NORTHERN DRAFT of 1862

The Conscription Act that passed Congress on March 3, 1863, is often cited as "the first draft in the North" or words to that effect. Drafting in the North, under this act, began more than a year after the Confederate conscription act, which was approved April 16, 1862. This has been cited as evidence of different abilities or enthusiasm on the two sides in the Civil War. But this ignores the fact that the drive to draft in the North began less than three months after the Confederate conscription act, that in at least five states in the North an extensive draft took place in the fall of 1862, and that all the Northern volunteers in that season signed up under threat of being drafted. The mistake by non-historians is easy to understand when popular reference books on the war contain misleading or mistaken passages like this one, from "The Civil War Dictionary" [N.Y., 1959, reprint 1988]: "DRAFT RIOTS - On Aug. '62 the President called on the states for 300,000 militia to serve nine months and ordered the governors to draft from the militia if the quota could not be filled by volunteers. This precipitated riots in Wis., Ind., and threats of riots in Pa. Stanton then postponed the draft."[1] Or this one, from "Historical Times Illustrated Encyclopedia of the Civil War" [1986]: "DRAFT RIOTS - Draft riots broke out in response to the Union's first national conscription act, passed 3 Mar. 1863. Prior to that law the North had obtained its troops from volunteers and state militia called into Federal service."[2] The Northern 1862 draft was an attempt to let the states handle their own conscriptions, based on the antiquated militia system. It taught the federal government much about drafting American men into the army, and it was in some ways a dress rehearsal for the large-scale draft of the following year, complete with organized resistance, lucrative bounties, and hired "substitutes" who were the bane of enlistment officers. Most importantly at the time, it was a spur to volunteerism in crucial months when enthusiasm in the North was at an ebb. And for tens of thousands of men who were drafted, and for their families, it was a life-changing event. The Northern government entered 1862 with a foolish expectation of impending victory. In December 1861, then-Secretary of War Simon Cameron had instructed the Northern governors not to send any more regiments unless they were called for. His successor, Edwin Stanton, sent out a telegraph on April 3, 1862, ordering the federal recruiting offices closed [General Order 33]. Historians have puzzled over the motive for this, sometimes crediting it to a desire to save money. Others feel it was only intended as a temporary measure, but the communication does not support this reading. It ordered recruiting officers to sell off their furniture and return to their regiments. The troops in the undermanned regiments in the field grumbled and newspapers criticized the confusion. It seems that Stanton, like many in Lincoln's government, thought the war was about to be won, and the North would require only a few more men to finish it. On May 1, Stanton directed the army commanders to requisition troops through the states; and on May 19 he asked the governors to begin raising a few new infantry regiments.[3] On May 27, after some vacillation, he directed that only three-year men would be accepted, but indicated they would probably serve less time than that because the war would be over within a year. In the late spring of 1862, however, the leadership in Washington began to understand the gravity of the army's situation in Virginia. The closing of the recruiting offices was formally rescinded on June 6, and on June 18, Adjutant-Gen. Lorenzo Thomas wired all the state governors in the North: "We are in pressing need of troops. How many can you forward immediately?" The answer can't have been encouraging. New Hampshire's Gov. Nathaniel S. Berry replied June 19 that "our Ninth Regiment is now recruiting. The field, staff, and a portion of the line officers are appointed. Every exertion is made and inducement offered to forward enlistments; still, owing to the season of the year, recruiting progresses much slower than heretofore." Berry thought it would be another 30 or 40 days till this regiment could be sent. Pennsylvania Gov. Andrew Curtin wired back on June 18: "In view of the approaching harvest and the consequent difficulty attending the recruiting service, it has been considered better to confine our efforts to filling up the old than to attempt to recruit new regiments."[4] Vermont said it was recruiting one regiment, but it wasn't yet ready. Iowa said it had one in process, but would require another 40 days at least. Illinois replied it had a regiment on the way and might manage another one, in three months or so. Ohio's governor thought he could have three regiments ready by Aug. 1, and two more by Sept. 1. Connecticut said it could round up 2,000 or 3,000 men for three months. New York, Minnesota, Wisconsin, and Missouri said they had no troops available. Gov. O.P. Morton of Indiana wired the War Department an extensive reply on June 25: "The five regiments called for from this State for service during the war are progressing very slowly. I have just issued a special proclamation with reference to them and hope to succeed in getting them up during the summer, but the difficulties from the causes mentioned are greatly increased." Those "causes mentioned" included "newspapers of extremely doubtful loyalty" and "a secret political organization in Indiana, estimated and claimed to be 10,000 strong," which had as a leading objective, "to embarrass all efforts to recruit men for the military service of the United States." Lincoln and his cabinet had realized they would need more volunteers -- many more volunteers. The trick was to call them up and yet avoid the appearance of acknowledging defeat outside Richmond. Secretary of State William Seward provided the answer. He went home to New York, drew up an appeal to the President to call up fresh troops to finish the war, and sent it by telegraph to all the Northern governors, asking their permission to attach their names to it as petitioners. Most of them replied, more or less approving of the sentiments in the appeal, and Seward promptly attached their names to the appeal, back-dated it from June 30 to June 28, and presented it to the President. "The recent victories (real or fancied) were mentioned, and the men were asked for, not to retrieve disaster but to hasten to a speedy conclusion a victory already in immediate prospect."[5] The next day, Lincoln wrote to the governors, "Fully concurring in the wisdom of the views expressed to me in so patriotic a manner by you in the communication of the 28th day of June, I have decided to call into the service an additional force of 300,000 men. I suggest and recommend that the troops should be chiefly of infantry. The quota of your State would be ______." The formal call for fresh troops was made July 2. The quotas were sent out July 7.  They can be seen, broken down by states, here.  But the call to arms in the North was greeted with nothing like the enthusiasm of 1861. The governors, into whose laps this recruiting drive had fallen, knew they faced a steep road in getting men into the ranks for three years now that the public knew the realities of war. They urged Lincoln to call up troops for shorter terms, in keeping with Washington's "victory is imminent" tone. "Recruiting for three years is terribly hard," Gov. Israel Washburn of Maine telegraphed the White House in the wake of this announcement. "Shall be obliged to resort to drafting unless I can be authorized to take volunteers for three or six months." Gov. Samuel Kirkwood of Iowa, like all the loyal governors, thundered mightily in public to whip up enthusiasm and urge recruiting down to the last man: "Our old men and our boys, unfit for war, if need be, our women must help to gather harvests," and so forth. But privately he wrote to Lincoln and suggested three-month enlistments would be better; Gov. Curtin of Pennsylvania argued in favor of six months, while Adj.-Gen. John W. Finnell of Kentucky requested that he be allowed to raise a portion of his men for 12 months. The administration made one important concession to the governors, though it had to be strong-armed into it. On June 30, Seward wired Stanton from New York, "Will you authorize me to promise an advance to recruits of $25 of the $100 bounty? It is thought here and in Massachusetts that without such payment recruiting will be very difficult, and with it probably entirely successful." Massachusetts was the arm-twister in this case. In late May 1862, Gov. John Andrew had begun an effort to force a change in federal policy by allowing advance payment of bounties. Stanton rejected him, so Andrew turned to Henry Wilson, his junior senator, who was chair of the Senate Committee on Military Affairs and the Militia in the 37th and 38th Congresses. On June 21, Wilson secured congressional approval of the practice of advance payment of bounties. Andrew held out from the governors' call for troops until he got Stanton to approve what Congress had authorized: advance payment of $25 of the $100 federal bounty. This was the cause of Seward's frantic telegram. Stanton replied that this was a "judicious" plan, and that he would see to it that the necessary legal changes were made to allow this, which was done, and the advance was ordered on July 1. Andrew was responsible for other changes in government policy; on July 21, Stanton answered a request from Andrew, "you are authorized to say that new recruits for old regiments will be mustered [out] with the regiment." In other words, the "three year" volunteers might only end up serving two years. The offer was soon extended to the other states. Massachusetts, wealthy and well-organized, could affort to play the quota game. Other states could not. Morton, the Indiana governor, in a "confidential" July 9 letter to Lincoln (also signed by Indiana's state officers), strongly suggested the administration consider a draft. "The undersigned would urge upon you the vital importance of procuring the passage of a law by Congress by which men can be drafted into the Army. If Congress shall adjourn without doing this you will doubtless have to call them together for the purpose. We send you this as the result of our conclusions from what we know of the condition of the Northwest." On July 14, Gov. E.D. Morgan of New York also wrote to the administration, expressing the same sentiment. "Congress should not adjourn without providing by law, if it has the power to do it, for filling up the volunteer regiments in the field and those now organizing by a draft." "It was now recognized that the previous year's enlistment of 700,000 represented the full, hard core of patriotic citizenry," one historian has written.[6] This was recognized in the camp tents, as well as in the White House. The volunteers of '61 were jaded to army life and resentful of the incompetence of their generals. By the end of July, they could add to their list of gripes bitter feelings toward those still at home. Maj. Octavius Bull in the 53rd Pa. Infantry Regiment wrote home to his brother on Aug. 1, 1862. The letter is more eloquent and witty than most, but the sentiment is that of hundreds of letters and diaries from the Army of the Potomac in those months: "What has become of the much vaunted bravery and stubborn will of the 'Northern Freemen' which we were wont to hear during every political campaign? How is it that, beside the bounty of $100 given by the U.S., the state must add half as much more? And then how very rapidly recruiting progresses -- truly 'Northern Freemen' do love their country! Yes, so much that no inducement except positive force can get them over state lines! Oh, what patriotism. Ain't you proud of your birthright? "We can never conquer the South in this way, don't you begin to realize it? How now about the war being over in three months? But I'm sick of this subject. We've been here, begging for reinforcements from a population of twenty millions, and have received two brigades, the aggregate of which is probably three thousand men, not more."[7] Those close to the Northern war effort had awakened to reality by the start of summer. On July 8, Seward wrote privately that he feared a draft would be necessary, but he cautioned that "we ... first prove that it is so, by trying the old way." [8] Federal Militia Act of 1862 A draft of men into the military ran counter to the deeply held conviction that conscription was tyrannical and that volunteer armies were the only defense needed by a democracy. Individual colonies had drafted men during the Revolution, and a national draft had been seriously considered in the last year of the War of 1812, but the suggestion had been attacked as "Napoleonic" and despotic, and the plan was dropped. At the beginning of the Civil War, the Unionist governor of Missouri had threatened on Aug. 24, 1861, to draft men to put down insurrection in his state, but this, too had proved unnecessary. This left the Confederate government to enact America's first large-scale draft. President Jefferson Davis approved its conscription law on April 16, 1862, making all healthy white men between 18 and 35 liable for three years of military service. The significance of this new development began to sink in in the North about the same time as the losses on the peninsula hit home. When the second session of the 37th Congress met, it quickly took up the issue of conscription in a bid to match what the Confederacy had done. The legislation was the work of Wilson, the Massachusetts senator. His law served Seward's purpose of "trying the old way." Wilson had been active in the Massachusetts militia, and he probably had a natural inclination to believe in the volunteer system. But he also worked under pressure from his governor. Unlike most other governors (especially those in the Midwest), Andrew of Massachusetts wanted to keep control of the recruiting system on the state level. His was the most industrialized state in the Union, which meant both that it had business interests to protect (in the form of making sure of an available pool of labor) and ample capital for bounties. Andrew had already endorsed schemes to send agents to other states to recruit men to fight for Massachusetts (which paid better), and even to Europe. The Bay State's reputation for patriotism had taken a serious hit, but Massachusetts had exceeded its enlistment quotas so far. On July 8, 1862, Wilson reported Senate Bill 384, which set up a procedure for a national draft. The bill was revised and discussed for three days, and he came back with a new version, S 394, that incorporated many of the changes that had been approved. After two more days of intense debate and further modification, it passed on July 15 and was sent to the House of Representatives, which approved it with little difficulty the next day. This was the Federal Militia Act of 1862 (officially, the Senate bill was titled "An Act to Amend the Act Calling Forth the Militia to Execute the Laws of the Union, Suppress Insurrections, and Repel Invasions, Approved February 28, 1795, and the Acts Amendatory Thereof"). The bill was signed by Lincoln on July 17. It defined militias according to the traditional usage -- all able-bodied men between 18 and 45 -- and it authorized the call-ups to be apportioned among the states, with quotas proportional to population. The principal change was that it authorized the President to call up state militias into national service for no more than nine months, which was three times the previous limit. Presidents had had this power, in certain circumstances, since the original 1792 Militia Act. (Originally, Wilson's act had granted the president power to make indefinite call-ups; he restricted it to nine months when he rewrote the bill, out of deference to some conservative Republicans.) It also gave the federal government authority to directly intervene in the process. A provision of the act reads, "If by reason of defects in existing laws, or in the execution of them in the several States, or any of them, it shall be found necessary to provide for enrolling the militia and otherwise putting this act into execution, the President is authorized in such cases to make all necessary rules and regulations." This clause, with its broad wording, opened the door and perhaps gave the federal government direct authority to order to draft men without regard for the states. These "state militias" existed in theory, but in reality there was no such thing in most places. The mandatory musters to drill were an 18th century relic, and they had been allowed to die out in many states. Delaware began repealing fines for failure to drill in 1816. Massachusetts abolished all compulsory service in 1840, and in the next decade six other Northern states followed suit. Indiana had made no head-count of its militia since 1832. Lincoln would have known this. In a speech in Springfield in 1852, he recalled how the Illinois militia trainings had been "laughed to death." At the head of the annual muster, "on horseback, figured our old friend Gordon Abrams, with a pine wood sword, about nine feet long, and a paste-board cocked hat, from front to rear about the length of an ox yoke, and very much the shape of one turned bottom-upwards; and with spurs having rowels as large as the bottom of a teacup, and shanks a foot and a half long." Among the rules and regulations adopted by Lincoln's militia were: "no man is to wear more than five pounds of cod-fish for epaulets, or more than thirty yards of bologna sausages for a sash; and no two men are to dress alike, and if any two should dress alike the one that dresses most alike is to be fined." Very little of the Senate debate dealt with the militia or the draft. Wilson was a radical, and much of the Militia Act deals with steps toward emancipation that had already been included in the Second Confiscation Act. But Lincoln was threatening to veto that act, so to protect the key provisions the radicals folded them into a conscription bill they knew Lincoln would have to approve. The bill breezed through the House in part because the Senate conservatives had already done their best to water down the emancipation aspects, and their House colleagues evidently felt no further effort was warranted. The first order for a draft seems to have gone out on July 26, when Stanton wired Gov. Kirkwood of Iowa: SIR: By order of the President of the United States you are authorized and directed to make a draft of militia of the state of Iowa to fill up the quota of volunteers called for by the President, or as much thereof as by reason of the deficiency of the volunteers or other cause you may deem proper. On Aug. 2, Kirkwood replied, "In the absence of State law, is there any law of Congress regulating drafting? If so, send instructions. We have no sufficient law for drafting in this State. Am satisfied a draft must be made to fill up the old regiments." This one-state order seems to have been swallowed up into what followed. The government