The New York Draft Riots - Civil Disturbances in the Wartime Rear

[brownapple]

Originally posted by Roguish Lawyer
GH:

What did Lincoln do that you object to?

You mean besides suspend Habeus Corpeus (how ever it is spelled?). Or allow troops to fire into rioters in NYC?

Or a variety of other acts that I feel were directly in violation of the Bill of Rights?

[Team Sergeant]

Originally posted by Greenhat
Or allow troops to fire into rioters in NYC?


You talking rioters or protesters?

I’ve seen situations where I would have also fired on rioters.

The throwing of a Molotov cocktail at me would find a person with a gaping hole in the rear of their brain housing.

TS

[brownapple]

Originally posted by Team Sergeant
You talking rioters or protesters?

I’ve seen situations where I would have also fired on rioters.

The throwing of a Molotov cocktail at me would find a person with a gaping hole in the rear of their brain housing.

TS

NYC anti-draft riots are how they are historically described. Read about them and make your own decision.

[Airbornelawyer]

Originally posted by Greenhat
NYC anti-draft riots are how they are historically described. Read about them and make your own decision. In March 1863 Congress passed an unpopular conscription act. Many state governors opposed the act as infringing on state's rights. The worst feature was the Commutation Fee, which effectively allowed the wealthy to buy their way out of the draft. Many poor whites, especially recent German and Irish immigrants, were also angry because blacks were not eligible for the draft.

In mid-July 1863, NYC prepared for its first draft lottery. The bulk of able-bodied troops were still in some dirty little Pennsylvania town - Gettysburg, I think they call it. Security for the city and the draft offices was provided by the NYPD and the so-called Invalid Corps of invalided soldiers from this and earlier wars.

Monday, July 13

The police were ill-prepared for the outbreak of violence. The Invalid Corps was even worse-prepared. Advancing from Central Park on the first large group of rioters, the force under Lt. Reed fired blanks to disperse the crowd. The crowd dispersed into the Invalid Corps, attacking them and seizing their weapons. At least one soldier was killed on the spot. Another was chased and beaten to death at the corner of 3rd Ave and 42nd St.

A force of about 44 police officers formed at 3rd and 43rd and advanced on the mob. They chased the mob toward 46th, where they thought another force of police was waiting as anvil to their hammer. Instead of more police, they found another mob coming up from 45th. The police were attacked with clubs, knives, tools, stones and guns. All but 6 were injured.

By this point, rioters clogged 3rd Ave for about 30 blocks. News of the riots spread throughout the city by word of mouth, and faster than the police could coordinate a response, as the rioters were knocking down telegraph poles. The rioters began moving toward the Armory on 2nd and 21st, where 35 police were ordered to "hold the Armory at all costs". They refused to fire on the crowd until people actually broke into the building, when one person was shot in the head. Learning there would be no reinforcement, the officers were forced to retreat, sneaking out the back of the building and shedding their uniforms to mingle into the crowds. The mob looted the Armory and advanced on the Mayor's residence. They then moved toward Mulberry Street police headquarters. By the late afternoon of rioting and looting, they were armed and drunk.

At police headquarters, 200 officers under Sgt. Daniel Carpenter formed a line at Bleecker Street. They were facing what they estimated was a mob of 5,000. Carpenter led his force toward Broadway, where they met the advancing crowd. He sent two 50-man companies down side streets to flank the mob. Once in position, they attacked, throwing the mob into disarray. Broadway was littered with dead and wounded.

But while the main body downtown was dispersed, reports were coming in of more mobs all over the city. Having had their fill of looted liquor and armed police, the mob began looking for blacks.

A mob surrounded the Colored Orphan Asylum on 5th Ave, between 43rd and 44th Sts. Superintendent William Davis gathered the children and snuck them out a back door just as the mob broke through the front. The mob looted the building, and set it on fire. They attacked the firemen who tried to put out the fire.

