Abraham Lincoln: A Life, Volume 2

by Michael Burlingame

  Lincoln had a good argument, for Congress in that era was often out of session, and an invasion or rebellion might well take place during one of its long recesses, just as had occurred in April. Clearly, in the case of Maryland that spring, emergency conditions prevailed. Joel Parker, professor of constitutional law at Harvard, observed a few months later that if Taney’s interpretation of the Constitution were adopted, “the judicial power may be made quite as effectual to overthrow the government in time of war as the suspension of the habeas corpus, by order of the President, in time of peace, could be to overthrow the liberties of the people,—somewhat more so, indeed, as the effect of the latter could be more readily and securely avoided.”116 The eminent Philadelphia attorney Horace Binney issued a pamphlet criticizing Taney’s opinion for “a tone, not to say a ring, of disaffection to the President, and to the Northern and Western side of his house, which it is not comfortable to suppose in the person who fills the central seat of impersonal justice.” He maintained that Congress could not on its own suspend the privilege of the writ but could only authorize its suspension by the executive branch.117 In another widely circulated pamphlet, former U.S. Attorney General Reverdy Johnson refuted the arguments of his fellow Marylander, Taney.

  Taney’s reasoning was indeed flawed. He argued that since the provision regarding habeas corpus appears in the Constitution’s first article, which deals with the powers of Congress, the legislative branch, not the executive, was empowered to suspend the writ. But he failed to note that the original draft of that article stated that the “privileges and benefit of the Writ of Habeas Corpus shall be enjoyed in this Government in the most expeditious and ample manner; and shall not be suspended by the Legislature except upon the most urgent and pressing occasions, and for a limited time not exceeding _______ months.” Later Gouverneur Morris revised it to read as it did in the ratified version of the Constitution. By replacing the original language with Morris’s substitute, the framers implicitly rejected the notion that Congress alone was authorized to suspend the privilege.118

  In his July 4 message, Lincoln did not explore the subject further but promised to submit a lengthy opinion by the attorney general. On July 5, Bates provided him such a document, which was forwarded to Congress the following week. It maintained that “if we are at liberty to understand the phrase [‘the suspension of the privilege of the writ of habeas corpus’] to mean that in case of a great and dangerous rebellion like the present the public safety requires the arrest and confinement of persons implicated in that rebellion, I … declare the opinion that the President has lawful power to suspend the privilege of person’s arrested under such circumstances; for he is especially charged by the Constitution with the ‘public safety,’ and he is the sole judge of the emergency which requires his prompt action.”119

  In 1862, a federal circuit court ruled in ex parte Field that the Militia Act of 1795 (authorizing the president to summon troops for the suppression of rebels) implicitly empowered him to suspend habeas corpus. Half a century later, the Supreme Court in Moyer vs. Peabody indirectly upheld the circuit court’s reasoning in the Field case. Thus, Lincoln acted constitutionally in suspending habeas corpus where insurrection was actually taking place and in the absence of Congressional action forbidding him to do so.

  In August, Congress, by a near-unanimous vote, approved a resolution stating that “all the acts, proclamations and orders of the President … [after March 4, 1861] respecting the army and navy of the United States, and calling out or relating to the militia or volunteers from the States, are hereby approved in all respects legalized and made valid … as if they had been issued and done under the previous express authority and direction of the Congress of the United States.”120 Two years later, the Supreme Court upheld this unorthodox procedure in the Prize Cases, involving a plaintiff who argued that the blockade was illegal from the time Lincoln announced it until July, when Congress in effect declared war. Upholding the blockade and all other emergency measures taken by Lincoln in the first weeks of the war, a bare five-man majority of the court ruled in the administration’s favor.

  Despite his early foray into extraconstitutionality, Lincoln generally respected constitutional restraints. In fact, political opponents for the most part were allowed free rein to criticize the administration; the press was rarely censored, even when editors called for the president’s assassination; elections were conducted freely and fairly, with some bending of the rules in Border States; courts remained open; and, with one exception, legislatures met unimpeded. When urged to confiscate Southern property in the North, Lincoln replied: “No, gentleman, never.” To rejoinders that the Confederates seized Northern property, he said: “They can afford to do a wrong—I cannot.”121 Democrats, however, railed against what they called the “irresponsible despotism of Abraham Lincoln!”122 It was to become a standard shibboleth in future political campaigns.