put the militia draft to use in short order. It is possible that the impetus for its use came from Pennsylvania's Gov. Curtin, who of his own accord solved the difficulty of getting men to enlist under the July 2 call by offering to take some regiments for less than three years. The government never said he could do this, but it had never said he couldn't. Illinois then also began raising nine-month troops. Indiana's Morton complained to the War Department [July 25] that this was making recruiting in Indiana still more difficult, "as it is now said enlistments should be alike." Stanton wrote him back [July 26] that, "Governor Curtin's call for nine and twelve months' men was not authorized by the Department, and is sanctioned only from the necessity occasioned by his premature action, and efforts are being made to correct it in Pennsylvania, which, I think, will succeed." It is possible that the solution hit upon was a general call-up of more men, under the new militia law. On Aug. 4, Lincoln called up 300,000 men for nine months service, on top of the 300,000 he had already requested in July for three years. The militia call-up was General Order No. 94: Ordered: I. That a draft of 300,000 militia be immediately called into the service of the United States, to serve for nine months unless sooner discharged. The Secretary of War will assign the quotas to the States and establish regulations for the draft. II. That if any state shall not by the 15th of August furnish its quota of the additional 300,000 volunteers authorized by law, the deficiency of volunteers in that State will also be made up by special draft from the militia. The Secretary of War will establish regulations for this purpose. Some confusion about this draft may spring from the fact that both the entire call-up of 300,000 militia, and the subsequent filling of the deficiency in that call-up by conscription, are called a "draft." This was not something that had been done in the lifetime of any of the men in the government, and their terminology was not always clear. Yet Lincoln unambiguously writes of "drafting," in reference to the filling of the quotas by conscription, in many places [e.g. letter to George P. Fisher, Sept. 16, 1862; telegram to McClellan, Oct. 27, 1862, etc.] Like the earlier call, this one was apportioned among the states relative to their populations. But this time, the government said it would draft men into service from any state that did not meet its quota. Specifying that the call-up would be for nine months, and calling the troops "militia," gave it the power to do so. The War Department order gave each state until Aug. 15 -- a mere two weeks -- to meet its quota or face a draft. Indiana's quota was about 21,000; little Rhode Island's was less than 3,000. New York's quota of almost 60,000 men was the highest. Wisconsin's was just under 12,000. The governor there pleaded for more time, since it was an agricultural state and the fall harvest was approaching, but the War Department only gave him another week, until Aug. 22. On Aug. 9, the Secretary of War issued General Order 99, detailing how the conscription should be handled. It directed the governors to enroll all able-bodied men age 18 to 45, and the wheels of the draft began to turn. The process passed down the line, from federal government to states to counties to the smallest unit of local municipality. The legwork was done by the county assessors, the men who usually collected tax data. They copied the names of each eligible man into record books, noting those already in service, and any obvious physical disabilities. The Pennsylvania enrollment officer in one township evidently hadn't appreciated the random nature of the draft, or else couldn't resist adding editorial comments on some of the men he registered -- "Ran and hid, refused to give age;" "Ought to be taken. Bad influence at home or he would volunteer," "Not healthy ('So they say')," "claims weak eyes," "Saucy & loafing about at home," "Make a first-rate soldier, not worth much for anything else," and so forth. The assessors filed their reports with the county sheriff, and the governor then appointed a commissioner and a surgeon for each county; the first to superintend the draft, the second to rule on claims of exemption for physical or mental disability. Exemptions also were allowed for men already serving in the military, telegraph operators, railroad engineers, judges, government employees, school directors and ferrymen on post roads. A day before, on Aug. 8, the War Department had ordered the arrest of anyone liable for draft who fled his county or state, and suspended habeas corpus in such cases. The act was put into effect that day in Baltimore, where several men were arrested trying to escape the city. This rule remained in effect until Sept. 8, when the War Department wrote, "The quota of volunteers and enrolment of militia having been completed in the several States, the necessity for stringent enforcement of the orders of the War Department in respect to volunteering and drafting no longer exists." Arrests were thereafter to be made only by express warrant, and the travel restriction was lifted. Several cases of self-mutilation -- cutting off fingers or knocking out teeth -- to avoid the draft were reported Aug. 16 by the examining surgeon for the 11th senatorial district, in Danbury, Ct. Meanwhile, on Aug. 9, in spite of the travel restrictions, the Detroit "Free Press" reported an "exodus" through the city, of hundreds of men from the region fleeing to Canada "like cravens to escape the draft." On Aug. 7, Gov. Richard Yates of Ill. wrote to Stanton, "Since the order for drafting[,] large numbers of citizens are leaving this city [Chicago] to escape the draft, and it is strongly urged upon me to ask you for authority to declare martial law again." On Aug. 8, the acting military commandant in Rochester, N.Y., reported to the War Department that "many men are leaving for Canada," and asked if he had authority to arrest them. The enrollments met organized resistance, especially among the foreign-born populations of Wisconsin, Pennsylvania, and Maryland. The assessors were threatened and in some cases attacked (a woman in the Irish ghetto in Phoenixville, Pa., dumped scalding water on one who came to enroll her sons). The resistance was widespread, and the administration used it as a pretext for a crack-down on civil liberties. On Sept. 24, Lincoln issued his proclamation suspending the writ of habeas corpus nationwide. The resistance to draft enrollments were the direct cause of it, cited in the preamble: "Whereas, it has become necessary to call into service not only volunteers but also portions of the militias 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 ...." The proclamation also made "resisting militia drafts" a crime subject to court martial. Under this order, some 13,535 citizens would ultimately be arrested and confined in military prisons, not counting those imprisoned under authority of the State and Navy departments, and under state and local authorities. Yet it likely had little practical effect for the North's war effort, and it generated a high level of bitterness that was exploited by the opponents of the administration. The real purpose "It became quickly apparent that the draft was not intended as the primary source of man power," wrote a historian of the Union army. "Rather it was merely a whip to encourage volunteers."[9] That this had been the plan all along is suggested by Lincoln's July 22 letter to Stanton, in which he gave the Secretary of War the green light to set the process in motion: I think it will be better to do nothing now which can be construed into a demand for troops in addition to the three hundred thousand for which we have recently called. We do not need more, nor, indeed, so many, if we could have the smaller number very soon. It is an important consideration, too, that one recruited into an old regiment is nearly or quite equal in value to two in a new one. We can scarcely afford to forego any plan within our power which may facilitate the filling of the old regiments with recruits. If, on consideration, you are of the opinion that this object can be advanced by causing the militia of the several States to be enrolled, and by drafts therefrom, you are at liberty to take the proper steps to do so, provided that any number of recruits so obtained from any state within the next three months shall, if practicable, be an abatement of the quota of volunteers from such State under the recent call.[10] The imminent threat of the draft swelled the recruiting, and the fresh blue-clad ranks began to flow toward the front: the 110th N.Y. infantry departed for the capital on Aug. 13, the 122nd and 129th Pennsylvania arrived in Washington on Aug. 16; the 18th Connecticut rode through New York City on Aug. 23; the 11th N.J. regiment departed the state Aug. 25; the 36th Massachusetts left Worcester on Sept. 3, and so on. "Thousands of our people are now offering themselves under the last call, and are demanding they shall not be drafted," Adjt.-Gen. Allen C. Fuller of Illinois wrote to Stanton on Aug. 7. Finnell, the military governor of Kentucky, was delighted. "Enlistments are greatly facilitated by the draft," he wrote to the War Department on Aug. 7. The next day he wrote, "The draft was what was wanted here. The Legislature will endorse it next week. It will drive the scoundrels to fight, pay their money, or leave the State." Later the same day he wrote another letter to the War Department, boasting of the draft that, "The mere announcement of its coming has had a most happy influence upon our rebel rascals. They no longer stand in the way of recruiting, but are becoming my most anxious, active, and useful aids. At all events, let there be no whisper that Kentucky will be excluded from the draft until I have had a chance to fill the quota of Kentucky." In Chester County, Pennsylvania, in the month between the President's July 2 call and the draft alert in August, about 90 men had enlisted in three-year regiments, barely one-twentieth the number that answered the call in a few days in the spring of 1861. Significantly, about a third of them had crossed state lines to join the 4th Delaware Infantry, which was seen as likely to be a home-guard regiment. After the draft threat came, some 715 men quickly enlisted in nine-month companies. "Come in out of the draft" the banners blared over the recruiting offices. Another 171 joined new or existing regiments. Exact dates are difficult to pin down, but it is likely that most of the men who mustered in under Lincoln's July 2 call for three-year men did so with the draft looming. They also did so under a suddenly lucrative system of state and local government bounties that paid an average of $100 to coax men into new volunteer companies. On Aug. 19, the Board of Supervisors of Rensselaer County, N.Y., appropriated $75,000 for bounties. It was one of hundreds of counties across the North to do so in those months, to fend off the draft in their precincts. As of Aug. 19, Philadelphia city council had voted $500,000 plus another $400,000 had been raised in the city by voluntary subscription. In the hinterland, Lancaster County had voted $50,000 for bonuses; Berks, Northampton, and Chester counties $30,000 each; and Bucks and Montgomery counties $25,000 each. Bounties often were raised by local taxation, or by bonds that would have to be paid in future years from tax revenue. The Pennsylvania Railroad, a labor-intensive operation that stood to lose many workers to a draft, donated $50,000 to the state for bonuses. The draft made full deference to local feelings and gave control to the states. With no coercive force in the draft act, the states having the greatest difficulty meeting their quotas dragged their feet as much as possible. And the Secretary of War generally granted the governors' special requests, such as Edwin D. Morgan of New York's desire that volunteers into the old regiments be counted against the draft of militiamen. Albany, N.Y., shipped off a regiment in August (113rd N.Y., the "Albany Regiment"), but some pockets of the county still hadn't fulfilled their quotas, and the efforts shifted to filling up old regiments such as the 44th N.Y. ("Ellsworth Regiment"). Now it was each ward for itself, trying to boost its number of volunteers above that magic figure and avoid "the ignominy of a draft," as the Albany "Journal" termed it. The Ninth Ward recruited for the 61st N.Y., the Fifth, Sixth and Tenth Wards raised troops for the 43rd N.Y., while the Eighth Ward, a local newspaper reported, was recruiting a company for "some old regiment." Another Albany newspaper reported that, "Capt. E.B. Knox is recruiting for the Gallant Forty-fourth (Ellsworth) Regiment, in which all our citizens feel so deep an interest. He has three stations -- No. 2 Green street, No. 65 State street and at the Steamboat Square. At all of these places the recruit will receive a bounty of TWENTY-FIVE DOLLARS, in addition to the General and State Governmental Bounties. More liberal inducements will not be offered." The "Journal," reporting under the headline "RECRUITING IS NOT LIVELY," put this question to young men: "will you volunteer and receive all the bounties, or wait to be drafted and receive nothing?" At the end of August, recruiting offices there took the unusual step of remaining open on Sundays, and the city's clergy left their pulpits to deliver "patriotic addresses" among the recruiters' tents on State Street. Across the North, exemptions were informally extended to powder mill workers and railroad workers, and explicit orders from the government later exempted physicians and even clergymen. Since the states controlled the process, they granted further exemptions. Men who were the only sons of widows, the sons of aged and infirm parents, or widowers with dependent children were exempt in Pennsylvania. New York and Pennsylvania allowed conscientious objector status for certain religious groups (Quakers, Shakers, Mennonites). So did Ohio, but only in exchange for a fee of $200 per man, which brought the state $50,000 in October. New York also exempted "idiots, lunatics, infamous criminals, habitual drunkards, and paupers." [The Confederate draft law had much broader exemptions than the Northern one, including railroad and river workers, civil officials, telegraph operators, miners, druggists and teachers.] The War Department had originally set the draft for Sept. 3, to be held from 9 a.m. to 5 p.m., or until the quotas were filled (no quotas were set for California and Oregon). The War Department gave up all chance of a speedy conscription when it allowed the governors to take responsibility for the drafts in their states. They used their authority to postpone the dreaded day two and three times. In Ohio, the governor postponed the draft to Oct. 1. On Sept. 29, the governor of Maryland postponed the draft there until Oct. 15. Massachusetts put off its draft until Dec. 8, and Iowa put it off until January 1863. Minnesota postponed its draft to deal with a serious Sioux uprising. Lincoln wired the governor his approval on Sept. 27: "Attend to the Indians. If the draft cannot proceed, of course it will not proceed." As if the governors didn't have enough to do, the South's first major invasion of the North got underway in the midst of the draft enrollment. After battering the Army of the Potomac in the Second Bull Run battle, Lee's troops crossed into western Maryland and headed north. A second Rebel army launched an offensive into Kentucky, headed toward Ohio. The panic hit Harrisburg, Pennsylvania's capital, on Sept. 7, with rumors that women, children and state archives were about to be sent out of the city for safety. It was fueled by the arrival of the Hagerstown train, which brought news of the Rebel occupation of Frederick, Md. The alarm spread to surrounding counties in the next day or two. The "Valley Spirit" newspaper of Sept. 10, 1862, tried to turn the invasion into an enlistment appeal in an article headlined "To the Rescue--Freemen of Franklin County." "The darkest hour of our Country's history is upon us. Gen. Pope's army in Virginia, after the most terrific fighting, has fallen back to the fortifications around Washington, and the Nation's Capital is again threatened by an insolent foe. The invading hosts of the enemy have pressed the soil of Maryland, and our own beautiful valley may at any hour become the victim of a similar invasion. Citizens of Franklin county, the enemy is at the very threshold of your homes, your altars and your firesides. Will you not instantly respond to the call of your Government in this the day of your country's peril? Let not the wisest, the best, and most glorious Government ever devised by the wisdom of man, be despoiled and overthrown by armed traitors, when you have the power to prevent it. Let it not be said that the Government failed to enforce its authority and punish rebellion by inaction on our part. Come one, come all, who are able to bear arms, and enrol [sic] your names in some one or other of the companies that are now forming in different parts of the county, and thus show that the patriotism of Franklin county is equal to any emergency. The draft has been postponed until the 20th, which affords another opportunity for Franklin county, to fill her quota of men by voluntary enlis[t]ments." However, in spite of this and similar appeals, the invasion probably slowed enlistments in the state. On Sept. 11, Gov. Curtin had called for 50,000 "emergency militia" men to defend Pennsylvania. He got a swift response: 25 regiments and four unattached companies of infantry, 14 companies of cavalry, and four battalions of artillery. The invasion had been turned back at Antietam by the time they gathered, however, and he dismissed these men on Sept. 24. These "emergency militias" were state units, recruited to defend the state, never mustered into federal service and never meant to be. The prompt filling of this many outfits probably suggests the reservoir of "state line" feeling in Pennsylvania, where a great many were willing to defend the commonwealth, or even the North, but not to cross into the South to wage war. In a similar situation during the Gettysburg crisis the next year, when some regiments of Pennsylvania emergency militia were ordered to take up position just across the border in Maryland a number refused to do so. They were discharged and sent home. Curtin then delayed the draft in Pennsylvania yet again, to allow the emergency men time to register for exemptions, since they had been away from their homes -- in military service -- during the week when men were supposed to be pleading why they were unfit for military service. A draft at last The county sheriffs were in charge of the actual drafting. The procedure was the same one used for picking jurors in that county; with names of each eligible man written on a folded slip of paper, and the necessary number picked from a box or a rotating drum called a "jury wheel." This was to be done by a man in a blindfold who had been named in advance by the county's draft commissioner. Several states began