he three amendments to the Constitution ratified by the states just after the Civil War—the Thirteenth, Fourteenth, and Fifteenth—changed the nation dramatically. They abolished slavery, increased the power of the federal government, and gave the vote to black males. These amendments were important hallmarks on the path to civil rights.
But what about during the Civil War? What was the state of the Constitution then?
Views of it were in radical flux. At the beginning of the war, Lincoln, who had always been a stickler for respecting the Constitution, found himself confronted with a national emergency that led him to take extremely strong executive actions, some of which violated the letter of the Constitution. He increased the size of the regular armed forces, twice called up militia volunteers, imposed a naval blockade on Southern ports, and suspended habeas corpus in certain regions—all without congressional approval.
His suspension of the writ of habeas corpus—the right of an arrested person to compel the government to justify the arrest—was especially controversial. As his critics pointed out, the Constitution clearly puts the suspension of habeas corpus among the powers of Congress. Lincoln explained his suspension of the writ as an emergency measure taken because the South’s secession threatened the very life of the nation. His attorney general, Edward Bates, provided a legal rationale for suspending habeas corpus during a civil war. Anna Ella Carroll, a largely forgotten Maryland pamphleteer, cited historical precedents for Lincoln’s aggressive action, arguing for a greatly strengthened executive branch in wartime. At the same time, the liberation of enslaved people by the Union armies and calls for permanent emancipation by antislavery spokespersons pushed Lincoln toward radical action. At the end of the war, when praised for freeing the enslaved, he replied, “I have only been an instrument. The logic and moral power of [William Lloyd] Garrison, and the Anti-slavery people of the country and the army, have done all.”1
The antislavery people and the army. Crediting them was not merely Lincoln being humble. It was his way of recognizing the powerful influence that abolitionists and the military had on emancipation. In 1861, Garrison issued a pamphlet that presented arguments by leading antislavery figures, from John Quincy Adams through Charles Sumner, who held that the war power embedded within the Constitution gave the president extraordinary authority.
Lincoln had pledged to leave slavery untouched where it existed because of the proslavery clauses in the Constitution. But within the first two months of the war, enslaved blacks were liberated by the advancing Union army, leading to the military liberation of tens of thousands well before Lincoln issued the Emancipation Proclamation.
The Puritan-versus-Cavalier conflict played a prominent role in both the debate over civil liberties and the war effort. For the North, the Puritan heritage represented a noble battle for God and principle. For the South, it stood for Northern Constitution busting and fanaticism.
With bloody war now raging between the two sections, Lincoln remained Blondin, poised on his tightrope above the raging falls.
CIVIL LIBERTIES IN WARTIME
At 2:00 a.m. on May 25, 1861, the Maryland cattle breeder John Merryman was sleeping soundly at his farm in Cockeysville when he was awakened by loud knocking. Groggy and confused, he walked to the door, opened it, and found himself confronted with military officers who told him he was under arrest for treason against the United States.
The officers took Merryman immediately to Fort McHenry in Baltimore, where he was held under the supervision of General George Cadwalader. Days passed, and Merryman received no formal charges. He demanded a writ of habeas corpus from the US Circuit Court for Maryland, led by Roger B. Taney, who was also the chief justice of the Supreme Court. Taney issued a writ of habeas corpus, ordering Cadwalader to bring Merryman to court the next day to determine the legal basis for his detention. Cadwalader refused, explaining that President Lincoln had suspended habeas corpus in the region between Philadelphia and Annapolis because of the threat posed by Maryland secessionists who were trying to lead that state into the Confederacy.
In the wake of the deadly Pratt Street Riots in Baltimore on April 19, in which a mob of toughs attacked Union regiments that were traveling to the nation’s capital, Merryman, who served in the Baltimore County Horse Guards, was suspected of but not charged with training Confederate soldiers, cutting telegraph wires, and destroying bridges on which Union troops passed. Maryland had not yet voted to remain in the Union, and secessionist sympathizers kept up their attacks on the travel routes of Northern soldiers. Judge Taney—tall, gaunt, tousle haired, and stooped with his eighty-four years—ruled that Merryman’s arrest without charges was illegal. The president had no right under the Constitution to suspend habeas corpus. Only Congress could do that. Nor could a military officer under the president’s command suspend the writ. If military power were allowed to reign, Taney wrote, then “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.”2
Lincoln, who had disagreed sharply with Taney’s racist decision in Dred Scott v. Sandford, which ruled that black people were not US citizens and had no rights whites were bound to respect, ignored his ruling on habeas corpus in Ex Parte Merryman. Lincoln defended his suspension of the writ in his message to Congress on July 4. The Southern states were attempting to destroy the Union. He asked, “Are all laws, but one, to be unexecuted, and the government itself to go to pieces least one law be violated?”3 The Constitution stipulated that habeas corpus “shall not be suspended unless, in case of rebellion or invasion, the public safety may require it.” Lincoln stated, “Now it is insisted that Congress, not the executive, is vested with this power. But the Constitution itself, is silent as to which, or who, is to exercise this power.”
