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Lincoln had the consummate skills of a lawyer, a politician, and a storyteller.  Added to those skills, he had impressive logic.

In many cases, Lincoln served himself, the Republican Party, and the country well.   But in some cases, Lincoln (and his subordinates) violated civil liberties.

One of Lincoln’s defeated Union Generals, Ambrose E. Burnside, inadvertently sparked a controversy, involving a vocal Peace Democrat.  Amid a public outcry, Lincoln defended his views on civil liberties in wartime.

Imprudent edict

Historian Frank L. Klement writes:

[Burnside, commander of the Department of the Ohio] regarded all criticism of the President as unpatriotic and traitorous … Since Burnside believed that Copperhead speeches and editorials gave encouragement to the enemy, he issued his well-known ‘General Orders, No. 38’ on April 13, 1863.

General orders No. 38 stated that “the habit of declaring sympathy for the enemy” would no longer be tolerated.  Burnside would discern between criticism and treason.  Civilians who disobeyed Burnside would be arrested and subjected to military procedure (that is, denied rights in the civil courts).[i]

Incendiary arrest

Almost immediately, Peace Democrat (and former congressman) Clement L. Vallandigham gave a speech, defying Burnside’s edict and suggesting that voters use “the ballot-box” to hurl “King Lincoln” from his throne.

Burnside arrested Vallandigham.  A military tribunal found Vallandigham guilty and put him in prison.

Democrats cried foul, and Lincoln ordered that Vallandigham be exiled to the Confederacy.  The level of outrage increased as Northern Democrats held mass protest meetings.

Corning Letter

A committee of Democrats of Albany, New York, chaired by Erastus Corning, wrote Lincoln on May 19, 1863.    They demanded that the Federal Government “maintain the supremacy of the civil over military law.”[ii]

Military arrests in the North were unconstitutional and eviscerated the Bill of Rights, according to the Albany Democrats.  They also claimed that Vallandigham was seized and tried “for no other reason than words addressed to a public meeting, in criticism of the course of the administration, and in condemnation of the military orders of the general [Burnside].”

Lincoln’s public reply

President Lincoln on June 12 wrote that he had lawfully suspended the writ of habeas corpus earlier in the war.  The Constitution allowed the suspension “when, in cases of rebellion or invasion, the public safety may require it.”

Lincoln then commented on the former Ohio congressman:

Mr. Vallandigham avows his hostility to the war on the part of the Union; and his arrest was made because he was laboring, with some effect, to prevent the raising of troops, to encourage desertions from the army, and to leave the rebellion without an adequate military force to suppress it.

He [Vallandigham] was not arrested because he was damaging the political prospects of the Administration, or the personal interests of the commanding general, but because he was damaging the army, upon the existence and vigor of which the life of the nation depends.

He [Vallandigham] was warring upon the military, and this gave the military constitutional jurisdiction to lay hands upon him.

Powerful, homespun argument

Lincoln asked:

Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert?

This is none the less injurious when affected by getting a father or brother or friend into a public meeting, and there working upon his feelings till he is persuaded to write the soldier boy that he is fighting in a bad cause, for a wicked administration or a contemptible government …

I think that in such a case to silence the agitator and save the boy is not only constitutional but withal a great mercy.

Preventive arrests, assumption of guilt

Lincoln stated:

Arrests [in cases of rebellion] are made, not so much for what has been done as for what probably would be done …

The man who stands by and says nothing when the peril of his country is discussed cannot be misunderstood.  If not hindered, he is sure to help the enemy; much more, if he talks ambiguously – talks for his country with ‘buts’ and ‘ifs’ and ‘ands’.

Lincoln explained the value of his policy by citing Confederate generals who hadn’t been arrested before they entered the Confederate service.  He stated, “I shall be blamed for having made too few arrests rather than too many.”

Clarifying Lincoln’s words

The Albany Democrats on June 30, 1863, responded to Lincoln’s letter.

Your claim is, that when the writ of habeas corpus is suspended, you may lawfully imprison and punish for the crimes of silence, of speech, and opinion …

Your doctrine denies the freedom of speech and of the press.  It invades the sacred domain of opinion and discussion … even the refuge of silence is insecure.

They mentioned that the previous Congress (on March 3, 1863) had voted to suspend the writ of habeas corpus.[iii]  The Albany Democrats explained:

This [congressional] statute promptly removes the proceeding in every case into the courts where the safeguards of liberty are observed, and where the persons detained are to be discharged, unless indicted for criminal offense against the established and ascertained laws of the country.

Cross-examining Lincoln

The Albany Democrats pressed Lincoln for an explanation:

Upon what foundation, then, permit us to ask, do you rest the pretension that men who are not accused of a crime may be seized and imprisoned, or banished at the will and pleasure of the President or any of his subordinates in civil and military positions?

Where is the warrant for invading the freedom of speech and of the press?

Where is the justification for placing the citizen on trial without the presentment of a grand jury and before military commissions?

Lincoln never responded to these questions.  His words and actions suggest that for him, saving the Union (and preserving enlistments) “covered a multitude of sins.”

Historians weigh in

Historian Philip Paludan observes that President Lincoln made a more extreme defense of military arrests of civilians than necessary.[iv]

Historian Mark E. Neely Jr. writes:

If a situation were to arise again in the United States when the writ of habeas corpus were suspended, government would probably be as ill-prepared to define the legal situation as it was in 1861.

The clearest lesson is that there is no clear lesson in the Civil War—no neat precedents, no ground rules, no map.  War and its effect on civil liberties remain a frightening unknown.[v]

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[i] Frank L. Klement, The Copperheads in the Middle West (Chicago: 1960), 89; Frank L. Klement, The Limits of Dissent:  Clement L. Vallandigham & the Civil War (New York:  1998), 149.

[ii] Frank Moore, ed., The Rebellion Record, Vol. VII (New York:  1864), pp. 298-308.

[iii] Mark E. Neely Jr., The Fate of Liberty:  Abraham Lincoln and Civil Liberties (New York:  1991), 68.

[iv] Phillip S. Paludan, “Toward a Lincoln Conversation,” Reviews in American History, XVI (March 1988), 40-41.

[v] Neely, 235.