Meanwhile, as it got later, people from the mob dispersed on Broadway earlier grouped with a mob outside City Hall, and advanced on the Tribune Building. 150 officers confronted the mob in and around the Tribune Building. Carpenter's force of 200 advanced into City Hall Park and the combined force swept the park clear.

As the day drew to a close, MG John Wool, Commanding the Department of the East, began assembling forces. At 9:15 p.m., he had received the following orders from Gen. Halleck in Washington: "It is reported that a mob has destroyed the provost-marshal's office in Third avenue. It is expected that you will protect the provost-marshal in the execution of his duties. If necessary, call upon the mayor and Governor for aid, and use the forces under your command. You must see that the laws are executed." MG Wool had at his disposal mainly what was left of various NYS National Guard units not deployed in Pennsylvania, as well as naval militias under Rear Adm. Paulding at the Brooklyn Navy Yard and the small garrisons on Governor's Island and at several forts. The Mayor appealed for additional forces from neighboring states and from West Point.

There was a command problem between Federal and State troops. Brevet BG Harvey Brown, commander of US troops in most of the forts around the city, resisted being placed under the command of MG C. W. Sandford, commanding 1st Division, NYS National Guard. Gen. Brown was relieved, and Col. Robert Nugent took charge of the regulars.

A storm came in that night, dispersing the crowds indoors. Some 15-20 police officers were dead, and an unknown number of rioters.

Tuesday, July 14

Around 8 a.m., Gen. Brown begged for his job back, agreeing to work for the National Guard general, and Gen. Wool returned him to command of the regulars (he would eventually be relieved again on the 17th). Expecting the worst, Gen. Wool ordered his commands "immediately to attack and stop those who have commenced their infernal rascality in Yorkville and Harlem."

That morning, several hundred police and special police assembled at Mulberry Street, joined by about 700 regulars, militiamen and marines. Reports poured in of mobs assembling to the north, from the Hudson to the East River. A 250-man police force under Sgt. Carpenter moved up 2nd and 3rd Avenues, meeting the mob without major incident at 32th. As they moved further north, the hail of debris from rooftops increased, and the police began to disperse. Carpenter rallied them, and the police stormed the houses and clear the rooftops. After an hour-long fight, the police were victorious.

A block and a half to the north, Col. O'Brien of the 11th New York formed his troops in a line securing the avenues of approach, with two howitzers in the middle of Third Avenue. The scattered remnants of the mob, seeing the bodies scattered on the street and the soldiers blocking their way, rallied and began throwing stones and bricks at the soldiers. O'Brien ordered his men to fire. Bodies fell everywhere from rifle and artillery fire. The mob fled in terror, trampling each other. It took five minutes to empty the avenue.

Col. O'Brien and his force returned downtown, where he requested to be relieved. Of poor Irish stock himself, he was traumatized by what he had just done. He returned home to Brooklyn, where a mob beat him to death and desecrated his body.

Meanwhile that day, a company of 150 soldiers under a Lt. Wood, moving in the Bowery district, encountered a mob of 2,000 at Pitt Street. The mob started throwing stones at the soldiers. Wood ordered his men to open fire. The mob dispersed, leaving more dead and wounded.

Two separate fights took place that day at a wire factory on 30th, where a stockpile of weapons was located. More of the mob managed to arm themselves. The police retook the building in a room-by-room fight, and took what was left of the weapons back to police headquarters. The mob pursued, throwing bricks and stones as they chased, and an army rearguard eventually turned and let loose a volley at point-blank, dispersing the mob.

At police headquarters, reports had been pouring in from all over the city of rioters, numbering in the hundreds and thousands.

Downtown, business leaders ordered businesses closed until order was restored. The Harbor Police ferried in troops from Riker's and Governor's Islands. The 10th National Zouaves, the Invalid Corps and locals guarded government buildings. Some 400 additional special police were sworn in. The fire department continued to fight fires.

