The Fate of Liberty: Abraham Lincoln and Civil Liberties

By Mark E. Neely Jr. | Go to book overview

3

Low Tide for Liberty

By the autumn of 1862, when President Lincoln announced the Emancipation Proclamation, the writ of habeas corpus remained technically secure in most of the North. It was officially suspended only around Florida, in St. Louis and near the railroad and telegraph lines of Missouri, and along a "military line" stretching from Washington, D.C., to Bangor, Maine. In fact, the writ of habeas corpus was a dead letter in many other areas of the North as well: in the seceded South, in much of the border states, and in some far-flung and carelessly governed territories. 1

Only administration insiders knew how hardened Abraham Lincoln's attitudes on such constitutional issues had already become and thus how shaky was the legal status of the writ of habeas corpus everywhere in the country. Most of the cabinet members learned about a new proclamation, the first to suspend the writ throughout the nation, by reading the newspapers. "The President has issued a proclamation on martial law," Secretary of the Navy Gideon Welles wrote indignantly on September 25, 1862, "suspension of habeas corpus he terms it, meaning, of course, a suspension of the privilege of the writ of habeas corpus. " Welles concluded that he was "not sorry" to have known nothing of this proclamation until it was issued: "I question the wisdom or utility of a multiplicity of proclamations striking deep on great questions." 2


Suspending the Writ of Habeas Corpus Nationwide

Frederick Seward, who had seen the events firsthand as assistant secretary of state, maintained in his biography of his father that the "form" of the Florida suspension of May 10, 1861, "was afterward made general, and proved adequate to its purpose during the war. Applying the suspension merely to exposed points and actual cases of disloyalty, it did not interfere with the rights of the general public in the courts". 3 The level of confusion on the subject is again apparent in this misleading statement. The writ was suspended broadly, and

-51-

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The Fate of Liberty: Abraham Lincoln and Civil Liberties
Table of contents

Table of contents

  • Title Page iii
  • Acknowledgments vii
  • Contents ix
  • Introduction xi
  • 1 - Actions Without Precedent 3
  • 2 - Missouri and Martial Law 32
  • 3 - Low Tide for Liberty 51
  • 4 - Arrests Move South 75
  • 5 - The Dark Side of the Civil War 93
  • 6 - Numbers and Definitions 113
  • 7 - The Revival of International Law 139
  • 8 - The Irrelevance of the Milligan Decision 160
  • 9 - The Democratic Opposition 185
  • 10 - Lincoln and the Constitution 210
  • Epilogue 223
  • Notes 237
  • Index of Prisoners of State 269
  • Index 273
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