"I'll keep them in prison awhile ...": Abraham Lincoln and David Davis on Civil Liberties in Wartime

Exhibit 2. Davis to Lincoln, July 4, 1864

To the President of the United StatesJuly 4th 1864

Dear Sir

Your dispatch concerning the Coles County rioters is just re.d By the Second Section of the act related to Habeas Corpus & Judicial proceedings approved March 3, 1863 it is provided that the Secretary of State & War shall furnish to the judges of the United States Courts, a list of prisoners who are held in custody otherwise than as prisoners of war.[21] And if a Grand Jury shall adjourn without finding an indictment or presentment, the prisoners so held are entitled to their discharge by 12 Statute at large. Page 755. The Grand Jury adjourned without finding anything against the Coles Co men. The men were in the custody of Colonel Oakes I think at Camp Butler-very soon after the riot at Charleston, he arrested them & brought them to Spr & kept control of them-They were never in the custody of the Marshall-I doubt whether the District Attorney or Marshall were ever communicated with, in relation to these men-After the adjournment of the Grand Jury Mr. Ficklin & Mr. Hay in behalf of these men filed a petition for their discharge-The court issued the Writ of Habeas Corpus requiring Colonel Oakes to bring the men before us to be dealt with according to law. Colonel Oakes requested time to consult with his superior General Heintzleman, which was granted. At this stage of the case (Judge Treat & myself being fully agreed what should be done whichever aspect of the matter assumed) I left for St. Louis. Judge Treat writes me that Col Oakes showed him an order under which he acted. It was from Genl Halleck. Stating in substance that the President suspended the Writ of Habeas Corpus in the case of these prisoners & directs them to be sent immediately to Fort Delaware.

After this, of course the case was dismissed. It was made a part of the final order that a copy of the proceedings be certified to the President—a transcript I understand has accordingly been made, and taken by the prisoner's counsel to be used at Washington.

You ask me to give you a summary of the evidence in the case of these men. The Court did not advance far enough to hear any evidence. The prisoners were never brought before us & we predicated the Writ of Habeas Corpus on the strength of the petition & the Law of Congress heretofore referred to. I will very cheerfully give you my impression of the case. The Govt. ought not to have taken these men out of the hands of the law. Besides the disregard of the law as I think, it will irritate the public mind and cannot possibly do any good. A Grand Jury of Coles Co. (and as I am credibly informed, a reputable one) has patiently investigated the outrage at Charleston and found several indictments for murder and riot.

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

They committed the gravest offenses against the state and my judgment is that if tried by the state authorities a most salutary effect will be produced. The determination to enforce law & order is manifest in Coles Co. and the feeling I trust has permeated other counties.

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

Respectfully submitted

Your friend

D. Davis