Lincoln and Civil Liberties: Essential, or Abuse of Power?

Document analysis is a key element of historical thinking and interpretation because it helps someone understand a time period better while at the same time developing critical thinking skills.  Going by that, as a teacher or student there are a wide array of usages for the sources listed below.  One way to analyze this would be creating a 'word cloud' based on the transcriptions of each document. That could provide a visual tool that shows the most widely used words within a given document.  From there, a student could begin to discover just what the emphasis of the document entailed or even do an written analysis of the document.  Such an activity would stress not only historical literacy and critical thinking, but also contextualization and point of view.  Obviously access to technology within the classroom can vary, but students could easily do this as a homework assignment before discussing the documents in class.  The fact it could be applied to any historical document, not just one from the Civil War, adds another reason for its practicality.  Here is a sample word cloud based on the text of the Corning letter (the image next to Lincoln's picture) made on Wordle:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Another possible activity would be a practice document based essay using all or some of the sources.  In my district, we've utilized this for our so-called 'Student Growth Objectives', or SGOs, a part of our new teacher evaluation system.  These documents are pretty easy to understand, and even more so if further condensed.  Such an exercise would emphasize document analysis and the creation of a viable argument based on evidence, which are two crucial skills given the new AP and Common Core standards being implemented across the United States.  Even if the essay portion seems insurmoutable for the level of students within a class, a simple translation of each document into the students' own words would more than suffice, especially with students that struggle with critical thinking.  Regardless of rigor, these ideas are designed for the sole purpose of improving historical literacy and analysis.  For further information on how to create a document based question, this brief 10 step process from the Gilder Lehrman Institute for American History has some good ideas.

 

 

 

Sources:

 

 

Document A: letter from Abraham Lincoln to Winfield Scott, April 25, 1861 retrieved from The House Divided Project at Dickinson College 

 

Washington. April 25-- 1861.

 

My dear Sir:

The Maryland Legislature assembles to-morrow at Anapolis [Annapolis]; and, not improbably, will take action to arm the people of that State against the United States-- The question has been submitted to, and considered by me, whether it would not be justifiable, upon the ground of necessary defence, for you, as Commander in Chief of the United States Army, to arrest, or disperse the members of that body-- I think it would not be justifiable; nor, efficient for the desired object. First, they have a clearly legal right to assemble; and, we can not know in advance, that their action will not be lawful, and peaceful. And if we wait until they shall have acted, their arrest, or dispersion, will not lessen the effect of their action—

Secondly, we can not permanently prevent their action-- If we arrest them, we can not long hold them as prisoners; and when liberated, they will immediately re-assemble, and take their action-- And, precisely the same if we simply disperse them. They will immediately re-assemble in some other place—

I therefore conclude that it is only left to the Commanding General to watch, and await their action, which, if it shall be to arm their people against the United States, he is to adopt the most prompt, and efficient means to counteract it, even, if necessary, to the bombardment of their cities -- and of course in the extreme necessity, the suspicion suspension of the writ of habeas corpus—

Your Obedient Servant

Abraham Lincoln.

 

 

 

 

Document B: Proclamation Suspending the Writ of Habeas Corpus retrieved from The Collected Works of Abraham Lincoln

 

September 24, 1862 

 

By the President of the United States of America:

 

A Proclamation.

 

Whereas, it has become necessary to call into service not only volunteers but also portions of the militia of the States by draft in order to suppress the insurrection existing in the United States,and disloyal persons are not adequately restrained by the ordinary processes of law from hindering this measure and from giving aid and comfort in various ways to the insurrection;

 

Now, therefore, be it ordered, first, that during the existing insurrection and as a necessary measure for suppressing the same, all Rebels and Insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to Rebels against the authority of the United States, shall be subject to martial law and liable to trial and punishment by Courts Martial or Military Commission:

 

Second. That the Writ of Habeas Corpus is suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fort, camp, arsenal, military prison, or other place of confinement by any military authority or by the sentence of any Court Martial or Military Commission.

 

In witness whereof, I have hereunto set my hand, and caused the seal of the United States to be affixed.

[L.S.]

 

Done at the City of Washington this twenty fourth day of September, in the year of our Lord one thousand eight hundred and sixty-two, and of the Independence of the United States the 87th.

 

By the President: ABRAHAM LINCOLN.

 

WILLIAM H. SEWARD, Secretary of State.

 

 

 

Document C: excerpt of ex. Parte Merryman, June 1, 1861 retrieved from Teaching American History

 

...As the case comes before me, therefore, I understand that the President not only claims the right to suspend the writ of habeas corpus himself, at his discretion, but to delegate that discretionary power to a military officer, and to leave it to him to determine whether he will or will not obey judicial process that may be served upon him.

 

No official notice has been given to the courts of justice, or to the public, by proclamation or otherwise, that the President claimed this power, and had exercised it in the manner stated in the return. And I certainly listened to it with some surprise, for I had supposed it to be one of those points of constitutional law upon which there is no difference of opinion, and that it was admitted on all hands that the privilege of the writ could not be suspended except by act of Congress.

