Lincoln, Civil Liberties, and the Constitution
October 10, 2014Posted by on
My post ‘Grading The War On Terror‘ was prompted by my listening to a talk given by Mark Neely – McCabe Greer Professor in the American Civil War Era (Penn State University). The talk, given on behalf of The Gilder Lehrman Institute of American History, is shown as the first video and the following text is my – edited – transcript of that talk. There are links added to my transcript where something useful may be found. Mark Neely frequently refers to ‘Our Lincoln’, which is a reference to the book Our Lincoln: New Perspectives on Lincoln and His World, a collection of essays compiled and edited by Eric Foner (pdf reviewed by Jason Miller). Mark Neely contributed the essay ‘Civil Liberties and the Constitution’ to the book and this is the essay to which Neely refers in his opening remark.
My essay on the ‘Civil Liberties and the Constitution’ is definitely about Lincoln in his time and not much on ours. So I thought today that I would try to redress the balance. In the essay, I analysed at length a chilling public letter on internal security and free speech written by Abraham Lincoln in June 1863, it’s come to be called, after the name that man to whom he addressed it, the Corning letter. It wasn’t really a letter at all, it was a public statement, distributed to the press, reprinted in at least the seven different pamphlet versions in 1863.
[In fact just before I left for New York I saw a one published that was published in 1863 in San Francisco for sale on eBay. So in fact there were eight different versions. The opening bid – $250].
If you read the Corning letter as I do, then you will see that it is possible to draw a straight line from Abraham Lincoln to John Ashcroft. On December 6 2001, less than two months after the terrorist attacks on buildings in this city and elsewhere, Attorney General Ashcroft in a statement to the Senate Committee on the Judiciary said: “To those who scare peace-loving people with phantoms of lost Liberty, my message is this, your tactics only aid terrorists for they erode our national unity and diminished our resolve. They give ammunition to America’s enemies”.
Now what Lincoln said in the Corning letter back in 1863 was similar. Lincoln argued that when the civil war began, the confederates from the very start hoped, he said: ”To keep on foot amongst us, a most efficient core of spies informers suppliers and aiders and abetters of their cause”. These allies of the Confederates in the North would operate, he said, “Under cover of liberty of speech, liberty of the press and habeas corpus”. And all of this sedition conducted under an umbrella of freedom of speech; and under an umbrella of the argument that the president didn’t have the power to suspend the writ of habeas corpus; all of this Lincoln said was, “Part of the enemies program”. So! Like Ashcroft after him, Lincoln characterised libertarian critics of the government and defenders of first amendment freedoms; and critics of suspending the privilege of the writ of habeas corpus as sympathisers with the nation’s enemy in a war.
Well! You might say ‘words are cheap’, and if we’re going to conduct a serious analysis and comparison of the internal security measures of the Lincoln administration and other war administrations in American history, we are going to have to look at something other than words. You’ve got to look at behaviour but here too parallels can be drawn, even to some the most controversial behaviour.
Were there foreshadows of water-boarding under the Lincoln administration? Well! The answer, in a way, is yes! Among the arrests of civilians made by military authorities in the north during the war, were people who were erroneously arrested as deserters from the Army. Now: when you go out arresting men suspected being deserters, some of them turn out not to be deserters and are in fact innocent civilians. Some of these civilians however, while they were arrested, were subjected to what turned out to be a standard treatment the army used by 1864 to extract confessions from deserters. This treatment wasn’t water-boarding but it did involve water and painful consequences; and it was papered over by government language, by a government euphemism, they were called ‘shower baths’.
Now the practice wouldn’t likely have come to light had it not been the case that some of the innocent civilians turned out to be British subjects (this sort of resembles the situation of Guantánamo detainees) there’s more interest in the ones who are who are British citizens. The British subjects in the Civil War military prisons were recent immigrants to the United States, principally from Ireland. Great Britain took a very dim view of abuse of its subjects by foreign governments and Britain’s official representatives in the United States looked after their subjects who asked them for help. Now, when a British official encountered abuse and then demanded an explanation from the State Department, in those days they got an answer from the State Department, because the United States principal problem in foreign policy was to keep Great Britain out of the war. That was William H Seward’s job; and so when Britain asked, he answered. One of the prisoners, a British subject, was a man named Matthew Murphy. He was an Irishman who was in jail in Alexandria Virginia in October 1864. He’d been arrested in on suspicion of desertion because he was wearing some government issue clothing and because he was, according to the arresting officers, ‘a hard looking man’. Murphy complained that after his arrest he had been handcuffed and suspended from the ceiling. The federal authorities in Alexandria couldn’t categorically deny that that had happened.