Blacks fled the city. Many, especially the old and the very young, did not escape the mobs and were beaten to death. Black neighborhoods went up in flames. James Costello, a black shoemaker, shot back at a mob chasing him, killing one. The rest captured and lynched him outside his home at 97 West 33rd Street. They then attacked his wife and children, who managed to escape. Costello was not the first, and would be far from the last, to be lynched. While the main riots were still in New York proper below Central Park, anti-black riots sprang up everywhere.

Armed rioters attacked Horace Greeley's house and nearby residences and buildings. Police detachments attacked them, killing many, as police sharpshooters targeted those with rifles (and many who were just easier targets). Fights raged, and Greeley's house and others were looted. Soldiers arrived and fired a volley into the intermingled crowd, wounding, among others, 3 police officers.

As darkness approached, looters attacked the Brooks Brothers store and the Tribune building. The nearby offices of the New York Times escaped unharmed.

Archbishop Hughes pleaded with the city's Irish to go home, to little avail. At the same time, he expressed support for the rioters and denounced the war.

Meanwhile, the mob in places on the West Side began getting organized, stringing up barricades on major avenues. A series of engagements began as police and soldiers drove the mobs back from successive barricades. As the last barricade was taken, the mob fled. Smaller fights and acts of looting and burning continued into the night. A mob attempted unsuccessfully to burn the Harlem Bridge. By midnight, most of the city was quiet.

Wednesday, July 15

More to come, if anyone's interested.

Maybe I will split the thread to let this get back to Reagan's legacy.

[Airbornelawyer]

I split the thread to allow this discussion to take a different track from the Reagan, as the more general topic, Lincoln's actions on the civil liberties front, and this more specific topic, the circumstances of the New York Draft Riots, merit their own discussion.

Feel free to add. GH and TS, if you want to change anything in your posts to make the topic clearer, go ahead.

Dave

[Sigi]

More to come, if anyone's interested.
I don't speak for the rest, but please do AL. Excellent history lesson that I caught a glimpse of through a movie (Gangs of NY.) Not proud of it, but without that movie I would not know what you're talking about.

Great stuff.

[Ferratus]

You mean besides suspend Habeus Corpeus (how ever it is spelled?). Or allow troops to fire into rioters in NYC?

Or a variety of other acts that I feel were directly in violation of the Bill of Rights?

Greenhat,

Out of curiosity, what is your opinion of the current state of habeas corpus?

And let me preface this by acknowledging that the use of suspended habeas corpus in 1861 and 1862 goes far beyond what we are seeing with regards to the legal treatment of suspected terrorists. My understanding is that over 13,000 people were arrested under martial law during this time period. Interestingly, though, the arrests were primarily of any suspected disloyal citizens in the Union. Whether armed rebels or just loud protesters, as many probably were, the parallel to today's situation certainly exists.

President Lincoln has the great fortune of being credited with preventing the early collapse of the United States, and so history judges this decision well. While we are all (hopefully) grateful for the outcome of the Civil War, I must agree with you that this was a terrible precedent to set for the case of American liberty.

I know that the topic of recent habeas corpus rulings is currently being covered ferociously with respect to the Joseph Padilla case in another thread, but I was hoping you'd share your thoughts on the subject since the question immediately sprang to mind when I read your post.

[Solid]

AL, I would be very much interested in 'knowing more'.

As always, thank you.

Solid

[lrd]

Originally posted by Airbornelawyer
More to come, if anyone's interested. Definately.

[CPTAUSRET]

Great history lesson, Dave.

Terry

[CommoGeek]

Good thread.

[Roguish Lawyer]

So far, I'm not seeing any reason to change my view that Lincoln is the greatest US President to date.