drafting in mid-September. The Ohio draft was underway by Oct. 5, when Gov. David Tod wrote to Stanton informing him of its progress. Indiana drafted on Oct. 6, and violence erupted immediately in Blackford County, especially the Trenton area, which was a notorious Copperhead haven. The rioters there destroyed the enrollment lists and the draft ballot box. It required 300 infantry to quell the disturbance. On Oct. 15, in Maryland, 40 men were chosen to fill Baltimore's quota. The draft commenced Oct. 15 in Boston, but two days later the Common Council of Boston voted to raise the volunteer bounty to $200, so drafting there ceased for the time being. Massachusetts delayed until December. On Oct. 16, the draft began in every county in Pennsylvania except Philadelphia. The nation's most serious resistance to conscription broke out Oct. 17, in Berkley, Luzerne County, where the military fired on a mob of rioters and killed 4 or 5 of them. Resistance also flared in Carbondale, Scranton, and other regions in the coal country, mostly among the Irish. Gov. Curtin wrote to Secretary of War Stanton on Oct. 22: "The draft is being resisted in several counties of the State. In Schuylkill County I am just informed that 1,000 armed men are assembled, and will not suffer the train to move with the drafted men to this place. I wish ample authority to use my troops in the State, and particularly the regulars and Anderson Cavalry at Carlisle, to crush this effort instantly. We will thus enforce the law, and effectually, if successful, prevent the like occurring in other parts of the State." Stanton wrote back, authorizing Curtin to use "the regular force, the Anderson Cavalry, and any other military force in your State to enforce the militia draft, and also to call upon Major-General Wool, the commanding general of the Middle Department, for aid, if you desire it." "Notwithstanding the usual exaggerations, I think the organization to resist the draft in Schuylkill, Luzerne, and Carbon Counties is very formidable," Curtin telegraphed Stanton the next day. "There are several thousands in arms, and the people who will not join have been driven from the county. They will not permit the drafted men, who are willing, to leave, and yesterday forced them to get out of the cars. I wish to crush the resistance so effectually that the like will not occur again." He asked for a regiment of regular troops, but Stanton replied that none was available. In the end, feeble enforcement of the draft laws cooled the riots. Lincoln informed the state authorities by confidential messenger, "I am very desirous to have the laws fully executed, but it might be well, in an extreme emergency, to be content with the appearance of executing the laws." On Oct. 25, Curtin telegraphed Stanton that "[t]he riots in Schuylkill County have ceased for the present." He also expressed a note of frustration that the state had been left to deal with the entire set of problems created by the draft, without a force or authority sufficient to do so: I beg to observe that this enrollment and draft have been made under the authority of and directly by the United States. I originally suggested, therefore, that they should be conducted by officers of the United States, but that suggestion not being adopted, I have acted for the United States in superintending the enrollment and the drawing of names for the quota. The next step contemplated by the regulations is the appointment of provost-marshals to enforce the attendance of the drafted men. I have not nominated persons to fill this office, because I do not perceive that officers of that kind are necessary. By the act of 29th of June, 1861, penalties are provided for drafted men who shall not obey the orders of the President, but there is no act authorizing them to be forcibly impressed. I would advise that a regulation be made directing that the courts-martial shall be immediately held on all recusants. These courts must be ordered by the President. In this mode I think you would get the men more easily than by the use of force. Men unwilling to go, and unable to pay the probable fine, will serve in the army on pay [in preference] to being shut up in prison without pay. Those who are able to pay the fine will prefer using the money in procuring substitutes. The same limit of the fine will probably regulate the price of substitutes. I respectfully submit these matters for your consideration. [A more complete text of the correspondence concerning the draft resistance in Pennsylvania can be found here.]  Curtin was correct in pointing out the lack of coercive force to get drafted men into the rendezvous camps. The adjutant general of Pennsylvania wrote to the War Department on Nov. 3, "Of the draft in this state about one-fourth have not been delivered, and the State is powerless to deliver them. An energetic provost-martial will be necessary to seize them." There was another problem, the adjutant general added: "Of those delivered a very large number were not examined by a medical officer for the want, as it is alleged, of time before the date set for the delivery; consequently very many are totally unfit for the service. To prevent such men being sent to join regiments, I request that three medical officers of the Army be directed to report to me to inspect the men at Philadelphia, Harrisburg, and Pittsburgh ...." In Maryland, where resentment of the Union cause still ran deep, the quota had at first been set at 8,532. On Aug. 26, it was reduced to 6,000. On Nov. 24, Maryland Gov. A.W. Bruford informed the War Department that "The number drafted for nine months will be 6,000 in the State, but all the counties have not yet drafted; nor all the drafted men reported from their counties that have." In the end Maryland claims to have furnished 3,586 men, volunteers and draftees, but the process there appears to have been very unruly. Wisconsin was the last state to begin drafting. Only on Oct. 22 did the governor set the county quotas, and he ordered drafting to get underway Nov. 10. The draft would hit hardest in the counties around Milwaukee, which were heavily populated by recent immigrants from central Europe, who had come to America in many cases to save their sons from compulsory military service in their homelands. There were mutterings about irregularities in the enrollment process, with the men in charge said to be skipping over either their fellow Republicans or their Masonic lodge brothers. On Nov. 11, at Port Washington, on the Lake Michigan shore, a mob attacked the draft as it was in process. Rioters -- armed with pitchforks, a small cannon used to celebrate the Fourth of July, and "the town's only cannonball" -- ransacked the house of the draft commissioner, threw him down the stairs, and defied authorities until troops of the 28th Wisc. were sent to quell the disturbance. Some 130 draft resisters were arrested. Most spent a year in prison, without trial, and were released. The same problems complained of by the Pennsylvania adjutant general applied in Wisconsin. Of the 4,500 men ultimately drafted in Wisconsin, only about 958 came in and were fit for duty. How Many Men? Of the total of 600,000 men requested from the North in the two call-ups of July and August 1862, about 508,000 eventually volunteered. Most of these (421,465) were three-year enlistees, some of them originally drafted, and the remaining 86,360   or (by another official count) 87,588 were 9-month militia, drafted or otherwise. There was mass confusion over quotas in 1862, with two separate calls for men partially intertwined. Governors wrote privately to one another, confessing they had no idea how to calculate how many men were due from their states. The federal government eventually decided to count one three-year man as the equivalent of four nine-months men. Some historians have given figures between 60,000 and 70,000 for the number of men drafted into the Northern army in 1862. Others have used the 86,000 or 87,000 figure as if it were a count of drafted men, but this seems to be a total of the nine-month enlistments, volunteer as well as draft. (The low returns reported for New York and other states probably reflect the shift of much of their quotas to re-filling old regiments). Fry's abridged Final Report [OR Ser. iii, 5:636-39, 730-39] has caused much confusion among historians. It lists 46,347 drafted in one place and 52,067 in another. More can be found here on the confusion of numbers in the "Official Records"  Another reason the number of draftees is difficult to count is that drafted men were given the option of then joining three-year regiments (where they were counted as "volunteers") and collecting the bounties and pensions. On a state-by-state accounting, Wisconsin drafted 4,500 men. Ohio drafted 12,200, of which (as of Dec. 13) 2,900 had been discharged "for various causes," 4,800 had subsequently enlisted themselves in existing three-year regiments or found substitutes for them, 1,900 had failed to respond and 2,400 been sent to the field. Indiana drafted 3,003 men; the adjutant general of the state reported that 396 were discharged for disability or other causes and 424 failed to show up at the rendezvous and were marked as deserters. Of the 2,183 who reported for duty, 1,441 volunteered in existing three-year regiments or 12-month ones then in the process of recruiting, and 742 were assigned to existing regiments as follows: One company to the 57th Indiana infantry regiment, 1 company to the 83rd Indiana infantry, 2 companies to the 1st Indiana cavalry, and 39 men to the 99th Indiana infantry.[11] Pennsylvania formed the bulk of its drafted men into entire regiments and sent them into government service. All in all, Pennsylvania drafted 20,500 men, according to a communique from Thomas to Stanton. Of these, 15,100 were sent into U.S. service in 1862. A history of the state written in 1880 claims that, "By liberal offer of bounties the draft was rendered unnecessary in nearly all parts of the state, each county quota being in most part filled up by the nine month's men." In fact, men were drafted from every county. The result were 14 regiments listed in Bates' "History of the Pennsylvania Volunteers" as "Drafted Militia": 165th Pa. mostly Adams County 166th Pa. York County 167th Pa. Berks County 168th Pa. Pittsburgh area (Westmoreland, Fayette, Green, Beaver, Allegheny counties), with a contingent from Erie County 169th Pa. northwestern part of the state, Crawford, Mercer, Erie, Clarion, and Butler counties 170th Pa. failed to organize, men dispersed to other regiments 171st Pa. north-central part of the state, Bradford, Juniata, Lycoming, Somerset, and Tioga counties 172nd Pa. Snyder, Northumberland counties 173rd Pa. central part of the state, Schuylkill, Lebanon, Perry, and Dauphin counties 174th Pa. mostly Bucks County, with a contingent from Northampton County 175th Pa. mostly Chester County, with two companies from Montgomery County 176th Pa. mostly Lehigh County, with a contingent from Monroe County 177th Pa. Lycoming, Susquehanna, Dauphin, Luzerne, Perry, and Indiana counties 178th Pa. mostly Lancaster County, with companies from Columbia, Montour, and Luzerne counties 179th Pa. Berks, Lancaster, Montgomery, Pike, Wayne, and Philadelphia counties. The army shipped most of these regiments to the occupied part of the North Carolina coast, and kept them far from action. Their military contribution was slight, their reputations dubious. Yet they freed up more battle-worthy outfits for duty elsewhere in the war. Local newspapers of the day followed the progress of the draft with intense interest, and printed full lists of the names pulled. In Pennsylvania, the "Gettysburg Compiler" listed 890 Adams County men drafted on Oct. 16, 1862. The Lancaster "Examiner" listed 2,677 names that were pulled in Lancaster County. In Chester County, the two postponements and a bounty drive whittled down the number of draftees from 1,200 to 663, whose names are listed in the four enrollment books in the county archives. Effect of the draft The draft overall had a demoralizing effect on the army. It pointed up the lack of enthusiasm in many communities, and the the commodification of soldiery represented by the bounties and the $300 fee to avoid service, which was built into the draft law (and quickly became the base pay for "substitutes") melted whatever was left of the gold-plating of the volunteer spirit of '61. Yet most soldiers already in service were glad to see unwilling men forced into uniform, even if it did little good. "Report has it that there has been drafting in Wisconsin and great resultant scandal," Cpl. Adam Muenzenberger, of the 26th Wisc., wrote home to his wife on Nov. 19. "We have had a great laugh at the simpletons who laughed at us because we volunteered. Please let me know who was drafted if you can find out so that I can laugh at their lot the way they laughed at mine." On Oct. 29, Nathan Pennypacker, a lieutenant in the 4th Pa. Reserve regiment, wrote to his mother: "What do you think of Uncle Joe Fitzwater being drafted? It pays up for some sentiments expressed last year by you know who." James H. Maclay, in Battery B, 1st Pennsylvania Light Artillery -- also part of the Pa. Reserve Division -- wrote Oct. 29, 1862, to his sister Jennie, "So Hugh Fraser is drafted. Good for him. No man but a coward would permit him self to be driven into the service but such men. I think such men ought to be in the Rebel Army where all the conscripts are." And, on Nov. 10, he wrote, "So Ditzler says he is not hired to Uncle Sam. I think he has done worse for Conscripts are Uncle Sam Slaves. The old Reserves don't like the idea of filling up thare Regt. with drafted men. Thay say thay want men that will fight & not these Baby Conscripts." The 1862 state and congressional elections began within a month of the Sept. 24 habeas corpus suspension announcement, and in many cases the voting was done in the shadow of the draft itself -- Pennsylvania's election was two days before the drafting began there. After the results were tallied in October and November, Republicans had lost governorships of New York and New Jersey; lost legislative majorities in New Jersey, Illinois, and Indiana; and lost a total of thirty-four congressional seats. The Republicans' 1862 losses are usually seen as a repudiations of the Emancipation Proclamation (the preliminary version of which was made public on Sept. 22). Indeed, the Democrats' slogan that year was, "The Constitution as it is; the Union as it was; the Negroes where they are" (Republicans countered by calling the Democrats the party of "Dixie, Davis and the Devil"). But many voters seem to have been stirred, as they usually were, by local issues. And in many cases the draft, and the civil liberties threats surrounding it, would have played a big part, especially in Illinois. Democrats perceived the habeas corpus suspension as partisan intimidation, and the administration ordered a few vocal Democratic editors and reporters arrested, along with Copperhead politicians. In Delaware and other places, polls on election day were policed by U.S. provost marshals. The 1862 draft taught the Lincoln administration that masses of men could be forced into service, and most would go, and do their jobs indifferently well. It proved that threats of conscription could be a serious incentive to volunteering. Every Northern soldier who enlisted after the first week of August 1862 did so with the possibility of being drafted as a factor in his decision. As a provost marshal observed, "... without an impending draft, no local bounties would have been raised, and without local bounties no volunteers could have been obtained." It also gave the federal government and the states a lesson in the form of organized resistance and the class from which it could be expected -- German and Irish. There had been violent resistance to the draft in Maryland, Pennsylvania, Illinois, Indiana, Ohio, and Wisconsin. None of this was really surprising. That some resistance was expected among the Irish is suggested by the sense of great relief, in the pro-administration newspapers, that accompanied the news that on Aug. 17, Archbishop Hughes of New York preached a sermon in support of the draft in St. Patrick's cathedral. James W. Geary, who has written in depth on the Northern conscriptions, wrote, "Bell Wiley, one of the most astute and respected students of the Confederacy, believes that the South experienced its first serious morale crisis that season, and that 'the turning point in the struggle [for the South] probably came in the spring of 1862 rather than in July 1863.' A turning point had also occurred for Northerners that season because it marked the last time for the duration of the war that they could virtually forget about military needs and quotas. Henceforth, they would be faced with continuous demands for more and more men. Communities still had the option of trying to meet these requirements through the timeworn methods of recruiting frives and volunteering; but, unlike the past, two new elements of drafting and a runaway competitive bounty system would be injected into the process."[12] At the end of it all, someone wrote on the back leaf of one of the four Chester County, Pa., militia enrollment books: "The operations of the draft in this book belong now to history. No body cares a dam for it -- the draft I mean, not the history." Partial bibliography: "Official Records," 1891, Series III, vol. 2 and 3 Bates, Samuel P., History of Pennsylvania Volunteers, 1861-5, Harrisburg: B. Singerly, state printer, 1869-1871. Geary, James W., We Need Men: The Union Draft in the Civil War, Northern Illinois University Press, 1991. Hay, John, and John G. Nicolay, Letters and State Papers of Abraham Lincoln, 1894. Murdock, Eugene C., Patriotism Limited 1862-1865: The Civil War Draft & Bounty System, Kent State U. Press, 1967. ---------------------, ed., One Million Men: The Civil War Draft in the North, Champaign: University of Illinois, 1971. Shannon, Fred Albert, The Organization and Administration of the Union Army, 1861-65, Cleveland: The Arthur H. Clark Co., 1928. Terrell, W.H.H., Indiana in the War of the Rebellion, official report of the state adjutant general, Indianapolis, 1869. 1. p.245. 2. p.225. 3. O.R., Ser. 3, 2:2-3, 29, 44, 109. 4. This was an ongoing struggle throughout the recruiting and drafting in the North in those months: many in the Army and the government wanted to see the old regiments replenished. They argued that veterans could show new recruits the ropes more quickly, and McClellan estimated one recruit into an old regiment was worth two in a new one. The old established regiments also had valiant reputations that would be a spur to volunteers. But new regiments meant new commissions, new officers, and there was much political pressure in that direction. 5. Shannon, p.270. 6. Murdock, "Patriotism Limited." 7. Chester County (Pa.) Historical Society archives. 8. letter to Thurlow Weed, in Frederick W. Seward, "William Henry Seward," N.Y., Derby & Miller, 1891, 3:115. 9. Shannon, p.283. 10. "Letters and State Papers of Abraham Lincoln," vol. II, p.212. 11. Terrell, p.44. 12. Geary, p.11.

