Justice During the War

The Civil War redefined both the relationship between the U.S. government and the individual and between the central and state governments. During the course of the conflict, the Union and Confederate governments pursued aggressively nationalistic policies that undermined states’ rights, civil liberties, and property rights.

The Civil War established the primacy of the federal government over the states in the administration of justice, and it elevated the ethical system of free-labor capitalism as the national standard.

The Civil War redefined both the relationship between the U.S. government and the individual and between the central and state governments. During the course of the conflict, the Union and Confederate governments pursued aggressively nationalistic policies that undermined states’ rights, civil liberties, and property rights.

The Slavery Issue

By the mid-nineteenth century, the free-labor ideal had taken hold in the states of the North. It was believed that economic opportunity should be open to all. To many in the North, the slave system in the South appeared to be the antithesis of the free-labor ideal. Northerners believed that slavery was inefficient, that it degraded labor as a whole, and that it created economic stagnation. Though most were willing to tolerate slavery where it existed, they wanted the western territories reserved for free white labor. They interpreted the Constitution as a document that made freedom national and slavery local.

Southerners shared a belief in the positive benefits of economic opportunity, but they identified it with the acquisition of land and slaves. Slavery was thus seen as a positive good, and Southerners dreamed of extending the slave system into the territories. Southerners argued that the territories were the common property of all Americans; to prohibit slavery within them deprived Southern people of their right to share in the nation’s bounty.

The Republican victory in 1860 brought to power an administration pledged to restrict slavery in the territories. Fearing that the new administration would undermine slavery, seven Southern states asserted their right to secede from the federal union and form a new government. Abraham Lincoln’s administration denied the right of secession and refused to relinquish federal property in the South to the new Confederacy. When the state of South Carolina fired on a federal fort in Charleston harbor, President Lincoln called upon the states to supply troops to suppress the rebellion and preserve the federal union. Four additional states believed Lincoln’s action to be an unjust usurpation of federal power and joined the Confederacy.

For the Lincoln administration, the highest good was the preservation of the Union. All issues of justice were considered in relation to that objective. The Confederacy was dedicated to the proposition that human property was an unalienable right and must be preserved. For the first year of fighting, the Lincoln administration took no action to destroy slavery. It enforced the provisions of the Fugitive Slave Law, and Lincoln rebuked Union general John C. Fremont when he issued a proclamation freeing the slaves of Confederate sympathizers in Missouri. Lincoln’s Emancipation Proclamation did not take effect until January 1, 1863. When he issued the proclamation, Lincoln justified his action in terms of military necessity. The proclamation freed only the slaves behind Confederate lines, but after the Emancipation Proclamation was issued, the Union Army became a force for liberation.

Civil Liberties

Both the Union and Confederate governments restricted traditional civil liberties during the conflict. In early 1862, the Confederate Congress authorized President Jefferson Davis to suspend the writ of habeas corpus and to declare martial law in areas in danger of attack. That same year President Davis ordered the first military draft in North America and established a Conscription Bureau to carry it out. Even more striking, the Confederacy never established a Supreme Court and allowed the attorney general to judge the constitutionality of laws. That omission seriously undermined the notion of judicial independence and gave the executive branch unprecedented powers over the administration of justice.

A former slave and a leading abolitionist, Frederick Douglass was an outspoken advocate of allowing African Americans to fight for the Union. (National Archives)

Thousands of civilians were arrested by the Union government during the war, and many were tried by military courts. In response to civil disturbances in Baltimore, Lincoln suspended the privilege of habeas corpus on April 27, 1861, along the rail line from Philadelphia to Washington. The suspension was later extended to other areas of the North and gradually became general in certain types of cases.

Most military arrests by the Union government were not political. The vast majority of civilian prisoners were blockade-runners, residents of Confederate states, army deserters, draft dodgers, foreign nationals, people who dealt in contraband goods, or fraudulent war contractors. A loyal opposition continued to function in the North throughout the war and actually won control of several state legislatures.

Among those arrests early in the war was John Merryman. Merryman was a member of a pro-Confederate Maryland cavalry unit that had damaged railroad bridges in April, 1861. Merryman’s attorney successfully petitioned a federal circuit court for a writ of habeas corpus to show just cause for his arrest. The commander of Fort McHenry, where Merryman was being held, refused to honor the writ on the grounds that President Lincoln had suspended the privilege in Maryland. Judge Roger B. Taney responded by issuing a circuit court ruling stating that only the Congress had the power to exercise such a suspension (Ex parte Merryman, 1861). In spite of the ruling, Lincoln continued to maintain his right to suspend the writ as an essential power necessary to suppress the rebellion.