J W Nash was another British subject and he’s a more typical case. Like many of the suspects he’d been arrested about to board a train at a station. He was in the company of two deserters, he was dressed the same way they were and he carried the same amount of money they did. So he was obviously suspected of being a bounty jumper. That is, one of these persons who enlisted in order to receive the lucrative cash bounties extended to volunteers late in the war – then they just pocketed the money and then deserted again – and maybe enlisted again and got more bounties. When the British Minister to the United States, Lord Lyons, investigated Nash’s case he learned that Nash had been the victim of, “violent cold water shower baths”. The captain of the central guard house in Washington DC admitted that Nash had been, and this is his quote from his report (the captain’s report), “He had been subjected to what is called a shower bath, which consists of a stream of water from a small rubber hose. It is not severe nor at this season of the year very unpleasant as the prisoners here shower each other for their own comfort daily”. Lord Lyons wasn’t convinced and he replied sternly; “This explanation does not show that the cold water was applied in Nash’s case in conformity with any law or regulations as a punishment for any known and proved offense. On the contrary it tends to confirm the statement that it is used in the central guard house for the purpose of extorting by the infliction a bodily pain confessions from persons suspected of being deserters”.
Later that same summer, the British protested the treatment of other prisoners subjected to, ‘a hose water directed with full and powerful action against his naked person’. This inquiry led to an admission that the Judge Advocate General of the army (pdf ChIV) prescribe this treatment for certain kinds of prisoners. The army persisted in calling the practice punishment by shower baths but the prisoners writing to Lord Lyons told another story. James Buckley who was one of these prisoners maintained that he had been subjected to showering for two hours until his skin broke. How far up the administration did knowledge at this practice go? Well of course we know it went to the Secretary of State William H Seward, he dutifully sent to Lord Lyons explanations for the behaviour prison keeping authorities and he didn’t attempt any cover-up. On the other hand he didn’t apparently protest on behalf of the injured British civilians and he didn’t attempt to end the practice.
My point here it’s not too argue that Abraham Lincoln and John Ashcroft shared the same view of civil liberties in wartime and I’m not trying to say that the central guard house in Washington in 1864 was a little Abu Ghraib. What I am suggesting is; that it is fairly easy to find parallels in what are obviously very different situations, the Civil War, or in this case war terror, or in other wars in American history. What I thought we needed for a long time is a system for evaluating the programs at different administrations in American history on this subject; and so I thought I’d suggest today a system to use (you can use it on the evidence that is in ‘Our Lincoln’). In the system I just asked three simple questions and you’ll notice they’re all about behaviour not about law.
The first question: Is the internal security system proportionate to the threat or is it out of all proportion to the threat?
The second: Is the system, once in place, used for other ends than the one of meeting the original threat?
This test has several special considerations: we have to pay particular attention to the use of the system to prey on vulnerable portions at the Society, particularly those identified by the arresting authorities by their ethnicity. Law Professor Jeffrey Stone for example in an article on Liberty says that, “Almost always the individuals whose rights are sacrificed are not those who make the laws but minorities, dissenters, non-citizens and those circumstances we are making a decision to sacrifice their right”. We have also to ask as a part of this test whether the system is used to eliminate organised political opposition. In other words to silence the opposing political party. Well that was the principal question about the system that people in the nineteenth century asked.
The third question is: Once the threat ceases does the internal security system also cease?
Whatever you may think that the Alien and Sedition Act of 1798 they did have, as Professor Stone pointed out, a wise sunset provision. They expired before the inauguration of the next president, which turned out to be a period about two years. After I read a Stone’s book I noticed that Lincoln’s proclamation specified – that is, his proclamation suspending the habeas corpus – applied, ‘during the existing insurrection’. We’ll never know what Lincoln would have done to end those measures as when the war ended he was murdered.
I also have to say – I can’t help it (but I am a college professor) – I also have to give these security measures grades. from F to A, the full range. I assign an F to anyone who becomes a dictator. Now that would be by not ending the internal security system when the threat is over. I know you know you’re American history and no one has failed this test yet, so I’m not assigning any Fs today but the full range of grades remains.