[Airbornelawyer]

Wednesday, July 15

Day 3 began with efforts to find a political solution. New York City Democrats began working on a plan to fund Commutation Fees for poor draftees who wanted to buy their way out. New York's Democratic Governor issued the following proclamation, drafted the night before:"To the People of the City of New York: A riotous demonstration in your city, originating in opposition to the conscription of soldiers for the military service of the United States, has swelled into vast proportions, directing its fury against the lives and property of peaceful citizens. I know that many of those who have participated in these proceedings would not have allowed themselves to be carried to such extremes of violence and of wrong except under an apprehension of injustice; but such persons are reminded that the only opposition to the conscription which can be allowed is an appeal to the courts. The right of every citizen to make such an appeal will be maintained, and the decision of the courts must be respected and obeyed by rulers and people alike. No other course is consistent with the maintenance of the laws, the peace and order of the city, and the safety of its inhabitants. Riotous proceedings must and shall be put down. The laws of the State of New York must be enforced, its peace and order maintained, and the lives and property of all its citizens protected at every hazard.

"The rights of every citizen will be properly guarded and defended by the Chief Magistrate of the State.

"I do therefore call upon all persons engaged in these riotous proceedings to retire to their homes and employments, declaring to them that unless they do so at once I shall use all the power necessary to restore the peace and order of the city.

"I also call upon all well-disposed persons, not enrolled for the preservation of order, to pursue their ordinary avocations. Let all citizens stand firmly by the constituted authorities, sustaining law and order in the city, and ready to answer any such demand as circumstances may render necessary for me to make upon their services; and they may rely upon a rigid enforcement of the laws of the State against all who violate them

"Horatio Seymour, Governor.A notice ("Notice for the Purpose of Perfecting A Citizens' Organization") was issued calling on citizen volunteers to assemble at various places to be placed under army and National Guard command. The citizen volunteers were to be placed as security in quieter areas to free up police and soldiers to deal with the rioters.

The military presence had grown. Gunboats patrolled the East and Hudson Rivers, and that morning, six more arrived, with 90 guns. At the Brooklyn Navy Yard, Lt. Comdr. R. W. Meade organized a Naval Brigade. Within the brigade, Captain J. C. Grayson, USMC, took command of a force of 180 Marines in a battalion of two companies, which then deployed to City Hall.

A battery of the 3rd Battalion German Heavy Artillery under Lt. Col. Louis Schirmer, who had been assigned in May to raise an artillery regiment among the Germans of New York City, was deployed to City Hall. Schirmer, who would later command the 15th New York Heavy Artillery in the Petersburg campaign, was soon sent north.

A disabled black coachman, Abraham Franklin, had gone to see to his elderly mother. The mob dragged him ut of her house and at the corner of 7th Ave and 27th Street, he was beaten and lynched. Schirmer arrived with artillery and a militia company of the 11th New York Volunteer Infantry ("Ellsworth's Zouaves"), who dispersed the mob. Police cut Franklin down, finding him still alive. The force was soon called away to another riot scene, and the mob returned, hanging him again and then mutilating his corpse. A 16 year old Irash butcher, Patrick Butler, reportedly dragged Franklin's corpse through the streets by his genitals.

Other lynchings and murders took place around the city. On July 13, Peter Heuston, a 63 year old Mohawk veteran of the Mexican War, had been mistaken for black and beaten. He died several days later. William Henry Nichols was attacked on July 15. In the "Report of the Merchants' Committee for the Relief of Colored People Suffering from the Late Riots in The City of New York," his mother described it thusly:I had arrived from Philadelphia, the previous Monday evening, before any indications of the riot were known, and was temporarily stopping, on Wednesday, July 15th, at the house of my son, No. 147 East 28th street.

At 3 o'clock of that day the mob arrived and immediately commenced an attack with terrific yells, and a shower of stones and bricks, upon the house. In the next room to where I was sitting was a poor woman, who had been confined with a child on Sunday, three days previous. Some of the rioters broke through the front door with pick axes, and came rushing into the room where this poor woman lay, and commenced to pull the clothes from off her.

