in Federal service. The State governments recruited and raised the force and paid the expenses thereof while in State ^M'Gulloch vs. Md., 4 Wheaton 316. *The activities of Robert Dale Owen as "State Agent for Indiana" early in the Civil War illustrate the manner in which the States as- sumed control of military matters. Acting for Governor Morton, he was energetic in purchasing rifles, sabers and revolvers; shipping arms from New York to Fortress Monroe as well as to Indianapolis; pro- curing greatcoats, blankets and equipment for the soldiers; visiting various Indiana regiments in the field; making contracts for which the Federal Government paid; and doing many things which transcended the bounds of State functions. On one occasion he wrote to Morton: "I fear that if you trust wholly to the Government to send you what more guns we may need, you will be likely to get trash. I hear very poor accounts of the purchases made by the Government agent in Europe." (Owen to Morton, Dec. 2, 1861.) One of the objects for which Owen exerted himself was to have "the Arsenal" at Indianapolis continued when the interests of the Federal Government seemed to require its discontinuance. (Morton Correspondence, [State Archives of Indiana, Indianapolis], passim.) STATE AND FEDERAL RELATIONS 411 service. The State governor appointed the officers, and was the commander-in-chief of the miUtia as a State in- stitution. The control of the militia while in State service rested with the States. It was by State authority that the militia was drilled, governed, and commanded. Though the drill was prescribed by Congress, it was con- ducted by the State, and the discipline was normally under State authority.^ An important national power regarding the militia has always been that of calling it into Federal service. When so called out, the militia largely loses its character as a State institution. It is under Federal discipline, and is subject to the orders of the President as Commander-in- Chief. Here is an example, then, where State-appointed officers are commanded by the President. Moreover, the President is the judge of his own powers in this respect. It is within the President's discretion to determine not alone the occasion for calling the militia into national service, but also the strength and composition of the State quotas. The President's power of issuing regula- tions as to the manner of calling out the militia em- braces a vast sweep of authority, and in another chapter we have noted that this was even extended during the Civil War to include the power of conscription.^ In the years 1861 and 1862 it may be truly said that the nation's forces were largely raised, and even to a certain extent equipped, paid and transported, by State action. President Lincoln's proclamation of April 15, 1861, was a calling forth of "the militia of the several States."^ Of course, the States raised these troops. Aside from this and other occasions when the militia was ^Federal and State functions concerning the militia are discussed in G. B. Davis, Military Law, Ch. v. And see supra, pp. 241-242. ^Supra, pp. 245-247, 252-255. W. S. Stat, at Large, XII, 1258 412 CONSTITUTIONAL PROBLEMS UNDER LINCOLN called, the only other methods employed for raising na- tional forces during the first two years of the war were the slight increase of the regular army and the recruit- ing of large numbers of "U. S. Volunteers." As to the *' volunteers," which constituted the bulk of the Union army. State action was of great importance. The gov- ernors of the States commonly directed the recruiting of the volunteer regiments (though they did not have the exclusive power of doing so), and the governors commis- sioned the staff, field, and company officers thereof.^ By the President's regulations, which were intended to carry out the purposes of the Militia Act of 1862, much power was given to the governors, who were in effect made the enforcing agents in executing this Federal measure. Under these regulations it was made the duty of the governors to carry out the details of the draft as pre- scribed by the War Department at Washington.® It will aid us to appreciate what the State govern- ments did in providing Federal troops if we remember that at the beginning of July, 1861, when the first war Congress assembled, the Union forces exclusive of the regular army numbered about 260,000 men.^" These men, partly militia and partly United States volunteers. mid., XII, 269; Pearson, Life of J. A. Andrew, I, Ch. viii. State action in the selection of officers for the United States Volunteers did not end with the appointment of the regimental officers by the governor; for in the appointment of the generals the President recognized a sort of "right of nomination" on the part of the Congressmen and Senators from the State. Senator Browning of Illinois made the fol- lowing note in his diary which illustrates this fact: "Went to Trum- bull's rooms to meet the 111. delegation and agree upon Brig. Gen' Is for our State. I was for Prentiss, McClernand, Payne, Richardson, Palmer, Grant, and Stokes." (MS. Diary of Orville H. Browning, July 27, 1861.) K'iupra, pp. 252-253. "The Secretary of War reported the three months' militia as 80,000 and the United States volunteers as 188,000. (Report of the Sec. of War, July 1, 1861. Sen. Ex. Doc. No. 1, 37 Cong., 1 sess., p. 21.) STATE AND FEDERAL RELATIONS 413 were recruited and brought together through the agency of the State governments. In the case of the volunteers, some regiments were even raised in advance of a Federal call. A study of the activities of such governors as Mor- ton'* of Indiana and Andrew of Massachusetts '^ reveals the vast importance of the functions which devolved upon the State executives in the early part of the war.*^ Andrew at Boston and Morton at Indianapolis were war ministers as truly as Cameron at Washington. In fact they far outran the lagging efforts of Cameron, and their excellent work was hampered by the manner in which the War Department dampened recruiting ardor or delayed in accepting the regiments offered. '* "W. H. H. Terrell, Report of tlu Adjutant-General oj Ind., Vol. I, passim; Foulke, Life of Oliver P. Morton. '^H. G. Pearson, Life of John A. Andrew. "On July 12, 1861, Senator Browning of Illinois, after visiting the encampment of Rhode Island volunteers at Washington, wrote ". . . the whole [is] apparently under the direction of Governor Sprague of Rhode Island who is with them in camp." (MS. Diary of Orville H. Browning.) Early in 1862 Governor Tod of Ohio wrote to Stanton asking four questions: (1) What control had the governor over State troops, in camp or in the field, after they had been mustered into the service of the United States? (2) What were his duties in the pro- curing or issuing of military supplies? (3) Would the Federal govern- ment refund to the State "all the money expended directly and in- directly in the raising, equipping, sustaining and mustering of the troops?" (4) What control did the governor have over military pris- oners sent to the State for safe keeping? The fact that such a letter could be written by a governor to the Secretary of War nine months after the firing at Sumter, shows both the extent of the governor's ac- tivities and the indefiniteness of the relationships involved. (Tod to Stanton, Jan. 28, 1862: Stanton Papers, II, No. 50513.) i*While Yates in Illinois was working energetically to raise United States regiments, expecting that the Government would accept all that were raised, Cameron sent word to him: "Let me earnestly recom- mend to you ... to call for no more than twelve regiments, of which six only are to serve for three years or during the war, and if more are already called for, to reduce the number by discharge." (Report of the Adjutant-General of III., I, 11; I. O. Foster, "Relation of Illi- nois to the Federal Government during the Civil War" [MS. disserta- 414 CONSTITUTIONAL PROBLEMS UNDER LINCOLN When orders from Washington failed to arrive, Andrew went ahead in the absence of orders. To a great extent he, and other governors of his stamp, bore the immediate burden of the emergency. Andrew directed the recruiting of the early Massachusetts regiments, the appointment of the officers, the examination and equip- ment of the troops, the chartering of steamers and rail- roads for their transportation, and the raising of emer- gency funds by which the first bills were paid. For a time, since Massachusetts had prematurely sent forward four thousand men, the State had to maintain them in the field, in a quasi-hostile territory four hundred and fifty miles distant. In all this rush of patriotic activity there was no time to quibble about authority, and men assumed responsibility in full confidence that their actions would later receive ratification and support. Unfortunately, but inevitably, confusion and friction arose between State and Federal authority in these mili- tary matters. Instances of such lack of adjustment were very numerous, but we must be content to note a few examples. Governor Andrew, for instance, sought to place a contract for building a monitor for Massachu- setts; but the Navy and Ordnance officers loudly pro- tested on the ground that the United States needed all the ironclads and heavy cannon that the country was pro- ducing. The governor then labored hard to have an ironclad detailed to protect Boston harbor; but Lincoln replied that the alarm was baseless and that if each State on the seaboard were seized with a similar panic and the Government attempted to satisfy them all, the result would be such a diversion of our resources from the tion, University of Illinois].) Governor Morton insisted upon furnish- ing six regiments tiiough the call was for four. (Foulke, Morton, I, 128.) Cameron accepted only three of the ten regiments offered by Ohio, and a similar situation existed with regard to Massachusetts and other States. (Pearson, Andrew, I, 224, 225.) STATE AND FEDERAL RELATIONS 415 main object of attacking the enemy that we might as well give up the war.^^ The differences between General Benjamin F. Butler and Governor Andrew concerning the recruiting of United States volunteers developed a heated contro- versy and produced a veritable deadlock between the State and Federal governments which was only relieved by the timely resignation of the Secretary of War.'« The incident grew out of the plan, legalized by Congress, by which the State governors raised regiments of United States volunteers and commissioned the officers. But not infrequently the President conflicted with this power by authorizing individuals to raise volunteers. General Butler, urging that there ought to be no discrimination against loyal Democrats, and alleging that the Massachu- setts governor would not commission political oppo- nents, obtained an order under the authority of the President, authorizing him to raise six regiments in the New England States. According to this order, Butler was to "fit out and prepare such troops as he [might] judge fit" for a contemplated expedition down the eastern shore of Maryland and Virginia to Cape Charles. When Secretary Cameron wired the New England gov- ernors to give their approval to this scheme, Andrew refused consent. The wavering War Secretary then issued an order that the regiments should be recruited under the authority of the governors. Deadlock resulted when Andrew refused to commis- sion Butler's list of officers; and, by pressure, Butler brought about the issuance of a remarkable order from Washington creating the "Department of New Eng- land" and placing six States under his own command for the purpose of recruiting these regiments. Com- 'spearson, Andrew, 11, 128-130. '«/6i?. Stat, at Large, XII, 264. 'Hbid., p. 276. ''Act. of July 31, 1861: Ib,d., p. 283. STATE AND FEDERAL RELATIONS 427 in States threatened with rebellion was therefore stretched to cover an order issued by President Lincoln advancing S250,000 to Morton, who was held account- able for the sum. Of the sum thus advanced, $160,000 was used to pay interest on the State debt. In effect the transaction was an advance from the national treasury, without specific congressional appropriation, for the purpose of tiding a State over a serious finan- cial crisis. ■*" This general policy of compensating the States for their war expenditures was further pursued from year to year until the resulting aftermath of war claims presented a problem of bewildering magnitude. The general law of July 27, 1861, was looked upon as a pledge to which the Government was committed, and Congress kept on appropriating money to carry out the act until in 1871 it was repealed; but even after the repeal, unexpended balances were reappropriated and fresh appropriations for the same object were passed. Over forty- two million dollars had been re- funded to the States by 1880, while there still remained nearly nine millions unpaid. *^ In describing the formidable problems involved in making these reimbursements, the Examiner of State Claims wrote in 1880: ". . .it would probably be be- yond the power of the judges ... of the Court of Claims ... to memorize or collate the administrative rulings or precedents that underlie the departmental actions touching allowances ... on these claims." ^^ The debates which have occurred whenever these claims have been presented in Congress give evidence of the State jealousies involved. When, for instance, the ^"Foulke, Morton, I, Ch. xxii; Stampp, Indiana Politics, 176-185. *^Sen. Exec. Doc. No. 74, 46 Cong., 2 sess., p. 199. 'mid., p. 6. 428 CONSTITUTIONAL PROBLEMS UNDER LINCOLN claim of Pennsylvania was presented for a special re- imbursement to cover expenses incurred in calling out the militia at the time of Lee's invasion in 1863, Rep- resentative Fernando Wood moved to insert "New York," Representative Rogers, "New Jersey," and the claims of other States were then presented. ''^ Though similar repayments had been made to the States in previous wars, yet neither sound political science nor actual experience would seem to justify the practice of allowing the States to perform national functions and then look to the nation for reimbursement. VI We may conclude this study of State and Federal re- lations by noting those jurisdictional conflicts which arose when attempts were made to hold Federal officers answerable to the State courts. Such attempts were frequent. We have noted in another chapter that in many cases officers of the Federal Government were subjected to criminal prosecutions or to lawsuits within the States because of acts performed in their official ca- pacity.''^ The answer of the Federal Government, as we have seen, was to provide in the Indemnity Act that the President's orders should serve as a complete de- fense in such cases, and to require the removal of such actions to the Federal courts, whose jurisdiction was in this way greatly expanded at the expense of the States. But other forms of coercion or restraint were resorted to by the State judges. The writ of habeas corpus was frequently used for the purpose of releasing men held *^Cong. Globe, April 23, 1864, 38 Cong., 1 sess., p. 1793. **Supra, Chapter IX. STATE AND FEDERAL RELATIONS 429 in military custody by officers who were enforcing the Federal conscription law, or to free citizens subjected to military arrest." At times the use of the writ by the State judges was based upon an assumption of concurrent jurisdiction. The argument ab inconvenienti was advanced, and it was contended that the State judge might be applied to in preference to the Federal judge on the ground of greater accessibility." Or again it was urged that since the habeas corpus privilege had been suspended in the Federal courts the State tribunals offered the citizen's only recourse for enjoy- ing this high privilege, and the writ could therefore be directed even against Federal officers, the assump- tion being that the Federal judge would be willing to grant the writ, but was restrained by the President's action from making effective the privilege involved. More often, however, the situation presented itself as a clash of authority, and the instances of this use of the State judicial power may commonly be traced to a sentiment adverse to some phase of Federal policy. Where opposition to conscription was strong, local ju- dicial relief would be sought on the ground that the individual in question was not liable to military service, or on the broader ground that the conscription law itself was unconstitutional. In the one case the State judge would be asked to assume the function of preventing a Federal official from misusing his powers under the law, denying to the Federal officer the au- thority, under executive regulations, to determine the liability of particular individuals, and making such *H5 Pa., 238, esp. 301 et seq.; Opinion of William Whiting, Solicitor of the War Department: 0. R., Ser. Ill, Vol. 3, p. 460. *^Ex Parte Hill, 38 Ala. 429; ibid., 458. These Alabama cases pre- sent a precise parallel between the law of the United States and that of the Confederate States on this subject. 430 CONSTITUTIONAL PROBLEMS UNDER LINCOLN officer answerable for his conduct to the State judges. In the other case the State court would be exercising its right to apply the Federal Constitution as superior to a Federal statute. This right the State court un- doubtedly has, and it is even a duty, made so by that clause which declares the national Constitution to be binding upon State judges, who are under oath to up- hold it. The error involved was not in claiming this right, but in adopting an unwarranted method of pro- cedure in exercising it. The authority to issue a decision denying the constitutionality of a Federal law does not justify a State judge in the use of a method which amounts to controlling a Federal officer and preventing the discharge of his functions. The leading decision on this subject is that of the Supreme Court of the United States in Ableman vs. Booth, announced by Chief Justice Taney in 1858."^ A State court in Wisconsin had issued a writ of habeas corpus for the release of a prisoner held by a Federal commissioner operating under the Fugitive Slave Act of 1850. The Chief Justice showed that the judges and courts of Wisconsin had no basis for the power thus assumed. He said: If the judicial power exercised in tliis instance has been reserved to the States, no offense against the laws of the United States can be punished by their own courts without the per- mission and according to the judgment of the courts of the State in which the party happens to be imprisoned; for, if the Supreme Court of Wisconsin possessed [this authority] their supervising and controlling power would embrace the whole criminal code of the United States.** After referring to the supremacy of "this Constitution, <^62 U. S. (21 How.) 506 ^''Ibid., p. SI 5. STATE AND FEDERAL RELATIONS 431 and the laws made in pursuance thereof," the Chief Jus- tice continued: But the supremacy thus conferred . . . could not peace- fully be maintained, unless it was clothed with judicial power equally paramount in authority to carry it into execution; for if left to the courts of justice of the several States, con- flicting decisions would unavoidably take place, and the local tribunals could hardly be expected to be always free from . . . local influences. ... It was essential therefore, . . . that [the United States Government] should have the power of establishing courts of justice, altogether independent of State power, to carry into effect its own laws.*^ So convincing was this decision that it held in spite of attempts to explain away its meaning or to show that it was not applicable to the wartime situation. Thus Federal supremacy in Federal matters was not seriously impaired and in general it may be said that these jurisdictional controversies served as annoyances and embarrassments rather than actual obstructions. The usual result of incidents of this nature was that the officer subjected to the writ refused to obey its mandate, as he could well afford to do with the whole government back of him. A general instruction was issued to provost marshals directing them in such cases to make known to the State judges that their prisoners were held under the authority of the United States. They were further instructed to refuse obedience to State judicial mandate, and to resist the execution of process if such resistance should become necessary.^" That the issue here involved went to the very heart of the question as to the constitutional division of jurisdiction between the State and the nation is evident. **Ibid., p. 518. See also Tarble's Case, 13 Wall. 397. »'>0. R., Ser. Ill, Vol. 3, pp. 460-461, 818. 432 CONSTITUTIONAL PROBLEMS UNDER LINCOLN The decisions on the subject read Hke commentaries on the fundamental doctrine of our constitutional law and are replete with citations drawn froin the Federalist^ Marshall, Story, Kent and other sources that rank among our legal classics. Had the Federal Government yielded on the points involved it inight as well have abdicated its powers. When a close study is made of relations between the loyal States and the National Government, some familiar generalizations may have to be revised as to the degree of centralization involved. By the end of the war the importance of State governments had receded, but dur- ing much of the conflict a remarkable amount of the nation's business — even the military business — was left to the States. Excess of authority on the part of zealous governors, interference and strong protest by such as Seymour, irregularity, friction, maladjustment, and in the end the payment of the bills out of the national purse — these are the facts which the war history reveals. When in 1863 nationalizing laws came to be passed, their object was the efficient performance of truly national functions after trial and error had proved State performance to be unsatisfactory. The National Government did not extend its power by the assump- tion of State functions so much as by taking to itself the conduct of its own affairs. Nationalizing measures were for national objects, intended to overcome undue decentralization. ^' ^'Among recent books dealing with the subject matter of this chapter, see William B. Hesseltine, Lincoln and the War Governors, Kenneth M. Stampp, Indiana Politics during the Civil War. CHAPTER XVIII THE PARTITION OF VIRGINIA I. Long-Standing differences between eastern and west- ern Virginia II. Unionist movement in the western counties: Reor- ganization of the government of Virginia III. The launching of the "restored government" IV. Steps taken for the formation of tlie new State: The "WheeHng ordinance" of August 20, 1861 V. Action of the Federal Government toward the new State movement: The West Virginia bill in Con- gress VI. Attitude of Lincoln and his Cabinet toward the West Virginia bill: Admission of the new State VII. Later career of the "restored government": At- tempts to obtain representation of "Virginia" in the Congress at Washington VIII. Attitude of Virginia and of the Supreme Court in the controversy between Virginia and West Vir- ginia concerning certain disputed counties IX. General considerations concerning the process by which the new commonwealth was created The upheaval in State affairs which characterized the war for the Union left all the States save one in- tact. The confusing spectacle of rival State govern- ments appeared in various border commonwealths where Unionist and secessionist forces were about evenly di- vided, and it might have been supposed that the forces of disruption which the war unleashed would cause the formation of various new political units; but it was only in Virginia that the disintegrating process left a permanent effect. For our purpose the partition of 433 434 CONSTITUTIONAl. PROBLKMS UNDER LINCOLN Virginia will be treated, not as a matter of State de- velopment, but as a phase of our constitutional history. Our particular interest will be to inquire into the effect of domestic war upon the constitutional process of State-making. It has not been proved to the satisfaction of the writer that the exigencies of the Civil War alone fur- nished an adequate motive for the permanent disrup- tion of the Old Dominion. Had the purpose been merely to safeguard the Union interest in Virginia during the period of the war, it is reasonable to suppose that some method short of making a new commonwealth could have been found. It is true that citizens in west- ern Virginia who supported the Federal Government found themselves confronted with a condition of af- fairs which approached anarchy and hence stood in need of a government other than that at Richmond to which they could look for protection; but a Unionist govern- ment for Virginia was established to meet this need, and, as it was extended to all the districts in which Unionists could hope for substantial support, one may well ask whether the Federal cause required that a sepa- rate State be formed. Certain it is that many strong Union men did not desire separation. Because of vari- ous grievances and sectional differences, however, talk of separation had long been in the air, and the great activity of the separationists, whether they constituted a majority or not, enabled them to effect their purpose as a war measure.' 'On the formation of West Virginia the older books should be used with caution. Granville D. Hall's Rending of Virginia is an uncritical vindication of the new State movement and the same may be said of William P. Willcy, An Inside View of the Formation of the State THE PARTinON OK VIRC;INIA 435 The divergences between the eastern and western por- tions of the State have often been pointed out. The physiography of the counties beyond the Blue Ridge was quite distinct from that of the valley, piedmont and tide-water sections, so that the western counties looked toward the Ohio into which their rivers poured, while in the east the flow of commerce and the gen- eral outlook was toward the Atlantic. Social and re- ligious diff'erences divided the Scotch-Irish and Ger- man elements in the northwest from the English in the lower counties. ^ Slaves were few in those portions of the State which bordered upon Ohio and Pennsyl- oj West Virginia, and of Granville Parker, The Formation oj the State of West Virginia. In Virgil A. Lewis, History oj West Virginia, the whole movement is treated, but this is done from the point of view of the separationists. The same author has brought together a useful col- lection of documents under the title How West Virginia was Made. One finds a typical justification of the measures taken for the erection of the new State in the historical account that opens the reports of cases before the State supreme court (1 W. Va. 5-81), and useful contemporary articles are found in Appleton's Annual Cyclopedia, es- pecially for 1861 and 1863. The principal newspaper to be consulted is the Wheeling Intelligencer. On August 24, 1902, this newspaper pub- lished a "souvenir edition" celebrating its fiftieth anniversary; and in this issue the part which the newspaper played in the formation of the State was set forth. Among the recent studies one may mention C. H. Ambler, Sectionalism in Virginia from 7776 to 1861, and H. J. Eckenrode, Political History of Virginia during the Reconstruction. Of primary importance is James C. McGregor, The Disruption of Virginia, Mc- Gregor's book has the merit of presenting the subject afresh in a scholarly manner from a study of the sources without the bias that inevitably appears in the pages of West Virginia writers. The Semi- centennial History of West Virginia, by James Morton Callahan, is especially useful for the bibliography on pp. 284-293. Unique interest attaches to the Pierpoint papers, a large mass of unpublished material in the Virginia archives at Richmond. The present writer made ex- tensive use of these manuscripts in the preparation of this chapter; and, so far as his knowledge goes, they had not previously been ex- amined for such a purpose. Further studies by Maude F. Callahan, William Baird, and J. A. C. Chandler are noted in the bibliography at the end of this book. And see titles by Ambler below, p. 476, n. 73. *For a discussion of the differences between the ezistern and western portions, see C. H. Ambler, Sectionalism in Virginia. 