I’ll begin John Adams: I give him a D. He oversaw the Aliens Sedition Act 1798, he fails the provocations test. [My test has three points; provocation, victims and termination]. Adams fails the provocation test as there wasn’t even a war, it was only a quasi war with France. As Professor Stone points out, some 316 American ships had been seized by the French but the war was fought entirely on the seas. Obviously the arrest newspaper editors in Baltimore in similar places had not much to do with security on the high seas. The Adams administration also fails the victims test. It was put principally to other uses, the Sedition part up the Adams internal security system was vigorously enforced. Under the Sedition Act 25 people were arrested, 14 indicted, 10 tried and convicted. That may not sound like a lot but they were all Jeffersonian Republican newspaper editors and writers; and if you look at what the Michael Schudson said (who’s a historian of journalism) if you look at what he says about the period, there were about 200 newspapers in America at the time, perhaps 25% of these were Republican (that’s about 50 Republican newspapers) and that means that the Adams administration took legal action against half of the republican press. A quarter to over a third of all the Republican editors and writers were indicted. That was a full-scale assault on the opposition party not on the French. The Adams administration also fails the victims test in another way and that is because the Aliens Act targeted vulnerable immigrants especially. The Adams administration then, passes only the termination test. To explain this of course, the internal security measures of the Adams administration were were functions having, basically, eighteenth-century beliefs that there was no such thing as a loyal opposition in that political parties were just seditious. That explains the direction that the system took.
Moving past Lincoln for a moment, I give Woodrow Wilson a C-. He rates above Adams because, in part, he doesn’t altogether fail the provocations tested. He did at least deal with a real war, it was it however a decidedly foreign war, offering little threat to what we’ve come to call the homeland. The system under Wilson was aimed at least in part at sedition and espionage and not at the opposition political party. It was more extensive in effect than the system under Adams. Under the Espionage Acts of 1917 1918 the administration conducted 2168 trials and brought in 1,055 convictions. Like the Adams program, the Wilson program however was used for other details and openly fails the victims test. Among those convicted under these Espionage Acts world were leaders of the Industrial Workers of the World. The administration also failed the victims test another way, that was by arresting some 6,300 enemy aliens. They met draft resistance by allowing the vigilante American Protective League to execute raids called slacker raids are in which some 40,000 individuals were detained. Most of these up victims were immigrants and poor people. Most writers on the Wilson administration acknowledged that the program was used to attacked radical political movement including especially the American Socialist Party. So James Green says in ‘Grassroots American Socialism’, “Wartime repression a patriotic coercion killed the Socialist Party in the south west”. (That was his particular subject – the south west) It was also true I think that the atmosphere and repression aided and abetted the Red Scare after the war, so the system can’t be said precisely to have passed the termination test, in that didn’t exactly end when the provocation ended.
Franklin Delano Roosevelt I give him a D. His saving grace of course came on the question a provocation. World War Two began with the Japanese attack on United States territory John Lewis Gaddis makes an important point in his book ‘Surprise Security in the American Experience’. He makes a very important point of reminding us that attack on the United States itself has been very rare; and surprise attack rarer yet. Of attacks, all the qualifies are the British Invasion in 1812, Pearl Harbour in 1941, and 911. But the provocation offered by the people who are actually targeted by President Roosevelt’s internal security system – Japanese Americans – really offered no provocation at all by way of sedition or sabotage. The provocation inside the United States had already been removed, again as Jeffrey Stone shrewdly observes, before Roosevelt acted. FBI director J Edgar Hoover had already arrested the person suspected of being possible spies for Japan before the program was put in place. The Roosevelt administration fails the victims test, the identification of the enemy in this instance was entirely racial, by the reckoning it’s notorious that Roosevelt did not put German Americans and Italian Americans in concentration camps as he did Japanese Americans. Roosevelt does pass the termination test because he ordered an end to the system before the and of the war. I think we can say though, in balance to that appraisal, that the system had been planned before there was a war by the Navy Department in 1936; and as a result this plan and what happened, more than 120,000 persons were put in relocation centers.
Well the big question a remains, what grade to assigned Abraham Lincoln? Over the years he’s been assigned varying grades including it may surprise you an F. Some of the people who gave him an F were pretty famous people, including the great literary critic Edmund Wilson. Less well known I think is the fact, uncovered by the constitutional historian Herman Belz, that the generation of scholars who founded American Political Science about a century go effectively also gave Lincoln an F; and I don’t like to be rude to my hosts but this included two Columbia University Professors, William A Dunning and John Burgess. Well modern history has come to give Lincoln at least passing marks by making one simple observation, the crucial observation was made by the historian Harold Hyman in 1977. He cut through some seventy years of muddled debate about dictatorship by saying simply, “The most remarkable fact about the 1864 election is that it occurred”.