ALBERT B. MOORE

Albert Burton Moore (1887-1967), the author of "Conscription and Conflict in the Confederacy," in his 45-year teaching career was the embodiment of a Southern scholar-gentleman. Born and raised in Alabama, he was a descendant of Confederate veterans, and he wrote and taught at a time when many of them were yet alive. His teaching career, except for four years in Iowa, was entirely in the South. He loved the fair play of sports (he served two terms as president of the NCAA), and he loved the South. His respect for his native region was duly reciprocated, and in his old age Moore served as executive director of the Alabama Civil War Centennial Commission and director of the Confederate States Centennial Conference as well as the Jefferson Davis Foundation. "Conscription and Conflict in the Confederacy" did not have to be an interesting book, but it is one because Moore's writing style is assured, easy, understated. And he has a keen eye for the pithiest quotes from his sources. He writes in proper British academic style, yet the voice is completely American. It is something Southern academics do splendidly. And he knows his Latin. His Southerners regarded their battlefield victories with sincere "gratulation," and Moore cannot bring himself to write "conscripted" when he knows Cicero would only have approved "conscribed." Moore's book is still valued by historians for both parts of its title. The 1996 introduction to the University of South Carolina edition rightly praises the book as still the fundamental introduction to Confederate conscription, as well as a groundbreaking exploration of internal divisions in the CSA, a topic which had been given short shrift by the Lost Cause version of the Civil War which prevailed in America at that time. Yet scholarly thinking about the Civil War and related issues has changed much since Moore's day. He saw the state and local identification of the CSA's regiments as a weakness, blocking Southern nationhood. But more recent views are that these local ties were exactly the glue that kept Civil War regiments effective, whether North or South. His assumption that secession was principally about states' rights is no longer shared by most historians. But because Moore felt the South's cause was states' rights, the "conflict" in the book's title is largely that between Davis' central government and state authorities, notably the states'-rights governors Brown and Vance. More recent historians, trained in Marxist methodology, instead have played up "class conflict" in the Confederacy. But that is not the bulk of the conflict in Moore's book. As a historian of the Confederacy, he was of the "Died of States' Rights" school of the '20s and '30s. "Like many Southern authors of his generation," the 1996 introduction explains, Moore "can be accused of searching for an internal key to the Confederate defeat in order to avoid any suggestion that the North actually beat the South in a fair fight." Also, Moore wrote in the same shadow that fell across Ella Lonn's 1928 book on Civil War desertion, the shadow of a more recent war. From our long perspective, America's fight in World War I perhaps seems short, enthusiastic, and unified. But in fact it was a disturbing time of repression and civil unrest in the U.S., and the war as a whole was an appalling waste of life based on tragic conscription policies among all the warring powers. "When reading Moore's criticisms of the Confederate Conscription Bureau," the introduction warns, "one should also remember that the author had witnessed the massive conscription programs of World War I." He makes frequent reference to it in his text. Unlike Lonn's book, Moore's makes no comparison with the Union, and it makes no attempt to place the CSA's experience in the flow of military history (despite the allusions to World War I). This is, to me, a serious oversight. Moore's book avoids statistics as much as possible, and the author always alerts his reader, if he delves into numbers, that all the figures are estimates at best, that they are often in dispute, and that surviving Confederate records are very incomplete. Moore views conscription as a flawed, but ultimately successful system that kept the Confederacy's will to fight for independence focused in an effective military effort for four hard years. He quotes the Richmond Examiner, that the conscription act of 1862 "not only overcame the deficiencies of the voluntary system, but changed the character of the army 'from the desultory character of prompt enthusiasm to that of permanent and organized discipline.' " Moore finds no inherent shame to the Confederate cause in the mere fact of conscription. "President Davis told the Mississippi legislature that there was no more reason to expect voluntary service in the army than voluntary labor upon the public roads or the voluntary payment of taxes." Yet he appreciates the challenge of applying such a system in the American South. "The enforcement of the conscript laws was attended by difficulties that inhered in a system of compulsory service among a proud and free people." He writes that the general public was "gradually reconciled" to the idea, though "strong opposition" remained. His view seems to be that the South's great mistake was not in turning to conscription, but in relying at first on volunteers. "[C]onscription would have been less odious if it had been made the exclusive policy of raising armies at the outset. It might then have been regarded as a scientific way of allocating the man power of the country and distributing fairly the burdens of war. But the volunteer system was tried the first year, and after conscription was adopted volunteering was still allowed. This made conscription appear to be a device for coercing derelicts, hence the taint that attached to the conscript." Here is what he writes of the initial impact of the 1862 act, which was to keep the 12-month men, whose terms were weeks from expiring, in the ranks: This was a severe test of the patriotism and devotion of the twelve-months' troops. After nearly a year's experience with the diseases, privations, and hardships of the soldiers' life they were fondly anticipating a return to their homes where they could, temporarily at least, enjoy their habitual comforts and pleasures. They had, too, for self-justification, the unanswerable plea that they had borne their part of the burdens and dangers and that it was time for those equally interested and capable, who had as yet remained at home, to take their turns at the front. How great the sacrifice involved in the renunciation of their hoped-for release and pleasures may be more easily felt than described. 'Yet was there scarce a murmur of disappointment and disaffection, and not an instance, as far as known, of resistance or revolt.' "[p.16-17] In fact, he writes, the conscription act was more popular in the army than anywhere else in the South, because it would force the unwilling into the ranks alongside the patriots, who ultimately decided they did not mind seeing their time extended if the stay-at-homes were made to fight, too. Its second most important result was as a spur to volunteers. The combination of conscription and volunteerism was a peculiarity of the Civil War. Just as in the North (though Moore does not say this), the risk of being drafted, and the "odium" that would go with it, helped many men decide to volunteer, so they could collect the bounty held out to them and also choose their regiment. "Many of the volunteers might have gone into the service of their own volition later," Moore writes, "but the conscription act gave them to the service just at the moment when they were absolutely necessary to check the onrush of the enemy. The powerful armies built up in the summer and fall of 1862 were the backbone of the Confederate military system that distinguished itself on the bloody battlefields of 1863 and 1864." [p.356] Moore understood how the mere fact of conscription changed the entire nature of the volunteer. On the one hand, conscription was a spur to volunteering, but on the other, "conscription took some of the glory out of volunteering, and it probably blunted the edge of public opinion which otherwise might have driven many men to volunteer." He also calls attention to "the significant fact, pointed out by the Mobile Register and Advertiser, that many men who waited to be conscripted were not moral slackers, but they waited because of their private obligations and the necessities of their dependents. When they were conscribed they took up their arms in good faith." The actual drafting of men was probably the least effective part of the South's conscription policy, to read Moore. In fact, as it turned out, the timetable of it is close to that of the North. Drafting was scarcely begun in most places by the end of summer 1862, and in many others not at all until well into the following year. Moore's concluding paragraph: Over against the friction, confusion, and dereliction depicted in this narrative stands out in bold relief the fact of general sacrifices unsurpassed in the annals of military history. Nor is conscription a contradiction of the cheerfulness with which the sacrifices were made. There is much truth in Lord Charnwood's observation that the general patriotism of the people is not to be judged so much by the failure of the purely voluntary system as by the success of the system which succeeded it. [In a footnote here, Moore writes, "Lord Charnwood said this of the North; it might as truly be said of the South."] The dereliction of many sets in a brighter light the heroic devotion of the masses. The unsurpassed sacrifice and heroism of the Southern armies and civilian population -- the proudest and most sacred tradition of the South -- stands unassailed. Moore's conclusion, in full

MARYLAND, WHOSE MARYLAND?

When I insist that Maryland is a "Southern" state, my Georgia-born girlfriend only smiles and gives me that patronizing "poor, deluded man" look. But, though it may not be considered so in Georgia or Alabama, Maryland is a "southern" state by virtue of being below the Mason-Dixon Line and having a large slave population -- 87,189 according to the 1860 census. We're accustomed to thinking in terms of "states," for obvious reasons, but thinking on that scale doesn't allow an accurate picture on the level of communities, families, individuals. It's possible to speak in broad terms of four regions in Maryland, which renders its behavior more comprehensible. 1. Southern Maryland, the nucleus of the colony, founded as a refuge for English Catholics (the counties are mostly named for saints) was, in 1860, a declining region of slave-labor-reliant tobacco plantations with a stagnant economy and a drooping population. 2. The Eastern Shore (birthplace of Frederick Douglass and Harriet Tubman) was so isolated from the rest of the state that it sometimes talked of breaking off and uniting with Delaware. The convoluted coastline of that drowned river valley made a natural haven for smuggling and bred a generally defiant sort of local culture. It had been settled upward from the mouth of the bay in the 17th century, and was united by ethnic and economic ties with Tidewater Virginia. The number of slaves there had been declining, as the economy diversified from tobacco into fruit-growing, and the free black population was large and economically important. Legislative attempts to restrict the economic freedom of blacks in Maryland were thwarted by slave-owning Eastern Shore men, who knew the importance of black freemen to their region. I should mention that my ancestors were among the Eastern Shore slaveowners who set their chattels free in the period 1790-1840, though the results were not happy. 3. The western end of the state, the Catoctin Mountain valleys and rolling farmland, had been settled by people who had arrived there through Pennsylvania, largely of German ancestry, and it retains its cultural affinity to the North. There were few slaves here. 4. In the middle of it all was Baltimore, which was the fourth largest city in America in 1860 (behind New York and Brooklyn, which were separate entities then, and Philadelphia) with 212,418 inhabitants. Its industry surpassed that of any other Southern city. Its port shipped coal from the western counties and textiles from the city's mills as well as tobacco and grain. A visitor who had arrived in 1860 later recalled that "Baltimore had Northern characteristics of finance and commerce which greatly resembled Philadelphia, New York or Boston, but culturally and socially Baltimore had Southern ties which were most evident." It reminds me of John F. Kennedy's quip about Washington, D.C.: "A city of Southern efficiency and Northern charm." The city in 1860 had 52,000 foreign-born residents -- 28 percent of the total white population. It had been a hotbed of Know-Nothingism in the 1850s. It had 25,000 free blacks as well as 2,218 slaves. For various reasons, Lincoln was not a serious candidate in Maryland in the 1860 election. He got only 1,211 votes statewide, though I don't know whether there was any one county where, as someone has suggested, he got no votes. It is possible, and if there was such a county, Charles is a good candidate. Instead, the contest was between Bell and Breckenridge, or, as it was commonly expressed in the newspapers of the day, "Bell and Union, Breckenridge and Disunion." The discredited state of the Know-Nothing movement in Baltimore seems to have been the deciding factor, however, and it cost Bell (who was not sufficiently distant from it) the Baltimore vote. Breckenridge carried the state, but his margin was less than 1 percent. In the crisis after Lincoln's election and the S.C. secession, Maryland tried to steer a neutral course. Despite widespread Southern sympathy, the state had a "latent unionism," in the words of one historian. It also faced the prospect of being the principal battlefield, if war was to come. It was an off-year for the legislature, and the governor was a wiley character named Thomas H. Hicks, a slaveowner from the Eastern Shore who had at one time or another belonged to every major party in the state. He pursued a policy of "masterly inactivity" in declining to call a special session of the legislature. Between the election and the Sumter attack, state committees called for a convention of border states, actively supported the Crittenden Compromise (which would have restored the Union with a constitutional guarantee of slavery) and sent delegates to the Washington peace conference in February, 1861. On April 19, the first large contingents of Union soldiers (about 2,000) entered Baltimore by train, on their way to protect Washington, D.C. They had to change stations from the Philadelphia, Wilmington, and Baltimore line to the B&O, which entailed marching from President Street to Camden Street, and along the way the 6th Mass. regiment was attacked by a secessionist mob that was a mix of "wharf rats" who would fight anyone, for any reason, and some of the leading citizens of the city. In the gunfight that followed the Massachusetts troop lost 42 killed and wounded and 12 citizens lay dead and scores were injured. That's where the song comes in. James Ryder Randall, a Baltimore native then teaching in Louisiana, read about the incident in the New Orleans "Delta" newspaper, and saw in the list of wounded citizens the name of his old college roommate Francis X. Ward (Georgetown '59), a prominent lawyer who had led the citizens' charge on the regiment. In his indignation, Randall hastily penned a poem about the subjugation of his home state, which was published in a Louisiana newspaper a few days later, soon set to music, and, as "Maryland, My Maryland" became a favorite rallying tune for pro-Southerners in the state. It is rather inflammatory, as a state song (the "Northern scum" line, especially), but I don't find anything particularly racist in it. Perhaps someone else can. I The despot's heel is on thy shore, Maryland! His torch is at thy temple door, Maryland! Avenge the patriotic gore That flecked the streets of Baltimore, And be the battle queen of yore, Maryland! My Maryland! II Hark to an exiled son's appeal, Maryland! My mother State! to thee I kneel, Maryland! For life or death, for woe or weal, Thy peerless chivalry reveal, And gird they beauteous limbs with steel, Maryland! My Maryland! III Thou wilt not cower in the dust, Maryland! Thy beaming sword shall never rust, Maryland! Remember Carroll's sacred trust, Remember Howard's warlike thrust,- And all thy slumberers with the just, Maryland! My Maryland! IV Come! 'tis the red dawn of the day, Maryland! Come with thy panoplied array, Maryland! With Ringgold's spirit for the fray, With Watson's blood at Monterey, With fearless Lowe and dashing May, Maryland! My Maryland! V Come! for thy shield is bright and strong, Maryland! Come! for thy dalliance does thee wrong, Maryland! Come to thine own anointed throng, Stalking with Liberty along, And sing thy dauntless slogan song, Maryland! My Maryland! VI Dear Mother! burst the tyrant's chain, Maryland! Virginia should not call in vain, Maryland! She meets her sisters on the plain- Sic semper! 'tis the proud refrain That baffles minions back amain, Maryland! Arise in majesty again, Maryland! My Maryland! VII I see the blush upon thy cheek, Maryland! For thou wast ever bravely meek, Maryland! But lo! there surges forth a shriek, From hill to fill, from creek to creek, Potomac calls to Chesapeake, Maryland! My Maryland! VIII Thou wilt not yield the Vandal toll, Maryland! Thou wilt not crook to his control, Maryland! Better the fire upon thee roll, Better the shot, the blade, the bowl, Than crucifixion of the Soul, Maryland! My Maryland! IX I hear the distant thunder-hum, Maryland! The Old Line bugle, fife, and drum, Maryland! She is not dead, nor deaf, nor dumb- Huzza! She spurns the Northern scum! She breathes! She burns! She'll come! She'll come! Maryland! My Maryland! George W. Brown, Baltimore's mayor, was a non-partisan reform politician who had run against the corrupt Know-Nothing organization and fought mob rule in the city. He denounced disunion and personally stood at the head of the Northern troops as they marched through the furious crowd of Baltimore on April 19, 1861, risking his life to preserve order. Of Maryland, he wrote after the war: "Her sympathies were divided between the North and the South, with a decided preponderance on the Southern side." Lincoln's proclamation calling for militia after Ft. Sumter was received "in Maryland with mingled feelings in which astonishment, dismay and disapprobation were predominant. On all sides it was agreed that the result must be war, or a dissolution of the Union, and I may safely say that a large majority of our people preferred the latter." "After the President's proclamation was issued, no doubt a large majority of her people sympathized with the South; but even had that sentiment been far more preponderating, there was an underlying feeling that by a sort of geographical necessity her lot was cast with the North, that the larger and stronger half of the nation would not allow its capital to be quietly disintegrated away by her secession." The men who tried to lead Maryland into secession were not a solid set of die-hard slavery advocates. Slavery in Maryland was a moribund institution. A meeting in favor of secession, held April 18 in Baltimore's Taylor Hall, was chaired by T. Parkin Scott, who "was a strong sympathizer with the South," Brown wrote, "and had the courage of his convictions, but he had been also an opponent of slavery, and I have it from his own lips that years before the war, on a Fourth of July, he had persuaded his mother to liberate all her slaves, although she depended largely on their services for her support. And yet he lived and died a poor man." The federal government felt sufficiently unsure of Maryland's allegiance that it issued an April 27, 1861, order for the arrest and detention of anyone between Washington and Philadelphia who was suspected of subversive deeds or utterances, with its notorious suspension of habeas corpus. This led to the Merryman case, and the Supreme Court's failure to get the authorities to enforce its rejection of the administration's move. Hicks then called the legislature in the northwest part of the state, where unionism was strongest. Though the legislature did not vote to secede, it approved a resolution calling for "the peaceful and immediate recognition of the independence of the Confederate States," which Maryland "hereby gives her cordial consent thereunto, as a member of the Union." The legislature also denounced "the present military occupation of Maryland" as a "flagrant violation of the Constitution." When Roger Brook Taney, U.S. Supreme Court Chief Justice, dared to stand up to Lincoln over the arbitrary imprisonment of Maryland citizens, Lincoln wrote out standing orders for Taney's arrest, although they were never served.[1] But when the Maryland legislature lodged a sharp protest with Congress, Seward ordered a lightning raid across the state that jailed 31 legislators, the marshal of the Baltimore City Police Force and the Board of Police Commissioners, Mayor Brown, a former Maryland governor, members of the House of Delegates from Baltimore City and County, the 4th District congressman, a state senator and newspaper editors (including Francis Scott Key's grandson). Ft. McHenry (of "Star Spangled Banner" fame) had a darker chapter in these days as the "Baltimore Bastille." Many of those arrested by federal officials were never charged with crimes and never received trials. In the fall, Lincoln arrested allegedly disloyal members of the state legislature (Sept. 12-17, 1861), to prevent them from attending a meeting that could have voted on secession. But Maryland was not really safely in the Union until the November state elections. Federal provost marshals stood guard at the polls and arrested known Democrats and any disunionist who attempted to vote. The special three-day furlough granted to Maryland troops in the Union army, so they could go home and vote, further rigged the election. The result, not surprisingly, was a solidly pro-Union legislature. The next year, state judges instructed grand jurors to inquire into the elections, but the judges were arrested and thrown into military prisons. Maryland rewrote its constitution to outlaw slavery in 1864, and put it to popular vote on Oct. 13 of that year. It passed, but just barely, with 30,174 in favor of the change and 29,799 opposed. As for military records, the most reliable figures seem to be 60,000 Maryland men in all branches of the Union military, and 25,000 as an upper limit for Marylanders fighting for the South. Exiles organized a "Maryland Line" for the Confederacy, consisting of one infantry regiment, one infantry battalion, two cavalry battalions and four battalions of artillery. A great many Marylanders, however, were dispersed among other Southern units, especially those of Virginia (Co.H, 7th Va.; Co. B., 9th Va.; Co. G., 13th Va.; Co. B., 21st Va.; Co. E, 30th Va.; Co. E, 44th Va., and so forth). Kevin Conley Ruffner's "Maryland's Blue & Gray" lists 23 Confederate unites, other than the Maryland Line, in which Marylanders fought in significant numbers. There was no official recruiting of Southern regiments in Maryland, of course, and the infrastructure of bounties and relief, so essential in a long war, was unavailable to Maryland men who fought on the side of the South. It may also matter, when considering the enlistment figures, that Union Maryland troops were often raised with the express intention of being kept within the state, as home guards. A sense of unreliability tainted the Northern Maryland regiments. The general in charge of the prison camp at Annapolis wrote to the War Department requesting a regiment for guard duty there, but added that he would "prefer to have [one] from a free state, or at least not a Maryland regiment, which might be likely to sympathize with deserters and affiliate with the people around them." And in 1864 a colonel complained that the Maryland troops guarding the lower Potomac were "too lenient toward blockade runners and secessionists who keep good liquor." Occupied Maryland Maryland documents 1. It is surprising to me how rarely this is mentioned. I've only seen it twice: in Frederick S. Calhoun's official history, "The Lawmen: United States Marshals and Their Deputies" (Penguin, 1991, pp.102-104) and Harold M. Hyman, "A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution" (Knopf, 1973, p.84). Their sources are two different manuscript collections, which makes the claim that much more reliable.