  Keeping Kentucky in the Union

  Lincoln worried a great deal about Kentucky. During the first year and a half of the war, his most important policies were largely shaped to keep that state loyal. “I think to lose Kentucky, is nearly the same as to lose the whole game,” he told his friend Orville H. Browning. “Kentucky gone, we can not hold Missouri, nor, as I think, Maryland. These all against us, and the job on our hands is too large for us. We would as well consent to separation at once, including the surrender of this capitol.”123 He allegedly said that to win the war he “wanted God on his side, but he must have Kentucky.”124 His concern was understandable, for the Bluegrass State ranked ninth in the nation in terms of population, seventh in terms of farm value, and fifth in terms of livestock value. Her men, horses, mules, grain, fruit, hay, hemp, and flax would all be valuable assets to whichever side Kentucky favored. Geographically she occupied a crucial location; Northern armies would have to pass through her to get at Tennessee, Mississippi, and Alabama. From Kentucky, Southern troops could establish a formidable defensive barrier along the Ohio and even penetrate the Midwest.

  To retain his native state in the Union, Lincoln exercised preternatural tact, especially in dealing with slavery. In late April, he assured Kentucky Senator Garrett Davis, a strong Unionist, that the administration’s intentions were not aggressive. He said he had “determined, that, until the meeting of Congress [on July 4], he would make no attempt to retake the forts, &c.” but “would leave the then existing state of things to be considered and acted upon by Congress, unless he should be constrained to depart from that purpose by the continued military operations of the seceded States.” Alluding to slavery, he added that he “intended to make no attack, direct or indirect, upon the institutions or property of any State; but, on the contrary, would defend them to the full extent with which the Constitution and laws of Congress have vested in the President with the power. And that he did not intend to invade with an armed force, or make any military or naval movement against any State, unless she or her people should make it necessary by a formidable resistance of the authority and laws of the United States. That if Kentucky or her citizens should seize Newport, it would become his duty and he might attempt to retake it; but he contemplated no military operations that would make it necessary to move any troops over her territories—though he had the unquestioned right at all times to march the U.S. troops into and over any and every State.” Lincoln assured Davis that “if Kentucky made no demonstration of force against the United States he would not molest her.” Lincoln voiced regret that the Bluegrass State had spurned his call for troops and had “not acted up to the principle of her great statesmen” like Henry Clay and to the platform “for which she cast her vote in the late Presidential election, ‘the Union, the Constitution, and the Enforcement of the Laws.’ ”125 (John Bell had carried Kentucky in 1860.)

  When urged to send troops into Kentucky to defend persecuted Unionists, Lincoln replied: “I am exceedingly anxious to protect the Union men, and have taken all proper measures to do so, as well in Kentucky as in Tenne
ssee, but I am the head of a great nation, and must be governed by wide forethought, as far as possible. I will illustrate my position by the fable of the farmer who returned home and found that, while his two little children were asleep, a number of snakes has taken part possession of the bed. He could not strike the snakes without endangering his offspring, and, therefore, he had to stay his hand.”126 But, he added, “I do not want to act in a hurry about this matter; I don’t want to hurt anybody in Kentucky, but I will get the serpent out of Tennessee.”127

  Soon after the firing on Fort Sumter, Kentucky’s legislature and its governor, the pro-secession Beriah Magoffin, expressed a wish to have their state remain neutral, in effect becoming an American Switzerland. At the very least, Lincoln told former Congressman Warner L. Underwood of Kentucky, he hoped the state “would stand by the Government in the present difficulties, but if she would not do that, let her stand still and take no hostile part against it, and that no hostile step should tread her soil.”128 Sometimes Lincoln employed humor to deflate Kentuckians’ pleas for neutrality. In July, he told Judge George Robertson of Lexington “that neutrality did not become any of the friends of the government,—that while the citizen enjoyed his rights and the protection of the laws, he must also recognize his obligations and his duties.” He then had a friend relate a joke about the British minister to Prussia who tried to enlist the Germans to support Great Britain in its wars. Frederick the Great politely refused. Later, the monarch at a state dinner offered that diplomat some capon. “No, sir,” came the reply, “I decline having anything to do with neutral animals!”129

