Lincoln and War Powers. Commentary on papers by Prof. E. Berwanger and Dr. M. Neely, 10th Annual Lincoln Symposium, Feb. 12, 1983.Skip other details (including permanent urls, DOI, citation information)
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In Hamlet, King Claudius, his evil deeds having generated inescapably tragic consequences for almost everyone in the play, in a moment of inadequate repentance laments to his queen: "... when troubles come they come not single spies but in battalions."
Lincoln was no Claudius. But his opposition depicted him as one, as "King Linkum the First," as a would-be Ceasar, Othello, or Napoleon; as a lustful, power-mad mulatto brute. According to such passionate, reactionary accounts, he was destroying the national government's check-and-balance structure, the state-based federal system, and the constitutional rights of white Americans to personal liberty and possession of property, especially of property in humans.
He was no Claudius. Though Lincoln's arbitrary arrest and military emancipation policies were inextricably enmeshed in the tragedy of the Civil War, he transformed them, though at difference paces, as Professor Berwanger and Dr. Neely have shown, into reasonable, politically supportable, and socially constructive consequences of the fact of war. Again unlike Claudius, Lincoln never repented his policies or their consequences, as I've suggested in earlier publications and Dr. Neely confirms.
Certainly the battalions of troubles that afflicted Lincoln's America from the day he took office seemed to many persons here and abroad, to be both endless and insoluble. The easy way out for Lincoln and the tottering nation, the way out that southerners expected Lincoln to take, was supine acceptance in the Union's collapse.
At the other end of the scale of alternatives from the Buchanan point of zero response, was civil war of extermination, not only of a rebellious armed minority, but extermination of the basic institutions and traditions of that minority, including even its very Page [End Page 39] language and religion. Such a culturally-genocidal condition of crisis was legitimate by contemporary notions abroad, as the history of Alsace-Lorraine will attest. European-trained scholars in America including Francis Lieber and Carl Schurz, and some domestic legalists including Henry Halleck and William Whiting, helped to acquaint the Lincoln administration with the existence of such doctrines.
Lincoln and his party supporters nationwide, including those in the Army, worked out less drastic mid-road options with respect to the Civil War's impact, pace, duration, and intensity. Lincoln's remarkable qualities evidence themselves almost at once after the fall of Fort Sumter, in the swift pace and high courage with which he perceived the need for and either ordered or sustained the "arbitrary arrests" of actually or potentially dangerous citizens, the subject of Dr. Neely's fine paper.
I find much to praise in it. Neely perceives what many commentators have ignored: that the Lincoln arrests supplemented in essential ways, even if only partially, the wholly irrelevant body of existing federal and state criminal law. The loose, open, prewar American society possessed virtually no relevant coercive tools needed for its own survival until Lincoln supplied some.
But I am troubled by one serious misperception, as I see it, in Dr. Neely's paper. Beginning on page 9 he notes that the early Lincoln arrests generated little political trouble for Republican politicos because, if I may restate Dr. Neely's arithmetically-sustained point, most of the arrests occurred in the border and especially in occupied areas of the South, and in the latter areas Lincoln didn't have to worry about opinion. But statistical material should be employed only after chanting lines from the poet W. H. Auden: "Never sit next to a statistician/Nor commit a social science."
Lincoln did worry about arrested southerners. Why? As I understand Civil War matters, low-level Union Army practice in military-occupied areas, from the first days of the war, was to leave incumbent minor civil officers alone if they remained passive and were not on Unionists' blacklists. The Union Army had virtually no civil government tradition and developed no military government branch. Few military officers at any level of rank wanted civil government duties. Glory could not come from Page [End Page 40] rear-area administration of unglamorous civil affairs such as water supply, sewage disposal, or road maintenance. Yet these homely matters were, in addition to the policing of slaves, the bulk of what southern local government did then. Union field officers were only too happy to see non-threatening, humble officials of townships or counties, who were by far the most numerous categories of officials, keep their offices. Mayors, sheriffs, constables, justices of the peace, county attorneys, tax assessors and collectors, levee commissioners, vote registrars, and minor judges, were American government — and politics. They were the centers of parties, the "money machines," the patronage centers; and, therefore, were the very nexus of local politics. Local political echelons were, in turn, the bases for statewide and national parties.
My files suggest that in early stages of Union military occupations of rebel areas many such persons were arrested, for, unlike releases, arrests were rarely systematized or centralized. There were many more ways into custody but only one way out, though Lincoln made that exit large and easy of access. Almost all arrested persons remained in custody only for brief periods. Once deemed harmless, they were released on taking an oath of Union allegiance and usually returned to their former elective or appointive positions.