SCENES from OCCUPIED MARYLAND

[exerpts from OR Series 2, vol. 1, part 1, p.563 ff., under the section heading UNION POLICY OF REPRESSION IN MARYLAND] BALTIMORE, April 19, 1861. Mayor GEORGE W. BROWN to PRESIDENT LINCOLN: ... Under these circumstances it is my solemn duty to inform you that it is not possible for more soldiers to pass through Baltimore unless they fight their way at every step. ... [Gov. Hicks attached his endorsement] PHILADELPHIA, April 23, 1861. Honorable SIMON CAMERON, Secretary of War: DEAR SIR: Since I wrote my last of this date I have been informed that the Baltimoreans and Marylanders have destroyed the whole of the bridges on the Northern Central. This seems to have been a mere spite action and must convince the Government that those loyal to the Government in Maryland are in a vast minority. As soon as the capital is safe from attack it seems to me that the Government should at once turn on Baltimore and place it under martial law and require that it should pay all damages to the railroads it has destroyed and to their business. Yours, truly, J. EDGAR THOMSON, President Pennsylvania Central Railroad. BALTIMORE, July 1, 1861. Lieutenant-General SCOTT: The board of police was arrested this morning at 4 o'clock. Troops have been stationed at the principal squares of the city. All is perfectly quiet. We greatly need cavalry for patrol duty. N. P. BANKS. FORT McHENRY, August 25, 1861. ... I have adopted stringent measures to secure quiet but they are so ordered as to attract no notice. The regiments are well drilled to street-firing and in half an hour I can have 1,000 men in any part of the city; in forty minutes five times that number. ... JOHN A. DIX. FORT McHENRY, August 31, 1861. Honorable M. BLAIR. In regard to the "Exchange" and other secessionist presses in that city. I presume you are not aware that an order for the suppression of these presses was made out in one of the Departments of Washington. ... I think a measure of so much gravity as the suppression of a newspaper by military force should carry with it the whole weight of the influence and authority of the Government especially when the publication is made almost under its eye. There is no doubt that a majority of the Union men in Baltimore desire the suppression of all the oppsition presses in the city but there are many -- and among them some of the most discreet -- who think differently. The city is now very quiet and under control though my force is smaller than I asked. There is a good deal of impatience among some of the Union men. They wish to have something done. The feeling is very much like that which prevailed in Washington before the movement against Manassas. It would not be difficult to get up a political Bull Run disaster in this State. If the Government will give me the number of regiments I ask and leave them with me when I have trained them to the special service they may have to peform I will respond for the quietude of this city. Should the time for action come I shall be ready. In the meantime preparation is going on. I am fortifying Federal Hill under a general plan of defense suggested by me and approved by General Scott. Two other works will be commanded the moment I can get an engineer from Washington. On the Eastern Shore there should be prompt and decisive action. I have urged it repeatedly and earnestly during the last three weeks. Two well-disciplined regiments should march from Salisbury, the southern teminus of the Wilmington and Delaware Railroad, through Accomack and Northampton Counties and break up the rebel camps before they ripen into formidable organizations as they assuredly will if they are much longer undisturbed. ... JOHN A. DIX. Reffered to General McClellan. I believe the "Exchange," "Republican" and "South" should be suppressed. They are open disunionists. The "Sun" is in sympathy but less diabolical. M. B[LAIR]. Baltimore, Md., September 4, 1861. DIX to McCLELLAN: No secession flag has to the knowledge of the police been exhibited in Baltimore for many weeks, except a small paper flag displayed by a child from an upper window. It was immediately removed by [the police]. They have been instructed to arrest any person who makes a public demonstration by word or deed in favor of the Confederate Government and I have prohibited the exhibition in shop windows of rebel envelopes and music. ... If there is an uprising on the Eastern Shore under the influence of the rebel organizations in Accomack and Northampton, or if the Confederate forces cross the Potomac we may have trouble. I shall endeavor to be ready for it whenever it comes. ... Baltimore, Md., September 5, 1861. DIX to McCLELLAN: Fort McHenry which has not sufficient space for the convenient accommodation of the number of men necessary to man its guns is crowded with prisoners. ... It is too near the seat of war which may possibly be extended to us. It is also too near a great town in which there are multitudes who sympathize with them who are constantly applying for interviews and who must be admitted with the hazard of becoming the media of improper communications, or who go away with the feeling that they have been harshly treated because they have been denied access to their friends. ... If as is supposed Fort Lafayette is crowded may they not be provided for at Fort Delaware? ... I certainly do not think them perfectly safe here considering the population by which they are surrounded and the opportunities for evading the vigilance of their guards. BALTIMORE, September 15, 1861. Honorable W. H. SEWARD, Secretary of State. DEAR GOVERNOR: I thank you in the name of every truley loyal man in Baltimore and in my own poor name too for your arrest of the traitors whom you have sent to Fortress Monroe. A great and a good work has been done. Rebellion has received a staggering blow. I hope General Banks will take care that the Legislature shall not sit at all. There are thin-skinned Union men enough who will seek to get a quorum for the sake of the $4 a day. General Kimmel is one of them. He told me a day or two ago he wanted to have a chance to pass his foolish resolutions. I bade him take up his musket rather and go to the field. The arrest of W. Wilkins Glenn, the proprietor of the "Exchange," has given intense satisfaction. Beale Richardson and his writing editor Joice, of the "Republican," are very violent and would grace the Tortugas. If the exchange should go on a Doctor Palmer and a William H. Carpenter are the ostensible editors, and both write with bitterness. They too would do well at Tortugas. A Mr. Hodges here told me last evening that any amount of money could be raised to continue the "Exchange," but said he, "What's the use? We can't get it through the mails." I still think they will try to keep it up just for a vent of their spleen and sinister designs. Our provost-marshal, Mr. Dodge, whom I have just left, is anxious to have it bought up by the Union men but that's impossible. It is in debt some $40,000 and would be worth nothing to the Union cause because all its supporters are rebels who would instantly withdraw. My own judgment is that it should be suppressed out and out if it is continued. The "South" [newspaper] has stopped after trying to get up a Polignac revolution. May's arrest has caused infinite pleasure because of his hypocrisy and malignancy. The effect of these arrests must determine very rapidly the status of the floating population who are ever on the watch for the stronger side. I have already heard of cases in our favor. We are determined to prevent any rebel voting if he will not take the oath of allegiance. It is to be done by a system of challenging. The new mayor has already surrendered the pistols retained by the old police and evinces a reaidness to co-operate with the Federal authorities. His name is Blackburn. It is intimated that General Howard has taken the hint and will not accept the rebel nomination for Governor. If he does he should be sent at once to Fortress Monroe, and so too of Jarrett, the rebel nominee for comptroller. I hope the Government will not release a single one of these prisoners let the circumstances be what they may. The effect upon the public mind depends largely upon firmness at this juncture. Faithfully, yours, W. G. SNETHEN. Baltimore, Md., September 20, 1861. Captain BRAGG, Second Regiment Maryland Volunteers. SIR: I do not wish any searches made in private dwellings by the military. I prefer it should be done by the police. You have very properly reported to me the case of Doctor Henkle and I shall put it in the hands of the provost-marshal in Baltimore. I do not wish any persons to be stopped who have shotguns and who are evidently going on sporting excursions. They should not be detained or interfered with in any way. Your duty is to examine vihicles passing out of the city of Baltimore and suspected of having concealed arms or goods destinated to the disloyal States. Respectfully, your obedient servant, JOHN A. DIX, Major-General, Commanding. BALTIMORE, September 23, 1861. Honorable REVERDY JOHNSON. MY DEAR JOHNSON: My belief is that the peace convention is defunct. Still I have taken measures to have them watched and will inform you promptly of any movement by them. Sincerely yours, WM. PRICE. BALTIMORE, September 25, 1861. REVERDY JOHNSON, Esw. MY DEAR JOHNSON: * * * In regard to the peace convention I still think it defunct; but it will be well not to be thrown off our guard and if there should be any indications of its revival I shall be informed of it. From present appearances there will be no opposition to the Union tickets either in this city or county. Much will depend, however, upon the turn of events. If the rebels should lick us or obtain any decided advantage over us the rebel sentiment here will revive. Otherwise it will remain cowed as it is now. I do not think it would be wise to cease making arrests entirely. Some evidence that the power is with the Government should be kept before the eyes of the discontented few. It has a most salutary effect. Yours, truly, WM. PRICE. Baltimore, Md., October 10, 1861. DIX to SEWARD: SIR: I have carefully examined the papers in the case of Dr. A. C. Robinson and have some doubt about the expediency of allowing him to return to Baltimore until after the fall election -- say the 10th of November. He has been a very violent secessionist, and even through he should take the oath of allegiance and abstain from any act of hostility to the Government he would not consider himself precluded from a participation in the proceedings of his party in support of the peace ticket. He is not a dangerous man like Wallis but I would rather have him away from Baltimore for the next three weeks at least. It looks very much as though we should carry out ticket without any organized opposition. I am confident at all events that Maryland will be a Union State in November. Until then I think it would be wise to let those who have been active against the Government and have influence remain out of the State if they are not in it now. It is understood that Doctor Robinson is in Richmond at this time though he may be nearer home. If you will allow me to suggest a course in regard to his friends seeking his release it would be not to discourage them but to hold out the expectation that he will be permitted to return shortly on taking the oath of allegiance, and it ought not to be less than the one prescribed by Congress. NEW YORK, October 11, 1861. L. J. BRENGLE, Esq. MY DEAR SIR: The result of the election in Baltimore proves the wisdom of the action of the Government in having the prominent traitors arrested. Even the secessionists in Western Maryland are reconciled and even approve it for they dread civil war within the State. At the same time, however, I learn from a very reliable source in Allegany County that a secret movement is on foot by the peace party, i.e., secessionists in disguise[,] to nominate an opposition ticket; and for the purpose of defeating the Union ticket the commissioners, nearly all secessionists, have lately had a meeting and appointed the rankest secessionists as judges of election. I mention the name of one so appointed for Cumberland, W. O. Sprigg, well known as a rabid secessionist, having a son in the rebel army. Amongst the opponents of the Government the foremost in Allegany County are Judge Perry and Doctor Fitzpatrick. The former appointed young Brien, now an officer in the rebel ranks, foreman of the grand jury and permitted him to come into court with a large secession badge on his breast. I mention this fact as a glaring instance of his proclivities. He and his Confederates[,] Doctor Fitzpatrick, W. O. Sprigg (who I believe has also a son in the rebel ranks) and if I mistake not Devecmon, the lawyer, are the head and front of the secret movement now going on. They are in constant communication with the rebels in Virginia and are doing all the mischief they can. Now it seems to me these people should for a while be placed where they can do no harm. If the Government could be made aware of the state of things I think they should give these gentlemen free quarters at Fort McHenry or Fort Lafayette from now until after the election. The quiet and safety of the State of Maryland would be promoted by such a proceeding and an election result obtained which could not but have a most beneficial effect upon the whole country. ... C. E. DETMOLD. Washington, October 29, 1861. Major General N. P. BANKS, Commanding Division, Muddy Branch, Md. GENERAL: There is an apprehension among Union citizens in many parts of Maryland of an attempt at interference with their rights of suffrage by disunion citizens on the occasion of the election to take place on the 6th of November next. In order to prevent this the major-general commanding directs that you send detachments of a sufficient number of men to the different points in your vicinity where the elections are to be held to protect the Union voters and to see that no disunionists are allowed to intimidate them or in any way to interfere with their rights. He also desires you to arrest and hold in confinement till after the election all disunionists who are known to have returned from Virginia recently and who show themselves at the polls, and to guard effectually against any invasion of the peace and order of the election. For the purpose of carrying out these instructions you are authorized to suspend the habeas corpus. General Stone has received similar instructions to these. You will please confer with him as to the particular points that each shall take the control of. I am, sir, very respectfully, your obedient servant, R. B. MARCY, Chief of Staff. [Lincoln, in a July 1861 speech to Congress, had complained that Confederate elections, "where the bayonets are all on one side of the question voted upon, can scarcely be considered as demonstrating popular sentiment."] Baltimore, Md., November 1, 1861. DIX to DANIEL ENGEL and WILLIAM ECKER, Inspectors of Election, New Windsor. ... I consider it of the utmost importance that the election should be a fair one and that there should be no obstruction to the free and full expression of the voice of the people of the State believing as I do that it will be decidedly in favor of the Union. But it is in the power of the judges of election under the authority given them to satisfy themselves as to the qualifications of the voters -- to put to those who offer to poll such searching questions in regard to residence and citizenship as to detect traitors and without any violation of the constitution or laws of Maryland to prevent the pollution of the ballot boxes by their votes. [Substance of a memoranda of an order issued by Major Andrews, of the Second Delaware Volunteers, to Captain Moorehouse of the said regiment, under which order Mr. E. K. Wilson, of Snow Hill, Worcester County, was arrested.] "The memoranda states in substance that -- All persons who have lately uttered expressions of hostility to the Government or have spoken disrespectfully of the President of the United States are to be arrested and detained in camp." [Dix corrected the military officer]: "Our mission is not to annoy or invade any personal rights but to correct misapprehension in regard to the intentions of the Government." DEPARTMENT OF STATE, Washington, November 26, 1861. SEWARD to JOHN S. KEYES, Esq., U. S. Marshal, Boston, Mass. You will ... please inform all the prisoners confined at Fort Warren that this Department will not recognize any person as an attorney in such cases, and that if the fact comes to the knowledge of the Department that any prisoner has agreed to pay to any attorney a sum of money or to give to him anything of value as a consideration for interceding for the release of such prisoner that fact will be held as an additional reason for continuing the confinement of such person. You will also please say to the prisoners that it is the wish of the Government that they should communicate whatever they may have to say directly to this Department.