Actually, this was literally true—but not entirely accurate. The Suspension Clause appears in Article I of the Constitution, under the powers and limits of Congress. Lincoln strengthened his position somewhat when he explained that he had suspended the writ only when faced with a national emergency while Congress was not in session. However, he was on constitutional thin ice.
He now appealed to what he called organic law. The issue of secession, he declared, “presents to the whole family of man, the question, whether a constitutional republic, or a democracy—a government of the people, by the people—can, or cannot, maintain its territorial integrity, against his own domestic foes. It presents the question, whether discontented individuals, too few in number to control the administration, according to organic law” can “arbitrarily, without, any pretense, break up the government, and thus practically, put an end to free government on earth.”4
This was the issue of national self-preservation that he had talked about in Cincinnati on his trip east and had raised again in the inaugural address.
Edward Bates made similar points in a July 5 letter in which he defended the president’s suspension of the writ. In the letter, Bates avoided mentioning the Merryman case, evidently because he could not rebut Taney’s argument that the Suspension Clause applied only to Congress. Nor could he refute the legal precedents Taney cited. Instead, Bates admitted that Congress held sway over the writ in normal times but that “in case of a great and dangerous rebellion like the present,” the president became the “sole judge of the emergency” that required his action to preserve the public safety. In times of peace, Bates wrote, Congress could “repeal all power to issue the writ,” but the president might permit “the arrest and confinement of persons implicated in the rebellion.”5
Few scholars over the years have accepted Bates’s reasoning. By single-handedly suspending the writ, Lincoln indeed had contradicted the letter of the Constitution. How about its spirit? That’s more complicated. One of Bates’s main points is that the president, under the Constitution, must “take care that the laws be faithfully executed,” and that he “will, to the best of his ability, preserve, protect, and defend the Constitution of the United States.” For both Lincoln and Bates, secession was equivalent to anarchistic lawbreaking and an attempt to destroy the government. If we take account of “the whole family of man” and “organic law,” Lincoln said, we see that no nation designed its own destruction—least of all a democratic republic grounded in a just Constitution. The rights of dissenting individuals were far less important than the perpetuation of the Union.
Lincoln continued in this vein through the early part of the Civil War. He infringed on the right of free speech when he permitted the arrest and imprisonment of Southern-leaning newspaper editors in the North. When a Baltimore journalist editorialized against the president’s dismissal of Taney’s ruling, federal troops arrested the writer, who was imprisoned without charge or trial for fourteen months. During the summer of 1861, in what Harold Holzer calls “the ‘Salem Witch’ hunt of the Civil War,” some two hundred newspapers and their editors were subjected to menacing by federal agencies, civilian mobs, or Union troops.6 A number of editors were imprisoned in Brooklyn’s Fort Lafayette, which came to be known as the American Bastille. Although the suppression fever ebbed during the war, it did not disappear. In May 1864, Lincoln ordered the arrest and imprisonment of two New York editors who issued in their papers a fake proclamation calling up 400,000 troops.
A scathing, comprehensive appraisal of Lincoln’s relationship to the Constitution came in a July 1861 speech before the Senate by John C. Breckinridge, the Kentucky lawyer and politician who had run as the Southern Democratic presidential candidate in 1860. The criticism of Lincoln’s so-called despotism, which had been mounting for several weeks, reached new intensity in Breckinridge’s address. Lincoln, Breckinridge charged, was guilty of “high crimes and usurpations.”7 He had violated “the right of every citizen to be arrested only by warrant, and his right to have his body brought before a judge, . . . a right of rights, . . . the respect of which is the measure of progress and civilization.” Breckinridge added that Lincoln had defied the Constitution in other ways, too. Without the sanction of Congress, he had blockaded Southern ports and rivers, increased the size of the army and navy, ordered unreasonable searches and seizures, and used public money to fund these acts. With Lincoln having seized the powers of Congress and the judiciary, Breckinridge declared, “We are rushing, and with rapid strides, from a constitutional government to a military despotism,” substituting “the will of one man for a written constitution.”
