Our Country's Fiery Ordeal

A blog about the American Civil War, written and maintained by historian Daniel J. Vermilya, author of The Battle of Kennesaw Mountain (History Press, 2014) and James Garfield and the Civil War (History Press, 2015)

Dedicated to my great-great-great grandfather, Private Ellwood Rodebaugh, Company D, 106th Pennsylvania Volunteer Infantry, killed at the Battle of Antietam, September 17, 1862.

"And may an Overuling Providence continue to cause good to come out of evil, justice to be done to all men where injustice has long prevailed, and finally, peace, quiet, and harmony to come out of this terrible confrontation and our country's fiery ordeal." -- Albert Champlin, 105th Ohio, Diary entry of June 19, 1864 (Western Reserve Historical Society)

Wednesday, April 27, 2011

Lincoln and the writ of habeas corpus: 150 years ago...

150 years ago today, on April 27, 1861, Abraham Lincoln authorized General-in-Chief Winfield Scott to suspend the writ of habeas corpus between Philadelphia and Washington, D.C., an action which became one of the most controversial acts of his administration and of the entire Civil War...

Just two days prior, Lincoln wrote to Winfield Scott to tell him that he was not yet ready to suspend the writ. In legal terms, the writ of habeas corpus is essentially the court order for producing the prisoner in front of a judge to determine the lawfulness of the arrest. By suspending it, persons could be arrested without proper legal charges and protections being recognized. At the time, the idea was under consideration because there was great fear that Maryland legislators would meet and pass an ordinance of secession. Many rightly feared this action, as it would have isolated Washington from the rest of the North. While fear over this political development was high, Lincoln refrained from taking such legal recourse against the legislative body at that time. As he wrote to Scott, "First, they have a clearly legal right to assemble; and we can not know in advance, that their action will not be lawful, and peaceful... Secondly, we can not permanently prevent their action."

However, two days later, Lincoln did decide to suspend the writ for a different purpose, that of protecting the rail lines between Washington and Philadelphia. Such a rapid turn around begs the question: why did Lincoln move to suspend habeas corpus just two days after he decided not to?

As with many historical questions, the answer lies in historical context. Quite simply, Lincoln suspended habeas corpus on April 27 because of the circumstances at the time. He was facing the possibility of having angry secessionists in Maryland closing down the route from Philadelphia to Washington, a feat which would have starved the Federal capital of the troops it needed to defend itself and fortify against a possible Southern invasion. The tensions in the state of Maryland during that April posed one of the greatest threats that Washington would see for the entirety of the war. 

On April 26, Winfield Scott drafted an order warning Union soldiers in the capital that an attack on the city was possible at any moment, notifying them to be on high alert. At that time, approximately 1,600 Union soldiers occupied the city, while 8,000 Confederates were up the Potomac at Harpers Ferry, Virginia. On April 26, Scott wrote to Lincoln notifying him that an agent on behalf of the railroad directors controlling the lines between Baltimore and Washington would be arriving at the Executive Mansion to discuss the need for protecting the rail lines for the purpose of transporting troops. Thus, Lincoln was being advised by his General-in-Chief and by leading railroad executives that the threat to the capitol was real and action needed to be taken to protect the rail lines leading to the city.

In the course of making his decision, Lincoln wrote two versions of the order authorizing Scott to suspend the writ. In the first, he specifically limited the action to the rail lines between Perryville and Annapolis. In the second, the one which was actually issued, Lincoln left out the specific route between Perryville and Annapolis, instead expanding the order's application to the broader military line between Philadelphia and Washington (note: some versions of Lincoln's papers have the 1st order printed, the one which was not issued to Scott). What is interesting as well is that, in the text of the order, Lincoln places the issue at Scott's discretion. He did not order him to arrest individuals, but simply noted that if circumstances dictated that the action needed to be taken, it could be done. As historian Mark Neely has written: "The purpose of the initial suspension of the writ of habeas corpus is clear from the circumstances of its issuance: to keep the military reinforcement route to the nation's capital open.... Suspending the writ of habeas corpus was not originally a political measure, and it would never become primarily political" (The Fate of Liberty, 9).
Lincoln's official order to Scott is as follows:

To the Commanding General of the Army of the United States:
    You are engaged in repressing an insurrection against the laws of the United States. If at any point on or in the vicinity of the military line, which is now used between the City of Philadelphia and the City of Washington, you find resistance which renders it necessary to suspend the writ of Habeas Corpus for the public safety, you, personally or through the officer in command at the point where the resistance occurs, are authorized to suspend that writ.
  April 27, 1861
  Abraham Lincoln

Lincoln's record on civil liberties is among the most debated topics in American history. Many of Lincoln's critics zero in on his suspension of habeas corpus to portray him as a tyrant. However, such allegations are without merit. The suspension of habeas corpus originated out of the necessity to preserve the safety and functions of the federal government and was entirely devoid of political motivation. It was done under dire circumstances with the threat of having Washington isolated and attacked by secessionist forces hanging over Lincoln's head. It occurred 150 years ago today, and it was one of Lincoln's first and most consequential acts as a wartime president.
For more information on this fascinating episode, Mark Neely's The Fate of Liberty is an excellent resource. It won the Pulitzer Prize in 1992, and it is a fascinating evaluation of Lincoln's record on civil liberties during the Civil War (Indeed, many of the facts that I used in this post were taken from Neely's book, specifically from pages 4 through 9). Neely examined nearly every available arrest record from the war in the course of his research, and he provides a comprehensive evaluation that is quite favorable regarding Lincoln's conduct. For all those wishing to gain a deeper understanding of Lincoln's presidency and civil liberties during the Civil War, I highly recommend Neely's book.

Mark Neely, The Fate of Liberty: Abraham Lincoln and Civil Liberties (New York: Oxford University Press, 1991).

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