436 CONSTITUTIONAL PROBLEMS UNDER LINCOLN vania, and it was only in the east that the institution was of economic and social importance. ^ Grievances accumulated as the years passed and the westerners became increasingly resentful at what they considered the contemptuous neglect of the east, in whose hands rested actual control of State affairs. The main grievances were the mixed basis of representation by which slave property as well as free population was taken into account in apportioning delegates; the dis- proportion between the number of those entitled to vote and those upon whom the burdens of taxation and militia service fell; the limitation of the suffrage to freeholders; the restriction of internal improvements to the east; the viva voce vote, and the limited taxa- tion of slave property as compared with the full taxa- tion of the real estate and business interests of the west. When the constitution of 1830 was framed, it was felt to be so partial to the "eastern aristocrats" that every voting delegate from the west opposed it; and when submitted to the people it was condemned in the west by an impressive majority. In 1850-51 a genu- ine effort at compromise resulted in constitutional changes favorable to the west, and a more conciliatory spirit was manifest in the decade preceding the Civil War; but with the opening of that conflict the fires of sectionalism were rekindled and the Unionists seized the reins of leadership in the western counties while the secessionists obtained control in the east. 'Under date of October, 1861, the auditor of the "restored State" of Virginia gave the following figures regarding the population of the pro- posed State of "Kanawha": white, 273,737; free colored, 1110; slaves, 6810. {Journal of the Senate [of "restored Virginia"], regular session. Wheeling, commencing Dec. 2, 1861, p. 28.) THE PARTITION OF VIRGINIA 437 II When the Richmond convention secretly passed the ordinance of secession on April 17, 1861, there was brought home to each fireside and each community the momentous question of hazarding life and fortune upon the new cause or of resting these precious stakes upon the old Union to which allegiance had been due. A true understanding of the Unionist movement in west- ern Virginia is to be obtained, not by reading ordi- nances, appeals, proclamations, and resolutions, but by studying the manner in which the people of the western counties viewed the hard realities of their exposed posi- tion when confronted with actual war. At every step in the progress of the movement one must take ac- count of the turbulence and confusion of the times, the intimidation practiced by both sides, the powerful social sanctions as well as the physical violence brought to bear against those who resisted the dominant element in the locality; the administering of oaths under mili- tary pressure; the use of force at the polls; the many irregularities in the choice of delegates and in the con- duct of elections; the hurried flight to Kentucky or Ohio of those who found life intolerable at home; and the military activity which accompanied the agitation of political issues.'* It was a time of domestic strife and even of revolution — a time in which the greatest turbulence was seen at the border, where Unionists and secessionists were intermingled. The bitterness of these times is now happily forgotten, but it aids our historical appreciation of such a subject as the creation of West Virginia to remember that the various steps *On all these conditions the Pierpoint Papers (MSS., Virginia State Library) throw a flood of light. 438 CONSTITUTIONAL PROBLEMS UNDER LINCOLN leading to the formation of this new commonwealth were taken in the excitement of conflict and war, rather than in that calm deliberation which is needful for the process of State-making. Organized resistance in the western counties was quickly developed by active Unionist leaders. In the various localities Union mass meetings were held in which the "heresy" of secession was denounced and de- fiance of the Richmond Government was voiced. A mass meeting at Clarksburg issued on April 22, 1861, a call for a convention of delegates from the northwest- ern counties; and this convention assembled on May 13 at Wheeling, where Unionist and separationist agita- tion centered. This "first Wheeling Convention" contained delegates from only twenty-six of the fifty counties that were later included in West Virginia. ^ Delegates to this convention were chosen in various mass meetings with little formality, and there was no real system of representation. The delegation from each county depended upon the number that happened to be chosen or the number that wished to attend rather than upon any authorized basis of apportionment. "More than one third of the . . . delegates," says McGregor, "were from the district immediately around Wheeling" and "the farther the county was . . . from Wheeling, the fewer the delegates."^ This improvised "May Convention" denounced the Virginia ordinance of secession and the agreement with the Confederacy; urged the citizens to condemn the ordinance by popular vote; and called upon the people *F"or a map of these counties, see J. M. Callahan, Semi-centennial History of West Virginia, p. 150. The counties are listed in 1 W. Va. 47. It is there stated that the "committee on credentials reported duly accredited delegates from twenty-six counties." 'McGregor, Disruption of Virginia, 193. THE PARTITION OF VIRGINIA 439 to elect loyal men as representatives in Congress and members of the legislature. In the event of the ratifi- cation of the ordinance of secession, the convention recommended that the counties "disposed to cooperate" send delegates to a "general convention" to meet on June 11 "to devise such measures ... as the safety and welfare of the people may demand." Citing the political axiom that "government is founded on the con- sent of the governed," the convention called upon the "proper authorities of Virginia" to permit a peaceful and lawful separation of the Unionist counties from the rest of the State. ^ It should be noted that this "May Convention" was quite without regular authority to take action either for Virginia or for the northwestern portion thereof. The June convention in its address to the people of north- western Virginia confessed the irregular character of the earlier convention, saying: "It was literally a mass convention, and from the irregular manner of the ap- pointment of its delegates, was not calculated for the dispatch of business." ^ Its chief act was to lay the track for the later convention whose measures were to extend to the fundamental alteration of the government. Before adjournment, the first Wheeling convention appointed a "central committee" of nine members to act as an emergency executive body to organize the Unionist movement. One of the chief functions of this committee was to prepare plans for the more impor- tant convention that was to meet in June. In the interval between the first and second Wheeling conventions, the people of Virginia, on May 23, voted ''West Virginia Legislative Handbook, 1916, pp. 261-263. (This book is cited because of the convenient form in which various sources arc assembled.) mid., p. 275. 440 CONSTITUTIONAL PROBLEMS UNDER LINCOLN on the ordinance of secession, and a decisive majority of the votes in the northwestern portion were cast against the ratification of that ordinance. ' Such, in brief, were the preUminaries of that "June convention" in Wheehng whose action was of such de- cisive importance in the movement for separate state- hood. As this convention launched the movement for the formation of the "loyal" government of Virginia, and also the new State movement, the process by which it was made up deserves attention; though this is a subject on which the various historical accounts throw little light. The "Central Committee of the Union Con- vention of Western Virginia," which we have above mentioned, functioned as a sort of junta for promoting the whole movement, taking counsel from many Union- ists in and out of Virginia as to the most feasible plans to be pursued, corresponding with leading men in the various counties, and preparing in advance a program to be laid before the coming convention. In various counties, "committees of safety" (reminiscent of the patriot committees of the American Revolution) were appointed, usually by some sort of mass meeting. If, in any county, a few men were actively interested in the movement that was being engineered at Wheeling, they could with little difficulty hold a mass meeting and obtain election as members of the local committee of safety. The delegates to the June convention were chosen in various ways, sometimes by mass meeting, sometimes by the county committee, sometimes appar- ently by self-appointment. There was no popular 'West Virginia writers have stated that 40,000 out of the 42,000 votes cast in the northwestern counties were against secession (1 W. Va. 55), but the vote for all of Virginia as announced by Governor Letcher was 125,950 to 20,373. As McGregor shows, however, doubt was cast on the correctness of the returns as given out by Letcher. (McGregor, Disruption of Virginia, 180.) THE PARTITION OF VIRGINIA 441 election in the true sense. ^" In one instance the WheeKng committee wrote to a prominent man in Charleston, stating that the people of western Virginia were looking to their old leaders for counsel, and urging his "attendance as a member of the convention to be held on the 11th inst."^^ There was no reference to any election as a delegate. The whole process of pre- paring for this Wheeling convention was such as to pro- mote the selection of men actively interested in what the convention was expected to do — i.e., lay plans for a separate State — rather than to obtain a general rep- resentation of all shades of opinion. ^^ "Po determine the number of counties "represented" would involve '"A Union man thus wrote to Picrpoint from Wayne County: "Now it is well known that had not the people of Buffalo Shoals taken the stand [for the Union] that they did, no Delegate would have been sent to Wheeling from this county. Cabell county was not represented because there were no Northern men to inform the people, I mean such as dared to act. Now an election cannot be held in this county until it is subdued by soldiers, many rebels swearing they will die first rather than submit." (John Adams to F. H. Pierpoint, Buffalo Shoals, July 20, 1861: Pierpoint Papers.) "Letter from the office of the Central Committee, Wheeling, July 1, 1861, to George W. Summers, Charleston: Pierpoint Papers. '^The activity of county committees of Unionists in organizing the June convention is illustrated by the following letter: "We the County Committee of Cabell County do certify that Edward D. Wright and B. D. McGinnis have been duly appointed Delegates to represent this County in the Union Convention of Western Virginia to be held on the 11th of June, 1861. [Signed] J. C. Plybun, C. G. Stephenson, Isaiah Ray, S. Hatton, J. Graham, Committee." The fol- lowing letter illustrates the mass meeting method of organization: "At a meeting of a number of citizens of Loudoun County, Virginia, for the purpose of electing delegates to a convention at Wheeling to form a provisional government for the State of Virginia, [it was] Resolved first, that the chairman appoint a committee of five, when the following names were announced by the chair: George Townsend, T. J. McGaha, Isaiah Virts, Conrad Darr, Daniel Fry; second, that delegates to the convention be elected, when the following gentlemen were unanimously elected: W. F. Mercer, D. T. Bond, Thos. B. March, John B. Dutton. On motion, the meeting adjourned. B. Kabrich, Pres., T. J. McGaha, Sec. June 23, 1861." (Pierpoint Papers.) THE PARTITION OF VIRGINIA Data as to county lines based upon Lloyd's Official Map of Virginia as of 1861. JO 30 <0 50 75 100 5CAIE IN MIIE5 nn Counties represented with three or more delegates in the Wheeling convention of June-August, 1861, which passed an ordinance for the creation of the new State: Hancock, Brooke, Ohio, Marshall, Wetzel, Marion, Monongalia, Preston, Taylor, Harrison, Wood, Jackson, Wirt, Barbour, Lewis, Upshur, Mason, Wayne, Hampshire. Counties represented in this convention with two delegates or less: Tyler, Pleasants, Ritchie, Doddridge, Roane, (Jilmer, Tucker, Randolph, Putnam, Kanawha, Webster, Hardy, Jeflferson, Alexandria, Fairfax. Counties unrepresented in this convention but nevertheless included in the new State: Cabell, Calhoun, Braxton, Clay, Nicholas, Boone, Logan, Wyoming, Mercer, Mc- Dowell, Pocahontas, Fayette, Raleigh, Greenbrier, Monroe, Pendleton, Morgan, Berkeley. 442 THE PARTITION OF VIRGINIA 443 discussion as to what constituted representation,'^ but even if we accept the convention's own statement that the number of counties represented was thirty-four/* this was but shghtly more than two-thirds of the forty- eight counties constituting West Virginia at the time of admission, while the major portion of Virginia, ad- hering as it did to the Confederacy, was of course un- represented. It is evident, therefore, not merely that this June convention was revolutionary, but that, con- sidered as a revolutionary body, it was in no sense rep- resentative of the State of Virginia for which it pre- sumed to act. Assuming functions appropriate only to a Virginian constitutional convention, this body of men from the west, meeting at Wheeling on June 11, passed an "ordinance for the reorganization of the State govern- '^In July, 1863, Senator Carlile, of "restored Virginia," informed the United States Senate that the June convention at Wheeling did not fairly represent even the people of western Virginia. This is well brought out in McGregor, op. cit., pp. 294-295. •*"The number of counties actually represented is thirty-four. . . . Several of the delegates escaped from their counties at the risk of their lives, while others are still detained at home by force or menace against them or their families and property." (Address of the Second Convention, Wheeling, June 25, 1861: West Virginia Legislative Hand- book, 1916, pp. 275-276.) By glancing at the map on the opposite page, the reader will have a graphic representation of the importance of the panhandle and its vicinity in the new-State movement. It was from the counties near Pennsylvania and Ohio that the active separa- tionists came; while in contrast to this, a continuous group of counties covering about half the area of the new State had no participation in the convention which passed the "Wheeling ordinance," but were in spite of this fact included in West Virginia as ultimately defined. The people had no opportunity, county by county, to determine whether they would adhere to Virginia or join the new commonwealth; but their fate was determined by the whole vote cast within the bound- aries indicated by the convention. McGregor states that this plan was adopted to avoid "certain rejection in at least two thirds of the counties." {Disruption oj Virginia, pp. 235-236.) In general those opposed to separation did not vote, and this was particularly true of secessionists. (The list of delegates used in preparing the accompanying map is found in Lewis, How West Virginia Was Made, pp. 79-81.) 444 CONSTITUTIONAL PROBLEMS UNDER LINCOLN ment." By this ordinance it was provided that a tem- porary government, consisting of governor, lieutenant governor, attorney general and council of five, should be appointed by the convention itself; while a perma- nent government was to be created by requiring an oath of loyalty of all State, county, town and city officials, members of the legislature, judges, officers of militia, and officers and privates of volunteer companies not mustered into the service of the United States. The oath was as follows: I solemnly swear (or affirm) that I will support the Con- stitution of the United States, and the laws made in pursuance thereof, as the supreme law of the land, anything in the con- stitution and laws of the State of Virginia or in the ordinances of the [secession] convention at Richmond ... to the con- trary notwithstanding; and that I will uphold and defend the government of Virginia as vindicated and restored by the convention which assembled at Wheeling on the eleventh day of June, eighteen hundred and sixty-one. Where the oath was refused by any elective officer, his office was to be declared vacant and special elections were to be held to fill the vacancy. Appointive offices were to be filled at once by the governor. ^^ It is to be seen that by this ordinance a form of government was devised which, while drawing its sup- port exclusively from the Unionist element of the State, claimed to be the only legitimate government of Vir- ginia. The legal fiction thus created was of vital im- portance in the whole movement for the creation of the new commonwealth. ^HVest Virginia Legislative Handbook, 1916, pp. 268-269. There was no popular ratification of the far-reaching acts of this June convention. THE PARTITION OF VIRGINIA 445 III If space sufficed, it would be of interest to observe the steps taken to launch the "restored government" of Virginia on the basis of the paper plan drawn up by the second Wheeling convention. Extraordinary con- ditions of turbulence and uncertainty, which at times verged upon anarchy, confronted the Wheeling gover- nor, Francis H. Pierpoint, chosen by the convention. The approximate collapse of civil government left the country open to bandits and guerrillas, and a kind of terrorism characterized the coercive methods practiced by both sides. A Methodist preacher of Boone County wrote that the disunion party was too strong for the Unionists of "that Reagon." "All the Judges, Lawyers, Shureffs . . . Clarks, Meranchents, politions slave hold- ers and drunkerds," he said, "out number us Consider- able; . . . they have bin forming Compneys and tak- ing men and women and swaring them into the Suthern Confedsy and not to give infermation or feed eney union men and even swaring little boys to give them infermation."^^ He added that his own home had been entered by armed men and that his life was "thertened by the Rebbles." A citizen of Weston wrote the governor that the rebels in Roane and Calhoun had come over in mass on the Kanawha River and were entering the houses of Unionists, stripping them of household goods, even cutting up bed cord, leading off the horses, and creating general confusion.^' From Ironton, Ohio, came a letter describing conditions in Cabell, Wayne and adjoining counties where, according '^Robert Hager to "Gkjvencr Piarepoint E. S. Q.," Gallipolis, Ohio, July 30, 1861: Pierpoint Papers. "H. H. Withers to Governor Pierpoint, Weston, Va., Nov. 9, 1861: ibid. (Pierpoint was the governor's own wartime spelling.) 446 CONSTITUTIONAL PROBLEMS UNDER LINCOLN to the informant, there was no civil authority, no law, no protection to the persons and property of either loyal or disloyal citizens. All, he said, was anarchy and confusion. 1* Reports from many other localities, crowding in upon the Pierpoint administration, told the same story. A "county committee" sent word from Ritchie Court House, that, while home guards were being formed and a Union organization was being effected in the county, there were "no mails" and the committee was out of touch with events. Citizens of Fairfax County asked that steps be taken to give relief from the "present condition of anarchy" under which they suffered. Four hundred citizens of Gilmer County, deploring the tur- bulent conditions confronting them, with "certain reck- less individuals lurking in the woods and brush, shoot- ing at the soldiers, citizens, etc., annoying and endangering the lives and property of all law-abiding citizens," signed a paper pledging to each other "our lives, our fortunes and our sacred honor," and resolv- ing that they would exert themselves as citizens to maintain social order and bring offenders to justice. A somewhat illiterate citizen of Cabell County referred to the deplorable condition into which the people of that region were thrown by depredations and outrages committed by armed bands that were ravaging the en- tire country for fifty miles distant, and appealed for protection from these "gorrilla" companies. A large number of citizens of Sistersville in Tyler County peti- tioned for like protection, reporting that they could no longer look for protection to the civil authorities. Pleasants County was reported to be of "questionable loyalty," and one of its inhabitants wrote that it was "A. McCuUough to Pierpoint, Ironton, O., Aug. 7, 1861: ibid. THE PARTITION OF VIRGINIA 447 "difficult to tell who among us is a real friend of the government." Governor Pierpoint's brother, Larkin Pierpoint, wrote from Ritchie Court House asking "Dear Brother Frank" whether he had better go with a volunteer company that was being formed for the Union service, saying that he was ready to fight and wanted to do his duty "if I know what it is." Bandits frequently took advantage of this weakness of civil government, and for protection against these, as well as to resist the secessionists, "home guards" were organized as a sort of impromptu military force; and various "battles" were fought in a kind of neighbor- hood war that the military historians do not record. In all this violence and confusion there was a tendency to doubt each man's loyalty until proved; rumor mag- nified the actual turbulence which in reality was bad enough; and honest men doubted which way duty led.'' To administer oaths and hold elections for the "re- stored government" of Virginia under such conditions was a difficult task. Many refused the Wheeling oath, being uncertain as to whether the government would be recognized as valid, and doubting its ability to es- tablish and defend itself as the successor of the old government of Virginia. 2° There is much significance in the letter of one Joseph Applegate of Wellsburg who "These detaib are taken, passim, from the Pierpoint manuscripts in the Virginia State Library. 2 "The Richmond legislature passed various measures against the "usurp)ed government" under Pierpoint, and many felt anxious as to consequences in case of Confederate success. {Acts of the Gen. As- sembly of Va. [Called Session, 1862, Richmond], p. 11; ibid. [Ad- journed Session, 1863], p. 88.) A citizen of Wellsburg wrote to Gov- ernor Pierpoint that he was not prepared to take the Wheeling oath. "Your government has not been recognized," he said, "neither have you shown an ability to establish and defend the government or the people thereof as against the old government." (O. W. Langfitt to Pierpoint, July 8, 1861: Pierpoint Papers.) 448 CONSTITUTIONAL PROBLEMS UNDER LINCOLN wrote to the Wheeling governor: "I resign the com- mission I received of you ... to swear the officers of the county of Brooke on account of reasons known al- ready to you."" Where possible, advantage was taken of Federal military aid; and one of Pierpoint's advisers urged that the oath be pressed in the presence of the army, for "should it be removed," he said, "officehold- ers may refuse to take the oath, hold on, and rebel against your authority. "^2 To round out the organization of the Wheeling gov- ernment with suitable officials in the various counties was therefore a serious undertaking. The very condi- tions under which elections were held to fill the offices of those refusing the Wheeling oath were such as to deprive secessionists of a ballot, since no secessionist could qualify for office holding, and naturally the elec- tions were regarded as purely Unionist affairs. Se- cessionists, therefore, did not ordinarily vote at all; and where possible they actively obstructed the elec- tions, regarding them as illegal. The presence of troops was frequently necessary for the holding of elections (which in many of the counties were conducted in but a part of the voting places), and it was often difficult to find a sufficient number of Union men who were capable of discharging the duties of the various offices. In some cases Unionist officers when elected found them- selves unable to enforce the laws or collect the taxes. Special interest attaches to the legislative branch of this "restored government." By the Wheeling ordinance of June 19, the legislature of Virginia was made to consist of all members chosen on May 23 who would take the test oath, together with additional members specially chosen to take the places of those who re- "Letter of Joseph Applcgate, June 22, 1861: Pierpoint Papers. "J. S. Carlilc to Pierpoint, June 26, 1861: ibid. THE PARTITION OF VIRGINIA 449 fused the oath. When the first legislature of the "re- stored government" met in special session on July 1, 1861, under call of Governor Pierpoint, only twelve days had elapsed since the passage of the ordinance creating the new government. Obviously this was in- sufficient for the completion of the various steps neces- sary for the fulfillment of that ordinance — i.e., the ad- ministering of the oath; the submission of evidence of refusal to take the oath; the issuing of writs vacating the offices of non-jurors and providing special elections to fill the vacancies; due publication of such coming elections for the information of persons entitled to vote; the appointing of special commissioners of election in those counties in which the sheriff's refused to comply with the ordinance; the actual holding of the elections in the diff'erent precincts; the counting of the votes; the assembling of the returns; and the preparation of cer- tificates showing who were elected. When one looks closely into the personnel of the "re- stored legislature," the first fact to claim notice is that, in large part, the membership of the June convention and that of the "restored" legislature were identical. The May convention had "recommended" that those senators and delegates elected to the general assembly on May 23 "who concur[red] in the views of this con- vention" should have seats in the coming June conven- tion. Thus men who had been chosen as members of a legislature which under the old Virginia constitution must meet in Richmond and contain representatives from the whole State, became members of a convention which reorganized Virginia's government, putting it under the control of a minor part of the State; and then the same men served in the new legislature that was constituted by their own act of reorganization. Theoretically, according to the method of the reorgan- 450 CONSTITUTIONAL PROBLEMS UNDER LINCOLN izers, there should have been in the "restored" legis- lature loyal members from every county in the State, or at least enough loyal members to constitute a quorum. Little is said in the various histories of West Virginia as to the actual membership of this reorgan- ized legislature, but light on this subject may be ob- tained from the rather inaccessible journals of the various sessions. The journal of the House of Delegates for the extra session of July, 1861, reveals, on the fif- teenth day of the session, a membership consisting of twenty-nine delegates, representing thirty counties, while the total number of counties in Virginia at that time was 149 and the constitutional membership of the lower house was 152.^^ Only two members had traveled farther than two hundred miles to attend the session; and all the members except these two were from the western portion of the State. The report of the committee on privileges and elections was given quite loosely. It merely listed the men "claiming scats as delegates," noted that the committee "believed" the said delegates to be "duly elected and entitled to their seats," and then admitted that members from only sev- enteen counties had presented regular certificates of election. The only action taken on this report on mem- bership was to lay it on the table. ^^ The journal of the Senate for this session listed only eight names as members, though the Virginia Senate should have num- bered fifty. 