Knowing that their rage was chiefly directed against men, I hid my son behind me and ran with him through the back door, down into the basement. In a little while I saw the innocent babe, of three days old, come crashing down into the yard; some of the rioters had dashed it out of the back window, killing it instantly. In a few minutes streams of water came pouring down into the basement, the mob had cut the Croton water-pipes with their axes. Fearing we should be drowned in the cellar, (there were ten of us, mostly women and children, there) I took my boy and flew past the dead body of the babe, out to the rear of the yard, hoping to escape with him through an open lot into 29th street; but here, to our horror and dismay, we met the mob again; I, with my son, had climbed the fence, but the sight of those maddened demons so affected me that I fell back, fainting, into the yard; my son jumped down from the fence to pick me up, and a dozen of the rioters came leaping over the fence after him.

As they surrounded us my son exclaimed, "save my mother, gentlemen, if you kill me." "Well, we will kill you," they answered; and with that two ruffians seized him, each taking hold of an arm, while a third, armed with a crow-bar, calling upon them to stand and hold his arms apart, deliberately struck him a heavy blow over the head, felling him, like a bullock, to the ground. (He died in the N. Y. hospital two days after). I believe if I were to live a hundred years I would never forget that scene, or cease to hear the horrid voices of that demoniacal mob resounding in my ears.

They then drove me over the fence, and as I was passing over, one of the mob seized a pocket-book, which he saw in my bosom, and in his eagerness to get it tore the dress off my shoulders.

I, with several others, then ran to the 29th street Station House, but we were here refused admittance, and told by the Captain that we were frightened without cause. A gentleman who accompanied us told the Captain of the facts, but we were all turned away.

I then went down to my husband's, in Broome Street, and there I encountered another mob, who, before I could escape commenced stoning me. They beat me severely.

I reached the house but found my husband had left for Rahway. Scarcely knowing what I did, I then wandered, bewildered and sick, in the direction he had taken, and towards Philadelphia, and reached Jersey City, where a kind, Christian gentleman, Mr. Arthur Lynch, found me, and took me to his house, where his good wife nursed me for over two weeks, while I was very sick.

I am a member of the Baptist Church, and if it were not for my trust in Christ I do not know how I could have endured it.
Much of the rioting that day was focused on black homes and individuals. One case the Report noted was that of a Mrs. Simmons, driven from her home at 147 East 28th and losing everything she owned. While the riots were going on in New York, her son was outside Charleston. He was taken prisoner by the Confederates during the assault of the 54th Massachusetts on Battery Wagner on Morris Island on July 18.

...

[brownapple]

Originally posted by Roguish Lawyer
So far, I'm not seeing any reason to change my view that Lincoln is the greatest US President to date.

Says something for your opinion of individual liberties. A thought expressed by Robert A. Heinlein I believe, and which I strongly believe:

"A nation that cannot defend itself without cohersion is a nation not worth defending"

Ferratus,

Regarding habeas corpus...

First, I have no issue with the treatment of detainees on Gitmo. Terrorists have no rights, they give them up when they take part in terrorism (as do spies and sabatuers). Their choice. In addition, since Gitmo is not American soil, rights granted by the US Constitution and US Courts should not apply.

When it comes to citizens of the United States, and the residents of the same, habeas corpus is an essential part of the protections that the individual has against tyrrany.

To quote:
The writ is "the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action." Harris v. Nelson, 394 U.S. 286, 290-91 (1969).

Lincoln was quite willing to forget that, invoking arbitrary and lawless state action against the people of the Union as well as lawful action against the people of the Confederacy. His actions fall in the same category as do those of FDR and the relocation camps, except that Lincoln was more cold-hearted about it (cold-hearted is sometimes necessary).

I do not believe that today's actions come anywhere close to those of the Lincoln administration, but the potential is there. Considering the unwillingness of the Administration to throttle the press (as Lincoln, Wilson and FDR all did), I doubt very much that there will ever be a serious problem. Too many eyes, too much noise.

[Airbornelawyer]

More military developments on Wednesday night/Thursday morning:

Black refugees were pouring into places like the arsenals and armories, where Army and police units were trying to assemble to coordinate their actions. Some were turned away. Others were let in or provided escort to safer areas, but this only complicated the coordination of a response. So on Wednesday, the miltary and police were mainly reacting to events while they gathered forces. Gen. Sandford showed little inclination to use his guardsmen as anything other than facilities protection, and expected the police to deal with the rioters.

