Law and Society in Illinois and the Union
By Drew E. VandeCreek, Ph.D.
Despite the failure of constitutional government embodied by the Civil War, the United States Constitution furnished a framework in which the sectional crisis unfolded and culminated in Civil War. Most nineteenth-century Americans revered the rule of law as one of the central supports of their freedoms. But Americans' different interpretations of these freedoms, encouraged in part by the nation's widely varying climates, economic structures and social mores, contributed in part to the unraveling of the union. Ultimately this conflict itself put several of Americans' most cherished freedoms to the test as well. In concluding the Civil War, Americans not only resolved a military conflict; they also took up the daunting task of reordering their laws and, as importantly, their enforcement.
Both seceding southerners and unionist northerners believed that the Constitution informed their actions in the period leading up to the conflict and in the war itself. Most southern secessionists believed that the Constitution enabled the states to govern themselves as they saw fit and secede from the Union. Southerners also invoked the Constitution's implicit acceptance of slavery, as seen in the clause granting southern states three-fifths representation for slaves, who of course could not vote, in the calculation of electoral representation. Finally, slaveholders argued that the law obliged the federal government to secure their slaves, as it would anyone else's property. They reasoned that northern calls for the abolition of slavery, or at least its restriction in the western territories, threatened their lives and liberty, and forced them to take such drastic action.
Many northern whites denounced abolitionist beliefs, but came to resent southerners' bold assertions of rights nonetheless. Most workingmen believed in their right to live as independent laborers spared the task of competing with unpaid slaves. They also looked down upon African Americans and hoped to live apart from them. The sectional crisis brought a growing number of these northerners to interpret the southern defense of rights, such as the sanctity of slave property, as facile covering for a set of political demands, namely the expansion of slavery into the American West. Southern demands finally brought many northerners to believe that wealthy southerners intended to protect their own interests at the expense of northern working men's rights.
Frederick Douglass, William Lloyd Garrison and other abolitionists argued that African American slaves also deserved rights. In 1856 the United States Supreme Court had interpreted the Constitution in the case of Scott v. Sanford, also known as the Dred Scott case, and found that African-Americans could not be citizens of the United States, and hence enjoyed no rights. The court also ruled that the Congress could not prohibit slavery in the territories. Chief Justice Roger Taney believed he had settled the slavery question and its baneful influence upon sectional politics once and for all. But influential members of the northern electorate, including President Lincoln, largely ignored this ruling. The issue of slavery and its standing under the United States Constitution would not go away.
Garrison called the Constitution "a covenant with death" that locked the rights of African-Americans in the vise of white Americans' precious liberties. Together with other abolitionists, Garrison called upon Americans to organize themselves politically and write new laws providing slaves with liberty and a full set of rights of their own. Other Americans, including President Abraham Lincoln, sought to infuse the Constitution's interpretation of individuals in society with the democratic spirit of equality articulated by the Declaration of Independence. Despite his lawyer's reverence for the law, Lincoln ultimately came to believe that the Constitution was not a fixed set of doctrines bound to organize American society around the ideals of the late eighteenth century. Rather, it was a living, growing set of principles subject to the interpretation of a democratic people.
Secession raised another important constitutional issue. The states of the Confederacy argued that the Constitution provided them with the right to secession. President Lincoln, like many northern Republicans, found no basis for secession in the Constitution, and hence treated the southerners' withdrawals from the Union as illegal acts. Individuals' or states' defiance of the "constitutional majority" comprised "the essence of anarchy," he reasoned. As president, Lincoln formulated his war policy from this premise, and set out to retrieve the errant states for the Union. 1
While politicians and jurists argued the constitutionality of secession and Congress' right to regulate slavery in the territories, the relationship between law and society took several more forms in Illinois and throughout the Union during the Civil War. Government officials faced the dilemma of conducting a war to preserve the rule of law with the limited and constrained powers provided by those laws themselves. "Must a government be too strong for the liberties of the people, but too weak to preserve itself?" asked President Lincoln.
Many Illinoisians opposed the war, and a significant number openly supported the Confederacy. Their vigorous exercise of constitutional rights, especially the right to free speech, often resembled subversion and treason to state and federal officials. On a number of occasions these officials seemed to violate the spirit, and even the letter, of constitutional guarantees in a desperate attempt to win the war.