2^ ^^Journal of the House of Delegates of Virginia (Extra Session be- ginning July 1, 1861, Wheeling), 47 et seq. ^'Ihid., pp. 47-48. ^^ Journal of the Senate of Virginia (Extra Session commencing July 1, 1861, Wheeling), 25. THE PARTITION OF VIRGINIA 451 IV The "reorganized" legislature did not deal at once with the question of forming a new State, leaving this matter for the time to the convention which had closed its session on June 25, 1861, adjourning to meet on August 6. The measure of chief importance taken by the legislature in its special session of July, 1861, was the election of Waitman T. Willey and John S. Carlile as United States Senators from Virginia to take the seats of James M. Mason and R. M. T. Hunter whose places had been vacated. ^^ On reassembling, the convention passed on August 20 the "Wheeling ordinance," which provided as follows:" Whereas it is represented to be the desire of the people in- habiting the counties hereinafter mentioned to be separated from this commonwealth, and be erected into a separate State, and admitted into the union of States, and become a member of the government of the United States: The people of Virginia, by their delegates assembled in con- vention at Wheeling, do ordain that a new State, to be called the State of Kanawha, be formed and erected. . . . [The boundaries of the proposed State were then indicated and the counties enumerated.] The ordinance further provided for an election, to be held on the 24th of October within the boundaries of the proposed State, in which the people should vote for or against the new State, and should also choose delegates to a constitutional convention. When the ^^Journal of the House of Delegates of Virginia (Extra Session com- mencing July 1, 1861, Wheeling), 32; Journal of the Senate (same ses- sion), 24. "West Virginia Legislative Handbook, 1916, pp. 280-283. 452 CONSTITUTIONAL PROBLEMS UNDER LINCOLN election was held, 18,408 votes were announced as hav- ing been cast for the new State and 781 against it.^^ The next step was the framing of a constitution for the new commonwealth. The delegates chosen in Octo- ber met at Wheeling on November 26 and by February 18 they had completed an instrument of government, dropping the picturesque name "Kanawha" and sub- stituting "West Virginia." On April 3 the people of the region proposed for the new State voted on the constitution, the votes for ratification numbering 18,862 to 514 for rejection. ^^ It was at this stage of the proceedings that the "re- stored legislature" gave its consent to the formation of the new State. This was done by an act passed on May 13, 1862.^0 That clause of the Constitution of the United States which forbids the erection of a new State within the jurisdiction of an existing State without the consent of the legislature of such State was thus technically or nominally complied with; but the "Virginia legislature" which gave this consent consisted of about thirty-five members in the lower house and ten in the upper house. **This was the vote officially announced. McGregor analyzes it and advances the view that it does not represent the sentiment of the people of western Virginia. (McGregor, op. cit., p. 255.) '"Virgil A. Lewis, How West Virginia Was Made, 321. Senator Car- lilc, referring to the process of constitution-making for the new State, pointed out that in one county of about 800 voters there were only 76 votes for the delegate to the constitutional convention. In another, about 400 out of 1200 votes were cast. The popular vote on the con- stitution, he showed, numbered only about 19,000 as compared to a normal vote of 47,000. {Cong. Globe, 37 Cong., 2 sess., pp. 3313-14, and 37 Cong., 3 sess., p. 54.) McGregor points out that the records of the constitutional convention for the new State were not printed be- cause "the discussion had revealed so plainly the opposition of the people of West Virginia both to the North and to the new State that the publication of the debates might interfere with the admission of the State." (McGregor, op. cit., ix.) ^'^Acts oj the Gen. Assembly (Extra Sess., Wheeling, May, 1862), Ch. I. THE PARTITION OF VIRGINIA 453 while the full membership according to the Virginia constitution should have been one hundred fifty-two delegates and fifty senators. With the exception of the "eastern shore" and two counties opposite Washington, the constituencies represented in this legislature were entirely limited to the counties of the northwest. Even in the northwest many counties were without repre- sentation, while two-thirds of the State — i.e., Confed- erate Virginia — was entirely unrepresented. To say that in this way "Virginia" gave her consent, is to deal in theory and fiction and to overlook realities. The Federal Government was naturally called upon to recognize and assist the Unionist government under Pierpoint. At the very outset President Lincoln gave assurance of his support and the War Department rec- ognized the Wheeling government as entitled to an appropriation from the Federal treasury under the act of July 31, 1861, by which financial assistance was to be extended for the protection of loyal citizens in States which had seceded.^' That President Lincoln's en- couraging attitude toward Pierpoint at this stage did not necessarily involve approval of the separate State movement is shown by the President's comparison of Pierpoint's case with that of Johnson in eastern Ten- "Sec. of War Cameron to Daniel Lamb, Oct. 30, 1861: Pierpoint Papers. While claiming Federal benefits, the Wheeling government declined to assume Virginia's quota of the Federal direct tax of 1861 on the ground that the collection of the tax "when three-fourths of the white population, and nearly all the free Negroes and slaves, are be- yond our reach, would be not only unjust, but impossible." {Journal of the Senate oj Virginia (Regular Session, Wheeling, December 2, 1861], pp. 48, 49.) 454 coNsriTU rioNAL i'roblems under i.incoln nessee and of Gamble in Missouri lo whom similar Fed- eral assistance had been extended. ^'^ When Carlile and Willey, with credentials from Wheeling, applied in the United States Senate for ad- mission as senators from Virginia, conservative men objected, urging that the real government of Virginia was at Richmond, not Wheeling, and that on July 9, when certificates of election of these men were issued, no vacancy existed, since Hunter and Mason were not expelled until July 12. The general attitude of the Senate, however, was that they "should not stick in the bark as to dates," and that any hesitancy in grasp- ing the hands of those whose hearts were for the Union would be unworthy of the hour. A vote to refer the credentials of these Senators to the Committee on the Judiciary failed, and the Senators were admitted on July 13, 1861. ^« When the "West Virginia bill" (for the admission of the new State into the Union) was discussed in Con- gress, considerable opposition to the project was de- veloped.'* The invalidity of the Pierpoint government '^Daniel Lamb to Pierpoint, Sept. 19, 1861: Pierpoint Papers. 3^Cong. Globe, July 13, 1861, 37 Cong., 1 sess., p. 109. W. F. Mercer, Union candidate of Loudoun County for the Virginia legislature, wrote to Pierpoint that he claimed election in spite of the fact that his op- ponent received one hundred more votes than he did, and added: "If we are ruled down to strict parliamentary law, we will be left without representation; but if the policy of the Senate of the United States in the case of Messrs. Carlile and Willey obtains, there will be no difficulty in the case." (Mercer to Pierpoint, Nov. 26, 1861: Pierpoint Papers.) ^■•Representative Joseph Segar of Virginia opposed the new State bill because of its weakening effect upon the "restored government." "As the matter now stands," he said, "we have a loyal government for the whole of Virginia. . . . But pass this new State bill and we have a government only for the northwest portion. All the rest is left to rebellion or revolution, or, what is worse, no law at all. ... I am un- willing to give up West Virginia to a separate organization, because it is a Union nucleus around which a great Union mass will ultimately gather." (Cong. Globe, Dec. 10, 1862, 37 Cong., 3 sess., p. 55.) THE PARTJTJON OF VIRGINIA 455 was stressed and it was urged that the administration was obtaining too much advantage by the creation of four senators (two each for Virginia and West Vir- ginia) together with fifteen electoral votes for Virginia and six or eight for West Virginia. It was felt that the temptation to repeat the process in other seceded States might prove too strong to be resisted. Critten- den of Kentucky refused to accept the view that old Virginia no longer existed, asserting that the close of the rebellion would restore the State to the Union and that it should be returned whole, not divided. Those forming the State, he said, were the same as those con- senting to its erection. "It is the party applying for admission consenting to the admission. That is the whole of it."'^ Crittenden's remarks deserve attention because of his dignity, border-state importance, and devotion to the Union. Those favoring the bill urged that, as the government of Virginia had lapsed because of the illegal action of the authorities at Richmond, the loyal people of west- ern Virginia were justified in taking possession of the government; but as a rule those who spoke for the new State dealt in practical considerations rather than in constitutional arguments. One of the frankest state- ments was that of Thaddcus Stevens. He made it clear that he was not deluded by the idea that the State was being admitted in pursuance of the Constitution. The argument of constitutionality he considered a "forced argument to justify a premeditated act." The '^Cong. Globe, Dec. 9, 1862, 37 Cong., 3 sess., p. 47. Crittenden, of course, was using the pro-Union argument. Expecting the restoration of the Union, he said: "Look to the future. ... If Virginia were to-morrow to lay down . . . arms . . . and ask to be admitted ... to be part of us, . . . what could you say to her if you had created a new State out of her territory?" 456 coNsnruTioNAL froblems under Lincoln majority of the people of Virginia constituted the State of Virginia even though the individuals thereof had committed "treason." Though secession was treason, it was, so far as the State corporation was concerned, a vaUd act and governed the State. We may admit West Virginia, he said, not as a constitutional measure, but "under our absolute power which the laws of war give us in the circumstances in which we are placed. I shall vote for this bill," he said, "upon that theory, and upon that alone; for I will not stultify myself by supposing that we have any warrant in the Constitution for this proceeding. "^^ When the bill came to a vote, there were 23 yeas and 17 nays in the Senate," Senator Carlile (one of the Senators from restored Virginia) voting in the nega- tive. In the House the vote stood 96 to 55.^^ VI When the West Virginia bill was presented to Presi- dent Lincoln he was placed in a painful dilemma. The thought of disrupting the Old Dominion caused him much distress, but it was represented to him that the vetoing of the bill would discourage the Union move- ment in western Virginia and seriously antagonize the Congress. The President called the members of his ^^Ibid., p. 50. ''Among the active promoters of the bill in the Senate were Wade of Ohio, CoUamer of Vermont and Willey of "Virginia." Border-State senators such as Bayard and Saulsbury of Delaware, Powell and Davis of Kentucky, and Kennedy of Maryland, and conservatives such as Browning of Illinois, opposed the measure. Sumner opposed the bill because his amendment providing immediate emancipation failed and he objected to a "new slave State." Trumbull voted nay for the same reason and also because he thought the new State would weaken the existing Unionist government in Virginia. For the vote, see Cong. Globe, 37 Gong., 2 sess., p. 3320. *^Cong. Globe, 37 Cong., 3 .sess., p. 59. THE PARTITION OF VIRGINIA 457 Cabinet into consultation on the subject; and, at the suggestion of Attorney General Bates," written opin- ions from every Cabinet secretary were requested. Each member read his opinion aloud in full council and gave it to the President. The President then read the paper which he had prepared on the subject. The legality and expediency of this important meas- ure of state were thoroughly discussed in these papers. Seward, Chase and Stanton favored the separation. Seward argued that the United States could not recog- nize secession and must recognize loyalty. The "re- stored government," he held, was "incontestably the State of Virginia.""" Chase contended that in case of insurrection the loyal element must be taken to constitute the State, that the denial of powers of government to this loyal element on the ground that men clothed with official responsi- bility had joined in rebellion against their country would be absurd, that the legislature which gave its consent to the formation of the new State "was the true and only lawful legislature of the State of Vir- ginia," and that nothing was wanting to make the pro- ceeding constitutional. Referring to the fear lest the case of West Virginia would form a precedent, thus involving "the necessity of admitting other States under the consent of extemporized legislatures assuming to act for whole States though really representing no impor- tant part of their territory," he said that such appre- hensions were groundless, since no parallel case existed. This portion of his remarks seemed to hint that such a precedent would have been considered undesirable."' "Bates to Stanbery, St. Louis, Aug. 3, 1867: Attorney General's papers. ^"Nicolay and Hay, Lincoln, VI, 300-301. *Ubid., pp. 301-303. 458 CONSTITUTKiNAL PROBLEMS UNDER LINCOLN Stanton briefly stated his reasons for holding that the West Virginia bill was constitutional. "The Con- stitution," he said, "expressly authorizes a new State to be formed . . . within the jurisdiction of another State. ''2 The act of Congress is in pursuance of that authority. The measure is sanctioned by the legislature of the State within whose jurisdiction the new State is formed. ... I have been unable to perceive any point on which the act . . . conflicts with the Constitution." The negative side was maintained by Welles, Blair, and Bates. Welles could not close his eyes to the fact that the organization claiming to be the State of Vir- ginia was nothing more than a provisional government, and that it was "composed almost entirely of . . . loyal citizens . . . beyond the mountains." While ad- mitting that a temporary recognition of this govern- ment might be proper, yet, he said, "When . . . this loyal fragment goes farther, and . . . proceeds ... to erect a new State within the jurisdiction of the State of Virginia, the question arises whether this proceeding is regular, right, and, in honest faith, conformable to . . . the Constitution.""^ Turning to his diary, we find the question answered in the following words: "The requirements of the Constitution are not complied with, as they in good faith should be, by Virginia, by the proposed new State, nor by the United States.""" Blair characterized the argument that Virginia had given her consent as "confessedly merely technical." "It is well known," he said, "that the elections by which the movement [for separation] has been made did not take place in more than a third of the counties of the State." He considered the dismemberment highly ir- «Stanton Papers, X, No. 52066. "Nicolay and Hay, Lincoln, VI, 304-306. ^^Diary oj Gideon Welles, I, 191. (Dec. 4, 1862.) THE PARTITION OF VIRGINIA 459 regular and "unjust to the loyal people in the greater part of the State, who [were] held in subjection by rebel armies" and whose consent was not obtained.''^ Special importance attaches to the opinion of Edward Bates because it was the official opinion of the Attor- ney General and because its analysis of the legal points involved was much more elaborate than that of any other Cabinet minister."^ Bates contended that States must exist before they can be admitted into the Union. Congress, he said, has no power to make States, for a free American State can be made only by its own people. The duty of the United States toward the faithful ele- ment in Virginia, as he saw it, was to restore Virginia to the Union as she was before the insurrection. The restored government was merely a provisional govern- ment intended as a patriot nucleus. No real "legisla- ture of Virginia," according to his view, had consented to the separation. Such was Bates's official opinion. His unofficial and confidential statements on the subject were more em- phatic. He wrote in his diary of "a few reckless Radicals, who manage those helpless puppets (the straw Governor, & Legislature of Virginia) as a gamester man- ages his marked cards," and added: "I have warned one member of W. V. of the fate preparing for his misbe- gotten, abortive State. These Jacobins, as soon as they get, by the Alexandria juggle, an anti-slavery Consti- tution for Virginia, will discover that West Virginia was created without authority — and then, having no further use for the political bantling, will knock the blocks from under, and let it slide. For, already, they begin to be jealous of the double representation in the Senate." "Nicolay and Hay, Lincoln, VI, 306-308. *'^Opins. Attys. Gen., X, 426-435. 460 CONSTITUTIONAL PROBLEMS UNDER LINCOLN Again Bates wrote that the West Virginia bill was pre- cipitately passed with "the most glaring blunders" be- cause its sponsors feared discussion and dreaded "any revival among the M. C.s of a sense of justice and decency.""^ There is evidence that President Lincoln disap- proved of the disruption of the State, ^^ but his objec- tions were overborne by the conviction that the admis- sion of West Virginia was necessary because of its effect upon the outcome of the war. No legal consideration, he said in his written opinion, is ever given to those who do not choose to vote, and in this case those who did not vote were not merely neglectful of their rights, but in rebellion against the Government. "Can this government stand," he asked, "if it counts those against it the equals of those who maintain loyalty?" If so, then he thought that their treason enhanced the con- stitutional value of the disloyal. "Without braving these absurd conclusions," he said, "we cannot deny that the body which consents to the admission of West Vir- ginia is the Legislature of Virginia." He added that more would be gained than lost by admitting the new State; and, with this practical consideration uppermost in his mind, he signed the bill."^ Since the constitution of the new State had not dealt with slavery in a manner satisfactory to Congress, the bill as passed provided that the people of West Vir- "MS. Diary of Edward Bates, Dec. 15, 1864; Oct. 12, 1865. * "Senator Browning of Illinois, a close friend of Lincoln, referred in his diary to Lincoln's "distress" at the West Virginia bill; and this statement as to the President's attitude is confirmed by Gideon Welles. (MS. Diary of Orville H. Browning, Dec. 15, 1862; Diary of Gideon IVelles, I, 191.) Senator Willey wrote to Pierpoint: "We have great fears that the President will veto the new State bill.." (W. T. Willey to Pierpoint, Washington, Dec. 17, 1862: Pierpoint Papers.) * 'Lincoln's opinion is given in full in Nicolay and Hay, Lincoln, VI, 309-311. THE PARTITION OF VIRGINIA 461 ginia should vote upon a gradual emancipation clause to be inserted in the State constitution; and the ratifica- tion of this clause was made a condition of the admis- sion of the State. All of the conditions having been met, President Lincoln, on April 20, 1863, issued a proc- lamation declaring West Virginia to be admitted into the Union.*" As this proclamation was to take effect in sixty days, the legal birthday of West Virginia was June 20, 1863. VII When the new State government was launched at Wheeling, the "restored government" transferred its cap- ital to Alexandria, situated in a protected position across the Potomac from Washington. From 1863 to the end of the war, this straw government controlled hardly more than the cities and environs of Alexandria and Norfolk, together with that exposed peninsula con- sisting of the counties of Northampton and Accomac, known as the "eastern shore." The chief raison d'etre of this government (which had drawn its support almost entirely from the west) had been to give the consent of Virginia to the erection of the new State; but after this purpose had been accomplished, it bravely main- tained the legal fiction that it was still the government of Virginia. With a new capital and a new official family, Mr. Pierpoint addressed himself to the task of "reorganiz- ing" those few districts in the eastern portion of the State in which his influence could be felt. Ofl^ces here were declared vacant because of disloyalty; vacancies were filled by appointment or special election; and mem- ^U.S. Stat, at Large, XIII, 731. 462 CONSTITUTIONAL PROBLEMS UNDER LINCOLN bers of Congress were sent from congressional districts within the domain of the restored State. One of the important acts of the Alexandria govern- ment was the making of a new constitution for Vir- ginia. This was done by a constitutional convention of fifteen delegates which met at Alexandria in Febru- ary, 1864. By the new constitution slavery was abol- ished; loyalty to the "restored government" and the United States was required; and Confederate office hold- ers were disfranchised." Never was the vitality of a legal fiction better illus- trated than by this attenuated government which, de- spite the lack of funds, buildings, troops, territory and all the material evidences of political power, stoutly defended its paper existence. It was a government whose legislature had no capitol building in which to meet, whose courts did not function, whose prisoners and insane patients had to be sent to Ohio or Penn- sylvania, and whose governor, after four months in Alexandria, was still unable to obtain a dwelling for himself and family. Pierpoint's status was not well understood and in the letters which he received there is an amusing variety of titles. He was variously ad- dressed as "Governor of Loyal Virginia," "Governor of East Virginia," "Military Governor of Eastern Vir- ginia," "the Govverner of west virginey," and "Gover- nor of new Virginia." To cheer a governor with so tenu- ous a hold on office. Governor Boreman of West Vir- ginia wrote encouraging letters, dispelling the fear that Pierpoint would be liable because of illegal acts; urging that the process of creating West Virginia would never be declared void as Pierpoint suspected; assuring him ^'Eckenrode, Political History of Virginia during the Reconstruction, 19-22. THE PARTITION OF VIRGINIA 463 that his West Virginia friends appreciated his difficul- ties and would stand by him; commending Lincoln in whom the Alexandria governor seems to have lost con- fidence; and, when Grant was advancing on Richmond, hailing the capture of that city as an event that would give Pierpoint "something to do, which is better than being comparatively idle."" That this Alexandria government was but the logical continuation of the "restored government of Virginia" at Wheeling hardly admits of doubt; and yet there was a marked change in the attitude of the Federal Congress toward the Virginia Unionists after the removal from Wheeling to Alexandria. Though "Virginia" was rep- resented in the Thirty-seventh Congress (from 1861 to 1863), the State was not represented at all in the lower house of the Thirty-eighth Congress (1863-1865); and in the two succeeding Congresses the State was not rep- resented in either house. It was not until 1869 that the long and painful process of reconstruction in Vir- ginia had proceeded to the point where representation in Congress was again permitted; and then the restora- tion was accomplished by a method quite independent of the "restored State" movement. The eff'orts of the Unionists of Virginia to obtain rep- resentation in Congress during the war present a curi- ous study. Since the Confederate occupation of the major part of the State prevented Unionists from vot- ing in their own counties, the Wheeling convention, in August, 1861, authorized "loyal citizens" to vote for members of Congress anywhere within their congres- sional districts;" and a section of the old Virginia code was found by which, in the absence of regular commis- "Pierpoint Papers. (Pierpoint was never governor of West Virginia.) *^West Virginia Legislative Handbook, 1916, p. 280. 464 CONSTITUTIONAL PROBLEMS UNDER LINCOLN sioners of election (who were required by law to be appointed by the county court), any two freeholders might conduct an election. ^^ In accordance with these provisions, there were various so-called congressional elections in Virginia during the war, in which a few precincts out of whole congressional districts would participate, and Congress would then be asked to seat the successful candidates on the ground that loyal minorities should not be denied representation because of the rebellious attitude of majorities. Of those who obtained seats from Virginia in the Thirty-seventh Con- gress, only two — Joseph E. Segar and Lewis McKenzie — represented constituencies in the eastern part of the State. Three members — Brown, Blair, and Whaley — represented that part which became West Virginia. Segar's claim to represent the "eastern shore" and the vicinity of Norfolk was long contested, and he was once rejected; but, after another election had been held which was more to the liking of his Washington col- leagues, he was seated. ^^ For the Alexandria district there were contesting claims by Upton and Beach ;^'' and, after both of these ^* Virginia Code of 1860, Ch. vii, par. 11. ^^Segar's first claim was based upon twenty-five votes at Hampton, Elizabeth City County, on October 24, 1861. There was no poll else- where in the district. After the rejection of this claim another election was held (in three of the seventeen counties composing the district) in which he received 559 of the 1018 votes cast. On this election he was seated on May 6, 1862. {House Misc. Docs., Nos. 5 and 29, 37 Cong., 2 sess.; Biographical Congressional Directory [Sen. Doc. No. 56, 61 Cong., 2 sess.], p. 224.) '*The Richmond secession convention prohibited the election of mem- bers of the United States Congress. Owing to this action and also because of threats of violence, polls were not opened at the regular date. May 23, 1861. In a few precincts, however, voters sent in ir- regular returns in favor of Upton. Beach claimed to have been chosen at a special election held in October, 1861, on the authority of an ordinance passed by the Wheeling convention; but this election was THE PARTITION OF VIRGINIA 465 had been rejected, McKenzie was finally seated when but a few days of the session remained. Since the votes for Segar and McKenzie were but fragmentary, it ap- pears that Congress was at this time recognizing the right of loyal minorities in the State to representation. But this principle was not recognized in the Thirty- eighth Congress. Though there were various claimants for seats from Virginia in that Congress, the House of Representatives rejected them all and left the State without representation. Segar protested against this as a great injustice. He reminded the House that in 1862 he had been seated when he had received only 559 votes out of a total of 1018, and could not under- stand why he should be rejected in 1864 when he re- ceived 1300 out of 1667 votes. The House, he declared, did not customarily inquire whether or why certain voters were absent from the polls, but based their de- cisions upon a majority of the votes actually cast, dis- regarding absentees. The four counties which had voted for him were paying Federal taxes and he claimed that they were entitled to Federal representation. Vir- ginia, he insisted, was a State, and the Alexandria gov- ernment was a real government. Its weakness, he pleaded, should be its protection; and it should be pre- served as a Union nucleus with a view to restoring the whole State around it as a center." Another speaker. Chandler, pointed out that Virginia had furnished 25,000 Union troops and was entitled to Union recognition.^^ The House, however, proceeded on the principle that Representatives should not be seated from a fragment valid only on the theory that there had been no election in May. The House solved the puzzle by rejecting both claims. {House Alisc. Doc. No. 26, 37 Cong., 2 sess.; Sen. Doc. No. 56, 61 Cong., 2 sess., p. 224.) ^''Congl Globe, May 17, 1864, 38 Cong., 1 sess., pp. 2313 «/ seq. ^mid., p. 2321. 