In the goldfish bowls of American small town life, the visible hand — to mangle Adam Smith's metaphor — of Union strength, proved to be impressive. The potential nominal recruitment in the wake of arrests — of even minor southern party functionaries and chieftains into some ostensibly pro-Union or, at least, not overtly pro-disunion public office and/or connected political organization — was to become, by early 1862 in Louisiana, for example, a basic element in state reconstructions, in criminal justice (jury lists etc.), and in tax assessments.
Therefore, for Dr. Neely to suggest that the arrests caused Lincoln neither political difficulty nor threat, seems to me to overlook the essence of the matter in ways that Lincoln did not overlook. The arrests created political opportunities for Republicans, and Democrats tried to block the opportunities. Lincoln, becoming aware of the opportunities, had wit and courage enough to risk exploiting them, and arrests became involved in his subsequent policies on conscription, state reconstructions, and emancipation.
All these policies generated enormous troubles for Lincoln and his party, troubles that were factors of the retention of open Page [End Page 41] politics and calendared elections even in the midst of war. But the benefits of these hotly-debated policies, benefits for both Lincoln's party and nation, far outweighted the costs.
Lincoln's second and even more shocking policy, the abolition of slavery in the seceded states by executive military policy, developed at a slower pace than the arrests. Professor Berwanger has reaffirmed that the seemingly-laggard pace of emancipation did not occur because Lincoln was a "honky" racist, as some debunking writers claimed in the 1960s and 1970s. No, Lincoln was antislavery, educable, and, in terms of federal interventions in race relationships, ultimately willing to be such a Radical Republican as publicly to advocate suffrage and the admission to public schools for blacks, plus irreversibility for emancipation.
It was terribly difficult for Lincoln's generation of lawyers to advocate emancipation, much less to implement it. Emancipation was abolition; the destruction of a state-defined private property; indeed, the elimination of the single most valuable property in America next to real estate. Property, like arrests, was the business of states not the nation. The sanctity of almost all private property was a virtual obsession to 19th century lawyers. By all these measures, the wholesale abolition of slave property, as distinguished from individual, piecemeal confiscation litigations, was a revolutionary act, one that only the pressures of the war forced onto the policy stage, and one that only the 13th Amendment could legitimize.
Little wonder that Lincoln's progress toward military emancipation, (and its corollary, the arming of southern blacks to kill southern whites), was gradual. Himself educable and open on the need for abolition, Lincoln could progress toward that goal only as fast as the majority of his countrymen, including voting citizen- soldiers, were willing to go. And nothing that he or Congress proposed about slavery meant much until bluecoats controlled areas where slavery reigned. Until the Army won battles and held ground, any federal policy was a paper tiger.
Lincoln's daring in the two essential subjects of these papers — arbitrary arrests and emancipation — raises basic questions about Page [End Page 42] the man and about the operations and nature of American national government in the 1860s, questions that scholars have not yet completely asked much less answered. In early 1861 the political party structure, the federal system, the institutions of national government, and constitutional democracy itself were all, apparently, in hopeless disarray.  But by 1864–5, all facets of free government were powerful, flexible, and durable in ways that were all but unimaginable on the day Lincoln became president. How to explain the metamorphosis?
Today's two papers offer keys to explanation. Those keys are in the scattered, imprecise, troubling clauses of the 1787 Constitution that deal with the "war powers."
Lincoln resorted to the war powers to justify all of his unprecedented exertions of executive, national authority, as in the arbitrary arrests and emancipation. The war powers imposed on him his duty to be commander-in-chief even over generals like McClellan, Grant, and Sherman; and to fend off Chief Justice Taney's misguided ex parte Merryman missile. Lincoln's view of the war powers authorized him—no, made it his duty—to resurrect rebel states and to forbid the ressurection of slavery in those states, at least if they failed to seek reentry into the Union before a prescribed date.
That Lincoln should have come so unerringly and swiftly to the war powers is itself remarkable. That he should have clung to the war powers throughout his White House years (one wonders how long he might have continued to use the war powers after Appomattox) is understandable. The war powers, as he executed them, allowed the coexistence of open elections, the eradication of involuntary servitude, and of coercive national authority. This rare, if not unique mix of arbitrary power with enhanced democracy, with emancipation the result, is the enduring heritage and mystery of Lincoln's administration. It made possible a true "new federalism" characterized by more decent race relations and social stability. Perhaps no president since Lincoln has enjoyed both the public trust and possessed the private intelligence and morality, adequate to justify his use of such power. Page [End Page 43]
Professor Berwanger and Dr. Neely both praise Lincoln, as his unionist contemporaries did, for evoking such swift and consistent support from the war power clauses of the Constitution. Was Lincoln — and the authors of these two papers — correct? Did a war exist between 1861–1865? Could one exist without a formal declaration by the Congress? War or no war, were there limits to what the nation could do with respect to such policies as the arbitrary arrests and emancipation, limits deriving from the Constitution and/or the international law of war, limits that checked even the commander-in-chief and balanced the Congress? If limits existed, were courts and legal procedures the appropriate fora for remedies?