The words and actions of so-called copperheads, especially in the Ohio Valley, provided the first test of constitutional liberties. In 1861, Lincoln suspended civil law in territories where resistance to the North's military power would prove dangerous to the Union. In 1862, the president suspended habeas corpus throughout the nation and ordered many copperhead democrats arrested. The suspension applied to Confederate spies, those aiding the rebel cause by interfering with military enlistment or resisting the draft, or other individuals "guilty of any disloyal practice." Lincoln made persons arrested under this proclamation subject to martial law, placing their trials before military courts. 2
One persistent critic of the war and the Lincoln administration, Clement Vallandigham of Ohio, found himself imprisoned by military officials for his refusal to cooperate with war measures. Lincoln commuted the sentence and banished Valladigham to the Confederacy, only to learn that an outraged Ohio Democratic Party had nominated him for the governor's office.
In response to widespread criticism of his suspension of the writ of habeas corpus and the banishment of Vallandigham, Lincoln wrote a public letter to Democratic Party leaders showing that the Constitution supported his actions. He showed that the Constitution had stipulated that the "writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion, the public Safety may require it." The president noted that the Civil War clearly represented "a clear, flagrant, and gigantic case of Rebellion." The makers of the Constitution understood, he continued, that "ordinary courts of justice are inadequate to such cases." Acting on their ordinary rules, courts would discharge men bent upon undermining the federal war effort and endangering the public safety. As for Vallandigham, Lincoln charged that he was encouraging desertions from the Union army. "Must I shoot a simpleminded soldier boy who deserts," Lincoln asked, "while I must not touch a hair of a wily agitator who induces him to desert?" 3
Like the president, many Republicans and federal officials believed that state courts in the northwest would not convict war protestors, and sought to punish them by other means. Many anti-war leaders and Valladigham followers, including members of the Illinois Congressional delegation and judges, spent significant portions of the Civil War in military prisons. In other cases, zealous Union generals and other officials denied anti-war newspapers the use of the federal mails, and even suppressed their publication. In July of 1862 military officials suppressed the circulation of the Quincy Herald on the premise that it encouraged the work of rebel guerillas in western Illinois. Pro-union mobs also shut several papers, including the Bloomington Times, through intimidation or the outright destruction of offices and printing apparatus. In 1864 soldiers stationed in Cairo marched a short distance from their camp to destroy the press and offices of the Chester Picket Guard, a persistent critic of the war and administration. 4
Early in 1863 prominent Chicago merchants began a boycott of the copperhead Chicago Times. Union generals forbade its circulation within their ranks. In June of that year General Ambrose Burnside, in command of the department of the northwest, unilaterally suppressed the Times, as well as the Jonesboro Gazette "on account of the repeated expression of disloyal and incendiary statements." 5 Residents of Chicago responded with a mass meeting of twenty thousand and demanded free speech. The Illinois House of Representatives passed a resolution condemning Burnside's order, and the next day President Lincoln revoked it.
The subject of emancipation also brought law and politics together. The outbreak of war brought abolitionists greater standing in many northern communities. "The South has made Slavery the issue," argued the Central Illinois Gazette in November of 1861, "and Congress must enable the people to throttle rebellion and break its head with this `bone of contention.'" 6 But Abraham Lincoln continued to oppose immediate emancipation, instead proposing a scheme in which the federal government compensated southern slaveholders for their loss of property.