466 CONSTITUrlONAL PROBLEMS UNDER LINCOLN of a district when a free election in the whole district had been prevented by reason of "rebel" control. ^^ It was on this basis that Virginia was denied representa- tion in Congress after 1863. If such a rule had been acted upon during the two preceding years, no repre- sentatives would have been seated from the eastern part of the State. Moreover, this principle of free election, if recognized in the first two years of the war, would have defeated the whole process by which West Vir- ginia was created. The later attitude of Congress, by which representa- tion was denied to the State over which Pierpoint claimed to rule, accentuated the irregularity of the whole West Virginia movement. The "restored gov- ernment" was recognized by Congress as competent to act for all of Virginia in the matter of consenting to the division of the State; but when this division had been accomplished, and despite the advance of Union arms, none of the territory over which this same govern- ment claimed authority was considered to be sufficiently reclaimed to be entitled to representation in Congress. The further rejection of this "restored State" as the instrument for bringing Virginia back into the Union after the war suggests that its chief function was to provide a nominal compliance with that requirement of the Federal Constitution that no State shall be disrupted without its consent.^" After this rude handling by the Washington Con- gress, the experiment of trying to maintain a fictitious "/ferrf., pp. 2311, 2323. ^'On April 4, 1867, Pierpoint was removed by Federal authority and H. H. Wells was made military governor. The reconstruction of the State is well described in H. J. Eckenrode, Political History of Vir- ginia during the Reconstruction. Eckenrode commends Pierpoint's con- ciliatory policy after the war, but shows that this policy was over- thiown by the radical Republicans who seized control. THE HARliriON Ot VIRCMNIA 467 government for Virginia encountered further obstacles at Norfolk where it met the formidable and contentious opposition of General B. F. Butler. Assuming control of the United States forces at Norfolk in November, 1863, Butler found himself in occupation of a region over which jurisdiction was claimed by the government at Alexandria under Pierpoint. The general denounced this government as useless, spurious and even disloyal, and took measures to withdraw the city of Norfolk from its control. At the time of the election of municipal officers he used his military authority to cause the people to vote whether or not they wished the city government to be maintained. With "singular unanimity," he said, "the qualified voters of Norfolk . . . decided against the further existence of civil government." ^^ Butler then ordered the suspension of civil govern- ment in Norfolk, ^2 and the city was subjected to mili- tary rule, with Butler in supreme charge. The city judge, Edward K. Snead, was brought before Butler and a serio-comic examination was conducted in which Butler took occasion to argue elaborately against the validity of the "restored government" of Virginia, say- ing that if there were forty governors of Virginia, "they must not set themselves up against my authority in Norfolk," while Snead called attention to the fact that the President could revoke any illegal military orders of Butler. The examination concluded as follows: Butler: I have determined that you cannot disobey my military orders. Do you propose to do so? Snead: Yes, Sir.^'' "The vote as reported by Butler was 330 to 16: Private and Offi- cial Correspondence of B. F. Butler, IV, 580. ^mid., p. 589. "/6:W., p. 574. 468 CONSTITUTIONAI, PROBLEMS UNDER LINCOLN Butler then issued an order imprisoning Judge Snead, and justice within the city was thenceforward adminis- tered by Butler's military courts. Police matters were placed under the provost marshal; the superintendent of prison labor took charge of the streets; schools (both white and colored) were placed under a military com- mission; taxes and appropriations were controlled by the military commandant; and such matters as fire protec- tion, street lighting and harbor control were put under military administration."^ In brief, as Butler said, the city was under martial law, and civil affairs were sub- jected to military control. Attorney General Bates entered the lists as a cham- pion of the civil government of Virginia, and in a let- ter to the President he denounced Butler's "arbitrary orders." He deplored the dangerous anomaly of a mili- tary officer ordering an election by the people on any subject; denounced the absurdity of appealing to popular vote on the question whether the laws should prevail or martial law be established; sharply censured an election in which the military authorities fixed the qualification of voters, counted the ballots, and declared the vote; and finally called upon the President to revoke these military orders."^ Lincoln then interfered to prevent a proposed election which Butler was planning to conduct on the eastern shore, and shortly after this Butler was removed from his Virginia command.**" In this Pier- point-Butler controversy and on other occasions Lincoln ^^Ibid., p. 589. •^Bates to President Lincoln, July 11, 1864: Attorney General's let- ter books. This letter is also found in the Bates manuscripts at the Jefferson Memorial Library, St. Louis. "The Pierpoint Papers include considerable material concerning the controversy between Pierpoint and Butler. The subject is briefly treated in Nicolay and Hay, Lincoln, IX, Ch. xix. THE PARTITION OF VIRGINIA 469 showed some intention of recognizing the legitimacy of the "restored government." In April, 1865, however, he proposed that the Richmond legislature be recognized as the agency for restoring Virginia to the Union." VIII After the war Virginia acquiesced in the separation, and the decisions of her own judiciary conceded the legality both of the new State and of the "restored gov- ernment" of Virginia. The United States Supreme Court never found it necessary, therefore, to deal with any direct challenge of the constitutionality of the process of separation. In connection with the boundary contro- versy, however, certain significant legal matters were presented to that court. Virginia laid claim to JefTerson and Berkeley counties on the ground that a vote of the people (required as to these counties by the new State's constitution and the "restored government's" act of con- sent) had not in a sufficient sense been taken, and also because the restored State had withdrawn its consent as to these counties before the transaction was consum- mated.''* The Supreme Court declared the certificate of the Governor of Virginia, reporting a vote of the coun- ties in favor of the transfer, to be conclusive upon the court; and on this ground the claim of West Virginia to the disputed counties was sustained. "^ In the absence of any decision on the main question of the creation of the new State, this controversy over the boundary may be studied not so much for what was decided as for what was assumed to be already settled. "H. G. Connor, John Archibald Campbell, 177-178. '^The question of the disputed counties is treated in Eckenrode, op cit., pp. 15-17. «»Va. vs. W. Va., 78 U. S. 39 (December, 1870). 470 CONSllTU'l'IONAL i'ROBLEMS UNDER LINCOLN Virginia brought the suit, referring in her complaint to the boundary controversy "between the CommonweaUh and tlie State of West Virginia." In her bill of com- plaint and the argument of her counsel no reference was made to the illegality of the process by which the new State was formed and various statutes of the "restored government" were cited in such terms as to admit the competency of that government to act for Virginia in regard to the division of the State. The counsel for the old State referred to the Alexandria government as the "Commonwealth of Virginia," and their contention was not that this "restored government" lacked authority to act for Virginia, but that as to the disputed counties the acts of that government were mere proposals which never became operative. Turning to the opinion of the Supreme Court we find that the validity of West Virginia's legal existence was assumed without question. The case was considered to be within the court's jurisdiction as a boundary contro- versy between two States; the acts of "Virginia" con- senting to the division were cited as competent; and the court affirmed the existence of "a valid agreement be- tween the two States consented to by Congress, which agreement made the accession of these counties depend- ent upon the result of a popular vote in favor of that proposition." This valid agreement, which the court cited because of its bearing upon the transfer of the two disputed counties, had as its main significance the con- sent of the old State to the formation of the new one. As a part of its reasoning concerning the validity of this contract between the States, the court pointed out that Congress had approved the contract, citing for this pur- pose the act admitting West Virginia. In sum, this case, with its decision in favor of West Virginia, amounts to an admission by the old State and an affirmation by the 1HE FARllTION OF VIRGINIA 47l Supreme Court that the proceedings concerning the par- tition of Virginia were vaUd. The whole controversy as to which one of the States possessed the two counties would obviously have been without significance if this validity had not been conceded. IX It is not the writer's purpose to attempt to state the "verdict of history" (if such a thing exists) as to the process of dividing Virginia. A new State was brought into the Union with full rights, and when once this was done it was too late to reconsider the legality of the process by which the new commonwealth was created. Not every historic wrong is capable of being righted by subsequent measures; and any undoing of the process of partition after the war was out of the question. The only thing to do then was to accept the separation as an accomplished fact, and Virginia loyally adjusted herself to this changed situation. Some questioning, however, may be allowed to the student of American constitutional history, who can hardly fail to be impressed by the orderliness and the aptitude for governmental processes which have charac- terized the American people. It is a legal-minded peo- ple which has given to the world the constitutional con- vention and has taken great care in new emergencies to proceed correctly and in harmony with sound principles in ordering its political life. It has the oldest govern- ment in the world based upon a written constitution and its respect for this fundamental instrument has been pro- found and lasting. Did the methods used in bringing West Virginia into being measure up to the standards that the American people have raised and in general adhered to? 472 CONSTITUTIONAL PROBLEMS UNDER LINCOLN When West Virginia writers deal with this question, they usually shift the emphasis to the need for a gov- ernment to which Unionists in Virginia — chiefly in the western part — could look for protection. In organized society, it was argued, the citizen's duty of allegiance and the government's obligation to afford protection are reciprocal. Only rightful governments which truly pro- tect the citizen are entitled to allegiance, and only loyal citizens are entitled to governmental protection. When State officers, as Governor Pierpoint expressed it, for- swear their allegiance to the Federal Constitution, "turn traitors" and seek to subject the people to a foreign government, their offices become vacant. Bereft of gov- ernmental protection by a convulsion in the body politic, the Unionists of Virginia in 1861, said he, proceeded "in the mode common in a republican government in organ- izing a State by a convention representing the loyal people of the State, to appoint the necessary agencies for carrying on the government under the existing Con- stitution and laws of the State for the protection of the people."^" Though the "restored government" so created represented less than a majority of the people of the State, yet, according to the governor's argument, it was the only rightful government; since rebels have no rights under a government against which they rebel, and a majority by turning rebels cannot deprive the loyal of their rights. Though there are occasions, said Pierpoint, when the people have a "right to rebel," yet this is like the right of justifiable homicide in self-defense, and is to be exercised only when every other method of redress fails. But there was in fact, said he, no such situation justifying secession in 1861. '"Message of Governor Pierpoint, Dec. 7, 1863: Journal of House oj Delegates of Virginia (sess. of 1863-64, Alexandria), p. 12. THE PARTITION OF VIRGINIA 473 This argument, it will be noted, touches only upon the need for a Unionist State government in Virginia and does not answer the question as to the necessity for a new State. These are distinct questions. If the need for a State government to protect the west in its loyalty to the Union were the chief consideration, then why could not the "restored government" which governed the western counties from 1861 to 1863 have been continued throughout the war, increasing its domain of jurisdiction as the armies advanced and constituting a nucleus around which Virginia might have been brought back whole into the Union? If, then, the demand for a new State was normal and permanent (and not simply a matter connected with the issues of the war), the sepa- rate commonwealth could have been founded after the war in a peaceable, deliberate manner without undue Federal intervention and with every opportunity for Virginia as a whole to act, both upon the main question whether a new State should be created and also upon subsidiary questions (such as the apportionment of the debt, and the fixing of the boundary) in which impor- tant interests of the old commonwealth were involved. The irregular method by which the new State was formed, and the adoption of a mere fiction as a basis for claiming fulfillment of a constitutional provision, had various unfortunate effects. It substituted a kind of sophistry to excuse the non-fulfillment of a solemn legal obligation, and it presented an example of a measure which even its supporters did not wish to be emulated elsewhere or used as a precedent. Those who argued for the new State were careful to insist that the case of western Virginia was sui generis, and that no other in- stance would arise in which a similar proceeding would be undertaken. But if the method of forming this new State were correct and justifiable, why should it not have 474 CONST! rUrlONAI. I'ROBLKMS under LINCOLN been extended? If the hopeful new-state movement for eastern Tennessee, which ended in preHminaries, had been vigorously promoted, the use of the same methods could hardly have been consistently denied. Those who base the justification for the new State upon the Unionists' need for a State government should explain why the Federal cause required two governments, one at Wheeling and the other at Alexandria. The Unionist government for Virginia as a whole — i.e., the Pierpoint government — was greatly weakened by the new State movement, and to this extent it might be said that the cause of loyalty to the Federal Union was injured; for the government which, until June of 1863, wielded real power in Wheeling, was left stranded and subjected to derision as a "straw government" in Alexandria. Nor is the case adequately covered by presenting griev- ances and sectional considerations showing the wisdom of dividing the commonwealth; for the question is not merely the need for a new State, but the justification of the irregular process by which the new State was formed. The diff'erence between an irregular and a normal process of dividing a State is shown by comparing the case of West Virginia with that of Maine. The Massachusetts legislature carefully guarded the process by which the district of Maine was to be erected into a new State, pro- viding that there must be a majority of at least 1500 in favor of separation on the part of the people of the dis- trict, and specifying how delegates should be elected to a constitutional convention, how application should be made to obtain the consent of Congress for the creation of the new State, how the constitution was to be voted upon in the towns, and how it was to take effect if adopted by a majority of the voters, while otherwise the constitution of Massachusetts should remain in force, "that no period of anarchy may happen to the people THE PARTITION OF VIRGINIA 475 of the said proposed State." The transfer of cases to the courts of the new State was provided for; and various important conditions were stipulated as a part of the old State's act of consent, such as the retention by Massachusetts of half the unappropriated lands within the new State and the making of needful arrangements concerning Bowdoin College and the Indians. These terms were to be incorporated into the new State's con- stitution and were to be subject to modification or an- nulment by agreement of the legislatures of both States, but by no other power or body whatsoever. '^ In contrast to this careful safeguarding of the inter- ests of Massachusetts, Virginia had no way of protecting her interests as to details, no opportunity to stipulate appropriate conditions as to the separation. In at least two respects — as to the boundary and as to the State debt — Virginia suffered because of this failure to estab- lish adequate guarantees at the time of separation. As to the boundary, it was the west alone which determined which counties should go into the new State, and in the case of Jefferson and Berkeley counties (which were not included in the new State at the time President Lincoln proclaimed its existence in April, 1863), it was claimed that no considerable part of the polls had been opened and no adequate vote ever held on the question of join- ing West Virginia. Had the process of separation been normal and the method of voting in each locality care- fully prescribed by a legislature truly representative of Virginia, this difficulty could have been avoided. On the question of the debt, Virginia suffered severely; for the new State neglected for more than fifty years to assume its equitable portion, forcing the old State to resort to a long and painful litigation before the United "Act of June 19, 1819: Gen. Laws nj Mass., 1819, Ch. clxi. 476 CONSTITUTIONAL PROBLEMS UNDER LINCOLN States Supreme Court in order to overcome an obstruc- tive attitude on the part of the younger commonwealth which at times verged upon defiance. ''^ It seems clear that if Virginia had in reality been consulted on the matter of separation, a better solution could have been found for the apportionment of this financial burden. " "Elsewhere the writer has discussed the complicated question of the Virginia debt. {Pol. Sci. Quar., Dec, 1915, XXX, 553-577.) West Virginia's portion of the debt as fixed by a decree of the United States Supreme Court was finally paid and a satisfaction of judgment was filed on March 1, 1920. For recent decisions on the debt question the following citations may be noted: 209 U. S. 514; 220 U. S. 1; 222 U. S. 17; 231 U. S. 59; 234 U. S. 117; 238 U. S. 202; 241 U. S. 531; 246 U. S. 565. ^'On the whole problem of the partition of Virginia one should consult, besides the titles mentioned, West Virginia, the Mountain State, by Charles H. Ambler, and Francis H. Pierpont: Union War Governor of Virginia and Father of West Virginia, by the same author. (The spelling "Pierpont" was adopted later in life.) Papers submitted by the cabinet in response to Lincoln's request for their opinions on the West Virginia matter are found in the R. T. Lincoln Collection, Libr. of Cong., nos. 20387, 20438-20593 passim. On the abortive new-state movement in eastern Tennessee, see James W. Patton, Unionism and Reconstruction in Tennessee, 1860-1869. CHAPTER XIX THE RELATION OF THE GOVERNMENT TO THE PRESS I. Freedom of the press in American law II. Lack of censorship during the Civil War: MiHtary control of telegraphic communication III. Activities of newspapers during the war: Continual revelation of military information IV. Military measures available against correspondents and editors V. The "suppression" of newspapers VI. Exclusion from the mails and other civil measures of control VII. The arrest of editors VIII. General comment on problems of press control during the war One of the difficult problems of government under President Lincoln was that of dealing with a disloyal and remarkably active press during the progress of a desperate war. The Government was tempted almost beyond endurance to the adoption of drastic measures of repression, but was all the time confronted with the peculiar safeguards which in our democratic Constitution surround the expression of popular sentiment. ^ 'The author has found but little interference with freedom of speech (as distinguished from freedom of the press) during the Civil War. As there were no judicial prosecutions because of oral utterances against the Government, the main features of this subject are in- cluded within the discussion of arbitrary arrests and the trial of civilians by military commissions. For these subjects, see Chapters VII and VIII. The Vallandigham case is the one conspicuous instance of inter- 477 478 CONSTITUTIONAL PROBLEMS UNDER LINCOLN The whole tenor of American law, it must be remem- bered, is opposed to the forcing or suppression of opin- ion. An untrammeled forum for public expression is one of the cardinal ideals of American political liberty, and by the First Amendment of our Constitution Con- gress is prohibited from making any law "abridging the freedom of speech or of the press." The controversy over the Sedition Act of 1798 illustrated in a striking manner the vitality of the principle embodied in this amendment. Enacted during the regime of reactionary Federalism which prevailed during the presidency of John Adams, the law was so framed as to offer a weapon against the administration's political opponents. It de- clared the penalty of fine and imprisonment against any person who should "write, print, utter, or publish . . . any false, scandalous and malicious writing . . . against the government of the United States, or either house of the Congress ... or the President . . . with intent to defame [them] or to bring them . . . into contempt or disrepute." Writings calculated to excite hatred against the President or Congress, or to stir up sedition or unlaw- ful combinations, were placed under a like prohibition.'' This law, it may be noted, was by no means as arbi- trary as those measures of repression by which the press and the public forum have been throttled in European monarchies. For, in the first place, the act was a law of fcrence with freedom of speech during the war, and the arrest of this agitator was made without express authority from the President who commuted the sentence of the military commission from imprisonment to banishment. When Vallandigham returned to the United States via Canada, the Confederate authorities having sped his departure from their midst, he was allowed to go unmolested, though delivering violent speeches. The mere expression of disloyal sentiments was not ordi- narily regarded as grounds for military arrest. For the Vallandigham case, see supra, pp. 176-179. W. S. Stat, at Large, I, 596. THE GOVERNMENT AND THE PRESS 479 Congress, not an imperial ukase or edict; it was enforce- able through the regular courts with all of the safeguards which that implies; falsity and malice were made essen- tial attributes in the crime,' so that there could be no conviction for the printing of a true statement (or even of a false one with innocent motives); and finally, the protection of jury trial was afforded to the accused. The offensive features of this law were not those which per- tained to the method of conviction and punishment, but rather to the description of the crime. The law was repugnant primarily because it made criminal the utter- ing of certain writings directed against the Government. One of the prominent cases under this act was that of Matthew Lyon, a Vermont editor who was found guilty of seditious writing and of having published a libel against John Adams. He was sentenced in October, 1798, to an imprisonment of four months, and a fine of one thousand dollars and costs.'* In general, however, there was but slight enforcement of the law. The significant day, March 3, 1801, which historians regard as the end of the Federalist regime, was named in the act itself as the date of its termination; and it was therefore unnecessary for the Jeffersonian party, coming into power on the fol- lowing day, to repeal the statute. Though the constitu- tionality of this law was never tested before tlie Supreme Court, yet there has always been a certain discredit attaching to a measure which contributed so largely to 'The wording was "false, scandalous and [not or] malicious." ^U. S. Circuit Court, Vermont, Oct. 9, 1798: Wharton, State Trials, 333; 15 Fed. Cas. 1183. Another victim of the Sedition Act was Thomas Cooper, who was imprisoned for a time at Philadelphia and who later made some amusing efforts to obtain a prosecution of Hamilton, stanch Federalist that he was, for alleged violation of the act in connection with a letter in which Hamilton attacked the President. For an interesting discussion of this subject, with annota- tions supplying information on the enforcement of the Sedition Act, lee the article by Dumas Malone in the Am. Hist. Rev., XXIX, 76-81. 480 CONSTITUTIONAL PROBLEMS UNDER LINCOLN the downfall of the administration and the party which enacted it. The later viewpoint with regard to the act is shown in the report of the Judiciary Committee of the House of Representatives in 1832 which denounced the law as unconstitutional^ (in which opinion most consti- tutional lawyers would now concur) and recommended relief to the Lyon heirs. The relief was granted in 1840 when Congress refunded the fine, thus registering its disapproval of such legislation. « When the Civil War opened there were no laws on our statute-books which were at the same time laws against the press and laws to punish crimes against the Govern- ment; nor were any such laws passed at any time during the war, in spite of far greater provocation than that which confronted the administration of President Adams. There was the law against conspiracy, the Treason Act of 1862, and the law which severely punished any one who resisted the draft or counseled resistance; but these measures were not, in fact, effective for the punishment of journalistic disloyalty. Editors and proprietors of papers were, indeed, legally responsible for what their sheets contained, but this responsibility was by no means peculiar to editors and publishers of newspapers, being derived merely from the general law of libel, which applies alike to all. But the laws applying to libel take into view only personal in- jury, as for instance by the defamation of character, and do not recognize the injury to the public interest which is involved in the defamation or undermining of a gov- ^The problem of the constitutionality of a Federal sedition act, in its bearing on the reserved-power principle, the treason clauses, and the First Amendment, is discussed in Chafee, Freedom oj Speech, 199-207. ^House Rep. No. 218, 22 Cong., 1 sess.; Act of July 4, 1840: U. S. Stat, at Large, VI, 802. THE GOVERNMENT AND THE PRESS 481 ernment. Seditious libel, as found in England,'' is un- known in this country, and libel here is conceived as merely an offense against the person defamed. For such an offense, a newspaper proprietor or editor is liable precisely as any other person would be. Furthermore, prosecutions or civil actions for libel are within the province of the State judiciary, and are there- fore inappropriate as instruments for vindicating the Federal Government against abuse. Even such laws as we now have in the United States requiring the regis- tration of the owners, managers, and editors of publica- tions were not in existence during the Civil War, and it was an easy matter to conceal the actual ownership of a newspaper. When all of these legal limitations are taken into account, the difficulties encountered by the Lincoln Government in dealing with journalistic offenses may be better appreciated. II A striking fact concerning the subject of journalistic activity during the Civil War was the lack of any real censorship. There were, it is true, some efforts to estab- lish a telegraphic censorship. In April, 1861, the Gov- ernment took exclusive control of the telegraph lines radi- ating from Washington; and the function of censoring the dispatches sent over the wires from the national ^A British statute of December 30, 1819, dealt with "blasphemous . . . or . . . seditious libel, tending to bring into Hatred or Contempt the Person of His Majesty," etc. (60 Geo. Ill, & 1 Geo. IV, Cap. viii.) Concerning earlier English law on the subject of sedition, see Chafee, Freedom of Speech, 21 et seq. The Americans, says Chafee, detested the English law of sedition, which was a "product of the view that the government was master" while Americans believed that the Gov- ernment was servant, and one of the purposes of the First Amendment was to get rid of the English crime of sedition. Chafee shows that at- tempts shortly after 1800 to revive common law prosecutions for seditious libel in this country were a complete failure. {Ibid., pp. 30-31.) 