Tried by War

by James M. McPherson

  Meanwhile Benjamin Butler, a brigadier general of militia from Massachusetts, had detrained one of his regiments at the head of Chesapeake Bay, commandeered a steamboat, and brought the regiment to Annapolis. From there the Bay Staters, whose ranks included several railroad men, repaired rolling stock, rebuilt the tracks and bridges, and steamed triumphantly into Washington on April 25. By the end of the month some ten thousand loyal militia were in the capital—enough to defend it against anything the Confederates could mobilize at the time.

  On May 13 the resourceful Butler occupied Baltimore with two regiments and a battery of artillery. General Scott considered Butler something of a loose cannon and was incensed at him for acting without orders. But Lincoln regarded Butler (at this stage of the war) as a can-do officer and two days later appointed him as a major general of U.S. volunteers.40

  These events in Maryland led to a constitutional showdown between the commander in chief and the chief justice of the United States. On April 27 Lincoln authorized General Scott to suspend the writ of habeas corpus on any “military line” between Philadelphia and Washington. Subsequent presidential orders expanded the area where the writ could be suspended, until a proclamation of September 24, 1862, suspended it throughout the whole country.41 The writ was an ancient Anglo-American protection against arbitrary arrest and detention that required an arrested person to be brought before a court to decide the legality of his detention or imprisonment. The Constitution mandates that the writ “shall not be suspended, unless when in cases of Rebellion or Invasion the public Safety may require it” (Article I, Section 9). The Civil War was a clear case of rebellion, said Lincoln, and the public safety required the detention of those who were aiding and abetting that rebellion.

  John Merryman was a wealthy Maryland landowner and lieutenant in a secessionist cavalry company that had torn down telegraph lines near Baltimore. Arrested and confined at Fort McHenry in the city, he petitioned the federal circuit court for a writ of habeas corpus. The senior judge in that circuit was none other than Chief Justice Roger B. Taney, who issued a writ ordering the commanding officer at the fort to bring Merryman before the court to show cause for his arrest. The officer refused, citing the president’s suspension of the writ. Taney immediately delivered a ruling denying the president’s authority to do so. At issue was not whether the writ could be suspended, but who could suspend it. The suspension clause is in Article I of the Constitution, which deals with the powers of Congress—not of the president. So Taney insisted that only Congress could suspend the writ.42

  Taney cited several precedents to support his position. In Anglo-American legal history, legislative powers were a check on the arbitrary authority of the executive. On the other hand, at the Constitutional Convention in 1787 the suspension clause was initially placed in the article dealing with the judiciary, and it was eventually moved to Article I by the committee on style. In 1861 several constitutional lawyers (including Attorney General Edward Bates) upheld Lincoln’s right to suspend the writ as falling under his responsibilities as commander in chief.43

  In any event Taney had no power to enforce his ruling, and Lincoln refused to obey it. The president, however, exercised his assumed right to suspend the writ with restraint at this early stage of the war. When some associates suggested that he order General Scott to arrest several Maryland legislators, and to prevent the meeting of the legislature to forestall the state’s possible secession, Lincoln refused to do so. “They have a clearly legal right to assemble,” he wrote, and “we can not know, in advance, that their actions will not be lawful, and peaceful.” There would be time enough to take action if they tried “to arm their people against the United States.” Then Scott could “adopt the most prompt, and efficient means to counteract, even to the bombardment of their cities.” The legislature reassured the government of its loyalty to the United States.44 Even in the District of Columbia, where Confederate sympathizers were numerous, Lincoln opposed their arrest unless it was “manifest, and urgent.”45

  The issue of “arbitrary arrests” remained highly controversial, however, especially when their number grew as the war went on. The opposition fastened on Taney’s opinion to denounce Lincoln as a tyrant. The president responded in his message to the special session of Congress on July 4, 1861. He noted (without mentioning Taney’s name or position) that as president he had been admonished “that one who is sworn to ‘take care that the laws be faithfully executed,’ should not himself violate them.” But he had not violated the law, Lincoln insisted. Confederates in Virginia and secessionists in Maryland had surrounded the capital, whose capture would have brought down the government. Surely this met the constitutional criterion for suspending the writ. “Now it is insisted that Congress, not the Executive, is vested with this power,” Lincoln acknowledged. “But the Constitution itself is silent as to which, or who, is to exercise the power; and as the provision was plainly made for a dangerous emergency, it cannot be believed the framers of the government intended, that in every case, the danger should run its course, until Congress should be called together; the very assembling of which might be prevented, as was intended in this case, by the rebellion.”46

  But even if Taney was right that the Constitution gave only Congress the power to suspend habeas corpus, Lincoln averred a higher constitutional duty to do whatever was necessary to preserve, protect, and defend the nation—including its capital. “The whole of the laws which were to be faithfully executed, were being resisted, and failing of execution, in nearly one-third of the States,” he noted. “Must they be allowed finally to fail of execution [because] some single law…should, to a very limited extent, be violated? To state the question more directly, are all the laws, but one [the privilege of the writ of habeas corpus], to go unexecuted, and the government itself go to pieces, lest the one be violated?”47