For purposes of election propaganda, unscrupulous Republican politicians and military officers attempted to exploit fears that traitorous secret organizations existed in the Midwest. Recent scholarship has demonstrated that the major Copperhead societies, such as the Knights of the Golden Circle and the Sons of Liberty, were little more than paper tigers. In the wake of Democratic victories in the state elections of 1862, Republican newspaper editors frequently printed tales of treasonable Democratic activities.

When Ohio Democrat Clement L. Vallandigham declared that the war was being fought to free blacks and enslave whites, General Ambrose Burnside ordered his arrest. A military commission convicted Vallandigham of attempting to hamper the government’s efforts to suppress the rebellion and recommended imprisonment. President Lincoln altered the sentence to banishment, and Vallandigham was escorted to Confederate lines. Lincoln justified his action by arguing that it made no sense to shoot a simple-minded deserter and do nothing to the man who induced him to desert.

Later in the war, Democratic activist H. H. Dodd of Indiana organized the Sons of Liberty to protect the civil liberties of those opposed to the Republican administration. Acting on rumors that the Sons of Liberty had aided Confederates, Union general Henry Carrington arrested Indiana Democrats linked to the Sons of Liberty, including editor Lambdin Milligan. A military commission sentenced three of the defendants to death. Others received prison terms. The death sentences were never carried out, but it is clear that the men were tried on questionable evidence by military commissions in areas where civil courts were functioning. After the war, the Supreme Court ruled in Ex parte Milligan (1866) that such trials were illegal.

Treatment of Black Troops

When the conflict began, neither the Union nor Confederate governments would sanction the use of African American soldiers. As the Union government moved toward an acceptance of emancipation, however, it also began to organize African American regiments.

In spite of the large-scale recruitment of black soldiers during the last two years of the war, the Union army discriminated against African Americans in a wide variety of ways including pay, chance of promotion, and the amount of fatigue duty (manual labor) black units were expected to perform. While a few blacks did receive commissions, the vast majority of officers in the United States Colored Troops (USCT) were white combat veterans. The men of the USCT proved their courage at the battles of Port Hudson, Milliken’s Bend, and Fort Wagner, where they took heavy casualties. Generally, however, the prejudice of many commanding officers led to the use of USCT regiments for fatigue or guard duty while saving white units for combat.

The Confederacy reacted harshly to the use of black troops by the Union army. President Davis approved of the execution of black prisoners of war in South Carolina in November, 1862. Later, Davis ordered that all former slaves captured while serving in the Union army be returned to the states for trial. The massacre of black prisoners by Confederate troops on several occasions forced Union authorities to threaten retaliation in order to stem the injustice.

The use of large numbers of black troops by the Union war effort helped pave the way for universal emancipation. Throughout his political career, Lincoln consistently asserted that slavery was morally wrong. Though emancipation began as a military tactic, it became a war aim. The courage of black soldiers allowed Lincoln to secure passage of the Thirteenth Amendment, providing for an end to slavery throughout the country.

Military Justice

The system of military justice employed within the army was seriously flawed. At least 267 soldiers were executed by the Union army during the Civil War era. More than half of those executed were either foreigners or African Americans. A number of black soldiers were convicted of mutiny for protesting unequal pay in the Union army. Racial tensions accelerated during the final months of the conflict. A high number of black soldiers were executed for alleged sexual offenses against white women. The Confederacy had an incomplete record of military justice. Since many Southern officers had received their training in the prewar U.S. army, the procedural flaws of courts-martial were similar in both armies.

The Civil War moved the United States toward a more perfect application of its ideals of equality and justice. The United States entered the war as a federal union with contrasting standards of justice, one based on free-labor ideals, the other on the slave system of the Southern states. Property rights took precedent over human rights, and equal justice was denied African Americans in virtually every section of the country. The Union government, through its policy of emancipation and the enlistment of African Americans into its armed forces, transformed the war from a crusade to preserve the Union into a war of liberation. In doing so, it expanded the nation’s concept of justice to include equality for African Americans.