482 CONSTITUTIONAL PROBLEMS UNOER LINCOLN capital was at different times under the charge of the Treasury, the State, and the War Departments. Oper- ating under instructions from the Cabinet officer in whose department he was placed, the censor excluded com- munications giving military information, and also those which were deemed to convey too much news concerning the activities of the Government. Reports of delicate diplomatic questions, criticisms of Cabinet members, comments giving the mere opinion of correspondents, advance information of contemplated measures, and stories injurious to the reputation of officers, were denied the wires. A sort of ^'entente cordiale" between the Government and the newspaper correspondents was attempted. In a conference of the press representatives with General McClellan in August, 1861, a "treaty of peace and amity" (as Russell of the London Times called it) was drawn up. It was agreed that the editors were to ab- stain from printing anything which could give aid or comfort to the enemy, and a like caution was to be observed by the correspondents. In return, the Govern- ment was to give the press adequate facilities for obtain- ing and transmitting suitable intelligence, especially touching military engagements. Thus a modus Vivendi was to be inaugurated which would do away with the necessity of any censorship. For various reasons, how- ever, the scheme broke down. Editors differed from the Government as to what was proper to print; many papers refused to limit themselves by any such pledge; and the intense rivalry of newspapers proved more powerful than the restraints of any voluntary agreement. After nearly a year of experimentation, an adminis- trative policy of telegraphic control was evolved. Be- ginning with February 2, 1862, it was ordered that the President, by virtue of congressional authorization. THE GOVERNMENT AND THE PRESS 483 would establish military supervision of all telegraph lines in the United States, the censoring function being lodged with the War Department. All telegraphic com- munications concerning military matters not authorized by the Secretary of War, or the commanding general of the district, were forbidden; no further facilities for receiving information by telegraph or transporting their papers by railroad were to be extended to journals vio- lating the order; and for the general supervision of tele- graphic business a special officer was appointed with the title of Assistant Secretary of War and General Manager of Military Telegraphs. In the sifting of news the Amer- ican Telegraph Company cooperated with the Govern- ment, requiring oaths of loyalty and secrecy from em- ployees and allowing no access to the messages or the operating rooms except to those duly authorized by the Government telegraph manager. No unofficial messages conveying military information were transmitted by wire; and news-writers were forced to bring in their war stories in person, to employ a messenger, or to use the mails. As a further precaution communications were sent in code, and the cipher operator constituted at all times an important medium between officers. " This governmental supervision of the telegraph was but a feeble measure of news control. In the early days of the censorship, when the suppression of messages was limited to Washington, "contraband" intelligence might be transmitted through the telegraph offices of Balti- more, Philadelphia, or New York. Information of a highly confidential nature might be suppressed in Wash- ington and then sent over the wires from other points. Even after the control of the telegraph became general, *House Rep. No. 64, 37 Cong., 2 sess.; O. R., Ser. II, Vol. 2 p. 40; Scr. Ill, Vol. 1, pp. 324, 394-395; Nicolay and Hay, Lincoln, V. 141; Russell, My Diary, North and South, Aug. 5, 1861; July 10, 1861. 484 CONSTITUTIONAL F'ROBI.EMS UNDER LINCOLN messages could be freely sent by mail, and this became the regular method by which reporters at the front con- veyed their "copy." Throughout the war unauthorized news items continually found their way into print through numerous unsealed channels. Even the process of communication between the generals in the field and the War Department was by no means water-tight, and news trickled out through mysterious "leaks." As for a really effective censorship, which would deal in a compre- hensive way with the general problem of publicity, it was not even attempted. Ill This laxity of press control coincided with a period of remarkable activity in journalistic enterprise. ' For cover- ing the campaigns of the war the great metropolitan dailies developed elaborate organizations and expended huge sums. Newspaper correspondents were everywhere. Many of them had official positions as government clerks, army nurses, or signal officers, and were thus advanta- geously placed for obtaining news. They attached them- selves to generals' headquarters, dined at officers' mess, had the use of army horses and wagons, were supplied with government passes enabling them to witness battles and pass freely through the armies, sailed on admirals' flagships, took passage on army trains or government steamers, and were at times even employed for the con- veyance of confidential dispatches. The typical correspondent's first thought was for his newspaper, and his chief concern was to scent the kind of "copy" that his readers demanded. The possibility that such "copy" might reveal military secrets, defame a 'The author has treated the newspaper during the Civil War in the Amer. Hist. Rev., XXIII, 303-323. THE GOVERNMENT AND THE PRESS 485 general, or undermine public confidence in the Govern- ment's conduct of the war, was usually considered of secondary importance. Such generals as Grant and Sher- man, who kept their counsel and avoided reporters, were written down; while inferior men gained brilliant repute by means of favors given at Government expense to cor- respondents. The "special's" story had to be written at all events, and if reliable news was wanting, i" the account would be made up from guesswork, off-hand prophecy, camp gossip, or the indiscreet utterances of some dis- gruntled subordinate officer. Certain men, as a matter of policy, must be played up as heroes, while others were denounced, and always the partisan flavor of the reporter's paper was preserved. The continual revelation of military information by the newspapers of the Civil War period seems a shock- ing thing in contrast to the elaborate restrictions that have been imposed for safeguarding military secrecy dur- ing later wars. Plans of campaign, movements of troops, the location and strength of military units — all such information was regularly published to the world. An account of Grant's movements, selected at random from the New York Daily News, gives the course of march of a cavalry division, refers to reenforcements from Meade, and proclaims the assembling of Generals Grant, Meade, and Butler at Burnside's headquarters. This is but typical of the sort of detailed information '"The following example will illustrate the unreliable nature of some of the wartime news. The New York Tribune, on September 5, 1861, contained this statement: "The report of the death of Jefferson Davis is confirmed by information which appears trustworthy." There followed a brief account of Davis' life. On September 7th the Tribune said, in commenting on the favorable attitude toward Davis taken by Governor Magoffin of Kentucky: "But Davis is dead actually and Magoffin is so politically." (New York Tribune, Sept. 5. 1861, p. 4; sept. 7, 1861, p. 4.) 486 CONSTITUTIONAL PROBLEMS UNDER LINCOLN which the papers constantly suppHed. At the time, Lee did not know that Burnside was still with Grant.'' A copy of the Chicago Times in September, 1863, which promptly reached the headquarters of the Con- federate general, Braxton Bragg, contained the following account of the movements of the Federal army:'^ Crittenden's Corps moved eastward to feel the strength of the enemy, with the intention of crossing the mountains to the north and east of Chattanooga, crossing the Tennessee river at a ford some tliirty miles above Chattanooga. This crossing safely effected, Crittenden will swing into the rear of Chatta- nooga, and if possible take the place. The intention is to strike that point offensively at the same time that Burnside attacks Buckner at Knoxville. This will at once prevent Buckner from receiving any reenforcements, and also if not captured greatly endanger his retreat, for it will be impossible to retreat toward Bragg. Meanwhile, if Crittenden succeeds well in his efforts upon Chattanooga . . . , Thomas and Mc- Cook will move rapidly upon Rome, Georgia. . . . It is . . . believed that Bragg will not resist at Rome. . . . Rosecrans will, if possible, whip Bragg in detail, disperse his forces, and then attack Johnston alone, for united the two rebel armies would certainly outnumber ours. Many instances of the same sort could be mentioned. The location of Grant's guns secretly placed against Vicksburg in 1863 was published; his proposed concen- tration upon City Point in July, 1864, was revealed; Sherman's objectives in his Georgia march and the dis- position of his various corps were proclaimed; full de- tails concerning the land and sea expedition against Wil- mington, N. C, in December, 1864, were supplied. "New York Daily News, July 2, 1864; Lee's Confidential Dispatches to Davis, 272. "O. R., Ser. I, Vol. 30, pt. 4, p. 600. THE GOVERNMENT AND THE PRESS 487 Northern papers practically functioned as Confederate spies in Union camps, for copies of these journals were easily obtained by Southern generals. General Lee, with a practiced eye for detecting military information, regu- larly scanned the enemy's papers; and his confidential dispatches to President Davis show that he gained many bits of valuable information concerning the army of the Potomac at times when the Union generals were quite mystified as to his own forces.^' In addition to this revelation of military information, it must be remembered that numerous powerful news- papers of the North were openly hostile to tlie Govern- ment in their editorial utterances, and pursued their en- mity toward the administration to the point of encour- aging disloyalty. Early in 1863, for instance, the New York World thus spoke of Lincoln's policy of emanci- pation: We have doubtless surfeited our readers with specimens of the turgid, ranting and senseless predictions of the emancipa- tionists; but nauseous and disgusting as is the dose, we must insist on repeating it in still larger measure. Nothing is more important than that the people should understand the claims to statesmanship of their actual rulers. It is by this miserable balderdash that the country is governed. The administration shines, like the moon, by reflected light. It borrows its ideas and its policy so far as it has any, from these crazy radicals. ... By surrendering itself to their wild and reckless guidance it is ruining the country; and it is important that the people should see, even at the expense of a good deal of disgust and loathing, what has been substituted in the public counsels for statesmanlike sagacity and far-seeing wisdom.^" ^^Am. Hist. Rev., as above cited. '*The editorial continued by giving extracts from Greeley's Tribune concerning emancipation. (New York World, Feb. 7, 1863.) 488 CONSTITUTIONAL PROBLEMS UNDER LINCOLN Yet the World was not one of the extreme anti-war or peace-at-any-price sheets, but a great, respectable news- paper which professed loyaUy to the Union cause. In its editorial pages the Chicago Times continually flayed the President in a tone which suggested personal malice. At the time of Lincoln's second inauguration, on March 4, 1865, the Times spoke as follows: ^^ The inaugural addresses of the past presidents of the United States are among the best of our state papers. . . . Contrast with these the inaugural address of Abraham Lincoln deliv- ered in the City of Washington on Saturday and printed in these columns this morning! "What a fall was there, my countrymen." Was there ever such a coming out of the little end of the horn? Was ever a nation, once great, so belittled? Is such another descent of record in the history of any people? We had looked for something thoroughly Lincolnian, but we did not foresee a thing so much more Lincolnian than anything that has gone before it. We did not conceive it possible that even Mr. Lincoln could produce a paper so slipshod, so loose- jointed, so puerile, not alone in literary construction, but in its ideas, its sentiments, its grasp. ... By the side of it, medioc- rity is superb. The following comment which appeared in the Balti- more Exchange suggests strong sympathy with the cause of disunion:'^ The war of the South is the war of the people, supported by the people. The war of the North is the war of a party, at- tempted to be carried on by political schemers, independently of the people, on the credit of a divided country, and on the . . . faith of an old Union — which has in reality ceased to exist. Though selections of this sort could be extended almost indefinitely, one more must suflfice. When the President '^Editorial, Chicago Times, Mar. 6, 1865. "Baltimore Exchange, July 10, 1861. THE GOVERNMENT AND THE PRESS 489 in the summer of 1864 issued a call for an additional 500,000 men, the Indianapolis Sentinel thus appealed to its readers :^^ We ask the plain, sober, thinking people of Indiana to re- flect seriously upon the present condition of public affairs. What confidence can be placed in the capacity and integrity of the men who are administering the government when the events of the past three years are reviewed? Notwithstanding the assurance given from time to time . . . that each [call] was to be the last, and that no more would be necessary for the suppression of the rebellion, at this late day the President issues a call for five hundred thousand more men! . . . Can we arrive at any other conclusion . . . than that the "best government on earth" will be destroyed if the present party rule is perpetuated? One can easily imagine the effect of such language upon that public morale which is so essential for the support of armies in the field; and yet the above ex- tracts are not examples of the worst utterances that may be found in the newspapers of the time, but rather of the daily tone of many powerful journals. They are rep- resentative of the sort of injurious journalism which the administration regularly tolerated, while instances of governmental repression directed against newspapers were but the exception. IV Having noted those forms of newspaper activity which hurt the Government, we may now inquire as to the measures adopted for controlling these abuses. In the first place it should be noted that correspondents accom- panying the armies had the status of civilian camp-fol- lowers and were within the range of military jurisdiction, "Editorial, Daily State Sentinel (Indianapolis), July 28, 1864. 490 CONSTITUTIONAL PROBLEMS UNOER LINCOLN being subject to punishment by court-martial for viola- tion of any part of the military code. In particular, the 57th Article of War fitted their case. This provided that any one "convicted of holding correspondence with, or giving intelligence to, the enemy, either directly or indi- rectly," should suffer death, or such other punishment as a court-martial should decree.*^ As against news writers this section of the military code was rarely, if ever, applied. General Sherman, who was constantly urging vigorous measures against oflfending correspondents, initiated a case against a reporter who wrote accounts of the Union operations at Vicksburg; but conviction failed because of the court's ruling that the identical communication must be proved to have gone to the enemy, and such evidence was not at hand.*^ This part of the military law, however, was often referred to in army orders and offered a military means of news control. A general order of the War Department was issued amplifying this "article" by declaring that all cor- respondence, verbal or in writing, printing or telegraph- ing, concerning military operations or movements on land or water, or regarding troops, camps, arsenals, intrench- ments, or military affairs within the several military dis- tricts, by which intelligence might be given to the enemy, without the sanction of the general in command, was prohibited ; and that violators would be proceeded against under the 57th Article of War. 2" An instance of military justice directed against an editor is to be found in the case of Edmund J. Ellis, editor and proprietor of the Boone County Standard of i8f/. S. Stat, at Large, II, 366. •'General W. T. Sherman to John Sherman, dated "Camp before Vicksburg," Feb. 12, 1863: The Sherman Letters, ed. by Rachel S. Thorndike, 190. *»0. /?., Scr. Ill, Vol 1, p. 390. THE GOVERNMENT AND THE PRESS 491 Columbia, Missouri. Because of certain articles which appeared in his paper, Ellis was arraigned before a mili- tary commission in February, 1862, charged with "the publication of information for the benefit of the enemy and encouraging resistance to the Government and laws of the United States." Ellis' plea denied the jurisdic- tion of a military commission over his case, declaring that the matters charged were "wholly and exclusively of civil cognizance." He was nevertheless found guilty and banished from Missouri during the war, while the press, type and equipment of his newspaper were confiscated. 2^ As in all wars, intercourse with the enemy was inter- dicted, except under flags of truce or on the basis of special executive permits. In the opinion of the Judge Advocate General, this prohibition made illegal a system of correspondence maintained between Northern and Southern papers by means of publications entitled "per- sonals." It was always within the power of a general to exclude reporters from his lines, and in a number of cases this measure was applied. The exclusion of particular men, while others were admitted, was sometimes accom- plished by requiring passes which could be denied to hostile journalists or those who disregarded regulations. A very extreme measure which was threatened but, it would seem, never actually applied, was to treat reporters as spies. Sherman, for instance, announced at one time that all correspondents accompanying his expedition should be so treated, declaring that they were spies because their publications reached the enemy, giving minute information concerning his forces." This threat does not appear to have been enforced in any actual in- "/6:W., Ser. II, Vol. 1, pp. 453-457. ^'^The Sherman Letters, ed. by Rachel S. Thorndike, 187. 492 CONSTITUTIONAL PROBLEMS UNDER LINCOLN Stance. Unless the informer could be shown to be in the employ of the enemy, the term spy would be inappro- priate, while in any case the 57th Article of War was a sufficient weapon without raising the question as to whether the offender was a "spy" or not. Though, in general, military control over correspondents may have been possible under existing rules, it was not, in fact, made effective. The ingenuity and persistence of news- paper men were difficult to deal with; and, as we have seen, publication of military information continued on an extensive scale throughout the war. Where the activities of a newspaper produced too grave a menace, it sometimes happened that the newspaper itself was "suppressed," which usually meant that by military action its publication was temporarily sus- pended. Cases in which this drastic method of press control was applied were fairly numerous, although it is also true that throughout the war the most flagrant disloyalty was suffered to continue in many prominent papers. Among the newspapers subjected for a time to military "suppression"" were the Chicago Times, the New York World, the New York Journal of Commerce, the Dayton (O.) Empire, the Louisville (Ky.) Courier, the New Orleans Crescent, the South of Baltimore, the Maryland News Sheet of Baltimore, the Baltimore Ga- zette, the Daily Baltimore Republican, the Baltimore Bulletin, the Philadelphia Evening Journal, the New "The Bee, the Delta, and the Crescent of New Orleans were sup- pressed by General B. F. Butler, and the Daily Times and the Banner of Nashville were suppressed by Governor Andrew Johnson. {Private and Official Correspondence of B. F. Butler, I, 476; Hall, Andrew Johnson, Military jGovernor of Tennessee, 43.) THE GOVERNMENT AND THE PRESS 493 Orleans Advocate^ the New Orleans Courier^ the Balti- more Transcript, the Thibodaux (La.) Sentinel, the Cambridge (Md.) Democrat, the Wheeling Register, the Memphis News, the Baltimore Loyalist, and the Louis- ville True Presbyterian."^^ A detailed examination of the circumstances of these various suppressions is impossible here, but the two most striking instances, those of the Chicago Times and the New York World, may be discussed with some fullness. The suppression of the Chicago Times was an inci- dent closely bound up with the agitation concerning Vallandigham. As the latter's arrest for a disloyal speech was an instance of military action unprompted by the Washington administration, so also the seizure of the paper was a measure taken on the initiative of General Burnside. Because of comments severely at- tacking the administration and expressing sympathy for Vallandigham, General Burnside, on June 1, 1863, issued "General Order No. 84," which contained the following paragraph: "On account of the repeated expression of dis- loyal and incendiary sentiments, the publication of the newspaper known as the Chicago Times is hereby sup- pressed." Brigadier General Ammen, commanding the district of Illinois, was charged with the execution of this order, and under his authority Captain Putnam, in command at Camp Douglas, Chicago, warned the man- agement that the paper must not be issued on the morn- ing of .the 3rd, under penalty of military seizure." A civil remedy for restraining the military authorities ^*For the suppression of newspapers the principal source is the Ojfi- cial Records. The general index and the volume indexes cite the papers on which information is to be found See also Ann. Cyc, 1864, pp. 393-394; Check List of American Newspapers, Library of Congress, 81 f/ seq. =Mnn. Cyc, 1863, pp. 423 et seq.; O. R., Ser. I, Vol. 23, pt. 2, p. 381. 494 CONSTITUTIONAL PROBLEMS UNDER LINCOLN was now attempted. Upon application of the publishers, Judge Drummond of the Federal circuit court issued a writ of injunction temporarily restraining Captain Put- nam from any interference with the publication of the paper until the question of granting a permanent injunc- tion could be heard in open court. This judicial order was disregarded; and in the early morning of the 3rd the office was seized, and the publication of that morning's issue prevented. There were no further proceedings on the injunction. Agitation ran high in the city and various citizens' meetings were hastily called. Resolutions of protest adopted by a mass meeting held in the courthouse square on the evening of the 3rd, were matched by reso- lutions of approval passed on the following night by the "loyal citizens of Chicago." To these latter the idea of suppressing the Times was not new; for nearly a year before Governor Yates had reported that the immediate suppression of the paper was the "urgent and almost unanimous demand" of the "loyal citizens" of the city, and that unless this action were taken he feared that the people would take the matter into their own hands. ^^ The action of President Lincoln concerning the sup- pression of the Times was taken with deliberation after a careful balancing of motives. According to Secretary Welles, the President and every member of the Cabinet regretted Burnside's act.^^ On the day the order was issued Stanton directed a letter to Burnside expressing the President's disapproval of the action of General Has- call who had interfered in various ways with certain newspapers in Indiana. He advised Burnside that the dissatisfaction within his department would only be in- "Yates to Stanton, Aug. 7, 1862: O. R., Ser. Ill, Vol. 2, p. 316. '^Wiary of Gideon Welles, I, 321. THE GOVERNMENT AND THE PRESS 495 creased "by the presence of an indiscreet military officer who will . . . produce irritation by assuming military powers not essential to the preservation of the public peace. "2^ Having written thus, Stanton added the fol- lowing significant postscript after word of the order con- cerning the Times had been received : Since writing the above letter the President has been in- formed that you have suppressed the pubhcation or circulation of the Chicago Times in your department.^' He directs me to say that in his judgment it would be better for you to take an early occasion to revoke that order. The irritation produced by such acts is in his opinion likely to do more harm than the publication would do. The Government approves of your motives and desires to give you cordial and efficient support. But while military movements are left to your judgment, upon administrative questions such as the arrest of civilians and the suppression of newspapers not requiring immediate action the President desires to be previously consulted.