"Lincoln was a moral man but was not sentimental. He was particularly unsentimental about casualties because he had a realisation about how big the Civil War was.”
The quote comes from the great Constitutional expert Mark Neely Jr., speaking at a recent symposium about Lincoln and the Civil War at Florida Atlantic University in Boca Raton. Neely is Professor of Civil War History at Pennsylvania State University, and a winner of the Pulitzer Prize for his book The Fate of Liberty: Abraham Lincoln and Civil Liberties.
The focus of his talk was the legal writ of habeus corpus, which was famously suspended by Lincoln on Sept. 25, 1862. Habeus corpus is the right of any person under arrest to appear in person before the court, to assure they have not been falsely accused.
“The writ has a sort of mythic quality. I don’t want to be known as the man who travelled to Florida to trash habeus corpus,” he joked. The way it was used during the Civil War is a main focus of Neely’s latest book, Lincoln and the Triumph of the Nation.
Neely opened his talk with the famous “Corning letter” of June 1863, in which Lincoln defended his right to restrict civil liberty in time of civil war. “It was a blistering letter- Lincoln was defiant,” said Neely.
As he says in the book, the letter “is an example of nationalism unleashed. Its language existed just above the level of ridicule and fury.”
Lincoln believed Southern sympathisers had been infiltrating the North for more than 30 years, and that this “corps of spies, informers, suppliers, aiders and abettors of their cause” would be protected by “Liberty of speech, Liberty of the press and habeus corpus.” Thus he has no qualms about restricting civil liberties in order to save the Union.
In his talk at FAU, Neely said he looked at 56 cases of habeus corpus to see how habeus corpus was being used during the war. Remarkably, “it was not being used about imprisonment. Most cases, about 60%, involved underage soldiers and child custody cases.”
One of instances of its use in the remaining 40% was the Case of the Party Saloon Girls. “It sounds like the title of a Perry Mason show,” quipped Neely. In 1862 the NY state legislature enacted the Concert Saloon Act, which outlawed alcohol during a theatrical performance. “The first arrest was made in May 1862 for serving beer.” But the law ran aground when another arrest was made of the owner of a German saloon where they sold “bier” not “beer.” The case brought before a justice of the Supreme Court on habeus corpus, and the judge acquitted John Hart, the bar owner.
The suspension of habeus corpus was of great importance, but it was a decision Lincoln took alone.
“Lincoln’s view of his cabinet was that they should run their own departments,” said Neely in his talk. “On the most important questions he was least likely to seek their opinion. He didn’t ask them about the suspension of the writ of habeus corpus, he told them.”
His book deals with this and many other important matters. Neely notes that “the most neglected realm of constitutional history is the history of the state constitutions.” He looks at the both the North, “where there literally dozens of state supreme courts,” to the Confederacy where, “in the absence of a national supreme court, the state supreme courts played a more prominent role.”
The role of the U.S. Supreme Court is also closely considered by Neely. At the time is was led by Lincoln’s foe, Robert Taney, who “chose to ignore the great war as a circumstance conditioning interpretation of the law.” Fortunately for Lincoln the wheels of justice moved slowly, so that the judicial bombs Taney was planning to explode never went off. The court had to wait for cases pertinent to the war to come before it, and this did not happen. “The necessity of judicial passivity was an agony for Chief Justice Taney.” Thus, Taney “did not make the constitutional history of the Civil War. The president, Congress, and the political parties did more.”
The result of a lifetime of close study, this book about constitutional law in the Civil War will stand as a landmark volume that must be read by anyone interested in that conflict.
Lincoln and the Triumph of the Nation (408 pages) is $35 from The Univ. of North Carolina Press. Visit their website: www.uncpress.unc.edu.