PEACE PARTY PAMPHLET

These are excerpts from a pamphlet forwarded to U.S. Secretary of State William Seward, Oct. 28, 1861, by the major general in command in Baltimore, with this notice: "I inclose a pamphlet containing an address by three peace nominees of Harford County. It is very impudent, but is their language such as to warrant their arrest?" Seward's answer is not recorded, but men were arrested for similar utterances and jailed for months without being charged and without being allowed to communicate with a lawyer. [This is about two-thirds of the original. What I have omitted is mostly a history of states' rights from the time of the Constitution, as well as some reflections on the previous election and the state of things in Kentucky and Missouri.] TO THE PEOPLE OF HARFORD: We have thought it best to address you explaining frankly the convictions that influence and the principles that govern us in the present crisis; principles we believe to be sound and convictions we know to be honest. Intending to adhere to them and willing to be judged by them we do not hesitate to submit our opinions unreservedly for your censure or approval. ... Within our borders the Federal courts have always been open, their process unobstructed, their orders never resisted (but by Federal officials). Through this section every law of Congress could be enforced and every offense known to the code punished. Yet Maryland by deliberate acts of the Administration has been outlawed; her government subverted; her laws disregarded and defied; her property seized, and force under the name of martial law has superseded the civil power. Her citizens are arrested without warrant; the security of their papers and effects violated; their right to keep and bear arms infringed, and freedom of speech and of the press not only abridged but suppressed. Every man knows that these things are done in our midst; no honest man can deny that they are palpable breaches of the Constitution for no man can point to one line in that Constitution or to any law that authorizes, justifies or excuses them. Acts now so sanctioned are encroachments upon the reserved rights of the States and the people, and if prohibited are revolutionary. When the Government is not controlled by the paramount law, when it can do and does what that law does not permit or forbids it is unrestrained and absolute. Wherever the law is superior to the ruler civil liberty exists; when the ruler is superior to the law; where at his discretion he can supersede, suspend or disobey it he is by whatever name he may be called despotic. Believing that powers fatal to her rights as a State and destructive of the liberty of her citizens are exercised by those administering the General Government Maryland asks whence they are derived; asks to be shown the grant, and she is told that South Carolina has seceded and the cotton States are in rebellion. But Maryland has not seceded, and unless its repudiation by South Carolina destroyed the Constitution our rights under it are not lost; if it is destroyed the Government, its creature, has ceased to exist. We have next the much-abused maxim inter arma silent leges (in war the laws are silent), but we reply the Constitution was made for peace and for war and its voice is too potent to be drowned in the din of arms. But "the Government must be maintained, the Constitution and the Union must be preserved." We answer to violate the Constitution in order to maintain it is a contradiction in terms -- without it there is neither Union nor Government, which can exist only with it. The President's oath is to maintain the Constitution not to preserve the Union in some other mode. We ask you, fellow-citizens, have you ever had or heard from the adherents of the Administration -- the miscalled Union party -- any other justification attempted? Or this eked out with grandiloquent platitudes about the stars and stripes, our flag and the eagle? There is one more -- the supreme law of necessity! Necessity for what and whence? If the necessity has been produced by the Administration instead of palliation it is but aggravation of its offenses. What then is this necessity? We are told that the seceding States have repudiated the Constitution and deserted the Union; they must be coerced to return to the one and to submit to the other. The Constitution gives no power to coerce a State; the power is indispensable, therefore we must usurp it. ... The President has told us that [the war] cannot settle the issues that divided the North and the South. His more conservative adherents declare it is not waged for conquest or subjugation, whilst the abolition wing of his party frankly declares that its motive and its inevitable consequence is to emancipate the slave and destroy the South. Whatever the opinion elsewhere six months ago except a few isolated Republicans the citizens of Maryland almost to a man of every party denounced the coercive policy and coercive war as fatal to the continuance or the restoration of the Union, and none more earnestly or persistently than the members and leaders of the Union party. We adhere to that opinion still. What reason have they found for renouncing a truth so indisputable? But we are asked what good can the peace party do if they control the State? They cannot stop the war. We can and will at least refuse to aid in dragging Maryland into the slaughter-house. We can and will refuse at the bidding of the Administration to impose a war debt on her depleted treasury, to tax her citizens or to draft them for the battle-field. We can and will refuse to acknowledge that the Constitution is intermittent--performing or ceasing its functions at the will of the Executive. We can and will refuse to renounce the rights of our citizens or the sovereignty of the State, and will not by assenting to the exercise of powers not conferred by the Constitution admit that it is not supreme in war as well as in peace. ... We have addressed you thus freely in plain words that there may be no misunderstanding. We have not stooped to pick the delicate phrases of a new-fangled loyalty. We do not counsel treasonable acts or combinations; we do not advise violence in conduct or unkindness in feeling; we abet no resistance to the law or its constituted authorities. But we think and say that we should not consult our fears rather than our consciences; we should not volunteer our substance to the taxgatherer or our hands to the fetters. If we are doomed let us not be suicides. Whilst we are permitted to speak let us speak boldly for the truth and justice and civil liberty; whilst we are permitted to vote let us declare by our bolts that we cling to State rights as the only barrier to oppression and that we know no necessity superior to the Constitution. Let us continue to advise as the Union party did in February last "that if it be found we cannot live together in harmony under the Constitution our fathers framed let us as brethren agree to part in peace," and to disclaim indignantly the doctrine of coercion by arms. If we cannot command let us at least invoke the blessings of peace--peace to a distracted land which partisan sectionalism has summoned to hatred and slaughter! Peace for the sake of those republican institutions which our forefathers left us and which are sinking fast in the red abyss of civil war! Peace for the sake of palsied labor and idle trade! Peace for our good old State, distracted and prostrate, doomed else to be the prize as she is daily more and more the victim of war! H. D. FARNANDIS. JOSHUA WILSON. WM. B. STEPHENSON. RESOLUTIONS of the LEGISLATURE "Resolutions of the General Assembly of Maryland in relation to the arrest and imprisonment of Ross Winans, esq., &c." BALTIMORE, MD., July 29, 1861. Whereas, Ross Winans, a member of the house of delegates of Maryland from the city of Baltimore, on his way to his home from the discharge of his official duties on the 14th of May last was arbitrarily and illegally arrested on a public highway in the presence of the governor of this State, by an armed force under the orders of the Federal Government, and was forcibly imprisoned and held in custody thereafter at Annapolis and Fort McHenry without color of lawful process or right by the command and at the arbitrary will and pleasure of the President of the United States; and Whereas, sundry other citizens of Maryland have been unalwfully dealt with in the same despotic and oppressive manner by the same usurped authority, and some of them have in fact been removed by force beyond the limits of the State of Maryland and the jurisdiction of her tribunals in utter violation of their rights as citizens and the rights of the State as a member of the Federal Union; and Whereas, the unconstitional and arbitrary proceedings of the Federal executive have not been confined to the violation of the personal rights and liberties of the citizens of Maryland but have been extended into every department of oppressive illegality, so that the property of no man is safe, the sanctity of no dwelling is respected and the sacredness of private correspondence no longer exists; and Whereas, the senate and house of delegates of Maryland, recognizing the obligation of the State as far as in her lies to protect and defend her people against usurped and aribtrary power-- however difficult the fulfillment of that high obligation may be rendered by disastrous circumstances -- feel it due to her dignity and independence that history should not record the overthrow of public freedom for an instant within her borders without recording likewise the indignant expression of her resentment and remonstrance: Now therefore be it Resolved, That the senate and house of delegates of Maryland in the name and on the behalf of the good people of the State do accordingly register this their earnest and unqualified protect against the oppressive and tyrannical assertion and exercise of military jurisdiction within the limits of Maryland over the persons and property of her citizens by the Government of the United States, and do solemnly declare the same to be subversive of the most sacred guarantees of the Constitution and in flagrant violation of the fundamental and most cherished principles of American free government. Resolved further, That these resolutions be communicated by the president of the senate and the speaker of the house of Honorable James Alfred Pearce and Honorable Anthony Kennedy, Senators of Maryland in the Senate of the United States, with the request that they present the same to the Senate to be recorded among its proceedings in vindication of the right and in perpetual memory of the solemn remonstrance of this State against the manifold unsurpations and oppressions of the Federal Government.* [*Mr. Kenndy, a Senator from Maryland, presented the foregoing resolutions in the U. S. Senate in special session Aug. 3, 1861. After some dicussion, in which it was asserted by Senator Wilkinson that the resolutions were an insult to the Government.]

HABEAS CORPUS

"Inter arma silent leges" was a Latin phrase much heard in the North during the Civil War. It translates roughly as, "during war, the laws are silent." Habeas corpus is another Latin phrase, meaning "(you should) have the person," and it's part of a longer phrase, habeas corpus ad subjiciendum,meaning "(you should) produce or have the person to be subjected to (examination)." These were the opening words of writs in 14th century English legal documents to require a person to be brought before a court or judge, especially to determine if that person is being legally detained. Basically, habeas corpus represents the legal right that a person in a free society has to not be whisked from his or her home without reason or cause and to not be detained or punished by the authorities without getting a fair hearing in court and a chance of self-defense. William Rawle in 1829 called the writ, "the great remedy of the citizen or subject against arbitrary or illegal imprisonment; it is the mode by which the judicial power speedily and effectually protects the personal liberty of every individual, and repels the injustice of unconstitutional laws or despotic governors."[1] Article 1, section 9 of the Constitution, restricting powers of Congress, forbids the suspension of habeas corpus except, "when in Cases of Rebellion or Invasion the public safety may require it." Ex parte Merryman On April 27, 1861, about a week after the Fort Sumter surrender, President Lincoln ordered Winfield Scott, then head of the nation's military, to arrest anyone between Washington and Philadelphia suspected of subversive acts or speech, and his order specifically authorized suspension of the writ of habeas corpus. Scott passed the order down the line, and Southern sympathizers in Maryland were rounded up in batches. This was during the crucial first weeks of the war, when Washington, D.C., desperately needed troops to defend itself and the northern regiments were having difficulty crossing Maryland, which had secessionist sentiments and was hostile to the idea of being overrun by the federal army. The Maryland legislature was about to meet, and Lincoln believed it would act to restrict troop movements through the state. One of the arrested was John Merryman, a prominent Baltimorean -- president of the Maryland State Agricultural Society, among other things -- and an active and vocal secessionist. Merryman was arrested May 25, 1861, and that day his lawyer filed a petition in circuit court, which was overseen by Chief Justice Roger B. Taney (Supreme Court justices presided directly over circuit courts in those days). Taney ordered Merryman brought before him on a writ of habeas corpus and commanded the military officer in charge of Merryman to show "the cause, if any, for his arrest and detention." On May 27, the day Taney set for the government to justify its detention of Merryman or set him free, Gen. George Cadwallader, the military commander who had the prisoner in custody, informed Taney via a military aide that he refused to comply. Cadwallader said he needed more time to get word from his superiors on how to proceed. He also said public safety was at stake, and he offered the opinion that, "those who should co-operate in the present trying and painful position ... should not, by any unnecessary want of confidence in each other, increase our embarassments." [sic] This didn't sit well with Taney, who then issued a writ of attachment against Cadwallader, to be served the following day. It was on the morning of the 28th, before leaving for court, that Taney confided to friends that he wouldn't be surprised if he were in prison by nightfall. During the course of the Merryman case, many Northern newspapers, including Horace Greeley's, hoped for Taney's arrest. A U.S. marshal with the delightful name of Washington Bonifant went to Fort McHenry on May 28, but soon returned to the Circuit Court (which was being held in Baltimore's Masonic Hall) and said he had announced himself at the gates of the fort but had not been allowed in to serve the writ. Cadwallader had gotten support from the administration by this time, Taney scolded Bonifant for not calling up a posse comitatus to enforce the court order, but the Chief Justice must have realized it would have been ineffective against the armed fort. He ruled that Merryman should be set free, denounced the notion of arbitrary military arrest and defended civil liberties, and pointed out that only Congress had the right to suspend the writ of habeas corpus. And he admitted he could do nothing to enforce his ruling in the face of a military force "too strong for me to overcome." Taney made no statements of sympathy for Merryman's cause or his principles. His eyes were on Lincoln, and he said the president's course showed he lacked "a proper respect for the high office he fills .... He certainly does not faithfully execute the laws if he takes upon himself the legislative power, by suspending the writ of habeas corpus, and the judicial power also, by arresting and imprisoning a person without due process of law." It was a defiant ruling, from a zealous legal mind. Taney said, "I can only say that if the authority under which the constitution has confided to the judicial 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." In a private letter to former president Franklin Pierce [June 12, 1861], Taney wrote: "The paroxism of passion into which the country has suddenly been thrown -- appears to me to amount almost to delirium. I hope that it is too violent to last long -- and that calmer and more sober thoughts will soon take its place -- and that the north as well as the south will see that a peaceful separation with free institutions in each section -- is far better -- than the union of all the present states under a military government & a reign of terror -- preceded too by a civil war with all its horror & which[,] end as it may[,] will prove ruinous to the victors as well as the vanquished." Avoiding conflict The high court generally went along with the administration after the Merryman case pointed up its powerlessness to force the administration to obey its decisions. Several of the justices were enthusiastic supporters of the war effort. Justice James M. Wayne was perhaps the administration's most staunch defender on the bench. He was from Georgia, and his property there had been confiscated at the outbreak of the war (and given to his son, who served as adjutant general of Georgia). But it might have been just natural conservatism that moved him. A circuit court case came before him, involving a Minnesota soldier who had mustered in between the time of Lincoln's call for volunteers to suppress the rebellion and the special session of Congress that had made that call legal by authorizing it. This gap in time became the point of law in the case. "It is my opinion," Wayne ruled, "that Congress has constitutional power to legalize and confirm executive acts, proclamations, and orders done for the public good, although they were not, when done, authorized by any existing laws." He said this could be done retroactively. Even some who supported the Northern cause blanched at this notion, but it was in keeping with the general spirit of the administration and the pro-war press, which was to "preserve the union at all costs." The Confederate Congress also authorized suspension of the writ of habeas corpus, and President Davis did so, in certain places and in isolated cases. He did so, for instance, in February 1862 in Richmond and Petersburg and a few Virginia towns, when McClellan's army was at the gates of the capital. It was also suspended in western Virginia and eastern Tennessee, both unionist hotbeds, and on the coastlands of South Carolina, which were under direct attack. For whatever cause, this was not greeted with the broad opposition that resisted the more extensive suspension in the North. On Feb. 14, 1862, the Lincoln administration ended the suspension of the writ of habeas corpus and issued an amnesty to political or state prisoners no longer deemed dangerous. The tone was almost apologetic, and the proclamation took pains to explain that, at the early stage of the war, "Every department of the Government was paralyzed by treason," and that Congress "had not anticipated and so had not provided for the emergency." Lincoln, as chief executive, had felt compelled to "employ with energy the extraordinary powers which the Constitution confides to him in cases of insurrection." The amnesty proclamation also seemed to imply that the insurrection was all but extinguished. The amnesty may reflect Lincoln's desire to upset the Constitution as little as possible while prosecuting the war as vigorously as possible. Or it may reflect the administration's confidence that victory was at hand (the War Department also closed the recruiting offices a few months later). Or you can split the difference. But on Sept. 24, 1862, after fresh military disasters, with a gloomy prospect for the administration in the upcoming elections, with an unpopular conscription looming and doubt about the public's reception of the Emancipation Proclamation (preliminary issue Sept. 22), the President suspended habeas corpus again, this time over the entire North. The new directive specifically cited the resistance to the draft. It had been urged privately well before that, by several governors, especially Morton of Indiana who was plagued by disloyal militias and secessionist newspaper editors. In the short session of Congress that began November 1862, a bill was introduced to provide indemnity for the President's suspension of the writ of habeas corpus. This was done to make it legally correct, and to remove Taney's objection that the Congress, not the President, had the power to do that. It passed Dec. 8, the Senate changed it, and it finally cleared Congress, as the Habeas Corpus Act, on March 3, 1863. The Supreme Court continued to give the administration its way as long as the war was in doubt. Clement Vallandingham, the ex-congressman and notorious copperhead from Ohio, had been nominated for governor of that state by the Democratic party in 1863. Union Gen. Burnside had him arrested and set out to court-martial him. Vallandingham sought a writ of habeas corpus from federal court, but ultimately the Supreme Court refused his plea, claiming that the Judiciary Act did not give the Court jurisdiction in appeals from military tribunals. Lincoln eventually commuted Vallandingham's sentence and banished him to the Confederacy. But the full question of whether the Constitution gave the president a special power to suspend the writ of habeas corpus during wartime never got to the Court. In large part that's because the administration made sure it didn't. It had a valid fear that the Court would rule against there being such a power under the Constitution, and such a ruling would undermine the war effort. On the other hand, by keeping the matter away from the Court, the administration could largely accomplish its policy. Opposition, especially in the press, clamored for a test case to settle whether the arbitrary arrests were legal. Secretary of War Stanton thought it would be wise to do so, too, but Attorney General Bates talked him out of it. In a letter of Jan. 31, 1863, Bates wrote to Stanton that a Supreme Court decision against the habeas corpus policy "would inflict upon the Administration a serious injury," and would do more good to the rebels "than the worst defeat our armies have yet sustained." Bates said he would support a test case if he thought it had a chance of success. "I confess to you frankly, that, knowing as we do, the antecedents and present proclivities of the majority of that Court (and I speak of them with entire respect) I can anticipate no such results." This was after Lincoln had appointed three justices to the bench. Bates had intimate contact with the justices, and his judgment of their likely verdicts was well informed. "Many loyal men deny this power to the President," he wrote to the Secretary of War, "and, however confident we may be that he possesses it, it is no imputation on the loyalty of the majority of the Court to presume that on this point they agree with their political school." Ex parte Milligan Only after victory was secure, and only gradually and tentatively at first, did the Supreme Court begin to put the nation back on a Constitutional basis, which Lincoln and the Radicals in Congress had disrupted. Both Lincoln and Taney were dead by this time. The significant case was Ex parte Milligan, which reversed and apologized for the Vallandingham decision. Lambdin P. Milligan was an officer in the Order of American Knights, a copperhead paramilitary outfit in Indiana that had plotted to overthrow the government, seize the Indiana arsenal and free rebel prisoners. It never came anywhere near enacting this plot, and on Oct. 5, 1864, Milligan and others were captured and tried by a military commission, acting under authority of the 1862 suspension of habeas corpus and the 1863 Habeas Corpus Act. The commission sentenced Milligan to hang. Lincoln delayed the sentence, and in the interval a civilian grand jury heard the evidence against Milligan and declined to indict him. And the Habeas Corpus Act had provided that when a grand jury met after a prisoner had been taken, and it adjourned without indicting him, the federal courts were obliged to order his release. Milligan appealed on these grounds, in a petition dated May 10, 1865. The circuit judges were divided, and they referred the question to the Supreme Court. The government's lawyers (Gen. Ben F. Butler chief among them) claimed the President had unlimited power in time of war. "He is the sole judge of the exigencies, necessities, and duties of the occasion, their extent and duration." Among Milligan's defense team was a future president, James A. Garfield, who told the court the government's argument was that "martial law alone existed in Indiana; that it silenced not only the civil courts, but all the laws of the land, and even the Constitution itself; and that during this silence the executor of martial law could lay his hand upon every citizen; could not only suspend the writ of habeas corpus, but could create a court which should have the exclusive jurisdiction over the citizen to try him, sentence him, and put him to death." Butler put his best into his summation: "We do not desire to exalt the martial above the civil law, or to substitute the necessarily despotic rule of the one, for the mild and healthy restraints of the other. Far otherwise. We demand only that when the law is silent; when justice is overthrown; when the life of the nation is threatened by foreign foes that league, and wait, and watch without to unite with the domestic foes within, who had seized almost half of the territory, and more than half of the resources of the government, at the beginning; when the capital is imperiled; when the traitor within plots to bring to its peaceful communities the braver rebels who fight without; when the judge is deposed; when the juries are dispersed; when the sheriff, the executive officer of the law, is powerless; when the bayonet is called in as the final arbiter; when on its armed forces the government must rely for all it has of power, authority, and dignity; when the citizen has to look to the same source for everything he has of right in the present or hopes in the future, -- then we ask that martial law may prevail, so that the civil law may live again, live, to the end that this may be a 'government of laws and not of men.' " The decision was announced April 3, 1866. The court unanimously ruled that military commissions had no jurisdiction in a case such as Milligan's, and it ordered his sentence set aside. He was to be released. The justices took time and care in writing their opinions. The full ruling, finished in July 1866, was written by Justice David Davis, a Lincoln appointee and a longtime friend of the slain president. "During the late wicked Rebellion," he wrote, "the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question. Then considerations of safety were mingled with the exercise of power; and feelings and interest prevailed which are happily terminated. Now that the public safety is assured, this question, as well as others, can be discussed and decided without passion, or the admixture of any element not required to form a legal judgment." And he ruled that the administration's course had been wrong after all. "Martial law cannot arise from a threatened invasion," but only from a real one. "Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction." This had clearly been the case in Indiana in 1864, as even the government's lawyers admitted. "Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln; and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate." Milligan was set free, then promptly seized by civil authorities, but they never pressed charges against him and ultimately released him. He filed suit to collect damages, but the statute of limitations had expired, and the jury awarded him a mere $5. Partial bibliography: Silver, David M., Lincoln's Supreme Court, Univ. of Ill. Press, 1957. McDonald, Forrest, States' Rights and the Union, Univ. of Kansas Press, 2000. [1] "A View of the Constitution of the United States," p.117-19. For those overly fond of Latin, habeas is second person singular present subjunctive of habere "to have, to hold," and corpus "person," literally means "body," and is also the source of modern English "corpse."