How was Lincoln to respond to such charges? The avenue he most consistently took thereafter was the constitutional one of procuring congressional approval for his actions. However, he had breached the Constitution early on, and he was in unknown legal territory in some of his actions during the war. He would never fully escape the charge of being a despot, even as late as February 1865, when the Confederate commissioners at the Hampton Roads peace conference compared him to King Charles I, or indeed two months after that, when he was assassinated by a Southern actor who regarded him as a hateful tyrant.
ANNA ELLA CARROLL AND THE DEFENSE OF PRESIDENTIAL POWER
The most eloquent defense of Lincoln against these charges of despotism and Constitution breaking came from a surprising source: Anna Ella Carroll, a Southern journalist, railroad lobbyist, and pamphleteer. One historian remarks that Carroll “essentially wrote the textbook on presidential war powers” and another calls her writings “the best and most persuasive contemporary rationalizations of the theory upon which Lincoln acted.”8 Nevertheless Anna Ella Carroll (known as Anne) has gone unmentioned in Lincoln biographies, perhaps because she was a woman who worked anonymously and behind the scenes. Born in 1815 in Baltimore, she was descended from the distinguished Charles Carroll of Carrollton, a signer of the Declaration of Independence, and from Thomas King, a Puritan dissenter who had fled from Northern Ireland to America in 1683. Her father, Thomas King Carroll, was a Maryland politician who served as the state’s governor in 1830–31. Although Anne grew up in a slaveholding family, she turned against slavery as a young adult and, upon Lincoln’s election, freed the enslaved workers she had inherited. Know-Nothingism attracted her in the 1850s, but the deepening rift over slavery led her to become a propagandist for the Republican Party and its leader. Her powerful pro-Union editorials and pamphlets helped prevent her home state, Maryland, from joining the Confederacy. She wrote anonymously published pamphlets on habeas corpus, presidential powers, and secession that proved convincing to many readers, including Lincoln. In late 1861, when the military prospects of the Union flagged, she promoted a successful approach to the western theater on the Tennessee River that was in sync with similar plans by Lincoln and his generals. In light of her accomplishments, Lincoln told a group of congressmen: “This Anna Ella Carroll is the head of the Carroll race. When the history of this war is written she will stand a good bit taller than ever old [Declaration signer] Charles Carroll did.
Her most effective pamphlet was the one she wrote in reply to John C. Breckinridge. In it, she substantiated, through historical research and persuasive rhetoric, Lincoln’s argument that preserving the nation demanded an unprecedented exercise of presidential power. She pointed out that Breckinridge’s claim that Lincoln defied the Constitution was fundamentally wrong. The South, not the North, had flouted the Constitution and had started the war. Southerners had hatched secessionist plans as early as 1831 and had expanded them under John Calhoun in 1849. In 1850, Jefferson Davis sketched a Confederate constitution that called for secession and the South’s takeover of Cuba and Central America. Mississippi governor John A. Quitman rallied others to the secessionist cause. Proslavery forces infiltrated the Democratic Party, resulting in the election of presidents Pierce and Buchanan, and then divided the Democrats in 1860 with the goal of putting Breckinridge and his followers in a position to take control of the nation.
In light of this nefarious Southern conspiracy against the government, military law must temporarily replace legislative and judicial rule. Anne argued that Lincoln, as commander in chief, had the right to use “every instrument known to the law of war:—To annoy, to weaken, to destroy the enemy until its armies are overthrown and the civil authority is re-established.”10 He needed “no statute law,” she wrote, “to enable him, in the absence of Congress, to defend the assault on the nation’s life; because his right rests on the supreme or universal law of self-defense, common to nations as individuals—everything that has life, every being that has existence, has the right to resist, and slay the assailant when an attack is made on that life.”
Previous American leaders, she noted, had prepared the way for Lincoln by placing this universal law of self-defense above statute law. During the American Revolution, habeas corpus was suspended in some regions to facilitate the arrest of groups, such as Quakers, suspected of disloyalty to the American cause. George Washington had ordered the imprisonment of thirteen men suspected of complicity with the enemy. At Germantown, he had destroyed a noncombatant’s house, and during the siege of Yorktown “he levelled the suburbs, feeling that the law of property must be postponed for the safety of the nation.” Carroll said she could “cite instances where Tories were shot and hung, and their properties confiscated without the form of law, during the American Revolution.”
At the end of the war of 1812, Andrew Jackson in New Orleans had jailed three men, suspended habeas corpus, and ordered the execution of two deserters. Thomas Jefferson also valued the nation more than individual rights. Anne Carroll quoted from an 1810 letter in which Jefferson wrote: “A strict observance of the written laws is doubtless one of the high duties of a good citizen: but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property & all those who are enjoying them with us; thus absurdly sacrificing the end to the means.”