Lincoln proceeded with great caution in an effort to retain the border states of Maryland, Delaware, Kentucky and Missouri for the Union. Illinois' radical Republicans complained about "the imbecility of President Lincoln." Many believed that he was not up to the task of national leadership during the Civil War's crisis. 7
When Lincoln did issue his Emancipation Proclamation on September 22, 1862, he directly repudiated the Supreme Court's ruling in Scott v. Sanford. Whenever the subject of emancipation had come up, one observer recalled, Lincoln had previously "been prompt and emphatic in denouncing any interference by the General Government with the subject." But the war had removed many of the Constitution's restrictions. Secretary of War Stanton recalled that the president had reasoned "We must free the slaves or be ourselves subdued." Lincoln had carefully avoided a moral brief against slavery and couched his proclamation in terms of his powers, as Commander in Chief, to attack the Confederate War effort. The Emancipation Proclamation in fact provided a very limited emancipation affecting only those slaves actually residing in the Confederacy and therefore able to sustain its war effort. 8
Nevertheless, Illinois Democrats, like their brethren all over the North and South, denounced the Emancipation Proclamation as "unwarrantable in military as in civil law; a gigantic usurpation, at once converting the war, professedly commenced by the administration for the vindication of the authority of the constitution, into a crusade for the sudden, unconditional and violent liberation of three million slaves." 9 While most Republicans welcomed Lincoln's action, many Radical Republicans criticized the proclamation's seemingly timid stance and limited objectives. Still, Secretary of the Treasury Salmon P. Chase presciently noted that the proclamation represented "a step in the progress of this war – a beginning, the results of which will extend into the distant future." 10
As the war's end came into view northern Republicans began to wrestle with the task of forming a policy to reintegrate the Union. This work also raised significant Constitutional questions. One Illinoisian argued that secession had placed the wayward states "into territorial pupillage again," freeing Congress to abolish slavery and generally reconstruct the laws there. 11 This position represented the stance of many Radical Republicans who hoped to remake southern social institutions in the war's wake. As President Lincoln had argued that secession had actually represented a legal impossibility, he sought to replace rebels with loyalists in familiar American political institutions as quickly as possible. He believed that "territorialization" would only embitter southerners and give legal recognition to the act of secession. 12
The president continued to struggle with Radical Republicans in Congress. Each sought to take the lead in supervising the coming Reconstruction, and shape it with their own agenda. Radicals came to believe that Lincoln, "only a half-converted, honest Western Whig, trying to be an abolitionist," proposed liberal terms that would enable "the large landed proprietors of the South still to domineer over politics." 13
This contest represented the two branches of government's attempts to define their constitutional powers most favorably for their own goals. But it also revealed equally fundamental questions not foreseen by the framers of the United States Constitution. Did the former Confederate states have the right, once returned to the Union, to send representatives to Congress immediately? Could the federal government set conditions that these states must meet before they sent representatives to Congress? If it could not, then Congress lacked the ability to enact laws necessary to protect the freed slaves in the South and insure white southerners' future loyalty.
President Lincoln's untimely assassination left these issues of Reconstruction open, and they came to dominate the tenure of his successor, Andrew Johnson of Tennessee. Ultimately the federal government enacted three major amendments to the Constitution that comprised the heart of Reconstruction law. The Thirteenth Amendment abolished slavery in the United States, replacing Lincoln's wartime Emancipation Proclamation with federal law. The Fourteenth Amendment addressed widespread southern denial of freedmen's rights by granting all persons born or naturalized in the United States citizenship in their state and nation. It forbade states to deny citizens their rights or liberties without due process of law, or deny individuals the equal protection of the laws. The Fifteenth Amendment specifically declared that states might not deny American citizens the right to vote on the basis of race or previous enslavement.
These amendments fulfilled William Lloyd Garrison's vision of a new set of laws providing the rights of citizenship to African Americans. But the century following the Civil War showed that these dramatic legal measures often failed to effect similar changes in society itself. The enforcement of the laws proved to be a political matter subject to the will of a democratic people. Once again Constitutional issues, including the relationship between the federal government and the states, provided the framework in which this revolution in Americans' values, beliefs and habits occurred. In the late nineteenth and twentieth century, state and federal officials embarked upon countless rounds of political dispute and maneuver to determine how these laws would be enforced.
1. Allen Guelzo, Abraham Lincoln: Redeemer President (Grand Rapids, MI: William B. Eerdmans, 1999) 264.
2. Abraham Lincoln, The Collected Works of Abraham Lincoln, vol. 5 (New Brunswick, NJ: Rutgers University Press, 1953) 437.
3. Abraham Lincoln, The Collected Works of Abraham Lincoln, vol. 6 (New Brunswick, NJ: Rutgers University Press, 1953) 264, 266.
4. Arthur Charles Cole, Centennial History of Illinois: The Era of the Civil War, 1848-1870 (Springfield, IL: Illinois Centennial Commission, 1919) 303.
5. Cole 304.
6. Cole 293.
7. Cole 294.
8. David Donald, Lincoln (New York: Simon and Schuster, 1995) 405-8; Guelzo 338.
9. Cole 300.
10. Guelzo 342.
11. Cole 290.
12. Guelzo 389.
13. Guelzo 390.