JEFFERSONIAN

Thomas U. Walter was a Philadelphian, born and raised in the city. He would almost certainly have felt deeply discouraged by the breakdown of civic life in his hometown. Perhaps he had seen the smouldering ruin of Pennsylvania Hall, burned by the anti-abolitionist mob a decade before. In West Chester, his design for Horticultural Hall (right) harked back to the Dark Ages, the realm of brutality, barbarism, and the death of classical culture under waves of Viking marauders. Nothing bespeaks the concept of culture under siege more than the windowless building’s recessed doorway that (falsely) advertised the thickness of the walls. Horticultural Hall was not only Walter’s last commission in West Chester; it was the only one without a hint of Greek revival style. It is a statement about a fragile culture with classical aspirations under siege by “mobocracy.” returned an award of $512. It was retried on a technicality on Oct. 29, 1864, and the jury reached the same verdict, though the reward this time was $504.33. The American press was as querulous about the government in 1861 as it is now, and the attitudes of editors did not always agree with that of the administration. Only five of New York City's 17 daily newspapers were firmly behind the Lincoln Administration's war effort. But perhaps the most important free press case of the Civil War played out, not in New York, but in the small town of West Chester, Pennsylvania. The town at the time had barely 4,000 citizens, but it was the seat of prosperous Chester County, which explains how it supported four weekly newspapers. Two were Republican -- the Village Record, an old, conservative Whig sheet and the most-read newspaper in Chester County; and the Chester County Times, which represented the more radical elements in the new Republican Party. The American Republican was the conservative Democratic newspaper, and the Jeffersonian was the blazing, unabashed standard-bearer of the Democratic Party of 1860. Its editor since 1843 was John Hodgson, a strikingly handsome man who inherited his mother's fine features and his father's slimness. Hodgson turned the Jeffersonian into the voice of the pro-southern and pro-slavery wing of the Democratic Party. When the northern Democratic Party began to warp and splinter in the 1850s under the stress of supporting slavery, Hodgson rivaled George W. Pearce, editor of the older American Republican, for control of the local organization. Whether measured by newspaper circulation or voter tallies, Hodgson buried Pearce. With his arrogant, beautiful head, he must have cut quite a figure in the uniforms he wore in the (largely ceremonial) state militia, an appointment that enabled him to claim the title “Major Hodgson.” Hodgson had been born in Yorkshire, and had come to America with his family as a child. Apprenticed to Charles Miner at the Village Record, he had finished his training at 17 and gone to work as a compositor, then had bought the old-fashioned Norristown Herald newspaper. But he couldn’t make any money with it and gave it up after a few years to open a dry-goods store on Market Street in Philadelphia. He hated mercantile life, however, and longed for the rough-and-tumble of political editorship. After his wife died and left him with five young children, he had returned to West Chester and got back into newspapering. His father had been a Methodist preacher and his brother Francis was a Methodist minister. John chose the paper, not the pulpit, but he went about his work for the Democratic Party with a missionary zeal, and he was an active leader in the West Chester Methodist Church. Hodgson doesn’t seem to have felt that politics sullied religion, and he was the ideal opposition editor during the years the Whigs held sway in West Chester, asking pointed questions about the conduct of the men they elected, whether on the West Chester borough council or the state Assembly. On national questions, he backed the party’s position unquestioningly, with a faith in its essential righteousness that was remarkable, even for a partisan newspaper editor. The Methodists in those years were the church of the American workers and a bastion of the Democratic Party. Methodists increasingly identified themselves with political causes, even more so than other faiths. As an active Odd Fellow, Hodgson would have opposed the Anti-Masonic strain in the Whig Party, and as an immigrant himself -- though he was only 9 when his family came to America, his enemies never let him forget his English birth -- he despised the anti-foreigner activities of the “Know-Nothing” Republicans in West Chester in the 1850s. But Hodgson carried on his politics more than anything else, as a Christian. He seems to have held a personal dislike for the philosophy and politics of the abolitionists. He was deeply alarmed by the atheist and freethinking tendencies of the religious liberals who made up much of the abolitionist societies, and when those men and women entered the political mainstream as the core of the local Republican party, Hodgson saw it as nothing short of satanic. He fought them with every weapon he could muster, in the name of saving America’s soul. He was a racist, but perhaps no more so than more moderate Democrats or even many Whigs. That he chose to express his racism in the bluntest terms was a political decision, not a personal one. His political rivals, who attacked him at every opportunity, never said he went too far in his anti-black rhetoric. They evidently felt no need to distance themselves from it. Hodgson was a Christian politician first, and his Jeffersonian embraced the racist justification of slavery with an ardent, yet purely political, passion. Many lifelong Democrats in West Chester joined the war for the Union, or lent it their support, with unfeigned enthusiasm; Harry Guss, who led the National Guards militia into the 97th Pa. Infantry, and Henry McIntire, who led the Brandywine Guards into the 1st Pa. Reserves, were both Democrats. However, some of the party’s older leaders -- Hodgson, Nimrod Strickland, Robert E. Monaghan, and John M. Brinton -- persisted in seeing the war as a partisan sham, an inevitable effect of electing a man like Lincoln to the White House, and a national tragedy caused by the abolitionists who had perverted the government and rabidly driven the South to desperate measures in its own defense and in defense of the intent of America’s founders. The South may have broken the compact of the Constitution, but these men felt the blame rested with Lincoln and the fanatical Northern abolitionists who ran the Republican Party. They said so in party meetings, on the streets of West Chester, and in the columns of the Jeffersonian. West Chester, panicked by fear, furious over the rending of the Union, and with a pent-up war lust that had been brewing for almost a decade, was in an intolerant mood. Under the headline “Traitors in West Chester,” the Chester County Times of April 27, 1861, carried this communication from an anonymous reader: “Every man who will not give his money to support the brave boys who have gone to the field to defend their country against the most diabolical and wicked attempt to overthrow the best government in the world is a traitor. There is some loud talk about certain men at home. IF THEY PREFER THE WAR SOUTH THAT IS WAGED BY THE CONSPIRATORS, THEY MUST BE MADE TO LEAVE FOR THAT CAMP. We cannot and will not have spies and enemies in our camp. The law of treason must strike down and put down all babbling traitors.” Three weeks later, the American Republican printed an inflammatory, rambling column by a correspondent signed “Wayne” (the name of the county's Revolutionary War hero), describing a public meeting at the Courthouse during which “Major! Hodgson was given to understand pretty plainly that his secession paper would not be endured much longer.” “Wayne” also thundered against the anti-war faction in West Chester in a column in the Chester County Times, threatening that a “day of retribution will come.” A private letter written the day after Fort Sumter surrendered put the matter more precisely: “Hodson [sic] & Monaghan & one or two others have been talking pretty strong here within a few days for Secession; Now as war has begun if they don’t come out for the Union or at least keep quiet they will be -- hung I was going to say -- mobbed I will. The Jeffersonian building will not stand long unless Jno. Hodson dries up.” From the distance of more than a century, the “traitors” of West Chester seem a harmless lot. Brinton was “a unique figure, big-headed, big-bodied, full of blood, iron and Democracy.” Muscular and eccentric, he kept boxing gloves in his law office, and when he felt he needed a workout, he pulled them on for sparring matches with his black janitor. He also had a habit of offering to duke it out with country farmers who refused to pay his fees. Monaghan, the moon-faced lawyer who headed the Democratic flock, was overly proud of his distant Irish ancestry. Strickland, with his crippled leg and pursed lips, squinted at the world through rectangular spectacles from under a broad-brimmed low-crowned hat. His squashed look was made the more ridiculous by tall collars and a billy goat beard under his chin. A proud member of the Odd Fellows society, he made his living by artfully dancing from one political appointment to another. If the Democrats had ever gone totally out of power on the state and national levels, he would have starved. A West Chester writer explained Strickland to Philadelphia readers by saying he had “acquired some little position as the former editor of the ‘Republican and Democrat’ at this place, but, as you very well know, is ever running after small offices.” At their annual party convention in Horticultural Hall on Aug. 13, 1861, the hard core of the local Democrats opposed the war and bid defiance to the government, but even as they affirmed their radicalism, the ranks of the hard-core shrank. Among the approved resolutions Strickland offered was: That the American democratic government is founded not upon the sword, but upon the intelligence and virtue of the people. Public measures are to be brought to the test of the Constitution and finally settled by the appropriate civil tribunals. To resort to armies is a fundamental error, and must result in establishing a military despotism. This meeting is opposed to war movements whether by popular assemblies, state legislatures, or Congress. The People are competent for self-government, and if a Convention of the States be called, under the Constitution, we feel assured that our difficulties can be peacefully and satisfactorily adjusted. Longtime Democrat Joseph Hemphill led the moderates, and he put forth a different preamble and a set of alternate resolutions. He blamed the war on “the disunionists of the Southern States,” sustained the administration, and called on the party “to maintain and perpetuate our union, Constitution and laws at all hazards of toil, treasure and blood.” Hemphill tried to bring these to a vote late in the meeting, but was hissed and defeated. The Jeffersoniansupported the resolutions that had passed: “The resolutions of Mr. Hemphill ... express no condemnation of, but, by their silence and general tenor, would be construed to endorse, the unconstitutional and corrupt doings of Lincoln, Curtin, and the Legislature.” Hodgson found himself the brunt of most of the backlash. As editor of the Jeffersonian, his was the most public position among the anti-war Democrats. After the word "copperheads" came into vogue to describe them, Hodgson relished it (“There is an applicability about it which speaks out boldly and has a palpable meaning,” he wrote), but his life in the town became increasingly difficult. Not long after Fort Sumter he was chased from a local oyster cellar after an altercation with one besotted Unionist. The old nativist charges were flung against him again, with redoubled fury. The Chester County Times of May 15 printed a letter from a correspondent, scolding the Jeffersonian’s editor as “The Tory Hodgson true to his English tory instincts.” The Times still carried Know Nothing venom in its veins from its nativist days. Hodgson also occupied an awkward position as the enthusiastic head of the county militia. Hodgson, “although holding a military office in the militia, is sneaking about West Chester, grinning occasionally a ghastly smile over news he may hear unfavorable to the war for the Union!” the Timescorrespondent wrote. “If he has any soul or heart in favor of his adopted country that has fed and clothed him, why is he not found now where his holiday profession as a soldier should place him -- in the ranks?” Hodgson’s rivals did their part in whipping up popular furor. “There is an impudent boldness in the highwayman, who presents you the alternative, ‘your money or your life,’ which, at least, commands a kind of admiration for frankness;” the Chester County Times wrote of Hodgson, “but the Spanish stilletto, stabbing by masked traitors, the ‘masked batteries’ of cowardly tories, are as far beneath the bold bandit, as the vilest reptile that crawls on the earth is beneath the glories of the noonday sun.” A month later, the Times wrote, “The last number of the Tory organ in this place was filled with illy concealed treason. The leniency of the people has emboldened the traitor editor and the frequent meetings of the small coterie of Tories who almost daily meet for mutual sympathy and mutual plotting, keep him in countenance .... Let them be constantly exposed to public gaze, and when they have their secret conclave, for rejoicing over the defeat of national arms, let them be treated as enemies of the community.” Yet the Jeffersonian’s tone had been basically positive through the first three months of the conflict. Hodgson had printed some criticisms of the administrations and some poetry lamenting the destructiveness of war, but he also ran enthusiastic reports of the military work being done, and upbeat, patriotic letters from soldiers. The newspaper turned negative in July, however. On July 27 the entire front page was given over to the text of a speech by Clement Vallandingham, the copperhead congressman from Ohio. A week later Hodgson devoted the front page to a reprint of an address by John C. Breckenridge, the radical Democrat who had run against Lincoln in 1860. The full account of the Bull Run disaster appeared in his August 10 edition, while in the same issue on inside pages devoted to political news he ran strident anti-administration editorials with headlines like: “WAR! WAR! WAR! TAXATION AND POVERTY!” and letters bearing titles like “THE FOLLY OF THIS WAR.” The Hodgson editorial that most inflamed the loyal citizens of West Chester (or so they said later) appeared in his July 27 edition, and was titled “The Purpose of the War.” It claimed that “Abolition demagogues” had steered the country into war, “not to restore harmony and peace, and consequent union, between the two sections of the country, but to subjugate the South and ‘wipe out’ Slavery. In brief, ITS PURPOSE IS TO BENEFIT THE NEGRO AT THE EXPENSE OF THE WHITE MAN.” As proof of this, the Jeffersonian cited resolutions that had been introduced in the Senate calling for an emancipation of Southern slaves. “To effect this object -- or rather to attempt to effect it -- thousands, and tens, perhaps hundreds of thousands of Northern lives are to be destroyed, and millions of dollars of weighty and crushing debt, with its never-ending taxation, are to be fastened upon Northern citizens and Northern property.” Published immediately after the Northern military disaster at Bull Run, with the government menaced and the people expecting to hear any day of Washington in flames, the claim that the war was about slavery was just too much for people to swallow. “An editor who would coin as many lies as is embodied in that one short article, and published it with the criminal purpose of making his readers believe that the war was an abolition war, got up to benefit the nigger at the expense of the white man, was saying that our army deserved their defeat, and that he rejoiced over the victory of the rebels at Bull’s Run,” replied an American Republican correspondent who signed himself “Westtown” (the name of a nearby township). “The English scoundrel did, I have no doubt, rejoice. If the doctrine of his editorial is right, our army ought to be defeated.” Hodgson’s offensive predictions ultimately proved correct; it wasn’t yet a war about slavery, but it would have to become one before it could be won. In any case, Northern loyalists in 1861 still rejected the notion that the conflict had anything to do with slavery or blacks. The editorial had a more immediate consequence, however. The three-month troops had been discharged and were back in town, forming new regiments to go off for three years’ service. Before they did this, however, they showed their feelings against the Jeffersonian. By the moonlight at about 1 a.m. on the morning of August 20, a few hours before the Jeffersonian was to go to print again, a gang of men quietly and efficiently destroyed the office. The newspaper’s building on High Street