^" Had this word from Washington, tactfully advising Burnside to revoke his own order, been transmitted by telegraph instead of by mail, it is possible that the Times might never have been actually suppressed. Certainly it would never have been if that general had consulted Washington first. As to overruling Burnside, that was a course which the President was reluctant to take, since he dreaded the weakening of the military authority. On the 4th of June, however, a Cabinet meeting having intervened, this step was taken." The revocation of "0. R., Ser. II, Vol. 5, p. 723. ^'This doubtless refers to Burnside's "General Order number 84" above mentioned. The publication of the Times was suppressed and the circulation of the New York World within the department was pro- hibited. "O. R., Ser. II, Vol. 5, p. 724. •""/*!A5 (jf. Archives (for a constitution- al study of the Civil War), X, 545/. Arkansas, beginning of the rebel- lion, 50 n.; proceeds from confiscation, 289; judicial appli- cation of Emancipation Procla- mation, 382 n.; Federal liability of the governor, 419. Arlington, seizure of, 320-322; compensation paid to Lee heirs, 322. Armstrong's Foundry, 285 n., esp. 333, 335. Army of the United States, Lin- coln's call of May 3, 1861, pp. 38, 244; increase of, by presidential proclamation, 38 n.; act to in- crease pay of, 55 «., 129; States of South expected to supply troops, 222; State and Federal adjustments, 410/.; Upton's comment as to State governors' functions, 418 n.; appropriation bill of July 17, 1861, p. 426; regu- lars and volunteers, 241 ; addi- tions to regular, 243, 244. See also courts-martial, conscrip- tion, militia. Army Act (English), 141 n. Arnold, L N., and bill to give effect to Emancipation Procla- mation, 383 n.; and suppression of Chicago Times, 496 n. Arrests, arbitrary, for resisting the draft, 81; of political piisoners, 149/.; number of, 152 n.; rea- sons for, 155; during military occupation, 226; and habeas corpus writs in State courts, 428-429; in relation to freedom of the press, 477 n.; Lincoln's instruction on, 508. See also editors, arrest of. Arrests, false, liability for, 197. See also Indemnity Act. Aiticles of War, 27 n., 141. Articles of War, Fifty-seventh, and newspaper correspondents, 489- 490. Arver vs. United States, 274. Assassination, of Lincoln, attrib- uted to influence of Confederate leaders, 96; of the President, 104 and n. Attachment, writ of, 158, 162. Attainder, constitutional provision, 74-75; in relation to constitu- tionality of Confiscation Act, 278; Lincoln on, 280. See also treason, confiscation. Attorney General, policy as to prosecutions for treason, 86, 89- 90, 92; instructions as to con- fiscation after the war, 329; office of, under Lincoln, com- pared to that under Wilson, 525-526. See also Bates, Speed, Stanbery, Evarts. Australian Commonwealth, no conscription, 240. Avengo vs. Schmidt, 288 n. "Axis Sally." See Gillars. Baltimore, order as to arrests, 154; arrest of police commis- sioners, 165 n. Baltimore Exchange, sympathy with the South, 488; editor and proprietor arrested, 503-504. Bancroft, Frederic, 1 50. Bangor, Maine, 149 n. Banks, General Nathaniel P., mili- tary governor in Louisiana, 228. Banks, national, act for creating, 406. Barber vs. Irwin, 271 n. Bates, Edward, on President as Commander in Chief, xix; views concerning Supreme Court, 8 n.; on treason prosecutions, 87, 88 n., 93; on suspension of habeas corpus privilege, 124, 132, 135; on INDEX 567 martial law, 142 n.; on military and civil conflict in Missouri, 148; on Milligan case, 180 «.; on "provost-marshal justice," 233; instructions as to confisca- tion, 284 n.; on Reconstruction radicals, 400 n.; suggests written opinions on West Virginia bill, 457; gives opinion on West Vir- ginia bill, 459; denounces B. F. Butler's military rule at Norfolk, 468; organization of his office, 525, 546; mentioned, 282; diary, 547. Bayard, J. A., Senator from Dela- ware, on Indemnity Bill, 212 n.; moves postponement of con- scription bill, 270 n. Beach, S. Ferguson, in Davis case, 107; claims seat in Congress, 464 and n. Bean vs. Beckwith, 195 n. Beecher, Henry Ward, 157 «, Belligerent right of emancipation, 374, Benjamin, Judah P., 111. Berger, Victor L., 113 n. Berkeley County, (western) Vir- ginia, annexation to West Vir- ginia contested, 469-472, 475. Best, Robert Henry, 95. Betts, Judge, on confiscation, 309, 310. Biddle, C. J., Representative, re- marks on habeas corpus bill, 130. Bigelow vs. Forrest, 286, 335. Binckley, J. M., Acting Attorney General, 102. Binney, Horace, on habeas corpus privilege, 125/., 138. Bismarck, dictatorship of, 57. Blair, Jacob B., Representative from Virginia, 464. Blair, Montgomery, on West Vir- ginia bill, 458; and postal con- trol of newspapers, 501 ff. Blair, S. S., Congressman, on Con- federate belligerency, 70-71. Blatchford, Richard H., intrusted by Lincoln with emergency funds, 37 n. Blockade, proclamations of, 49-50; legality of, in Prize Cases, 52 ff.; and recognition of belligerency, 69; lifted during military occu- pation of South, 222; Presi- dent's power of, 374. Bogus proclamation, published in New York World, 157 n. Bolivar, Simon, and emancipation, 375 n. Bollman and Swartwout case, 120, 133-134. Bonar Law. See Law, Andrew Bonar. Boone County (Missouri) Stand- ard, 490-491. Boone County, (western) Virginia, 445. Booth vs. Town of Woodbury, 249 n. Border States, and compensated emancipation, 366; claim com- pensation for slaves, 402-404. Border-State governors, liability of, 419. Boreraan, A. I., Governor of West Virginia, seeks to cheer Pier- point, 462. Boston, jury trial in connection with "massacre" of 1770, 142 n. Bounties, 249, 250. Bowdoin College, 475. Bradley vs. Fisher, 203. Bragg vs. Lorio, 284 n. Bramlette, T. E., Governor of Kentucky, 196. Breckinridge, J. C, and Davis' indictment. 111; property con- fiscable, 282. British debts, confiscation of, dur- ing American Revolution, 300. Brooke Co., (western) Virginia, 448. Brown, Wm. G., Representative from Virginia, 464. Brown vs. United States, 299 and n., 300, 304, 305. Browning, Orville H., Senator from Illinois, debate with Sumner on war powers, 41-43; and indemnity bill, 212 n.; op- poses confiscation, 277; advises 568 INDEX Lincoln to veto confiscation bill, 279; convcisation with Lincoln regarding power over slavery, 351 n.; on appointment of gen- erals from Illinois, 412 n.; visits Rhode Island encampment, 413 n.; mentions Lincoln's dis- tress at West Virginia bill, 460 n.; diary, 547. Brownlow, W. G., Governor of Tennessee, on State emancipa- tion, 389 n, Buchanan, James, on conscription, 271 n. Bnrlamaqui, J. J., on confiscation, 298. Burnside, General A. E., and Val- landigham case, 176-177; and suppression of Chicago Times, 493-496; mentioned, 485. Burr, Aaron, case of, in relation to the law of treason, 76; con- spiracy, 127, 145 and «. Burton, General Henry S., in charge of Davis, 108. Bushwhacking, 174, 195 n., 447, 521. Butler, General Benj. F., causes execution of Mumford, 91, 227; urges criminal liability of Lee's officers and men, 101; uses mili- tary pressure in defiance of civil authority, 148; and provost court for New Orleans, 225, 233; official title in Louisiana, 228; declared an outlaw, 227 n.; at New Orleans, 227 «.; sequestcis property, 223 n.; enforces con- fiscation acts in Louisiana, 283 n.; and Negroes as "contra- band," 354-355; controls Negro affairs, 381-382; quarrel with Govcrnoi Andrew, 415-416; con- troversy with government under Pierpoint, 466-469; mentioned, 485. Butler, Pierce, controversy with Cameron, 188. Bynkershoek, C. van, on confisca- tion, 298. Cabell County, (western) Vir- ginia, 441 n., 445, 446. Cabinet officers, suits against, 188- 189; indemnification of, 191. Cabinet. See Lincoln's Cabinet. Cadwallader, General George, and Merryman case, 161. Cadwallader, Justice, 92-93. Calhoun County, (western) Vir- ginia, 445. California, circuit court for, xxiii; arrest in, 194. Cambria County, Pennsylvania, conspiracy cases, 90. Cameron, Simon, Secretary of War, controversy with Pierce Butler, 188; discourages recruit- ing, 413 and n.; and Butler- Andrew controversy, 415; 1861 report of, 417. Campbell, John A., relations with Confederate Commissioners, 63; imprisonment, 103 n.; property seized, 283 n. Canada, hostile use of Canadian soil, 83; conscription in, 240. Cannon, William, Governor of Delaware, urges emancipation, 390. Capital Traction Co. vs. Hof, 212 w. Captured and Abandoned Prop- erty Act, 323-328; as a penal measure 224; enforcement of, 'ilbff.; and restoration of prop- erty, 335/. Carlile, J. S., Senator from re- stored Virginia, opposes confis- cation 277; on emancipation, 350; chosen, 451; on making of West Virginia's constitution, 452 n.; admission to Senate, 454; opposes new State, 456. Carroll, Anna Ella, 551. Censorship, tentative steps toward, 481/.; lack of, in Civil War, 508, 520. See also newspapers, freedom of press. Certiorari, in Valladigham case, 178. Chafee, Zechariah, 528. INDEX 569 Chandler, Douglas, 95. Chandler, L. H., in Davis case, 107, 109. Charge to Grand Jury, In re, 60 n. Chartist disturbances, 143. Chase, Salmon P., opinion as to trial of Davis, 112«.; appre- hended decision on habeas cor- pus question, 132; dissents in Milligan case, 133, 182; as to circuit duties of Supreme Court members in war time, 234; on West Virginia bill, 457; men- tioned, 222. Chase, Samuel, Justice, in Ware vs. Hylton, 305. Cherokee Nation vs. Georgia, 10. Chester (Illinois) Picket Guard attacked, 509 n. Chicago Times, reveals military information, 486; attacks Lin- coln, 488; temporary suspension of, 493-496, 507. Chicago Tribune, 106. Churches, military control or in- terference, 148, 155, 226 and n. Citizenship, in relation to the draft, Zddff.; and Dred Scott case, 267. Civil government, and martial law, 226 n.; under military control in Tennessee, 228. Civil war, and constitutional guarantees, 209. Civil War, American, purpose of, as expressed in Crittenden reso- lution, 352; secession, 12-24; laws of warfare promulgated, 27; war powers, 25-47; leniency, 47; legal nature, 48-73; begin- ning and end, 49-50, 54, 339; construed as insurrection, 62; not distinguishable from regular war, 66; dual character, 69-73, 224, 515 n.; treason, 74-95; treatment of Confederate lead- ers, 96-117; experience as to habeas corpus privilege, 118-139 (esp. 131^.); relation of mili- tary to civil authority, \A1 ff.; arbitrary arrests, \49ff.; martial law and military commissions, 169-185; liabihty of Federal officers and the indemnity act, 186-214; occupation of the South, 215-238; conscription, 239-274; confiscation and resto- ration of property, 275-341; emancipation, 342-404; State and Federal relations, 405-432; partition of Virginia, 433-476; freedom of speech and of the press, 477-512; summary, 511- 522; relation to later constitu- tional history, 522-523; lack of legal precision, 515; legal eccen- tricities, 521; compared with problems under Wilson, 523-530. Clarksburg, West Virginia, prose- cutions for disloyalty, 89; Unionist mass meetings, 438. Clay, C. C, 92, 103 n. Clearfield County, Pennsylvania, conspiracy cases, in, 90. Cleveland, Grover, vetoes bill for refunding direct tax, 424. Cleveland, Ohio, indictments for conspiracy, etc., 85; habeas corpus cases, 257 n. ClifTord, J. H., government coun- sel in Davis case, 107 n. Clifford, Nathan, Justice, on Con- federate belligerency, 65; Dis- sents in Miller vs. United States, 314. Cochrane, Lord, British Admiral, and deportation of slaves, 344- 345. Cockburn's charge to Jury, 144 w. Codazzi, Agostino, on emancipa- tion in Venezuela, 375 n. Coke, Sir Edward, on executive imprisonment, 125. Cole, A. C, 185 n. Coleman vs. Tennessee, 144 n., 236, 230. Colfax, Schuyler, 190. Colombia, emancipation in, 375 n. Colorado, treason indictments in, 85; martial law in, 146. Columbia, Missouri, 490-491. 570 INDEX Columbus (Ohio) Crisis, 46. Commander-in-Chief, of militia, 420. Commander-in-Chief of the Army, significance of this presidential function, xix. See also President. Committee on Conduct of the War, xiv, 44, 529 n. Committee on Public Information, 528 n. Committees of Safety, in western Virginia, 440. Common law, and liability of the soldier, 142 n.; referred to in Seventh Amendment, 211; in relation to confiscation, 285 and n.; and restoration of property, 336. Commonwealth vs. Holland, 195 n. Compensation for slaves. See emancipation. Conduct of the War, Committee on, 44, 529 n. Confederacy, sympathy abroad, 18; States declared in insurrec- tion, 50 n.; commissioners sent to Washington, 63; recognition avoided, 63-65; belligerency, 65- 73; naval crews not treated as pirates, 65; letters of marque and reprisal, 65; and treason, 66; treatment by United States sum- marized, 67; as de facto govern- ment, 68; adherents not punished under Federal treason law, 77, 81; policy as to hostages, 157; mili- tary occupation of its territory, 2\Sff.; States of, not repre- sented in Federal Congress, 223 n.; double status theory, 224; debt extinguished, 238 n.; and question of "state succes- sion," 238 n.; its territory passed through various governmental stages, 27)1 ff.; its inhabitant? treated as enemies, 325; States analyzed as to ratification of Thirteenth Amendment, 397- 398; problems as to conscription similar to those of United States, 429 n.; Virginia's agree- ment with, 438. See also Northwest Confederacy, pri- vateers, Jefferson Davis, legal nature of the Civil War. Confederate Act of Sequestration, 302 «. Confederate Government, property of, seized, 291 n.; and capture of cotton, 325; validity of, partly recognized, 237 n. Confederate leaders, treatment after the war, 96-117; liability for treason, 98^.; resolutions of State legislatures, 100. Confederate money, contract for payment of, held enforceable in Federal court (Thorington vs. Smith), 238 n. Confiscation, as penalty for rebel- lion, 69; debate on, 69^.; mili- tary action, 148; policy of, 275- 292; right of, 293-315; restora- tion, 316-341; by Confederacy, 275-276; process of, 281^.; com- mon law remedy in, 285 and n.; duration of the forfeiture, 286- 288; extent of, 288/.; financial results, 289-292; punitive char- acter of, 295 n., 307; as a belli- gerent right, 294-306, 324; of debts, 284, 303-306; views of American jurists, 300/".; decrees on default, 311-312; in interna- tional law, 313 n.; and direct tax, 317-323; in Captured and Abandoned Property Act, 323- 328; after the war, 328/.; in re- lation to emancipation, 357-363. See also treason. Confiscation Act of 1861, pp. 276, 313; decision as to restoration of property seized under, 333-335; and Fremont's emancipation or- der, 354; and emancipation, 357; emancipating clause not enforced, 357 n. Confiscation Act of 1862, 308; and punishment of treason, 79-81; Lincoln's veto message, 88; provisions, 276, 279 n.; pro- ceedings under, 278; constitu- INDEX 571 tionality of, 219 n., 313; ex- planatory joint resolution, 280; effect of, compared to that of Federal tax forfeitures, 320; and restoration, 334-335, 341; puni- tive nature of, 334; and emanci- pation, 358^.; did not divest title, 362; emancipating clause not enforced, 363 n. Confiscation acts, applied as to occupied parts of South, 223 n.; enforcement, 282^.; military efforts to enforce, 283; applica- tion in the courts, 22>Gff. Confiscation Cases, The, 307 n. Congress, committee on conduct of the war, xiv; war powers, 28-30, 41-44; power of making rules for army and navy assumed by the President, 38; confers power upon the President, 39; Sumner- Browning debate concerning war powers of, 41-43; power to wage war, 42; enumeration of powers exercised during Civil War, 43-44; has exclusive power of declaring war, 54; act of July 13, 1861, declaring insurrection, 50 n., 54, 55; act of August 6, 1861, approving President's acts, 55; powers of, in relation to Lin- coln's extraordinary acts, 58; opposes foreign mediation, 64; Conspiracies Act, 78; Treason Act of 1790, p. 79; Treason Act of 1862, pp. 80-81; extra session of 1861, p. 123 n.; power to sus- pend habeas corpus privilege, 118-139; delays action as to sus- pension, 128; ratifies President's course, 128; act of 1871 permit- ting suspension of habeas cor- pus privilege, 135; remits Jack- son's fine, 145 n.; removes dis- abilities of Confederates, Win.; act of 1875 punishing State judges held constitutional, 204 n.; clause of Indemnity Act declared unconstitutional, 212^.; authority over the South, 220; representation of Virginia and Tennessee during the war, 223 n., 463-466; ratifies President's acts, 244; Militia Act of 1862, p. 244; cannot delegate power to President, 256; powers as to militia delinquents in relation to those of State legislatures, 258 n.; act in favor of the conscientious objector (1864), 262-263; Conscription Act of 1863, p. 247/.; act of February 24, 1864, regarding drafting of aliens, 268; vote on conscription bill, 270 n.; power to declare war involves conscription, 272; power of conscription upheld by Supreme Court, 274; confiscation acts, 276/.; repeals section giv- ing President power to pardon those engaging in rebellion, 279 n.; riglit of confiscation, 301 ; power as to confiscation, 314; compensates Lee heirs for Arlington, 322; reimburses States for direct tax, 322, 423; Cap- tured and Abandoned Property Act, 323/.; debate as to inter- ference with slavery, 376; power over slavery, 348/.; 350, 373 n., 377; on nature and purpose of Civil War, 352; emancipating measures, 357-365; resolution on compensated emancipation, 366, 403; bills to compensate Mis- souri slaveholders, 366; creates Freedmen's Bureau, 382; pro- posals on Emancipation Procla- mation, 383 and n.; functions as to amending the Constitution, 396, 400 n.; West Virginia bill, 454-456; election of members prohibited in Virginia, 464 n.; inconsistent attitude toward restored government of Virginia, 466; remits Lyon's fine, 479-480; attempts to assume presidential functions, 529 and n. See also House of Representatives, Sen- ate. For committees of Con- 572 INDEX gress see Judiciary Committee ofthe House of Representatives,etc. Conquest. See military occupation. Conscientious objectors, 260-263, 528-529. Conscription, used by States dur- ing Revolution, 240 and n.; by presidential authority in 1862, 37, 245; and habeas corpus writ, 428-429; in relation to State and Federal judicial conflicts, 429; Civil War experience compared to that of Wilson administration, 528. See also draft. Conscription Act of 1863, de- nounced as unconstitutional, 11; and disloyal practices, 81, 90; nature and provisions, 2A1 ff.; commutation clause, 248 and n.; enforcement, 250j/".; provision as to aliens, 266; con- stitutionality, 259, 268-274. Conscription, cases on, 270 n. Conspiracies Act of 1861, pp. 78, 90; use of, under Wilson, 526. Conspiracy, defined, 77; indict- ments for, 85. Constitution of the United States, interrelation of constitutional and social history, x^.; economic interpretation, 3; not a mere doc- ument, 5; "made by the States," 13; "supreme lav^f" clause, 14; State reservations at time of rati- fication, 15-16; prohibition on State compacts, 24 «.; and war powers, 28 ff.; pacific spirit, 30; provides for war, 31-32; not ap- plicable to enemy, 43; provisions regarding insurrection, 61-62; pro- vision regarding habeas corpus, 119; knows no political cause of im- prisonment, 135; provides for military as well as civil gov- ernment, 182; Seventh Amend- ment violated, 211; provision as to Federal judicial power, 233; guarantee clause, 235 /T.; and conscription, 268-274; at- tainder clause, 278; preamble not a grant of power, 348; and war power over slavery, 348- 351; delegated powers, 349; in relation to Emancipation Proc- lamation, 373; amending process, 391^.; "unamendable" parts, 394 and «.; binding upon State judges, 430; supreme law clause interpreted, 430-431; Thaddeus Stevens on, 455-456; applies during war, 515 n.; not sub- verted, 522; on freedom of speech and of the press, 478. Constitutional convention, econo- mic interests of members, 3 «.; State rights party, 21. Constitutional history, relation to social history, xff., 2ff. Constitutional orthodoxy, 8. Contempt, 158. Continental Congress, Articles of War, 141 n.; mentioned, 247 n. Contraband, fugitive slaves so designated, 354-355. Cooper, George E., Davis' sur- geon, 104 n. Copperhead newspapers, 509. See also disloyalty. Corning, Erastus, Lincoln's letter to, 184 n. Corwin, E. S., 365 n. Cotton, not included within exemption as to military cap- tures, 324. See also Captured and Abandoned Property Act. Coulter, E. Merton, cited, 24 n. Coupland, Ex parte, 271 n. Court decisions, precautions in his- torical study, 8. Court of Claims, and restitution of direct tax forfeitures, 323; and restoration of captured property, 336-338. Courts, and "war mind," 11; spe- cial war courts, 40; provost court at New Orleans, 40; pro- visional court of Louisiana, 41; of Tennessee during military oc- cupation, 230 n.; conflict of State and Federal, 428/. INOEX 573 Courts, civil, fail to suppress dis- loyalty, 83; relation to courts- martial, 141 n.; relation to mili- tary officers, 158^.; and martial law, 173; right to set aside sentence of military commission upheld in Milligan case, ISOJT.; relation to military occupant, 217; used to relieve drafted persons, 256-257; and emanci- pating feature of Confiscation Acts, 7>(}Qff.; and journalistic disloyalty, 504-505; did not con- trol emergency, 518; use of, under Wilson, 527. See also Judiciary Act, Supreme Court, courts-martial, King's Bench, Court of Claims. Courts, Federal, in occupied parts of South, 229. Courts-martial, authority of, 141; and trial of Louallier at New Orleans, 145 n.; and disloyalty, 154 «.; employed during military occupation, 217, 230; suggested for recalcitrant State governors, 419/.; and news control, 490,507. Courts, State, function of declar- ing Federal laws unconstitu- tional, 430. Cramer vs. U. S., 94 n. Crittenden, J. J., Senator from Ken- tucky, on West Virginia bill, 455. Cross vs. Harrison, 72 ;/. D'AcQ,uiNO, IvA T. ("Tokyo Rose"), 95. Damage Suits, brought against Unionists, 331; proposal that Government should assume, 206. See also Indemnity Act. Dana, R. H., Jr., on Prize Cases, 52 n.; Government counsel in Davis case, 107/.; on Four- teenth Amendment in relation to Davis case, 112 n.; on folly of prosecuting Davis, 113-115; on legal effect of Emancipation Proclamation, 383-384, 384 ti. Davis, David, Justice, opinion in Milligan case, 181; dissents in Miller vs. United States, 314. Davis, Garret, Senator from Ken- tucky, opposes summary arrest, 81; on confiscation, 294 n.; on power of Congress over slavery, 350. Davis, Jefferson, on constitution- ality of secession, 13; on treat- ment of Confederates as pirates, 66 n.; treatment by the Govern- ment after the war, 103-117; Johnson's attitude toward, 97 «.; resolution of Kentucky legis- lature, 107; indictment, 109- 111; released, 116; declares Butler an outlaw, 227 «.; death reported, 485 n.; Lee's dis- patches to, 487. Davis, Mrs. Jefferson, 104 n. Dayton, W. L., United States minister to France, 64 n. Debts, Confiscation of, during American Revolution, 300, 306; during Civil War, 303-306; Con- federate sequestration law, 303; balance of indebtedness unfa- vorable to South, 303. De facto government, and Con- federacy, 68. Default, and confiscation, 311-312, 314. Delaware, martial law, in, 170; proceeds from confiscation, 289; free Negroes in, 386; action as to slavery, 388-390. Democracy at stake, 1 n., 529-530. Denison, George S., as Treasury agent in South, 222. Desertion, to obtain bounties, 250; and draft delinquency, 258, 259. Dicey, A. V., 511. Dictatorship, alleged "efficiency" of, xiii; of Lincoln, 55/.; of Bis- maick, 57. Dilling, Elizabeth, 95. Direct tax of 1861, in South, 222, 224, 317-323; apportionment and collection, 423; revenue ob- tained, 423; reimbursement of 574 INDEX the States, 322, 423-424; quota not assumed by "restored gov- ernment" of Virginia, 453 n.; mentioned, 406. Disloyal societies, 83. Disloyalty, accusations not to be lightly pushed, xxvii; and treason, 81; and conscription, 81; as dealt with by the Lincoln administra- tion, 82^.; judicial prosecution compared to summary methods, 94; arrests for, 150j^.; imprison- ment for, 176; problem of, under Wilson, compared to that of Civil War, 525-528; laws against, under Wilson, 526-527. See also news- papers, treason, conspiracy, draft. District of Columbia, martial law in, 170; emancipation in, 365. Dix, General John A., intrusted with emergency funds, 37 n.; and suppression of New York World, 496-499; mentioned, 151. Dodge vs. Woolsey, 24 n. Dole vs. Marine Insurance Co., 72 n. Double status theory of Civil War, 69/., 224, 515 n., 516-517. Draft, resistance to, 81; officers annoyed by judicial process, 158; of 300,000 in 1862, 245; riot in New York, 251. See also conscription. Dred Scott case, and citizenship, 267; and slavery in territories, 365 n.; Lincoln's attitude on, xxii, 351 n. Druecker vs. Salomon, 251 n., 255, 270 n. Drummond, Judge, and suppres- sion of Chicago Times, 494. Dual status, of Confederates. 5*^^ double status theory. Dublin, Ireland, case of Wolfe Tone at, 143. Due process of law, and confisca- tion, 314-315; and emancipa- tion, 365 n. Dunmore, Lord, and emancipa- tion, 343-344. Dunning, William A., 167, 295 n. Dynes vs. Hoover, 141 n. Eastern Shore of Virginia, 453, 464. Eckenrode, H. J., on reconstruc- tion in Virginia, 466 n. Editors, responsibility of, 480; military trial, 490; arrest of, 502-504. Eicher, Justice, and mass sedition trial of 1944, 95. Eleventh Amendment, 395 n. Elliot, T. D., Congressman from Massachusetts, on traitors, 70. Ellis, E. J., tried by military commission, 490-491. Ely, Alfred, 157. Emancipation, steps toward, 342- 370; completed, 371-404; belli- gerent right of, 343-347; and con- fiscation, 357-363; compensation scheme, 365-370, 523; by State action, 388-390; lack of compen- sation, 401/. Emancipation policy criticized, 487. Emancipation Proclamation (pre- liminary), 371-372. Emancipation Proclamation (final), issued, 372-373; excepted portions, 372 and n.; legal basis, 373/.; legal effect and validity, 378-385; origin credited to J. Q. Adams, 344; and Confiscation Act of 1862, 361; did not involve abandonment of compensation scheme, 367; judicially applied, 382 n.; considered in Congress, 383 n.; condemned by Delaware legislature, 389. Eminent domain in relation to emancipation, 348 and n. Enemy property. See confisca- tion, military capture, Trading with Enemy Act, Alien Prop- erty Custodian. Enemy status, of Confederacy, 65-73. Enemy territory, inhabitants of, 325. England, Mutiny Act, 38-39; De- fense of the Realm Act of 1914, INDEX 575 45; Queen's proclamation of neutrality, 63, 65; suspension of habeas corpus privilege, \25ff.; military rule, 140^.; martial law, 143, 146 «.; conscription, 239 and «., 240; policy as to confiscation of debts, 305; and deportation of slaves, 344; action as to compensated emancipa- tion 401 ; \a.w of seditious libel, 481. English constitution, and the rule of law, 512. Enrollment bureaus, 249. Enticing to desert, 90. Espionage act, none passed in Civil War, 520. Espionage Act of 1917, 526-528. Espionage acts of the States, 529 n. Etat de siege, 146. Eufaula, Ala, and confiscation, 309. Evarts, Wm. M., special counsel in Davis case, 107; mentioned, 113. Ewing, General Hugh, conflict with civil authority in Kentucky, 148. Ewing, General Thomas, Jr., de- clares martial law, 170. Examiner of State claims, 427. Executive discretion, and Militia Act of 1862, p. 252. Exemption. See conscription, conscientious objectors, etc. Ex parte hearings in confiscation cases, 281, 285, 312. Expatriation, 264. Ex post Jacto, and punishment of Confederate leaders, 112«.; and Indemnity Act, 201/. Extradition, act of 1793, 420-421. Extra-legal measures of punish- ment, 527. Fain, W. P., 160. Fairfax County, Virginia, 446. False imprisonment, liability of governmental officers for, 187. Fascists, xiii. Faulkner, Charles J., 157. Featherstone riots, 144 n. Federal and State relations. See State and Federal relations. Federal duties of State governors, 420/. Federal Government, right to coerce a State, 24; relation to restored government of Virginia, 453/. See also Lincoln's Cabinet, President, Congress, Supreme Court, State and Federal relations. Federal jurisdiction, in connection with Indemnity Act, 197/. Fenian outrages, 143. Ferguson vs. Landram, 249 n., 270 n., 425. Field, Stephen J., Justice, appoint- ment of, xxiii; dissents in Mitchell vs. Clark, 209-210; in Tyler vs. Defrees, 307 n., 315; dissents in Miller vs. United States, 314. Fifield vs. Insurance Company of Pennsylvania, 69. Fifth Amendment, 43, 182, 365 «.; and confiscation, 313, 314. Filibuster. See Indemnity Act. Financial affairs. See State and Federal relations. First Amendment, 478, 506. See also freedom of speech. Fishback, Charles, view as to offending newspapers, 509 n. Fleming vs. Page, 30 n., 220 n. Fletcher vs. Peck, 24 n. Florida, blockaded, 50; confiscation in, 330; Hunter's order regarding emancipation in, 354; reconstruc- tion of, 398. Floyd, John B., indicted for treason, 85. Ford vs. Surget, 65 n.; 67, 68. Forfeiture, duration of, 286-288, 334-335. Forfeiture of property. See confisca- tion, direct tax of 1861. Forrest, French, property confis- cated, 286. Fort Lafayette, 155. Fort McHenry, 155, 161. 