Given the national emergency Lincoln faced, Carroll argued, he was fully justified in taking extreme steps. On habeas corpus, Carroll gave Lincoln virtual carte blanche, saying that “it might be his duty . . . to arrest traitorous Senators and members of Congress, Judges of Courts, & c., who are in complicity with the rebellion, and treat them as public enemies. Instead of suppressing one press, he may extend it to all presses engaged in exciting and stimulating the treason. Instead of arresting a few traitors he may arrest all traitors, and deprive them of the means of warring on the Government.”
Her reply to Breckinridge made an impact on the Lincoln administration. Attorney General Bates wrote Anne thanking her for presenting “so much sound constitutional doctrine and so many valuable historic facts in a form so compact and manageable.” Bates added, “The President received a copy left for him and requested me to thank you cordially for your able support.”11
Anne became a major publicist for Lincoln’s view on the need for dramatically strengthened executive powers in a time of war. She wrote several papers on the topic, including “The Constitutional Powers of the President to Make Arrests and to Suspend the Writ of Habeas Corpus,” “The War Powers of the Government,” and “The Relation of Revolted Citizens to the National Government.” The latter paper, which she wrote at Lincoln’s request, developed his argument that the so-called Confederacy was still part of the Union, not a separate nation. She was, in the words of the journalist and reformer Mary Livermore, “one of the advisers of President Lincoln. She was admitted to his presence at all times, and he reserved a special file for her communications.”12 He read her writings and learned from them. He wrote her a note in August 1862 in which he mentioned one of her recent pieces and praised her previous ones. Lincoln wrote, “Like every thing else that comes from you I have read the address to Maryland with a great deal of pleasure and interest. It is just what is needed now and you were the one to do it.”13 His openness to aggressively argumentative women like Anne Carroll puts the lie to historians who charge Lincoln with male chauvinism, such as one who speaks of his “discomfort with accomplished women.”14
On the issues of free speech and habeas corpus, however, Lincoln was not prepared to exercise as much power as Anne Carroll said that he could. He was especially careful to protect freedom of religious expression. When a provost marshal in Missouri ordered the Presbyterian Samuel B. McPheeters to leave the state because he had expressed sympathy with the South, Lincoln intervened, insisting “the U.S. government must not . . . undertake to run the churches . . . ; let the churches, as such take care of themselves.”15
But pro-Southern politicians demanded a stronger reaction, he thought. When the Ohio Democrat Clement Vallandigham was arrested in May 1863 for urging an immediate end to the war and restoring the Union as it was, Lincoln enforced the arrest, albeit reluctantly.
The Vallandigham incident, the most dramatic example of Lincoln’s use of presidential power to suppress hostile speech, has attracted much attention but has not been placed in the cultural context of the Puritan-Cavalier divide that many at the time said was the basis of the war. Six years before the Civil War, Vallandigham had praised the Constitution for forging a compromise between “the Puritan Roundhead of New England and the Cavalier of Virginia.” Southerners like George Washington, James Madison, John Rutledge, and Charles Pinckney had “joined hands in holy brotherhood” with Northerners like John Adams, Roger Sherman, Benjamin Franklin, and Oliver Ellsworth “to form a political union, so as to establish justice and to secure domestic tranquillity, the common defence, the general welfare, and the blessings of liberty to themselves and posterity.”16
In Vallandigham’s view, this constitutional compromise between the Puritan and the Cavalier had held up until evil abolitionism arose in the 1830s, when “the narrow, presumptuous, intermeddling, and fanatical spirit of the old Puritan element began to reappear in a form very much more aggressive and destructive than at first.” John Quincy Adams gave antislavery reform his imprimatur, and “then every form and development of fanaticism sprang up in rank and most luxuriant growth, till abolitionism, the chief fungus of all, overspread the whole of New England first, and then the middle States, and finally every State in the Northwest.” There were two types of Puritanism, Vallandigham said: the intolerant, persecuting type represented by the Pilgrims and the Mayflower; and the mild, tolerant type represented by Roger Williams. The Union could not be saved “until its worst and most mischievous development, Abolitionism, has been utterly extinguished” and “the Roger Williams element, as distinguished from the extreme Puritan or Mayflower and Plymouth Rock type of the New Englander,” was cultivated.
As for the Civil War, Vallandigham insisted, it was pointless to continue it, because it resulted from a cultural division that would never heal. “This whole war,” Vallandigham declared, “is not so much one of sections—least of all, between the slaveholding and non-slaveholding sections—as of races, representing not difference in blood, but mind and its development, and different types of civilization. It is the old conflict of the Cavalier and the Roundhead, the Liberalist and the Puritan; or, rather, it is a conflict, upon new issues, of the ideas and elements represented by those names.”
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