  Occasionally, Lincoln would be less gentle with Kentuckians. When a state senator protested against Union troops occupying Cairo, Illinois (across the Ohio River from the Blue Grass State), Lincoln had John Hay pen a sarcastic response: “The President directs me to say that the views so ably stated by you shall have due consideration: and to assure you that he would certainly never have ordered the movement of troops, complained of, had he known that Cairo was in your Senatorial district.”130

  To placate Kentuckians, Lincoln honored the state’s neutrality, though he regarded it as unrealistic. On July 4, he stated in his message to Congress that within the Border States “there are those who favor a policy which they call ‘armed neutrality:’ that is, an arming of those States to prevent the Union forces passing one way, or the disunion, the other, over their soil. This would be disunion completed. Figuratively speaking, it would be the building of an impassable wall along the line of separation—and yet, not quite an impassable one; for, under the guise of neutrality, it would tie the hands of the Union men, and freely pass supplies from among them to the insurrectionists, which it could not do as an open enemy. At a stroke, it would take all the trouble off the hands of secession, except only what proceeds from the external blockade. It would do for the disunionists that which, of all things, they most desire—feed them well, and give them disunion without a struggle of their own. It recognizes no fidelity to the Constitution, no obligation to maintain the Union; and while very many who have favored it are, doubtless, loyal citizens, it is, nevertheless, treason in effect.”131 Kentucky Unionists protested mildly that Lincoln misunderstood the reasons their state favored neutrality.

  A week after expressing his misgivings about “armed neutrality,” Lincoln was visited by Simon Bolivar Buckner, head of the pro-Confederate Kentucky State Guard militia, who said during a cordial interview that his state was justified because Lincoln had “confessedly violated the constitution, and, therefore, had no right to call upon Kentucky to aid him in this violation; and that, even if his acts were justified, as he claimed, by necessity, the same cause, when it was a question of internal peace in Kentucky, would justify the attitude she had assumed.” The president replied that while he considered it his duty to suppress the insurrection, he wished to do so “with the least possible disturbance, or annoyance to well disposed people anywhere. So far I have not sent an armed force into Kentucky; nor have I any present purpose to do so. I sincerely desire that no necessity for it may be presented; but I mean to say nothing which shall hereafter embarrass me in the performance of what may seem to be my duty.” Buckner reported that Lincoln “succeeded in impressing upon me the belief, that, ‘as long as there are roads around Kentucky,’ to reach the rebellion, it was his purpose to leave her unmolested, not yielding her right to the position she occupied, but observing it as a matter of policy.”132 A few weeks later, Lincoln offered Buckner a generalship, which the West Pointer declined; soon thereafter he assumed that rank in the Confederate army.

  Although he refrained from sending troops into the Bluegrass State, Lincoln recommended to a group of Southern Unionists that young men in that state must be organized to resist Governor Magoffin, whose views were unrepresentative of most Kentuckians. To facilitate such resistance, he established a military presence at Newport, under the command of Robert Anderson, who was empowered to recruit volunteer regiments from both Kentucky and western Virginia. That appointment was shrewd, for, as Joshua Speed told Lincoln, Anderson’s “name & lineage will give us [Unionists] great strength.”133 (An ardent Unionist, Speed proved invaluable in the effort to keep his state loyal. To Joseph Holt he expressed a keen desire “that my most intimate friend Mr Lincoln, who I shall ever regard as one of the best & purest men I have ever known, should be the instrument in the hands of God for the reconstruction of this great republic.”)134 In July, the president authorized Navy Lieutenant William “Bull” Nelson, then on loan to the army, to enlist Kentuckians. Lincoln also arranged with Speed to smuggle weapons into the state, including 20,000 rifles, which became known as “Lincoln guns.” General George B. McClellan, in charge of the Department of the Ohio, told the president that, according to leading Kentucky Unionists, “the effect [of distributing arms] has been extremely beneficial, not only in giving strength to the Union party & discouraging the secessionists, but that it has proved to the minds of all reasonable men that the Genl Govt has confidence in their loyalty & entertains no intention of subjugating them.”135