576 INIJEX Fort Pillow massacre, xvi, 106. Fort Sumter, Lincoln's policy to- ward, XV. Fort Warren, 157. Fortress Monroe, 355. Fourteenth Amendment, in relation to Davis case, 111^.; applied in Berger case, 113 «.; disabilities removed, 117 «.; in relation to conscription, 274; prohibits com- pensation to slaveholders, 404 n.; recent judicial interpretation, 523 and n.; mentioned, 267. France, proposes mediation, 64; efat de siege, 146; Revolutionary Tri- bunal, 153; Michelet's view as to conscription in, 240; sequestra- tion of debts, 305. Freedmen's Bureau, courts of, 41; and restoration of property, 336, 340; mentioned, 381-382. Freedmen's Inquiry Commission, 376 n. Freedom of speech. See Speech, free- dom of. Freidel, Frank, cited, 27 n. Fremont, General John C, and military emancipation, 354. Fugitive Slave Acts, suspended during Civil War, 355-357; re- pealed, 357; and case of Able- man vs. Booth, 430. Gamble, H. R., Governor of Missouri, agreement with Lin- coln, 417, 454. Garner, J. W., 303 n. GeflFcken, F. H., on confiscation, 302n. Gelston vs. Hoyt, 359. Georgia, blockaded, 50; assignment of lands to freedmen, 340; Hunter's order regarding emancipation, 354. German immigration, 265. German property, treatment of, 302 n., 313 n., 529 n. See also Trading with the Enemy Act. German saboteurs (1942), 95. Germany, war powers, 25; under martial law, 146. Gettysburg, Pennsylvania, martial law at time of battle, 173. Ghent, Treaty of, as to deported slaves, 344, 347. Gillars, Mildred E. ("Axis Sally"), 95. Gilmer County, (western) Vir- ginia, 446. Gordon riots, 143, 145. Government, "under law," 140, 512. Governmental officers, liability of, 187 and n. Governor. See State governors. Grand juries. See treason. Habeas Corpus Act of 1863, newspapers. Grant, General U. S., opposes with- drawal of troops to suppress draft troubles, 251 «.; on Lee's sur- render in relation to prosecutions for treason, 101; suspends habeas corpus privilege, 135; movements revealed, 485, 486; mentioned, 463. Grant vs. Gould, 144 n., 146 n. Grapeshot, The, 233 n. Gray, Wood, cited, 83 n. Greeley, Horace, generous toward Davis, 106; on conscription, 268 n. Gregory, T. W., Attorney Gen- eral, organization of his depart- ment, 525-526. Grier, R. C, Justice, opinion in Prize Cases, 53-54, 61 n., 71-72; on piracy and treason, 92-93. Griffin vs. Wilcox, 207. Griner, In re, 254, 270 n. Grotius, Hugo, on "mixed" war, 71; on confiscation, 297-298. Guarantee clause of Constitution, 235/. Guerrillas, 195. See also bush- whacking. Gurney, Mrs., Lincoln's letter to, XV, 262 n. Habeas Corpus, 118/.; suspension discussed under Jefferson, 7; used to release men in Federal army, 12; and war powers, 29; and insurrection, 62; and dis- loyalty, 84; and Davis' release, 108; President's power of suspen- INDEX 577 sion, 118-139; in Constitution, 119; debate in constitutional con- vention, 126; suspension in South Carolina, 135; present status of the controversy, 136; and martial law, 143; writ served upon General Jackson, 145 n.; in relation to arbitrary arrests, \49ff.; 158; limited suspension, 149; general suspension, 151-152; in Milligan case, 180; in Vailandigham case, 178; in relation to Indemnity Act, 186; judge's liability for refusing the writ, 203; suspension not in- compatible with remedies for private injuries, 210; and the draft, 252, 256; used by State judges in conflict with Federal jurisdiction, 428-432; suspension did not set aside all law, 520; not suspended under Wilson, 526. See also: In re Hurst, Ex parte Merryman. Habeas Corpus Act of 1689 (English), 125; suspended in 1817, 143. Habeas Corpus Act of 1863, p. 130, 137 n., 163-168, 165 «.; ineffec- tiveness, 166, 517-518; and Milli- gan case, 181. See also Merry- man, Indemnity Act. Hague conventions, 27. Hall, A. Oakley, 155, 497. Hall, D. A., and General Jackson, 145 n. Hall, W. E., on confiscation, 302 n. Halleck, General H. W., on mar- tial law, 173; asks withdrawal of troops to suppress draft troubles, 251 n.; on belligerent right of emancipation, 347 n. Hamilton, Alexander, on Consti- tution, 3. Hampton Roads Conference, 64, 403 n. Hare, J. I. C, 142 n.; on effect of Emancipation Proclamation, 384. Harrison, Burton H., imprisoned, 103 «. Hascall, General, 494. Haupt, Max, convicted of treason, 95. Hay, John, on I'hirteenth Amend- ment, 400 n.; on Butler's "contra- band" order, 355 n. Heffter, on confiscation, 302 n. Hesseltine, William B., cited, 432 n. Hickman vs. Jones, et al., 63. Hill, Ex parte, 271 «., 429. Hilton vs. Guyot, 27 n. Holt, Joseph, Judge Advocate Gen- eral, gives report as to lists of political prisoners, 167; on military commissions, 174; argument in Vailandigham case, 179; and emancipation by military author- ity, 361; on postmaster's exclusion of newspapers, 502. Horn vs. Lockhart, 237 n. Hostages, 66, 157, 226 n. Hot pursuit, right of, and Canadian activities of disloyal societies, 83. House of Representatives, investi- gates Lincoln's assassination, 103- 104; report on exclusion of Victor L. Berger, 113 «.; and habeas corpus bill, 129; indemnity bill, 190; vote on conscription, 210 n.; and restoration of property, 340; passes bill to compensate Missouri slaveholders, 366; debate on inter- ference with slavery, 376. See also Committee on War Claims, Judi- ciary Committee, etc. Houston vs. Moore, 258. Hovey, General Alvin P., in Mil- ligan case, 180; mentioned, 226 n. Howard, (implicated in "bogus proclamation"), 157 «. Howard, F. Key, arrest of, 503-504. Howard, Jacob M., Senator from Michigan, on traitors, 69; on reconstruction, 400 n. Howard, General O. O., 340. Howe, Timothy O., Senator from Wisconsin, remarks on habeas corpus bill, 130. Hughes, Charles E., on war powers, 32; on augmentation of President's power through congressional action, 39. Humphries, West H., impeached 578 INDEX for treason, 91. Hunter, General David, on Federal tax in South, 318 n.; order as to military emancipation, 354. Hunter, R. M. T., seat in Senate vacated, 451. Hurst, In re, 195 n. Illinois, Ckjpperhead legislature, 82. See also Yates. Illinois Central R. R. vs. Bos- vk'orth, 288 n. Inalienable allegiance, 264. Indemnity Act of 1863 (referred to also as Habeas Corpus Act), general discussion, 186-214; passage in Congress, 189-193; use of the name, 1 89 n.; application in courts, 193/.; defied by States, 193-199; amended in 1866, 198; retro- active feature, 201/.; in relation to judicial remedies, 204/.; con- stitutionality, 206/.; held to be in violation of Seventh Amend- ment, 211-214; in relation to suppression of New York World, 498-499; denounced as uncon- stitutional, 499. Indemnity, bills of, in England, 188/2. Indiana, partisan quarrels, 11; disloyalty in, 82; judicial op- position to Lincoln administra- tion, 207; conscription in, 37, 246, 251 and n., 260; proceeds from confiscation, 289; finan- cial crisis and Federal aid, 426; interference with newspapers in, 494-495. See also Milligan, Morton. Indianapolis, indictments for con- spiracy, etc., 85; information in Federal court records as to poli- tical prisoners, 166 n.; arrest of Milligan, 180; confiscation cases, 288 n. See also Grifiin vs. Wilcox. Indianapolis Sentinel, criticizes the Government, 489. Indians, provisions for, in district of Maine, 475. Indictments. See treason, Jefferson Davis, conspiracy, newspapers, etc. Injunction, 256. In rem. See proceedings in rem. Insurrection, defined, 60; in United States, 61; in relation to treason, 61, 76; proclaimed by Lincoln, 62; suppression of, not a judicial function, 160; does not loosen bonds of society, 237 n. Insurrectionary States, collection of direct tax in, 317-323. Insurrectionary theory of the Civil War, announced by Lincoln, 62; stated by Supreme Court, 63; further discussed, 63-73. Inter arma silent leges, 350. Interior, Department of, duties as to judicial prosecutions, 161 n. International law, on piracy, 66; as to military occupation, 215- 218, 236; basis of Federal rights in the South, 218; principle of "state succession" not applicable to Confederacy, 238 n.; as to confiscation, 294-306, 313 n.; a part of our law, 27 n., 296 and n.; as to belligerent right of emancipation, 343-347; and Emancipation Proclamation, 374. Ireland, martial law, 143; con- scription not applied, 240. Irons, Daniel, case of, 257. Ironton, Ohio, 445. Jackson, Andrew, declares martial law in New Orleans, 145 and «.; administration, and exclusion of printed matter from the mails, 501 . Jacobite rebellions, 143. Jay's Treaty, on confiscation of debts, 306. Jccker vs. Montgomery, 309 n. Jeffers vs. Fair, 271 n. Jefferson County, (western) Vir- ginia, 475; annexation to West Virginia contested, 469-472. Jefferson, Thomas, similarity to Lin- coln, xx; suit against, 187 n. Jenkins vs. Collard, 288 n. Johnson, Andrew, application to enjoin, 9 n.; follows Lincoln's policy, 96-97; attitude toward Jefferson Davis, 97 n.; urges pun- ishment of "traitors," 100; pro- claims reward for Davis' arrest, 103; Cabinet discussion regarding Davis' trial, 105; indorsement on Dana's letter regarding Davis, 113 n.; abolishes martial law in Kentucky, 172; recruits for Fed- eral army in Tennessee, 222; seat in Senate vacated, 223 n.; installs new State officers in Tennessee, 225; makes arrests in Tennessee, 226 n.; military governor of Ten- nessee, 228, 230 n.; advised by Lincoln on occupation of Ten- nessee, 235; discrimination against men of wealth, 330; pardon proc- lamations, 333 and n.; and restor- ation of property by Freedmen's Bureau, 340; recognizes Southern State governments, 398; elected Vice-President, 401 n.; mentioned, 234 «., 453. Johnson vs. Sayre, 141 n. Johnston, Alexander, 152 n., 535. Johnston, General Joseph E., sur- render, in relation to prosecu- tions for treason, 101^.; Sher- man's proposed terms, 149. Johnston, William Preston, im- prisoned, 103 n. Judge Advocate General, duties in connection with military com- missions, 176. See also Holt. Judges, coercion of, in amend- ment to Indemnity Act, 199, 202-204; liability of, 204 n., 187; oath of loyalty not required in Tennessee, 230 n. Judiciary, occasional partisanship, 12. Judiciary Act of 1789, pp. 133, 179; and confiscation procedure, 285 n. Judiciary Committee of House of Representatives, and restoration of property, 340; on Sedition Act of 1798, p. 480. INDEX 579 Judiciary Committee of the Senate, proposes alternative penalty for treason, 80; reports habeas corpus bill, 130; and Arlington estate, 321; reports Thirteenth Amend- ment, 390. Jury trial, and conscription, 273; and freedom of speech, 528 n. See also Seventh Amendment. Justice, administration of, in occu- pied districts, 229/. Justice, Department of, under Wilson, 525-526. See also At- torney General. Justices vs. Murray, 213. Kanav^ha, as State name, 451-452. Kanawha River, 445. Kansas, posse comitatus in, 160; irreg- ularities as to confiscation in, 290 n. Kemp, In re, 134, 144. Kent, James, on confiscation, 301; on liability of judges, 203. Kentucky, secessionists seize con- trol after the war, 96; treason cases, 97; legislature passes resolution regarding Davis, 107; civil and military conflicts, 148; martial law in, 165 n., 171; rivalry. Confederate and Union, 193; judicial actions against Federal oflficials, 195; legislature passes measure to obstruct Indemnity Act, 197; proceeds from con- fiscation, 289; free Negroes in, 386; dispute with Federal author- ity on slavery, 387-388; action as to slavery, 388-390; claims com- pensation for slaves, 403; neu- trality, 407-409; Federal liability of governor, 419; Supreme Court gives decision on State taxes for relief of drafted men, 425. Kentucky vs. Dennison, 421. Kentucky vs. Palmer, 388. King's Bench, Court of and case of Wolfe Tone, 143. Kirk vs. Lynd, 286 n., 334 n. Kneedler vs. Lane, 11, 32-33, 259 n., 429. 580 INDEX Knights of the Golden Circle, 83. Knote vs. United States, 334, 335. Krieqzustand, 25. "Ku Klux Act," 135. Lamar vs. Micou, 24 n. Latham, Hugh, case of, 286 n. Law, Andrew Bonar, on "inevit- ability" of war, xvi. Lawrence, T. J., on confiscation, 302 n. Leathers vs. Commercial Insurance Co., 12 n. Leavitt, Judge, in Vallandigham case, 178. Lee, G. W. P. C, petitions for re- covery of rights as to Arlington estate, 321. Lee, R. E., surrender, in relation to prosecutions for treason, 101^.; not imprisoned, 103 n.; estate seized, 320-322 {and see United States vs. Lee) ; uses enemy papers, 487; mentioned 110 «., HI, 170, 486. Lee, Mrs. R. E., 321. Legal fictions, 462, 516. Legal nature of the Civil war, 48- 73, 516-517. Letcher, John, WO rt. Libel, law of, 480/. Life interest, forfeiture limited to, 286-288, 335. Limitations, statute of, in connec- tion with Indemnity Act, 208/. Lincoln, Abraham, attitude toward war and peace, xiv/.; policy toward Fort Sumter, xv; efforts to avert war, xv-xvi; did not favor retaliation, xvi-xvii; democ- racy his lodestar, xx; similarity to Jefferson, xx; address before Young Men's Lyceum, xii, XX ; belief that government should promote welfare, xxi; on function of Supreme Court, xxii; strong executive, xxiii/; de- fines central issue of the Civil War, 1 ; confronted with dilemma, 2; on constitutionality of seces- sion, xxi, 17; on importance of the Union, 23; war powers of, 36-37; authorizes expenditures without appropriation, 36 n.; pro- mulgates laws of war, 38; creates special war courts, 40; leniency of, 45-47; proclaims blockade, 50; exceeds authority in enlarging army, 52; dictatorship, 55-59, 521- 522; calls special session of Con- gress, 52; did not initiate a war, 57; defends extraordinary exec- utive acts, 58; announces "insur- rectionary" theory of the war, 62; avoids recognition of Confedera- cy, 64; declares Confederates guilty of piracy, 65; overrules generals claiming "right of hot pursuit," 83; lenient toward Confederate leaders, 100 «; as- sassination, 103-104; reluctance in suspending habeas corpus privilege, 121; autograph and published form of message to Congress, July, 1861, pp. 122-123; justifies presidential suspension of "the privilege," 122-123; procla- mation of April 15, 1861, p. 123 n.; consultation regarding Chase's views on habeas corpus question, 132; opposes interference with churches, 148; suspends habeas corpus privilege, 149 and «., 151-152; directs release of politi- cal prisoners, 151 and n., 157 n.; gives orders for arrest, 164 n.; de- nies information to Congress, 165; declares martial law in Ken- tucky, 172; justifies summary measures in letter to Corning, 184 n.; his Cabinet regrets Val- landigham's sentence, 179 n.; commutes Vallandigham's sen- tence, 179 w.; clemency, 175; as- sassination approved by Confed- erate sympathizer, 194; and the action against Cameron, 188- 189; on appointment of senators from Tennessee, 223 n.; creates INDEX 581 provisional court for Louisiana, 231; cites guarantee clause as basis for military occupation, 235; generous toward South, 237 n.; calls forth the militia, 243, 41 1 ; message to special session of 1861, p. 243 n.; orders draft of 300,000, p. 245; and the conscien- tious objector, 262; sympathy for Quakers, 262 n.; letter to Mrs. Gurney, 262 n.; on consti- tutionality of Conscription Act, 269-270; proposes to veto Con- fiscation Act, 279 and n., 280; signs Confiscation Act, 280; on confiscation as criminal pro- ceeding, 307 n.; pardon procla- mation, 333; origination of Emancipation Proclamation at- tributed to J. Q. Adams, 344; de- nies congressional power of emancipation, 350-351 and notes; disclaims intention to interfere with slavery, 351; and Wade Davis bill, 351 n.; views on slavery summarized, 351 n.; and military emancipation, 354^.; on non-enforcement of Confiscation Act, 363 n.; scheme for compen- sated emancipation, 365-370, 523; strong conviction as to moral wrong of slavery, 370; issues pre- liminary Emancipation Procla- mation, 371; final Emancipation Proclamation, 372; on power of Congress over slavery, 373 n.; ex- plains Emancipation Proclama- tion, 377; doubts effectiveness of Emancipation Proclamation, 380- 381 ; declares Emancipation Proc- lamation irrevocable, 382; doubts validity of Emancipation Procla- mation in the courts, 383; on Thirteenth Amendment, 383 and n.; on compensation of slave- holders, 402, 403 n.; regardful of State rights, 406; defied by Gov- ernor Magofhn of Kentucky, 407; and Kentucky neutrality, 407- 409; appealed to by malcontents, 417; agreement with Gamble of Missouri, 417; gives financial aid to Morton of Indiana, 427; atti- tude toward Pierpoint govern- ment, 453; veto of West Vir- ginia bill feared, 460 n.; signs West Virginia bill, 460; would recognize Richmond legislature, 469; and Pierpoint-Butler con- troversy, 468; policy criticized, A?>1 ff., and suppression of Chica- go Times, 494-496; bogus procla- mation of, published, 496; and suppression of New York World, 496-499. View as to arrests, sup- pression of newspapers, etc., 508; exercised more power independ- ently of Congress than other Pres- idents, 513, 524; executive acts summarized, 513-514; view of war power, 514; personal qualities as a factor in the emergency, 519; on democracy at stake, 529-530. Lincoln Administration, central problem of, vii; policy toward treason, 86, 88, 94; judicial de- cision on Indiana, shows opposi- tion to, 207; no thoroughgoing arbitrary government, 520; com- pared with Wilson administra- tion, 523-530. Lincoln's Cabinet, on habeas corpus question, 132; regrets Vallandig- ham's arrest, 179 n.; views as to slavery, 377 n.; and State rights, 406; attitude on West Virginia bill, 456/.; regretted suppres- sion of Chicago Times, 494. Livingston vs. Jefferson, 187 «. Local government during military occupation, 217. Louallier, arrested by General Jackson's order, 145 n. Loudoun County, Virginia, 454 n. Louisiana, blockaded, 50; military occupation of, 218; collection of customs in, 222; recruitment of Negroes in, 222; proceeds from confiscation, 289; administration of abandoned estates, 327; pro- 582 INDEX visional court of, 41, 231-233; mentioned, 307. Louisville, Kentucky, 148. Loyalty, view of Lincoln, xxvii,^.; and restoration of property 336- 340. Lubbock, F. R., imprisoned, 103 n. Luther vs. Borden, 10 n., 62 n., 144 n., 159, 255. Lyon, Matthew^, punished under Sedition Act, 479. Lyons, James, 111. McCall vs. McDowell, et al., 194 n. McCall's case, 255. McClellan, General G. B., confer- ence with the press, 482. McDowell, General Irvin, sued 194. McGregor, J. C., 438, 452 n. McKee vs. United States, 318 n.; 323 n. McKenzie, Lewis, 464. McVeigh vs. United States, 310, 315 n. McWilliams, vs. U. S., 95. Magna Carta, 182, 305. Magoffin, Beriah, Governor of Ken- tucky, refuses Lincoln's call for troops, 407; liability to trial by court-martial, 419; and Jefferson Davis, 485 n, Mails, exclusion of newspapers from, 500/. Maine, formation of, 474-475. Mallory, Col., interview with But- ler, 355. Mallory, S. P., imprisoned, 103 n. Manuscripts (for a constitutional study of the Civil War), x, 545 / Map of "Partition of Virginia," 442. Marais, In re, 141 n., 188 n. Marque and reprisal. See privateers. Marshal, United States Federal, uses posse comitatus, 160; and im- prisonment for disloyalty, 175. Marshall, John, Chief Justice, on State and national sovereignty, 22; opinion in BoUman and Swartwout case, 120, 133-134; on confiscation, 300-301; on suprem- acy of Federal authority, 409. Marshall, John A., 150. Martial law, in general, 142/.; in Germany, 25, 26 n.; in New Or- leans, 91; distinguished from military law, 142 n.; in England 143; in America, 144; bibli- ography, 144 n.; declared by Jack- son, 145 and n.; Sir Matthew Hale's comment, 146 n.; lack of clear-cut principle, 147; in rela- tion to habeas corpus, 153; author- ized by Lincoln, 152, 154 n.; in Kentucky, 165 n.; in Civil War, 169-185; and civil law, 174; over- ruled in Milligan case, 181; in St. Louis, 208 n.; during military occupation, 225 and n.; B. F. Butler's views on, 225 n.; and slavery, 354, 374/.; at Norfolk, 468; the setting aside of law, 512; and news control, 507. Martin vs. Mott, 127, 255. Maryland, treason cases in, 97; martial law in, 170, 173; free Ne- groes in, 386; abolition of slav- ery in, 389; claims compensation for slaves, 402-403; attitude as to passage of Federal troops, 409- 410. See also Merryman. Mason, George, on military and civil power, xviii. Mason, James M., advises Davis, 106 n.; seat in Senate vacated, 451 . Massachusetts, ratification of the Constitution, 15 w.; and forma- tion of Maine, 474-475. Meade, General George G., 485. Mechanics' Bank vs. Union Bank of Louisiana, 233 n. Memphis, Tennessee, war courts, 231. Merryman, Ex parte, 84, 120 n., 120-121, 131, 137 n., 161-162, 519. Methodist Churches, War Depart- ment order, 148. Metropolitan Record (New York), editor prosecuted, 504. Mexican War, no conscription, 241. INDEX 583 Mexico, American occupation of, 219/. Michelet, on conscription, 240. Michigan, and confiscation, 289, 313. Middleton, Henry, 345-346. Military authority and civil power, xviii/.; restraints, 27-28; extra- ordinary use during the Civil War summarized, 183-184. Military capture, of enemy property, 294 «.; of private property, 324. Military code, application to news writers, 489/. Military commission, sentence set aside in Milligan case, 179/.; Supreme Court refuses to review proceedings in Vallandigham case, 179; authorized in Lincoln's proclamation of September 24, 1862, 152, 154 n.; use of, during Civil War, 174/., 520-521; em- ployed during military occupa- tion, 217, 230; used for trial of editor, 490-491. Military information, revelation of, 485/ Military law, 140/ Military necessity, xvii-xviii; not the typical American principle, 27, 512; should be strictly interpreted, 217; in relation to emancipation, 378. Military occupation, in general, 215-218; of the South, 218/.; sustained by Supreme Court, 227; constitutional basis, 234/.; substitution of Federal for local authority, 224-225; inauguration of a military regime, 225-227; confusion of authority, 227-229; administration of justice, 229/ Military power, and civil authority, 140/, 158/, 173. Militia, Federal laws, 242, 254; and suppression of insurrection, 242- 243; duties in draft disturbances, 259-260; in connection with con- stitutionality of conscription, 271; functions of the President in re- lation to those of the governor, 419/; State and Federal func- tions, 411-412. See also State and Federal relations. Militia Act of 1862, nature and purpose, 245-246, 247 «.; and presidential regulations, 37, 252- 256; unconstitutionality urged, 253; and emancipation, 363; mentioned, 406, 514. Miller vs. United States, 42 n.; 72, 284 n., 295, 308, 312 (esp.) 312- 315, 515 n. Milligan, Ex parte, 180/; sources, 180 n.; dissenting opinion, 182; mentioned, 31, 40, 133 and n., 137 n., 144 w., 167, 236, 507, 513, 515 n., 519, 521. Milton, George Fort, cited, 83 n. Milwaukee, drafting of aliens in, 265. Minors, enlistment of, 158, 163 n., 257 n. Mississippi, blockaded, 50; "made war," 106. Mississippi vs. Johnson, 9 n. Missouri, conspiracy and treason cases in, 91, 97; military and civil conflict, 148; martial law in, 171; disturbances due to bushwhacking, etc., 175; pro- ceeds from confiscation, 289 Fremont's action, 354; and com- pensated emancipation, 366 emancipation by State action 389; Federal liability of governor 419/; editor punished, 490-491 See also Gamble. Missouri Compromise, 365 n. Mitchell vs. Clark, 137, 207, 210. Mitchell vs. Harmony, 205 n. Monroe, James, on conscription, 269. Montana, martial law in, 146. Montgomery, Alabama, indictment of C. C. Clay, 92. Montgomery convention, 237 n. Morgan, E. D., Governor of New York, 106 n. Morrill, Lot M., Senator from Maine, on confiscation, 277. Morris, Gouverneur, and habeas corpus clause, 126. 584 INDEX Morris' Cotton, 285 n. Morton, Oliver P., Governor of Indiana, 11, 82; and conscription, 246; correspondence, 251 n.; and conscientious objectors, 260; and financial crisis in Indiana, 426- 427; mentioned, 226 n., 258. Mostyn vs. Fabrigas, 144. Motley, John Lothrop, on seces- sion, 18-21. Mowry, Sylvester, seizure of his mines, 290 n. Moyer, In re^ 144 n., 147 n. Moyer vs. Peabody, 144 n. Mrs. Alexander's Cotton, 283 n., 324 n., 325 n. Mullaly, John, prosecution of, 504. Mumford, executed at New Or- leans, 91, 227. Murfreesboro, Tenn., arrests at, 226 n. Mutiny Act (English), 39, 141. Napoleon, and sequestration of debts, 305. Napoleon III, proposes mediation, 64. Nashville, Tennessee, mayor ar- rested, 226 n. Navy, additions to, 244. Nazis and Fascists, xiii. "Necessity knows no law," 26. See also military necessity. Negroes, and allotment of lands, xxvi; recruitment of, 172, 222; effect of Emancipation Proc- lamation upon, 381-382; discrim- ination against free Negroes in certain States, 386. See also freedmen, slave-soldiers, slavery, emancipation. Neutrality, of Kentucky, 407-409. Nevada, confiscation in, 290. New England, Department of under command of General B. F. Butler, 415. New Hampshire, ratification of the Constitution, 15 n. New Jersey, bounty system, 249; and State claims, 428. New Mexico, confiscation in, 290- New Orleans, provost court of United States army in, 40-41 ; execution of Mumford, 91 ; mar- tial law declared by Jackson, 145 n.; arrest of clergymen, 155 n.; occupation of, 219, 225; property seized by General But- ler, 223 «.; war courts, 231; plantation bureau, 327. New York, ratification of the Con- stitution, 15 n.; statute regard- ing penalizing of judges, 203; proceeds from confiscation, 289; decision as to German property, 313 n.; and State claims, 428. New York City, indictments for conspiracy, etc., 85; draft riot, 251; mentioned, 149 n., 155 n. New York Daily News, 46, 485. New York Journal of Commerce, suppression of, 496^. New York Tribune, 106, 268 n.; prints false rumor, 485 n. New York World, publishes bogus proclamation, 157 «.; criticizes emancipation policy, 379, 487; suppression of, 496-499, 507; mentioned, 46, 189. News control. World War I, 528 n. Newspaper correspondents, under military jurisdiction, 489-490; as Confederate spies, 487, 491, 492. See also newspapers. Newspapers and news control, activity of the press during the Civil War, 484/.; entente cor- diale with Government, 482; revelation of military informa- tion, 485/.; unreliable nature of wartime news, 485 n.; editorial hostility to the Government, 487/.; measures of news control, 489/., 499-500, 506; suppression of, 492/.; exclusion from the mails, 500/.; arrest of editors, 502-504; and the courts, 504; summary, 505-510, 520. Ney, Marshal, 87. INDEX 585 Nicolay, J. G., on Thirteenth Amendment, 400 n. Nichols, R. F., 116. J^olU prosequi, 91. Non-combatants, status of, during military occupation, 216. Norfolk, Virginia, grand jury deals with treason, 102 n.; Davis in- dicted for treason, 108; confis- cation cases, 290, 329; under restored government, 461 ; repre- sentation in Congress, 464; under control of General B. F. Butler, 148, 466/. North Carolina, ratification of the Constitution, 15 n.; blockaded, 50; reopening of Federal courts, 234; conscription during Revolu- tion, 240 «.; supervision of Negro affairs in, 382; Federal liability of the governor, 419. Northampton County, Virginia, 461. Northwest Confederacy, disloyal societies make plans for, 83. Nullification, 2. Oath of Allegiance. See alle- giance, oath of. Occupied territory, treated as enemy territory, 223/.; passed through various stages, 237/ O'Conor, Charles, 111. Ohio, conscription in, 251; pro- ceeds from confiscation, 289. Oklahoma, martial law in, 146. Old Capital Prison, 155. Opdyke, George, intrusted by Lin- coln with emergency funds, 37. Order of American Knights, 83, 86. See also Milligan. Order of the Star, 83. Osborn vs. United States, 290 n., 334 n. Ould, R., 111. Overstreet, Representative, 340. Ozaukee County, Wisconsin, draft troubles in, 260. Palmer, John M., prosecuted in Kentucky, 196/.; dispute on slavery, 387-388. Paquette Habana, The, 296 n. Pardon, proclamations of, 116; in relation to treason and confisca- tion, 88; in relation to Davis' trial, 115; and court-marti<^l de- crees, 141 n.; of political prisoners, 151 n.; in Confiscation Act of 1862, 279 and n.; effect on restor- ation of property, 332/ See also United States vs. Klein. Parliament, English, power as to habeas corpus, 125, 127; and emancipation, 401. Parton, James, on Butler at New Orleans, 227 n. Passports, required by Seward, 150. Patterson, Justice, on confiscation of debts, 305. (cited), 476 n. Patton, James W., on eastern Ten- nessee (cited), 476 n. Peabody, Judge Chas. A., and pro- visional court for Louisiana, 231- 232. Pendleton, Congressman from Ohio, on Thirteenth Amendment, 393. Pennsylvania, Democratic party of, 11; conspiracy cases, 90; martial law in, 170; Supreme Court issues writ against Cam- eron, 188; case of militia delin- quents, 258 and n.; claim for reimbursement, 428. Pennsylvania Reserve Corps, 417. People vs. Dix, 498. Persona standi. See standing in court. Petitions, anti-slavery, in Con- gress, 376. Petrel, The, 85, 92. Philadelphia, treason and piracy indictments, 85, 92; martial law requested, 170; mentioned, 149, 188. Phillips, Wendell, denounces Lin- coln's government, 1. Pierpoint, Francis H., Governor of "restored Virginia," chosen, 445; and later career of restored gov- ernment, 461/.; variety of his 586 titles, 462; controversy with B. F. Butler, xix, 148, 466-469; spelling of name, 445 n.; removed, 466 n. Pierpoint government. See Virginia, restored government. Pierpoint papers, 435 «., 433-476 passim, 548. Pierrcpont, Edwards, 151 rj. Pillage, 291 n. Pinckney, Charles, and habeas corpus clause, 126. Piracy, in relation to Confederacy, 65/.; 92. Plantation bureau at New Orleans, 327. Plantations. See abandoned estates. Planters' Bank vs. Union Bank, 72 n. Pleasants County, (western) Vir- ginia, 446. Political prisoners. See prisoners, political. Political questions, judicial attitude toward, 10/. "Pope's bull against the comet" (simile used by Lincoln), 381. Posse comitatus, 160, 162. Postmaster General, and the news- papers, 500/. President, Commander in Chief of Army and Navy, xix; attempt to enjoin, 9 n.; war powers, 35/., 514-515; powers employed by Lin- coln, 36-37; derivation of power from Congress, 39; fountain-head of military justice, 40; war powers as interpreted by Senator Browning, 42; power of sup- pressing insurrection not tanta- mount to war power, 53, 54; power to initiate a state of war considered in Prize Cases, 52/; acts approved by Congress, 55; powers in case of insurrection, 61; power to suspend habeas cor- pus privilege, 118-139; office re- ferred to as "feeble," 125; acts ratified, 128-129; confirms court- martial decrees, 141 n.; "suspen- sion of the writ," 149, 151-152, INDEX 161/.; control of political pris- oners, 164/.; denies information to Congress, 165 n.; indemnifi- cation, 191; order of, serves as defense, 198; liability for dam- ages, 187 n.; power as to mili- tary occupation, 219; power to establish special war courts, 232; authority to issue regulations as basis for conscription, 245; and Militia Act of 1862, p. 252; exclu- sive judge of existence of insur- rection, 255; power of pardon, 279 n.; power of, in relation to Emancipation Proclamation, 374; Dana's views as to power of emancipation, 384 n.; relation to State governors, 419/.; act concerning threats against, 527 n.; slight restraint upon, 517-519. See also assassination, Lincoln, Johnson, Wilson. Presidential justice, 39, 229/.; 514. Presidential legislation, 37, 514. Press, freedom of, World War \. 