So that ended the debate, among serious historians I think, over Lincoln as a dictator. But that leaves the whole grading system above that and Lincoln passes the provocation test course because US was attacked by the Confederates. I wrote a book about the victims test, in that I certainly give him a passing grade there. Now my essay on the subject in ‘Our Lincoln’ is meant to raise Lincoln’s grade up for the first time by attempting to answer the question about whether the Civil War security system would have ended with the end of the the provocation, which Lincoln didn’t quite live to to see. There’s really been no way to evaluate that point because Lincoln was murdered at the moment the provocation ceased; but, if we pay close attention to politics state by state as Abraham Lincoln himself did, we can see that the president realized that the system must be relaxed when no longer needed or Americans would run the risk of an unfree government.
So here was the way this came about. Lincoln was a very keen student at the election statistics, he poured over the election returns in 1864 and a he was astonished to find that the vote in the North, what we would call turnout, increased even though there was a war being fought and hundreds of thousands of young voters were in the army in navy in the field. Lincoln was transfixed by this astonishing discovery, he saw his providential proof of the soundness of the Union and it was so startling to him that he decided to plan his whole annual message to Congress, which he had give in a month, around it (around this analysis of voting statistics). He used it, not to celebrate in some gloating fashion his recent victory, but instead first showed that it was a victory for The Union as; “No candidate for any office whatever – high or low – has ventured to seek votes on the avowal that he was for giving up the Union. On the distinct issue union or no union the politicians have shown their instinctive knowledge that there is no diversity among the people”. Second Lincoln noted the surprising, “Calmness and good order with which the millions of voters met and mingled at the polls”. So he was able to say that democracy deliberated the future of the government even the midst of this great civil war.
Third then, Lincoln devoted the longest part of the section of the annual message to an analysis of the election returns, using the statistics to show this astonishing turnout, which in turn proved that despite losses in the war, as he said, “The national resources are unexhausted and inexhaustible”. He’d been carefully gathering these statistics for the message. In fact on December 1st, less than a week before he gave the message, he sent nine telegrams to nine different governors of the northern states requesting, “The exact aggregate vote of your state cast at the last election”, and he was insistent saying, “My object fails if I do not receive it before congress meets”. Then he quickly tabulated these results and wrote in this message his glowing proof that, “We have more men now than we had when the war began“. He was not transfixed, as some modern historians have been, by the losses in the war. He admitted it was, “Melancholy to reflect that the war has filled so many graves and carried mourning to so many hearts”, but it also came as, “Some relief to know that compared with the surviving, the fallen have been so few”.
Lincoln said nothing about the other obvious conclusion to be derived from the statistics that he had compiled. There was an astonishing suppression up the turnout in Missouri. Voting in Missouri fell by 37%, since the Democrats generally accounted for some 40% of the national vote this stunning fall off in voting amounted virtually to the disappearance of the democratic party from Missouri. Lincoln could see, in cold hard statistics documenting voting behavior, that Republicans in Missouri had obviously used his internal security measures; the martial law that had been in place since John C Frémont was a commander in 1861, to eliminate the loyal opposition. These particular figures about the suppression of the vote were included in a tabular appendix. He didn’t dwell on them and the initial text just gave the aggregate. But he noticed them and Lincoln, though he didn’t say a word about them, took dramatic action. Missouri up 1865 was governed by an illegal government put in Jefferson City by coup d’état in 1861. But in 1864 there was a Gubernatorial election, so on at the same time Lincoln was elected Missouri also chose a new governor by popular vote. So as soon as this new governor was inaugurated, Lincoln wrote a long letter suggesting that he put an end to martial law. The governor, a Thomas Fletcher was a beneficiary of martial law and declined. So Lincoln decided he must circumvent the civil authorities; and he created a new military district with headquarters in Saint Louis and sent out a General John Pope, explicitly to end martial law in the State. Lincoln was moving decisively to terminate the internal security system when the provocation ended.
He passed provocation tests, he passed the victims test and he passed that termination test. Now I’m a notoriously tough grader, as the undergraduate at Penn State will attest, and I’ll give Lincoln today a B+.
The following video is that of a talk that Mark Neely gave to The Organization of American Historians (OAH) as part of The OAH Distinguished Lectureship Program. The lecture was presented during the annual History Forum lecture series at the Minnesota History Center in St. Paul, Minnesota in March 2012. It is not ‘quite’ the same as the talk given to The Gilder Lehrman Institute of American History. Firstly, it is almost three times the length of the aforementioned talk; and secondly, where similar ground is covered, it contains additional material; and thirdly, it includes a ‘question and answer’ session.