  Lincoln also dispatched able officers to Kentucky to lead the state’s Unionist military forces. One was Captain Richard W. Johnson, a West Point graduate and native of the state. When Johnson applied for leave from the regular army to join the Kentucky Volunteers, he was denied, for the War Department felt acutely the need for professional officers. Lincoln called on Adjutant General Lorenzo Thomas and said: “I would like to have a leave of absence granted to my Confederate friend, Captain Johnson, to enable him to accept the position of lieutenant-colonel of a Kentucky cavalry regiment.”

  “It cannot be done,” replied Thomas.

  “But,” rejoined Lincoln, straightening up until he seemed twice his normal height, “I have not come over to discuss this question with you, General Thomas, but to order you to give the necessary instructions.” Captain Johnson obtained his leave then and there.136

  On June 20, Lincoln’s delicate cultivation of Kentucky paid off when Unionists captured nine of the state’s ten congressional seats. The loyal candidates received a total of 92,460 votes and their opponents 37,700. Seven weeks later Unionists scored another triumph, winning 103 of the 138 seats in the General Assembly. On the heels of that August 5 Unionist triumph, Lieutenant Nelson established Camp Dick Robinson between Louisville and Danville, a move prompting Governor Magoffin to complain that the state’s neutrality had been violated. In response, Lincoln explained that “there is a military force in camp within Kentucky, acting by authority of the United States, which force is not very large, and is not now being augmented. I also believe that some arms have been furnished to this force by the United States. I also believe this force consists exclusively of Kentuckians, having their camp in the immediate vicinity of their own homes, and not assailing, or menacing, any of the good people of Kentucky. In all I have done in the premises, I have acted upon the urgent solicitation of many Kentuckians, and in accordance with what I believed, a
nd still believe, to be the wish of a majority of all the Union-loving people of Kentucky.” Therefore, he declined to remove the camp. In closing, Lincoln gently but firmly chided the governor: “I most cordially sympathize with your Excellency, in the wish to preserve the peace of my own native State, Kentucky; but it is with regret I search, and can not find, in your not very short letter, any declaration, or intimation, that you entertain any desire for the preservation of the Federal Union.”137

  Kentucky’s neutrality abruptly ended on September 3, when the willful Confederate General Leonidas Polk rashly occupied Columbus on the Mississippi River, prompting Union troops under U. S. Grant to seize Paducah. Polk’s action resembled the blunder South Carolinians had made by attacking Fort Sumter; just as their bombardment had solidified the North and reduced the chances that the Border States would secede, the Confederate invasion of Kentucky helped secure that state to the Union. The General Assembly demanded the withdrawal of Polk’s troops but not Grant’s.

  Keeping Missouri in the Union

  In his effort to keep Missouri from seceding, Lincoln faced severe obstacles. With approximately 1.2 million residents, it was the most populous state in the Trans-Mississippi West. Its proximity to Kansas, Kentucky, and southern Illinois made it strategically important, if not as vital as Maryland and the Blue Grass State. Governor Claiborne F. Jackson, a secessionist who had denounced the president’s troop requisition as “illegal, unconstitutional, and revolutionary,” plotted to seize the St. Louis arsenal and distribute its muskets, powder, and cartridges to Confederate volunteers.138 Opposing him were two impetuous Unionists, Congressman Frank Blair and Captain Nathaniel Lyon. At the end of April, the president authorized Lyon to enroll 10,000 Missourians into the army and to declare martial law in St. Louis. This action was highly irregular, but General Scott endorsed it because the times were “revolutionary.”139 On May 10, the headstrong Lyon, acting without authorization from Washington, thwarted Jackson’s plans by capturing the governor’s pro-secessionist militia before it could aid the Confederacy.