527-528. For general treatment, see newspapers and news control. "Preventive war," xvi. Pringle, Cyrus G., 261-262. Prisoners of war, exchange of, 64. See also surrender. Prisoners, political, arrest of, 149/.; treatment, 149-150; eissociation of, 150 n.; release in February, 1862, 151 and n.; control transferred from State to War Department, 151; number of, 152 n.; practice as to release, 156-157, 157 n, 165; lists to be furnished, 164/ See also arrest, editors, disloyalty. Privateers, 85, 92. Prize at sea, 295. Prize Cases, xi, 50 n.; 52 ff., 54, 60«., 61 «., 71, 114, 221, 308, 312, 515, 519. Proceedings in rem, in confiscation cases, 280, 285. Property, forfeiture of, military captures, 291 n.; pillage for- bidden, 291 n.; for violation of INDEX 587 non-intercourse regulations, 291 n.; of Confederate government, 291 n. See also confiscation, restoration, enemy property, Ger- man property, eminent domain, due process of law, emancipation. Property, military capture of, Lin- coln's order as to compensation, 367. See also pillage. Protector, The, 50 n. Provost Court, Nev^r Orleans, 233. Provost marshal, tries to silence a preacher, 148; duties in connec- tion with political arrests, 156, 158, 159; indicted for murder, 195; called to account by courts, 256-257. "Provost-marshal justice." 233. Prussia, dictatorship in, 57. See also Germany. Pruyn, John Van S. L., Repre- sentative from New York, on Thirteenth Amendment, 393-394. Pufendorf, Samuel von, on confis- cation, 299. Pulaski, Tennessee, arrests at, 226 n. Putnam, Captain, and suppression of Chicago Times, 494. Quakers, opposition to war and conscription, 261-263; Lincoln's sympathy for, xv, 262 n. Railroads, seized, 226. Randall vs. Brigham, 204 n. Ratification of the President's acts. See under Congress. Raymond vs. Thomas, 140. Reagan, John H., imprisoned, 103 n. Rebellion, defined, 60; punishment for in Treason Act of 1862, 80, 81; in South Carolina in 1871, 135; Jacobite, 143; in Jamaica, 144 n.; Dorr, 146. See also Civil War, habeas corpus, insurrection. Rebels. See standing in court. Reconstruction, Lincoln's plan, 38, 237; in relation to military occu- pation, 237; and legislation re- garding pardon, 279 n.; John- son's action, 398^.; opposition of radicals to Johnson's plan, 399-400. See also Virginia, re- construction of. Reed, WilUam B., 111. Regional agreements, 523 n. Release. See prisoners. Replevin, 283 n. Restoration of property, 332-341 . Retaliation, not favored by Lincoln, xvi-xvii. Reversionary right in confiscated property, 287-288. Revolution, American, State sov- ereignty during, 16 n.; use of draft by the States, 240 and n.; confiscation during, 300; confis- cation of debts, 306; British action on freeing slaves, 343-344; patriot committees, 440; taxa- tion, 406. Revolution, right of, in relation to secession, 19. Rhode Island, ratification of the Constitution, 15 n.; Dorr rebel- lion, 146; army encampment, 413 n. Rhodes, J. F., 152 n., 164 «. Richmond, Virginia, Jefferson Davis indicted for treason, 108; confisca- tion cases, 290, 310, 329, and n.; ordinance of secession, 437; leg- islature denounces restored gov- ernment, 447 n.; secession con- vention prohibits election of Federal congressmen, 464 n. Riot, defined, 60. Ritchie Court House, Virginia, 446. Roane County, Virginia, 445. Rogers, Representative from New Jersey, 428. Rose vs. Himely, 72 n. Rosecrans, General W. S., in com- mand in Tennessee, 228. Rousseau, L. H., in Davis case, 107. Rule of law, Anglo-Saxon view, 26, 140, 511/.; erroneously sup- 588 INDEX posed to be supplanted by war, 45; in Civil War, 519, 521. Russell, Judge A. D., and the Dix case, 498-499. Russell, Earl, on Emancipation Proclamation, 379. Russell, Sir William H., 482. Russia, Emperor of, as arbiter in dispute concerning slaves, 345- 347. Rutherford, on confiscation, 299. Sabotage Act, 527 n. St. Lawrence, The, 92. St. Louis, indictments for con- spiracy, etc., 85, 91-92; martial law in, 173, 208 n.; military seiz- ure by Schofield, 207-208; seizure by provost marshal, 283 n.; case at law involving Emancipation Proclamation, 382 n. Salomon, Edward, Governor of Wisconsin, and drafting of aliens, 265. Saulsbury, Willard, Senator from Delaware, on Emancipation Proclamation, 383 n.; on Thir- teenth Amendment, 393. Savannah, The, 66 n. Schenck, General, proclaims mar- tial law, 173. Schofield, General John M., and case of Mitchell vs. Clark, 207 ff.; and emancipation by mili- tary authority, 361; Lincoln's letter to, on arrests, suppressions, etc., 508. Schwab, J. C, 303. Scott, General Winficld S., 149 n. Secession, constitutional phases, xxi-xxii, 12-24; attitude of Southerners including Unionists, 24; declared null in Texas vs. White, 221; of Virginia, 437; and treason, 456 (and see treason); a dead issue, 522. Secret service division, of Depart- ment of Justice, 526. Seddon, James A., 110 n. Sedgwick, Representative of New York, on war power over slavery, 347. Sedition Act of 1798, 478/., 480 n. Sedition law of 1918, 526-527. Sedition trial of 1944 (Dilling and others), 95. Seditious libel, 481. Segar, Joseph, Representative from restored Virginia, opposes West Virginia bill, 454 n.; contro- versy as to his seat, 464-466. Seizures, wrongful. See Indemnity Act. Selective Draft Law Cases, 274. Selective Service Act of 1917, 240, 526, 529 n. Scmmes vs. United States, 334 n. Scmple vs. United States, 309 n. Senate of the United States, im- peachment of Senator Hum- phries, 91 n.; passes bill during Burr conspiracy to suspend habeas corpus privilege, 127; passage of indemnity bill, 190- 191; vote on conscription, 270 n.; passes bill to compensate Missouri slaveholders, 366; equal suffrage in, 394; seats of Virginia senators vacated, 451; admission of senators from restored Vir- ginia, 454. See also Judiciary Committee of the Senate. Sequestration, Confederate Act of, 302 n. Sequestration of property, by Gen- eral Butler at New Orleans, 223 n. Seward, William H., and Confeder- ate commissioners, 63; protests against French mediation, 64; and arbitrary arrests, 149 ff.; sued by G. W. Jones, 189; and drafting of aliens, 265; transmits information as to con- fiscable property, 282; on ef- fect of Emancipation Proclama- tion, 379; proclaims ratification of Thirteenth Amendment, 397- INDEX 589 401; on West Virginia bill, 457; signs order for suppressing New York World, 497; orders arrest of an editor, 503. Seymour, Horatio, efforts to pros- ecute General Dix, 189; and draft riot, 251; and suppression of New York World, 497. Shepley, General George F., mili- tary governor of Louisiana, 228. Sherman, John, Senator from Ohio, on illegality of President's acts, 55 n. Sherman, General W. T., terms of surrender proposed to Johnston, 149; would treat reporters as spies, 491; mentioned, 101. Shields vs. Schiff, 288. Short vs. Wilson, 200. Sistersville, Virginia, 446. Situs, in confiscation procedure, 283-284, 362. Sixth Amendment, 43, 313, 314. Slavery, conflict of State and Fed- eral laws, 172; difliculties in Kentucky, 195-196; General Palmer prosecuted for aiding es- cape of slaves, 196; war power over, 343 ff.; in American con- stitutional system, 343 ff.; de- bates concerning, 349; regarded by Lincoln as moral wrong, 370; and martial law, views of J. Q. Adams on, 347^.; State laws on, "iSSff. See also emancipation. Slave-soldiers, emancipation of, 363-364, 386. Slave States, analyzed as to ratifi- cation of Thirteenth Amend- ment, 397-398. Slocum vs. Mayberry, 359. Smith, Benj. H., 89. Snead, Judge Edward K., and General Butler, 467-468. Social history, in relation to con- stitutional history, x, Iff. Soldier, two-fold character of, 142 n. Solicitor of the Treasury, report on proceeds from confiscation, 289. Sons of Liberty, 83. See also Mil- ligan. South, occupation of, 215-238; ter- ritory treated as part of the United States, 221 ff; as enemy territory, 223 ff.; passed through various governmental stages, 237 ff.; indebtedness to North, 303- 304; collection of Federal Tax in, 317-323; burden of the direct tax, 423-424. South Africa, and martial law, 143. South America, emancipation in, 375 and n. South Carolina, State rights in, 2; ratification of the Constitution, 15 n.; blockaded, 50; suspen- sion of habeas corpus privilege, 135; Federal tax in, 318, 323; as- signment of lands to freedmen, 340; Hunter's order regarding emancipation, 354. Southern States, decisions on con- scription, 271 n. Speech, freedom of, how far honored in the observance, xi; Civil War practice, 477 n., 520; interpreted, 501; in Wilson period, 527-528. See also Vallandigham. Speed, James, Attorney General, on prosecutions for treason, 90, 100, 102; on confiscation after the war, 328-329, 330; mentioned, 98, 132. Speer vs. School Directors, 249 n. Spies, arrest of, 155. See also newspaper correspondents. Stacy, In re, 144. Stanbery, Henry, Attorney Gen- eral, avoids connection with Davis prosecution, 107. Stampp, Kenneth M., cited, xv, 83 n. Standing in court, of "rebels," 307 /., 362. Stanton, Edwin M., letter from Bates, 132; correspondence with Lincoln regarding release of pris- oners, 157 n.; on interference by the courts, 159; orders listing of 590 INDEX prisoners, 167; on prosecution of Federal officials, 189; radical as to reconstruction, 237; and con- scription in Indiana, 246; and Butler-Andrew controversy, 416; gives financial aid to Indiana, 426; on West Virginia bill, 458; and news control, 495, 503; men- tioned, 155 «., 268 n. Stare decisis, 8 n., 9. State and Federal "cooperation," 523. State and Federal relations, dur- ing Civil War, 405-432; inter- rupted in South, 223 and n.; as to slavery, 385 /., 388-390; mili- tary matters, 410-419; financial matters, 423-428; judicial con- flicts, 428 ff.; general statement, 432. State citizenship, in relation to draft, 267. State claims after the war, 427-428. State Department, controls arbi- trary arrests, 149 ff"., 150; and drafting of aliens, 265. State espionage acts, 529 n. State governments, disappearance in Tennessee, 235 n.; relation of, to Federal occupying power, 219, 225; rival, 433. State governors, functions as to Federal army, 412-422; appoint- ment of United States Volunteer officers, 412 and n.; liability to Federal coercion, 419-422; in re- lation to the President, 419 ff.; Federal duties of, 420 ff.; may not exercise war power, 422 n.; powers in connection with Mili- tia Act of 1862, p. 37; duties in connection with political ar- rests, 156; appoint militia offi- cers, 244; asked to relieve drafted persons, 257-258; duties as to operation of draft, 260. State judges. See judges, coercion of. State legislatures, powers as to militia delinquents (in relation to powers of Congress), 258 n. State rights, in South Carolina, 2; in relation to secession, 12-24; during the Revolution, 16 n.; re- cent emphasis upon, 523 n. See also State and Federal relations. State rights party, in constitutional convention, 21. State sovereignty, in relation to secession, 13. States, reimbursement of, for mili- tary expenses, 426; coercion of, by Federal Government, 24. Stephan, Max, 95. Stephens, Alexander H., on consti- tutionality of secession, 13; im- prisonment, 103 n.; on Hampton Roads Conference, 403 n. Stevens, Thaddeus, on constitu- tionality of war measures, 30; on indemnity bill, 192; radical as to reconstruction, 237; on slavery in relation to the Constitution, 349; Bates's comment on, 400 «.; on West Virginia bill, 455-456. Stewart, Alexander P., 102. Stoehr vs. Miller, 313 n. Story, Joseph, Justice, on war powers, 32; on jury retrial in an appellate court, 211 n.; on con- fiscation, 299 and n.; on freedom of speech, 501. Stowell, Lord, on war without dec- laration, 53. Strong, Justice, on confiscation, 307. Subversive acts. See disloyalty. Sumner, Charles, on war powers, 31; debate with Browning on war powers of Congress, 41-43; on dual character of Civil War, 71, 72; urges punishment of Con- federate leaders, 99 n.; radical as to reconstruction, 237; on sla- very, 349; on "State-suicide," 349; proposes act of Congress "adopting" Emancipation Proc- lamation, 383 n.; proposes that Congress determine ratification of Thirteenth Amendment, 400 n. Sumter. See Fort Sumter. Supreme Court of the United States, and human rights a- bridged by Congress, xi; Lin- coln's view of its function, xxii; on secession and indestructibihty of the Union, 23-24, 221; on war powers, 31-32; defines war powers of Congress, 43; on legality of Civil War, 52 ff.; on congressional approval of President's acts, 56; ineffective against executive usur- pation, 59; states insurrectionary theory of the Civil War, 63; on concession of belligerent rights to Confederacy, 67; first instance of upholding conviction for trea- son, 95; and Davis case, 115-116; on habeas corpus question, 131-132; indirectly sanctions President's suspension of habeas corpus writ, 137 n.; opinion in Milligan case, 181; Vallandigham case, 179; on invalidity of provision of In- demnity Act concerning second jury trial, 212 Jff.; sustains In- demnity Act, 209; on penaliz- ing of judges, 203, 204 n.; on military occupation of South, 222, 227; members perform no duties in occupied districts, 229; on courts created by the executive, 230-231; sustains power of Presi- ident to establish special court in Louisiana, 232; circuit duties during Civil War, 234; on valid- ity of ordinary acts of Southern States, 237 n., on penalties against militiamen, 258 n.\ on conscription and Selective Serv- ice Act, 274; on common law procedure in confiscation cases, 285; on duration of forfeiture in confiscation cases, 286; on re- versionary rights in confiscated property, 287-288; upholds con- fiscation, 295; decree in favor of despoiled British creditors, 306; on confiscation as a criminal pro- ceeding, 307; on "rebel's" status INDEX 591 and standing in court, 308, 311; on Federal tax in South, 318 n.; decision in United States vs. Lee, 321-322; and restoration, 333-334; on restorative effect of pardon, 332-335, 339; on judicial function in the forfeiture of property, 359; on Federal rela- tions of State governor, 421; on Virginia boundary controversy, 469-472; citation of cases on Vir- ginia debt, 476 n.; decree in Virginia case, 476 n.; never de- cided constitutionality of Sedi- tion Act of 1798, 479; view as to war power of Congress, 515; attitude toward Congress and the President, 518-519; records of, 546-547. See also individual justices, such as Marshall, Taney, Chase, Story, etc. Surrender, articles of, in rela- tion to prosecutions for treason, 101^.; Sherman's terms to John- ston, 149. Swann, Thomas, Governor of Maryland, on Maryland's claim to compensation for slaves, 402. Tampico, Mexico, occupation of, 219/. Taney, Roger B., Chief Justice, dissents in Prize Cases, 54; opin- ion in Merryman case denying President's power to suspend habeas corpus privilege, 84, 120/., 131, 161-162; undelivered opinion holding conscription act unconstitutional, 274; opinion in Dred Scott case, 365 n.; in Albe- man vs. Booth, 430. Tarble's Case, 431 n. Tax, for relief of drafted men, 424. See also direct tax. Tax sales, and Federal tax in South, 317-323; and Arlington estate, 320-322. Taylor, Moses, case of 285 n. Taylor vs. Thompson, et al., cited, 249 n. 592 Telegraph, control of, 481-484. Tennessee, beginning of the re- bellion in, 50 «.; prosecutions for treason, 90 n., 97; expected to furnish Federal troops, 222; new State officers, 225; under military rule, 218, 235 «.; pro- ceeds from confiscation, 289; Federal tax in, 318 n.; action as to slavery, 389; "not known to Congress," 400 «.; denied repre- sentation in electoral college, 401 n.j Federal liability of the governor, 419; mentioned, 195 n. Tennessee (eastern), abortive sepa- rate state movement, 453-454, 474, 476 n. Tenth Amendment, 395. Territories, emancipation in, 365. Test oath, tlO n. Texas, relation to the Union, 17; secession declared null, 24; war ended in, 50; reconstruction of, 398. Texas vs. White, 23-24, 221. Thirteenth Amendment, and Ken- tucky vs. Palmer, 196 n.; Lin- coln's attitude on, 383 and n.; relieves deadlock on slavery question, 388; Delaware refuses to ratify, 389-390; presented, 390-391; ratification of, 396- 404; construction in the courts, 401 n.; a mandate to the Nation- al Government, 404. Thompson, Justice, quoted, 10. Thorington vs. Smith, 238 n. Threats-against-the-President Act, 527 n. Tod, David, Governor of Ohio, inquires as to State and Federal relations, 413 ti. "Toyko Rose." See D'Acquino. Trading - with - the - Enemy Act (1917), 302 n., 527 n., 529 n. Treason (law of), during Civil War, 74-95; and insurrection, 61, 76; and piracy, 66, in relation to Confederacy, 62-73, 98/.; policy of Lincoln administration, INDEX 82-95; slight enforcement, 77, 91, 518; embarrassment of Govern- ment as to prosecutions, 92; prosecutions after the war, 97/.; constitutional definition, 74; at- tainder, 75; constructive treason, 75-76; no accessories, 76; giving aid and comfort, 76; misprision of, 77; penalty softened, 79-81; indictments for, 85; historical summary in Cramer case, 94 n.; not applicable to a recognized belligerent, 106«.; and whiskey surgents, 144; in Wilson ad- ministration, 526 ff. See also Confederate leaders, secession, confiscation. Treason Act of 1790, provides death penalty, 75; in indictment of Davis, 109-110. Treason Act of 1862, pp. 80, 99 n.; 111. See also Confiscation Act of 1862. Treasury, amounts deposited as proceeds from confiscation, 289. Treasury Department, and Cap- tured Property Act, 325; and restoration of property, 336. Treaty. See Jay's treaty; Washing- ton, Treaty of. Trumbull, Lyman, Senator from Illinois, urges punishment of "traitors," 99; sponsors habeas corpus bill, 130, 191 192«.; on constitutionality of war meas- ures concerning slavery, 349; on emancipating clause of first Con- fiscation Act, 357n.; explains ef- fect of Second Confiscation Act, 362; presents Thirteenth Amend- ment, 390-391; expresses doubt as to amending Constitution during the Civil War, 396; and suppression of Chicago Times, 496 n. Twiggs mansion, seized at New Orleans, 223 n. Tyler County, (western) Virginia, 446. Tyler vs. Defrees, 284 «., 315. INDEX 593 Underwood, Judge John C, atti- tude on Davis case, 117 n.; urges punishment of "traitors," 98; and confiscation, 286 n., 329. Union, older than the States, 18 n.; and welfare of the coun- try, 23; declared indissoluble, 23-24, 221. See also Texas vs. White. Union Insurance Co., vs. United States, 285 n. Union rule in South. See military occupation of South. Unionists in the South, 337-338. Upton, C. H., claims seat in Con- gress, 464-465, 464 n. Upton, General Emory, on State governor's functions in organi- zation of United States army, 418 n. United Nations, xxx. United States vs. Anderson, 339. United States vs. Athens Armory, 285 n. United States vs. 1500 Bales of Cotton, 72 n. United States vs. 100 Barrels of Cement, 60 n. United States vs. Diekelman, 227. United States vs. Fries, 60 n. United States vs. Hart, 285 n. United States vs. Klein, 338. United States vs. Lee, 321-322. United States vs. Louis, 232 n. United States vs. McWilliams, 95. United States vs. Mitchell, 61 n. United States vs. Padelford, 324 n. United States vs. Rauscher, 24 n. United States vs. Reiter, 232 n. United States vs. 1756 Shares of Stock, 284 n. United States vs. Smith, 60 n. United States vs. Vigol, 61 n. United States vs. Wonson, 211 n. United States Volunteers, organi- zation of, 418 n. See also army. State and Federal relations. Vallandigham, Clement L. (Ex parte Vallandigham), xxvii-xxviii, 45, 167, 184 «., 176-179, 193. 477 n., 519, 521. Vance, Z. V., imprisoned, 103 «. Vattel, on right of confiscation, 298; on confiscation of debts, 304; on belligerent right of emancipation, 347 n. Venezuela, emancipation in, 375 n. Venice, The, 72 n., 222. "Vested rights," 365 n. Vicksburg, Mississippi, military preparations revealed, 486. Virginia, Ex parte, 204 n. Virginia, Declaration of Rights, xviii; ratification of the Consti- tution, 15n.; blockaded, 50; treason cases, 97; Chase advises against holding Federal circuit court in, 234 n.; sequestration law (during Revolution), 300; tax sales in, 320-322; and Fed- eral Fugitive Slave Act, 355; portions excepted in Emancipa- tion Proclamation, 372 and n.; supervision of Negro affairs in, 381-382; confiscation in, 290, 313, 329, 330; Federal liability of the governor, 419; sectionalism in, 435-436; constitution of 1830, 436; secession of, 437; or- dinance of secession denounced, 438, 444; reconstruction of, 436, 466 and n.; furnished 25,000 Union troops, 465; controversy with West Virginia over bound- ary, 469-472; debt controversy, 475-476 n. See also eastern shore of Virginia. Virginia, partition of (map, 442). See West Virginia. Virginia, restored government, ordi- nance for its formation, 443- 444; organization of, 445^.; re- lation to Federal government, 223 n., 398, 453/.; denounced, 447 n.; difficulty in holding elec- tions, etc., 447-448; legislature of, 448/., 452-453; chooses United States senators, 451; leg- islature gives consent to forma- 594 INDEX tion of new State, 452; transfer to Alexandria and later career, 461-469; new constitution, 462; representation in Congress, 463- 466; inconsistency in attitude of Congress toward, 466; and con- troversy with General Butler, 466-469; validity upheld, 470; justification for, 472. Virginia vs. West Virginia, 469. Volunteers, United States. See army, State and Federal rela- tions. Voorhees, Daniel, protests against indemnity act, 193. Wade-Davis Bill, provision re- garding emancipation, 351; Sumner's amendment, 383 n.; Lin- coln's pocket veto, 514. Wallace, General Lew, enforces confiscation acts, 148, 283 n. Wallach vs. Van Riswick, 288, 334. War, alleged "inevitability" of, xvi; laws and customs of, xxx, not anarchy, 28; may be unilateral, 54; defined, 62. See also "preven- tive war," war power, Mexican War, Civil War, World War. War Claims, Committee on, of House of Representatives, on compensation for slaves, 348 n. War courts, special, 230/., 514. War crimes, 46. See also Fort Pil- low massacre. War Department, order regarding control of churches, 148; control of political prisoners, 151, 155, 158; issues regulations as to Militia Act of 1862, 252-253; or- der as to compensation for prop- erty and slaves, 367; controls Negro affairs, 382. War, laws of, in Civil War, 27. War-making power, in relation to question of State neutrality, 408. War of 1812, no conscription, 241; and confiscation, 300; British action in deporting slaves, 344/. War power, Anglo-Saxon view, 25/; under American Constitu- tion, 28-33; duration, 33-34; dur- ing Civil War (in general), 34- 35; Browning-Sumner debate, 41-43; State governor may not exercise, 422 n. See also mili- tary occupation, Congress, Pres- ident, Lincoln, dictatorship, mar- tial law, habeas corpus, arrests, conscription. War psychology, 11-12, 257. Ware vs. Hylton, 296 n., 299 «., 300, 304. Washington, Justice Bushrod, 258. Washington, George, on Constitu- tion, 3; and whiskey insurgents, 67, 144. Washington, D. C, Davis indicated for treason, 108; confiscation cases, 288 n.; proceeds from con- fiscation, 289; telegraph control, 481; mentioned, 149 and n.; 165 n. See also District of Co- lumbia. Washington, Treaty of, 5\ n. Wayne County, (western) Vir- ginia, 445. Webster, Daniel, on right of rev- olution, 19; on State and na- tional sovereignty, 22. Welles, Gideon, on execution of "rebel" leaders, 99; on trial of Jefferson Davis, 105; comment on Chase, 132; on Cabinet views as to slavery, 377 n.; on effect of Emancipation Proclamation, 384; on West Virginia bill, 458; on sup- pression of Chicago Times, 494; on case of New York World, 499; diary, 539. Wellington, Duke of, on martial law, 225 n. Wells, H. H., Government counsel in Davis case, 107, 109; mili- tary governor of Virginia, 466 n. Weston, Virginia, 445. West Virginia, prosecutions for INDEX 595 disloyalty, 89; martial law in, 146; proceeds from confiscation, 289; excepted in Emancipation Proclamation, 372 and n.; action as to slavery, 389; formation of: bibliography, 434 n.; resistance by Unionists in the western coun- ties, 438; map, 442; first con- stitution, 452; consent of "Vir- ginia," 452; process of constitu- tion making, 452 n.; bill in Con- gress, 454^., 456; attitude of Lincoln and his Cabinet, 456- 461; legal birthday, 461; con- troversy with Virginia over boundary, 469-472; compared with formation of Maine, 474- 475; debt question, 476; gen- eral comment, All ff. Whaley, Kellian V., Representa- tive from Virginia, 464. Wheaton, Henry, on confiscation, 301-302; on belligerent right of emancipation, 347 n. Wheeler, Joseph, imprisoned, 103 n. Wheeling, West Virginia, prose- cutions for disloyalty, 89; May convention, 1 861 , pp. 438-440, 449; "central committee," 439-440; June Convention, 1861, p.440^.; ordinance for reorganization of Virginia government, 443-444; ordinance for new State, 451; ratification of this ordinance, 451-452. Wheeling oath, 444, 447. Wheeling (West Virginia) Intelli- gencer, 435 n. Whiskey Insurrection, 67, 94 n., 127, 144, 145. White, Chief Justice, opinion in Selective Draft Law Cases, 274. White, Horace, on Emancipation Proclamation, 379. Whitfield vs. United States, 324 n. Whiting, William, on Constitution, 6; on war power over slaveiy, 348-349. Wiggins vs. United States, 205 n. Wiley, Leroy M., case of, 309. Wilkinson, General, and Burr con- spiracy, 145 n. Willey, Waitman T., chosen sen- ator from "restored Virginia," 451; admitted to Senate, 454; fears veto of West Virginia bill, 460 n. Williams vs. BrufTy, 24 n. Wilmington, North Carolina, ex- pedition against, reported, 486. Wilson, Justice, 296. Wilson, Henry, Senator from Mas- sachusetts, and Militia Act of 1862, 247 n. Wilson, Woodrow, his problem com- pared to Lincoln's, xxxi; com- ment on the Constitution, 5; view as to offending newspapers, 509; government of, compared with that of Lincoln, 523-530; powers of, 524; on democracy at stake, 529-530. Wilson administration, triumph of, in Selective Service Act, 240; general comment, 523-530; bib- liography, 525 n. Windsor vs. McVeigh, 310 «. Wisconsin, Kemp case {habeas corpus question), 132, 134; con- scription in 37, 251 and n.; 260; drafting of aliens, 265-266; case of Ableman vs. Booth, 430. Wise, Henry A., indicted for trea- son, 85. Wood, Fernando, Representative from New York, 428. Woodward, Justice, 12. Woolsey, T. D., on confiscation, 302 n. World War (first), criminal laws of Civil War used during, 78 n.; Four- teenth Amendment declared in force, 113 n.; Germany under martial law, 146; conscription, 240, 274; treatment of enemy property, 302 n., 313 n.; problems of, compared with those of the Civil War, 523-530; economic 596 INDEX mobilization, 524. Writs. See attachment, certiorari, habeas corpus, injunction. Wiirttemberg, Consul of, at Mil- waukee, 265. Wythe, George, 110 n. Yates, Richard, Governor of Illi- nois, and Copperhead legislature, 83; activity in raising Federal regiments, 413 n.; and suppres- sion of Chicago Times, 494.