The Fate of Liberty: Abraham Lincoln and Civil Liberties

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

Epilogue

Abraham Lincoln never discussed most of the arrests described in this book. His statements on this policy dealt with sensational instances of abridgement of freedom of speech or freedom of the press. This anomaly brings to mind historian Phillip Paludan's observation that President Lincoln made a more extreme defense of military arrests of civilians than necessary 1

Instead of saying that the administration seldom arrested individuals merely for criticizing the war, Lincoln maintained that it was quite all right to do so. He told his critics in the Corning letter of June 18, 1863, that he possessed the necessary constitutional power, and he explained why dissent could not safely be tolerated. He did not point to the dissent he did tolerate, nor did he argue that his power was most often used against persons who had done something other than criticize the war in words. Instead, he suggested that even silence could be a crime:

. . . arrests by process of courts, and arrests in cases of rebellion, do not proceed altogether upon the same basis. The former is directed at the small per centage of ordinary and continuous perpetration of crime; while the latter is directed at sudden and extensive uprisings against the government, which, at most, will succeed or fail, in no great length of time. In the latter case, arrests are made, not so much for what has been done, as for what probably would be done. The latter is more for the preventive, and less for the vindictive, than the former. In such cases the purposes of men are much more easily understood, than in cases of ordinary crime. The man who stands by and says nothing, when the peril of his government is discussed, can not 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." 2

Why did Lincoln, as Paludan put it, establish so "broad" a "definition of dangerous speech"? The explanation may lie in the mythical aspects of habeas corpus. Whenever Lincoln spoke of it, in public pronouncements at any rate, he spoke more of a symbol of American freedom than of a specific legal instrument. In the crucial Corning letter, he twice invoked habeas corpus in

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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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