In Lincoln's time, to the astonishment of such foreign commentators as Karl Marx and Walter Baghot, American lawyers did resort to courts in search of constructive decisions on the war powers and commander-in-chief clauses. Landmark litigations such as Merryman, the Prize Cases, Vallandigham, and Milligan, resulted.
In Nixon's White House time, lawyers seeking analogous remedies concerning Vietnam and Cambodia, mis-employed these Civil War case precedents to justify their appeals. In the 1860s and in the 1970s, the courts either held aloof or offered ambivalent answers to such questions. Page [End Page 44]
Are scholars better than judges or politicans in providing final answers? No, at least not if one examines the outpouring of self- styled scholarship on the war powers in Lincoln's time, and in our own. Then, as now, passion on one side or another of the war powers controversy, though decorated with footnotes, did not and does not equal scholarship.
Where shall we look for precise guides about the war powers? Lincolns are rare and these powers are vast. Shall we look to the magic womb in which the "intentions of the Framers" allegedly still live? Would that we could know those intentions, at least with respect to the war powers! One careful recent scholar in the Vietnam debate, Henry Monaghan, concluded: "We do not and cannot know, what, specifically, they [the Constitution's framers] would have thought about a world so different from their own.... The central fact is that the framers left us a structure of government sufficiently fluid to accomodate a good deal of shifting power between the Congress and the President [concerning war-making and implementation]." 
Some lawyers a decade ago tried to get high courts to challenge the president's non-war uses of military forces abroad, the way John Merryman's and Clement Vallandigham's lawyers tried to get Chief Justice Taney to stop Lincoln in 1861 and 1863, respectively. Our present Justices are wiser, or at least more cautious, than Taney.
Whether a U.S. attorney general defending then-President Nixon concerning the bombing of Cambodia, or a historian of Columbia, Amherst, or Harvard, shuttling to Congress to testify against Nixon's policies, almost all commentators on the 1970s have cited Lincoln for their own purposes. 
Can we today come to a single historically verifiable position on this essential war power question? I fear to report that unideological historians can not promise any greater comfort than can passionate political scientists or adversary-minded attorneys. Conditions will define war-powers constitutionalism. If we are lucky, conditions will also give us national leaders of Lincoln's qualities.
Lincoln did not create the Pandora's Box labelled war powers. By one careful compilation, before Lincoln took office, no fewer than 50 non-war American military interventions abroad had already occurred,  ranging from the shores of Tripoli — a place that in 1983 is again becoming familiar to Marines — to foothills surrounding Tokyo Bay. Lincoln's achievement was to transform a constitutional authority primarily concerning foreign policy, the war powers, into a restrained, effective, scrupulous and suitable implement for domestic policy during a civil war, and a base for a more perfect Union after the victory he did not live to see. In the process he raised dramatically the reality of American democracy. Page [End Page 46]
But, as with Shakespeare's Claudius in Hamlet, troubles continued to come in their battalions. Noting this dour fact of Civil War life in his December 1862 State of the Union address to Congress (but how joyous the fact that a President could still address a United States Congress!), Lincoln said: "In the midst of other cares, however important, we must not lose sight of the fact that war power is still our main reliance."  I prefer Lincoln's forth- rightness and candor with his countryman than King Claudius's or Andrew Johnson's public self-pity and secret schemings. Page [End Page 47]
- Lincoln's predecessors in the White House since Jackson had, Raymond Mohl note, "... subscribed to a political philosophy which circumscribed the authority of the national government and impeded executive action and initiative. The body of Presidential philosophy adhered to between 1837 and 1861 helped to break down national unity and hardened Southern belief in the righteousness of slavery and the states rights cause." Mohl, "Presidential Views of National Power," Mid America 52 (1970): 189.
- Henry Monaghan, "Presidential War-Making," Boston University Law Review (1970), p. 50. It is, wrote one of our present best legal scholars, Jesse Chope, "An axiom of American government ... that no matter how sound, laudable, or expedient a reasoned constitutional thesis may be, it must fail if it is contradicted to the clear intentions of the Framers." Chope, "The Scope of National Power vis-à-vis the States," Yale Law Journal 86: 1588.
- John Norton Moore, "The Justifiability of Challenges to the Use of Military Forces Abroad," Virginia Journal of International Law 10 (1969): 85 and passim.
- J. T. Emerson, "War Powers Legislation," West Virginia Law Review 74 (1971): 81–119.
- James D. Richardson, ed., Messages and Papers of the Presidents (Bureau of National Literature and Art, 1903), 6: 191.