 

...And these great and fundamental laws, which Congress itself could not suspend, have been disregarded and suspended, like the writ of habeas corpus, by a military order, supported by force of arms. Such is the case now before me; and I can only say that if the authority which the Constitution has confided to the judiciary department and judicial officers may thus upon any pretext or under any circumstances be usurped by the military power at its discretion, the people of the United States are no longer living under a Government of laws, but every citizen holds life, liberty, and property at the will and pleasure of the army officer in whose military district he may happen to be found.

 

...I shall, therefore, order all the proceedings in this case, with my opinion, to be filed and recorded in the Circuit Court of the United States for the District of Maryland, and direct the clerk to transmit a copy, under seal, to the President of the United States. It will then remain for that high officer, in fulfilment of his constitutional obligation to “take care that the laws be faithfully executed,” to determine what measures he will take to cause the civil process of the United States to be respected and enforced.

 

 

Document D: excerpt of letter from Abraham Lincoln to Erastus Corning and Others, June 12, 1863.  Retrieved from the House Divided Project at Dickinson College.

 

...Ours is a case of Rebellion---so called by the resolutions before me---in fact, a clear, flagrant, and gigantic case of Rebellion; and the provision of the constitution that ``The previlege of the writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion, the public Safety may require it'' is the provision which specially applies to our present case. ...Habeas Corpus, does not discharge men who are proved to be guilty of defined crime; and its suspension is allowed by the constitution on purpose that, men may be arrested and held, who can not be proved to be guilty of defined crime, ``when, in cases of Rebellion or Invasion the public Safety may require it.'' This is precisely our present case---a case of Rebellion, wherein the public Safety does require the suspension.

 

...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 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 was warring upon the military; and this gave the military constitutional jurisdiction to lay hands upon him.

 

...Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wiley agitator who induces him to desert? This is none the less injurious when effected by getting a father, or brother, or friend, into a public meeting, and there working upon his feeling, till he is persuaded to write the soldier boy, that he is fighting in a bad cause, for a wicked administration of a contemptable government, too weak to arrestand punish him if he shall desert. 

 

 

Document E: excerpt of letter from David Davis to Abraham Lincoln, July 4, 1864 retrieved from Peter Barry's article "'I'll keep them in prison awhile...' Abrhaham Lincoln and David Davis on Civil Liberties in Wartime." written in The Journal of the Abraham Lincoln Association.

 

 

...No offense after the fullest investigation could be fastened on several of the persons who were in the custody of Col. Oakes. The affair at Charleston as I understand it was a big riot to be punished by State authority. It was undoubtedly brought about [by] bad men who were inimical to the Govt & who especially wished to wreak their vengeance against those serving in the Army. Unhappily many persons were killed. The guilty should be punished. Both certainty and severity of punishment are demanded, where can it be measured out if I understand the case a right only in a state court. These prisoners violated no law of the United States and resisted no authority of the Govt. No draft was being enforced and the country was not in the process of enrollment. There was no attempt to arrest a deserter. The soldiers (furloughed I believe) were at home & in town & a fight was brought on purposely by bad men who were not in the military service to kill & murder. How can they be tried by military law. They violated no military law.

 

...But even if they had violated a law of the United States, it was the duty of the govt. after they were arrested to have had them prosecuted at the first term of the court. Court adjourned and no proceeding was had against them & as far as the United States were concerned, they were entitled to their discharge. The Secretary of War furnished no list of the prisoners to the judges which should have been done, and the Grand Jury adjourned. The letter as well as the spirit of the law of Congress required that these men should be discharged after the adjournment of the Grand Jury. Unless held as prisoners of war, to keep them longer would be oppression and would not harmonize with the obvious purpose and intention of the act of Congress. It was the intention of the court (if the prisoners have been brought before us) to have delivered over those who were indicted by the Grand Jury of Coles Co. to the sheriff of that county and to have discharged the others under the conditions imposed by law.

 

 

 

 

Document F: excerpt from ex. Parte Milligan, April 3 1866 retrieved from Cornell University Law School

 

...Military commissions organized during the late civil war, in a State not invaded and not engaged in rebellion, in which the Federal courts were open, and in the proper and unobstructed exercise of their judicial functions, had no jurisdiction to try, convict, or sentence for any criminal offence, a citizen who was neither a resident of a rebellious State nor a prisoner of war, nor a person in the military or naval service. And Congress could not invest them with any such power.

 

...Neither the President nor Congress nor the Judiciary can disturb any one of the safeguards of civil liberty incorporated into the Constitution except so far as the right is given to suspend in certain cases the privilege of the writ of habeas corpus.

 

...A citizen not connected with the military service and a resident in a State where the courts are open and in the proper exercise or their jurisdiction cannot, even when the privilege of the writ of habeas corpus is suspended, be tried, convicted, or sentenced otherwise than by the ordinary courts of law.

 

...It is difficult to see how the safety for the country required martial law in Indiana. If any of her citizens were plotting treason, the power of arrest could secure them until the government was prepared for their trial, when the courts were open and ready to try them. It was as easy to protect witnesses before a civil as a military tribunal, and as there could be no wish to convict except on sufficient legal evidence, surely an ordained and establish court was better able to judge of this than a military tribunal composed of gentlemen not trained to the profession of the law.