  A master of metaphors designed to make abstruse concepts clear to laymen, Lincoln used the analogy of a surgeon who amputates a limb to save a life. Looking back in 1864 to the early weeks of the war, he asked: “Was it possible to lose the nation, and yet preserve the constitution? By general law life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution through preservation of the nation.”48 Here was the core of Lincoln’s concept of his war powers as commander in chief: His supreme constitutional obligation was to preserve the nation by winning the war. Any measures necessary to achieve that purpose overrode lesser constitutional restrictions (the amputated limb)—or, to quote a modern constitutional scholar, “A part cannot control the whole, to the destruction of the whole.”49

  VIRGINIA’S SECESSION AND the fear that Maryland might follow suit temporarily reoriented Lincoln’s strategic priority from recapturing federal property to defense of the capital and of the Unionist border states. Kentucky and Missouri as well as Maryland seemed poised on the knife edge of secession. Some of their leaders warned Lincoln that any “invasion” of Confederate states with the purpose of “coercion” would push border states into the arms of their “Southern brethren.” With some asperity the president responded to one of them that “the sole purpose of bringing troops here is to defend this capital…. I have no purpose to invade Virginia, with them or any other troops, as I understand the word invasion.” But if Confederate troops from Virginia “assail this capital, am I not to repel them, even to the crossing of the Potomac?…I do not mean to let them invade us without striking back.”50

  One of the senators from Kentucky likewise said Lincoln had promised him “that until the meeting of Congress he would make no attempt to retake the forts…. 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.” Kentucky proclaimed its neutrality between the warring sections. A
lthough he considered “neutrality” to be as bad as secession in principle, Lincoln assured the senator that he would respect it “if Kentucky made no demonstration of force against the United States.”51

  Lincoln kept that promise with respect to Kentucky. But elsewhere the hands-off strategy did not last long. By the middle of May, Union troops occupied Baltimore and additional regiments would soon move into other key points in Maryland. In Virginia secessionist militia seized the U.S. naval base at Norfolk and the federal armory at Harpers Ferry. Fort Monroe, across Hampton Roads from Norfolk, remained in Union hands, however, and Lincoln reinforced it in May. When Virginia voters ratified the state’s secession in a referendum on May 23, Union troops crossed the Potomac the next day to occupy Alexandria in order to “protect” those Virginians who had voted against secession and remained loyal to the Union. Most such Virginians lived in the region west of the Shenandoah Valley, bordering Ohio and Pennsylvania. Union regiments from Ohio and Indiana under the command of Maj. Gen. George B. McClellan moved into western Virginia in May and began an offensive that would secure this large Unionist region and pave the way for its eventual entry into the Union as the new state of West Virginia.

  The convention elected to consider secession in Missouri defied the pro-Confederate governor and voted to remain in the Union. The governor nevertheless began organizing a secessionist militia, while U.S. Representative Frank Blair, Jr., brother of Lincoln’s postmaster general, proceeded to organize a Unionist militia. Blair’s ally was Capt. Nathaniel Lyon, a red-bearded, hotheaded abolitionist and commander of the St. Louis arsenal. Caught in the middle of this brewing conflict was Brig. Gen. William Harney, commander of the Department of the West, with his headquarters at St. Louis. Harney was a moderate who wanted to reconcile all factions and preserve the peace. But in the volatile political climate of Missouri, his efforts to prevent the mustering of Unionist militia seemed to tilt toward the secessionists. The Blairs persuaded Lincoln to relieve Harney and recall him to Washington. Frank Blair and Lyon mobilized their militia, surrounded the secessionist camp, and captured them. As they were marched through St. Louis on May 10, a riot broke out that left thirty-three people dead, including two of Lyon’s soldiers.

  General Harney returned to St. Louis and resumed his command on May 11. He tried to calm the volcanic passions that threatened a Missouri civil war within the larger national Civil War. Harney’s efforts seemed ineffective, however, so Lincoln gave Frank Blair discretionary orders to relieve him from command again, though cautioning Blair not to issue the orders unless the situation became “very urgent.” Blair was chafing at the bit, and on May 30 he removed Harney on Lincoln’s authority and replaced him with Lyon, now a brigadier general.52 Lyon’s vigorous offensive, with troops from Iowa and Kansas as well as Missouri, drove the rebels from most of the state but at the cost of his own life at the Battle of Wilson’s Creek (August 10, 1861) and of vicious guerrilla warfare that plagued Missouri for years.

  The strong-arm strategy that kept Maryland and Missouri precariously under Union control would have been counterproductive in Kentucky. Lincoln remained acutely sensitive to the critical balance of allegiances in his native state. Seven brothers or brothers-in-law of Mary Todd Lincoln fought for the Confederacy. Although Governor Beriah Magoffin proclaimed the state’s neutrality, his sympathies leaned southward. Both Lincoln and Jefferson Davis kept their troops out of Kentucky for fear that whichever side first violated its neutrality would force the state over to the other side. Lincoln rejected a request from the governors of Ohio, Indiana, and Illinois to send troops from their states into Kentucky.53 The president’s restraint paid off. Kentucky held three elections from May to August: for delegates to a border-state convention; for representatives in Congress; and for the state legislature. All resulted in Unionist majorities.

