The political and legal situation in which the country found itself during the Civil War was complex and unprecedented. The status of former citizens was debated, as was the relationship of the new Confederacy to the Union and to the rest of the world. At the heart of all the political debates was how to balance individual rights with the need for order during the confusion of wartime.
The political and legal situation in which the country found itself during the Civil War was complex and unprecedented. The status of former citizens was debated, as was the relationship of the new Confederacy to the Union and to the rest of the world. At the heart of all the political debates was how to balance individual rights with the need for order during the confusion of wartime.
The status of the Confederacy and its relationship to France and Britain was of particular concern. Confederate states believed that their cotton was too valuable for British industrial production to lose, and expected British assistance. Later, when Confederate envoys were captured by Union forces aboard a British ship in neutral waters, delicate diplomacy prevented the situation from escalating, and the British never did provide substantial material support to the Confederacy.
Perhaps most vexing of all wartime questions was the proper use of the suspension of the writ of habeas corpus, which stripped detainees of their right to challenge their confinement in court. Though the Constitution does allow for its suspension if necessary for public safety, it was not clear who had the authority to suspend it. In 1861, when Maryland seemed on the cusp of either secession or “armed neutrality,” which would have cut off Washington, DC, from the rest of the Union and crippled troop movement, Lincoln authorized his commanders there to seize those whom they felt were a threat. At the heart of Lincoln’s argument was the firm belief that the states in secession were breaking the law and endangering the Union. Is it so wrong then, he asked, to suspend one law to save the nation? Congress agreed, and in 1863, it confirmed the suspension of habeas corpus, but included safeguards to protect detainees. Among other provisions, lists of all people held by the military were to be provided, and all of these cases had to be indicted by a grand jury, or the prisoner set free. An additional test to the authority of military law came at the end of the war, when a man named Milligan, condemned to death by a military tribunal, was found by the Supreme Court to have been improperly tried. If civilian courts are in operation, they must be used to try civilians, the court said, even if they are accused of fomenting or aiding the cause of rebellion. The Confederacy also wrestled with this issue, and in 1864, when habeas corpus was suspended there, the governor of North Carolina strongly objected. The Confederacy was supposed to represent greater civil liberty than the Union, he argued, and the suspension of the writ was an unnecessary restriction of these liberties.
The question of how war was actually to be carried out was also settled through numerous orders and proclamations, and the documents included in this chapter give a sense of the issues. Lincoln ordered a complete blockade of Confederate ports, and laid out in detail how this was to be carried out. Francis Lieber’s rules of war outlined acceptable conduct by the armed forces, limited brutality and torture, and provided guidelines about how property and civilians were to be treated. Perhaps the most revealing record is General William T. Sherman’s, whose letter described in simple language the reality of war. The nation cannot have peace and be divided, he said, and war is hard, and “more or less relentless.” The Confederacy, having caused the war, was going to have to live through the painful consequences.
Jefferson Davis, first president of the new Southern Confederacy. Source: Library of Congress, Prints & Photographs Division, LC-USZ62-129742