was broken into, “and the newspaper press broken, the hand press pitched out of the window and the type knocked into pi and thrown into an adjoining sink,” the Village Record reported. “On Tuesday morning the office presented a desolate looking spectacle. Nothing but a few bundles of paper was to be seen in either the first or second stories of the office.” Henry S. Evans, the Record's editor, said he had no idea who had done this, but “it is believed they came from the country.” A historical account of the incident written in the 1930s by a professor from Philadelphia reported, “While no public revelations were ever made as to the personal identity of any of the members of the mob, the townspeople knew that the participants were connected with a newly formed secret Republican organization in West Chester.” This information he ascribed, in a footnote, to a “statement to the writer by Squire Paxson who lived in West Chester at the time,” and it has often been said that the inspiration for the vandalism was Congressman John Hickman. Hickman was a devotee of the theater, and a friend and fan of Edwin Forrest, the great American actor. There is something theatrical and appropriate in the image of Hickman as Henry II, discovering that his minions had taken him at his word in attacking the man who was his Becket. "Mobbing" of unpopular groups or institutions was a fact of life in American communities in the mid-19th century. Philadelphia, a mere 26 miles from West Chester, was notorious for it. In the 1830s and 1840s, Philadelphia's anarchic wards were ruled by vicious bosses and utterly corrupt police. Notorious street gangs like the Killers, the Rats, the Blood Tubs, and (unaccountably) the Dock Street Philosophers terrorized the city, killing citizens and destroying property. At the same time, the city was wracked by ethnic violence. Irish mobs sacked whole neighborhoods that were home to African-Americans. Protestant “nativists” attacked immigrant Irish Catholics and burned their churches. There were nine major mob attacks against blacks in Philadelphia between 1834 and 1849. During the Kensington and Southwark anti-Catholic riots in 1844, twenty people had been killed. It got so bad that newspapers like the Philadelphia Bulletin of May 3, 1847, contained the news item, “no rioting yesterday.” Generally it was a phenomenon of the big cities, but it could hit small towns like West Chester, too. The first big abolitionist meeting in the town, in 1837, was driven out of the courthouse by a mob attack, and thereafter the abolitionists had to meet in the open, or under the eaves of the market house, because no one would rent them space. The townsfolk were acutely aware of the dangers of mobs. The borough had no police, just a constable and a night watchman or two, and it would be helpless in the face of a major civil disorder. West Chester's Horticultural Hall was built in 1848 as a public meeting place. It was designed by the architect Thomas U. Walter, who was known for Greek Revival buildings. The Greek Revival style was more than just a fashion; it was an aesthetic that reflected the values that America’s founders wanted it to absorb: the qualities of civic responsibility, reason, and enlightened discourse represented by classical figures like Cicero. They tried to inculcate these values in the fledgling democracy. In 1861, the Village Record, so far from being chilled by the image of a mob attack on a newspaper, expressed only the mildest disapproval, and was inclined to blame the Jeffersonian for its own troubles. “It is lamentable that the settled law of the land should be violated in a manner so calculated to produce violence -- or rather, that the imperfections of the law should be such that the offenses against society, or calculated to effect its very existence, should not be punished by due process of law.” At the American Republican, in the days after the attack, editor George Pearce took pains to point out that when people had asked him what should be done about the Jeffersonian, he had “counseled patience, and deprecated in the strongest language all resorts to violence.” He seemed to have forgotten that in his issue just before the attack, he had pointed out to the public that the Jeffersonian “only maintained its existence by the forbearance of those whose loyal opinions it outraged in every one of its pestiferous issues." In the wake of Bull Run, the mood across the North had changed. The big battle was over, the Confederacy had not crumbled, and Washington had not fallen. The giddy excitement of the first three months dissipated, as the seriousness of the conflict became apparent. It was time to take stock and prepare --militarily, politically, and psychologically -- for a war that was going to take a few more months at least. The defeat left the North more united, more grimly determined, and the critics of the war found themselves very much on the outside. The Jeffersonian was not alone in suffering for its Southern sympathies. On August 8 the office of the Concord, N.H., Democratic Standard had been mobbed by soldiers who didn’t like what had been written about them. The same day the Jeffersonian was sacked, a secessionist newspaper in Easton was mobbed, and a publisher in Haverhill, Massachusetts, was tarred and feathered by a mob. “Can we wonder,” Henry S. Evans wrote, “that a proud and patriotic people, jealous of their country’s honor, burning at the defeat of her armies, incensed at the vile conduct of traitors, and trembling for the safety, not only of their government but of their fire-sides, should chafe at an opposition in their midst which is calculated, however honest its motives, or whatever specious pretenses may veil it, to defeat all their efforts and sacrifices?” What happened next, however, was certainly attributable to John Hickman. Hodgson missed his Tuesday edition, but the attempt to shut him down only inspired him to greater effort, and he prepared to print up his next edition Friday evening, come hell or high water, to have it to readers as usual on Saturday. Hodgson was “busy during the week running up and down to Philadelphia,” where another pro-secession newspaper, the Christian Observer,had offered him the use of its presses. However, on Friday, Aug. 23, 1861, United States marshals seized the office of the Christian Observer, along with what was left of the Jeffersonian. “Two officers arrived by the train at 4:00 p.m., who proceeded at once to the establishment on High street, and took the secession concern out of the hands of its treasonable conductors.” John Jenkins and William Schuyler -- two assistant marshals sent by U.S. Marshal William Millward -- padlocked the office under a warrant from George A. Coffey, the U.S. Attorney for the Eastern District. They also seized Hodgson’s types, presses, and books. Hodgson and his son visited Coffey in Philadelphia on September 10, and again about a week later. “I told him that if he would agree not to oppose the war ... I certainly would not oppose the restoration of the paper,” Coffey recalled in later testimony. Hodgson’s reply was, “I would die rather than give my pledge to a paper of that kind in order to get my property back.” Hodgson was not alone in this, either. In August the federal government had begun to crack down on the opposition press. Court martials were authorized in the cases of newspapers that printed information considered to have aided the enemy. Telegraph wires out of Washington, which the major daily newspapers relied on for their news of the war and the government, were subject to State Department censorship. On August 16 charges of disloyalty for alleged pro-Southernism had been brought in United States Circuit Court against the New York Journal of Commerce, Daily News, Day Book, Freeman’s Journal, and the Brooklyn Eagle. On August 21 the federal government ordered that copies of the New York newspapers that had been suppressed should not be carried by the mails. Suppressions continued August 22 in New York, New York; Canton, Ohio; and Philadelphia. On September 18 the Louisville, Kentucky Courier was banned from the mails, and its offices were seized the next day by federal authorities. Among the newspapers suppressed by the government were the Philadelphia Evening Journal and the Chicago Times. Despite claims in the North of tit for tat, there were relatively few instances of press suppression by the South. Once again, Hodgson’s fellow editors rejoiced, this time at the sight of their government curbing a free press. “The suppression of this infamous paper gives great joy to all loyal men in our Borough, and we are sure this energetic movement on the part of the government will be hailed with the liveliest satisfaction elsewhere,” Pearce wrote. “Hodgson will realize the great truth, ‘that the way of the transgressor is hard.’ It will scarcely be a tall feather in the cap of his children, and children’s children, that their ancestor was a traitor, and that his newspaper was seized for promulgating sedition against a government that gave him ample and generous protection. There is no doubt that some men were very mad at this proceeding, but they will cool off and get in a good humor. Let the maddest of them beware, for there is a bolt in the cloud that might light on their heads before they are many days older.” Pearce was prepared to deflect some of the attention from the defeated Hodgson, but only to prepare West Chester for the next set of targets: Hodgson, every one in this community knew, was the merest cat’s paw of other men. Characterless as he is and always has been, we do not believe he would have wrapped himself in the cloak of infamy that now hangs upon him in enduring disgrace, but for the madness and desperation of the disappointed politicians who wrote his editorials and culled the treasonable articles that offended and insulted every good man in the community. Nimrod Strickland, John H. Brinton, and their supple tool, Monaghan, are the guilty parties in this case. ... When these men play the bully on our streets, and impudently try to fix the charge of violence on those who stand by the country and its old and honored flag, fling the truth in their faces, that they are the instigators and the authors of these infractions of law and order. The next week, the Chester County Times noted that the pugilistic John H. Brinton had been bound over on charge of assault and battery on the Times’editor. “John’s wrath was all about the Jeffersonian,” he wrote. “He said the influence of the Times had caused its sudden suspension, and he wanted to get up a kind of wake over its dead carcass. We hope he is satisfied with his attempt. If Toryism had continued as rampart [sic] as it was a few weeks ago, we are not sure that other suspensions would not have taken place, more disagreeable and causing worse contortions than the newspaper’s demise.” The Philadelphia Bulletin, meanwhile, laid out the best possible case for why the Jeffersonian’s anti-government editorials were dangerous to the national safety: The principal circulation of the Jeffersonian was in the lower part of Chester County and along the Maryland line. Many of the people even upon this side of the line are touched with Secession sentiment. They take but one newspaper, frequently, and they are, of course, greatly influenced by its statements and opinions. The mischief that can be accomplished by a persistent enemy of the Government, under such circumstances, will be appreciated. If the press failed to appreciate the need to protect itself, the justice system did so in its behalf. The Jeffersonian matter became a test case for the government’s authority to shut down any newspaper it didn’t like. A congressional act of Aug. 6, 1861, had authorized the President to direct the seizure of anyone who was “aiding, or abetting, or promoting ... insurrection.” The Jeffersonian seizure failed to meet the terms of this act in its two essential qualities; Hodgson had printed no government secrets or committed any espionage for the Confederacy, and the President had never authorized the seizure of the paper. Lincoln had hesitated before signing the August 6 order, and he likely never meant it as an instrument to suppress unfriendly newspapers. Hodgson finally got a hearing on October 7, in Philadelphia, before an U.S. Circuit Court judge. The legal discussion centered on whether Coffey, the district attorney, had had the authority to issue the order he signed, dated Aug. 23, 1861, to Millward: “According to the provisions of the Act of 6th of August, 1861, I hereby request you to seize upon all copies of ‘The Jeffersonian’ newspaper, published in the borough of West Chester, Chester county, Pennsylvania, as well as all property of every kind whatsoever in and about the publication of said newspaper, that may be found in your bailiwick, for confiscation and condemnation, according to law -- I being authorized by the President of the United States.” It transpired that Wayne McVeagh, Chester County’s district attorney, had sent Coffey copies of the paper, asking if the government could put a stop to it, and the two men apparently had corresponded about it. Coffey admitted under cross-examination that before he had issued this warrant, he had sent telegraphs to the president and to the Secretary of War, requesting authority to seize the Christian Observer and the Jeffersonian. “I spoke of the Jeffersonian as publishing articles inflaming or disturbing the minds of the people.” He had gotten a reply only from the War Department, saying, as he recalled, “Your action is approved -- be temperate and firm.” But there was no warrant or affidavit from the government authorizing the seizure. Coffey had acted on his own, and his order to Millward was the first paperwork in the case. Coffey explained, rather lamely, that he had wanted to test whether the act applied to such cases. In the absence of the necessary authority, and with the failure to produce any specific charges against the Jeffersonian except printing opinions unfavorable to the government, Coffey eventually abandoned the case. The matter was formally dropped through a terse notice from Coffey to the court, dated Oct. 14, 1861. The Jeffersonian resumed publication with a notice to readers on October 17, but when Hodgson took his stacks of fliers to the West Chester post office for the Philadelphia mails, he was told they would not be handled. U.S. Postmaster General Blair had put him on the list of papers that the government would not move. Other Democratic newspapers around the state and in New York expressed sympathy and watched the case with interest. The mail privileges were restored, evidently without a word of explanation, on Jan. 18, 1862. Hodgson, meanwhile, pressed his point. In late October he filed a lawsuit against Millward and his assistants for lost profits. Hodgson was represented by two sympathetic Philadelphia attorneys, George W. Biddle and William B. Reed. (Reed distinguished himself after the war as the lawyer who represented Jefferson Davis at his trial.) On Feb. 3, 1863, case of Hodgson v. Millward et al was called for trial in U.S. Circuit Court, and the jury. In both cases, the judges made strong statements to the jury about the government’s lack of authority to clamp down on dissent in this way. In the second trial, Supreme Court Justice Robert C. Grier (right), who presided over the circuit, charged the jury that there was no justification for the seizure, and that the DA had no power to issue a writ ordering the seizure. The power to issue writs, he told them, belongs to the courts alone. None of the evidence submitted suggested that the President or a member of the cabinet had authorized the seizure, and it wouldn’t have made any difference had there been: No one can pretend that our law was changed by the mere fact of the rebellion. The very purpose of law is to set a rule that may remain fixed and immovable among the disturbances of society, and that shall be the standard of judging them. ... If it yielded to excitements it would be judged by them, instead of being their judge. When Chester County's emergency militias of 1862 passed through West Chester on their way to stem Lee's threatened invasion of the state (they arrived much too late), they smashed the windows of the county's most pro-administration newspaper, the Chester County Times. "There was a great time in W. Chester today," Southern sympathizer Jennie Sellers wrote in her diary for Sept. 7, 1862. "Before the soldiers left, they run most all the niggers out of W. Chester. ... The office of the Times was riddled last six day night by the soldiers. The editor of the Times wanted the soldiers to break up the office of the Jeffersonian, but instead of that they broke up his own." The South Compared Partial bibliography: Abrams, Ray H., "The Jeffersonian, Copperhead Newspaper," Pennsylvania Magazine of History and Biography 57 (1933), p.260. Harper, Douglas R., "If Thee Must Fight:" A Civil War History of Chester County, Pa. West Chester, Pa.: Chester County Historical Society, 1990. ------------------, West Chester to 1865: That Elegant & Notorious Place. West Chester, Pa.: Chester County Historical Society, 1999.