  Meanwhile Governor Magoffin organized “State Guard” regiments, composed mostly of pro-Southern volunteers. Kentucky Unionists countered by recruiting “Home Guard” regiments and asking Washington for arms. Lincoln authorized the quiet distribution of five thousand muskets to the Home Guards. He also commissioned Maj. Robert Anderson—defender of Fort Sumter and a Kentuckian—a brigadier general and sent him to Cincinnati to muster Kentucky volunteers into the Union army.54 Confederate officers were similarly mustering Kentucky volunteers into Tennessee regiments in that state.

  Kentucky’s neutrality was clearly destined to end. On September 3, Maj. Gen. Leonidas Polk sent Confederate troops into the state. Brig. Gen. Ulysses S. Grant immediately countered by ordering some of his Union regiments across the Ohio River into Kentucky. The Unionist legislature passed a resolution demanding that the Confederates leave and inviting the Union troops to stay. Kentucky remained contested ground until the failure of a large-scale Confederate invasion in the fall of 1862. But Lincoln’s skillful handling of matters there in the war’s early months helped keep the state largely Unionist.55

  THE EFFECTIVE CONTROL of most parts of the border states proved to be of great strategic value for the Union cause. But the eleven states that made up the Confederacy covered more than 750,000 square miles—as large as France, Spain, Germany, Italy, and Great Britain combined. They had a functioning government and an army as large as that of the United States in May 1861. To win the war the Confederate States needed only to defend successfully their existing boundaries. For Lincoln, control of the border states and the defense of Washington were crucial, but they hardly constituted a strategy for winning the war and restoring the Union. Even the reconquest of coastal forts in the South would not accomplish that purpose.

  As the Northern states filled and even exceeded their quotas of ninety-day militias and also exceeded the 43,000 three-year volunteers Lincoln had called for, the administration searched for a war-winning strategy. In May 1861 General Scott proposed what he considered the right one. It fitted his desire for a restoration of the Union with the least possible violence. As a Virginian, Scott deplored the cry of many Republican politicians and newspapers for an invasion to “crush the rebels.” Even if successful, he wrote, an invasion would produce “fifteen devastated provinces [that is, the slave states] not to be brought into harmony with their conquerors, but to be held for generations, by heavy garrisons.” Instead of invading the Confederacy, Scott proposed to “envelop the insurgent States” with a blockade by sea and to move down the Mississippi River, establishing “a cordon of posts at proper points” to seal off the Confederacy from the outside world and thus “bring them to terms with less bloodshed than by any other plan.”56

  Scott’s strategy rested on a belief in a strong residual Unionism in the Confederate states. The passions of the moment had swept a temporary majority in eleven states into the secession camp, he acknowledged. But he believed that the silent majority were Unionists at heart and would return to their old allegiance if the government pursued a firm but conciliatory strategy. “Invade the South at any point,” Scott reportedly told Lincoln, and “I will guarantee that at the end of the year you will be further from a settlement than you are now.” But if the envelopment plan was adopted, the South would be “cut off from the luxuries to which the people are accustomed; and…not having been exasperated by attacks made on them…the Union spirit will assert itself; those who are on the fence will descend on the Union side, and I will guarantee that in one year from this time all difficulties will be settled.”57

  Scott’s faith in Southern Unionism was similar to that of Secretary of State Seward. The general’s hope of fostering this Union sentiment was a continuation of the “voluntary reconstruction” policy espoused by Seward before the firing on Fort Sumter. Lincoln partly shared this faith in the early months of the war. That was why, in his April 15 proclamation calling up the militia, he promised that they would “avoid any devastation, any destruction of, or interference with, property, or any disturbance of peaceful citizens.”58

  The principal form of property in the South was, of course, slave property. S
outhern states had seceded because they feared that the Lincoln administration would interfere with the institution—despite the president’s repeated assertions, well into the war, that he had neither the intention nor the power to do so. Once Southern whites understood this noninterference policy, Lincoln hoped their residual Unionism would reassert itself. When Union troops occupied Alexandria on May 24, Lincoln was pleased to hear that “when the Stars and Stripes were raised, many people in the town actually wept for joy…. This is another proof that all the South is not secessionist.” In his message to Congress on July 4, the president said that “it may well be questioned whether there is, to-day, a majority of the legally qualified voters of any State, except perhaps South Carolina, in favor of disunion.”59

  This belief in a Southern Unionist majority turned out to be a delusion. And even those who shared it were critical of Scott’s minimalist strategy. Several Northern newspapers mocked it as the “Anaconda Plan,” after the South American snake that squeezes its prey. Montgomery Blair believed in Southern Unionists, but he told Lincoln that Scott’s do-little strategy would embolden secessionists and discourage those Unionists. “Genl. Scott’s system,” he said, “is but a continuation of the compromise policy with which his mind and that of all his political associates is imbued.” Blair predicted that an invasion deeper into Virginia would be “hailed with joy by the [true] people of the South everywhere,” but if “we fail to go to the relief of the people of the South they will be subjugated and the state of consolidation now falsely assumed will be produced.”60