A report came in that afternoon that a store on Broadway near 33rd had a cache of muskets. A force of soldiers of the 9th Regiment New York Volunteer Infantry ("Hawkin's Zouaves"), veterans of Antietam and Fredericksburg who had been mustered out in May 1863, were formed under the command of a Col. Meyer and send to retrieve the weapons. When they arrived, they found a mob gathering. The soldiers moved in and seized the muskets. Col. Meyer commandeered a cart, loading the muskets on it and withdrawing before the mob grew larger.

As evening approached, a mob gathered on 1st Ave, between 18th and 19th. A force under Cols. Winston and Edward Jardine was sent in. Col. Jardine had commanded the 89th New York at Antietam. The force deployed its howitzers on 19th Street and the infantry formed lines, with citizen volunteers as reinforcement. The threat from the howitzers quickly cleared the streets, but they began taking fire from rooftops. The howitzers fired, clearing the streets of anyone left, but the hail from the rooftops continued. As Col. Jardine was preparing to assault the buildings, he was wounded. Two other officers of Duryee's Zoauves (5th NYVI) were killed. Col. Winston ordered a withdrawal.

Gen. Brown organized a two-company force of 150 regulars under Capt. Henry F. Putnam, commander of Company F, 12th U.S. Infantry, and Capt. Shelby (unknown which unit), along with two field pieces. They went back to 19th Street, dispersed the mob, and recovered the soldiers' bodies. It was estimated that 15 soldiers and 25 rioters were killed in these engagements.

The Sixty-fifth Regiment New York National Guard began arriving around 5 p.m. A battery of four howitzers of the Eighth New York National Guard had been attached. As the regiment debarked at the New York docks, a gathering mob threatened two black cooks with the artillery battery. The regiment was headquartered at Centre Market and deployed companies to various government buildings.

As Wednesday turned into Thursday, the Seventh Regiment New York National Guard also arrived from Maryland, having left all personal gear behind. The commander reported that the men had not slept in a tent or changed their underwear in 11 days. Crossing from Amboy, NJ, the regiment landed in the darkness of Thursday morning at Canal Street, and began marching up Broadway to MG Wool's headquarters, and then to the regimental armory.

[Airbornelawyer]

Thursday, July 16

Governor Seymour's proclamation appeared in the morning papers:Proclamation.

Whereas, It is manifest that combinations for forcible resistance to the laws of the State of New York and the execution of civil and criminal process exist in the city and county of New York, whereby the peace and safety of the city and the lives and property of its inhabitants are endangered: and

Whereas, The power of the said city and county has been exerted, and is not sufficient to enable the officers of the said city and county to maintains the laws of the State and execute the legal process of its officers; and

Whereas, Application has been made to me by the Sheriff of the city and county of New York to declare the said city and county to be in a state of insurrection:

Now, therefore, I, Horatio Seymour, Governor of the State of New York and Commander-in-Chief of the forces of the same, do, in its name and by its authority, issue this proclamation in accordance with the statute in such cases made and provided and do hereby declare the city and county of New York to be in a state of insurrection; and give notice to all persons that the means provided by the laws of this State for the maintenance of law and order will be employed to whatever degree may be necessary, and that all persons who shall, after the publication of this proclamation, 'resist, or aid in resisting, any force ordered out by the Governor to quell or suppress such insurrection' will render themselves liable to the penalties prescribed by law.Two full regiments had arrived and were resting up, and a third, the Seventy-fourth Regiment New York National Guard, was expected to arrive some time that day.

Several thousand troops were in the city, but no one knew exactly how many. Besides the Naval Brigade, the two National Guard Infantry Regiments, the U.S. Infantry companies drawn from the forts, and other troops in Federal service, there were any number of militiamen and Guardsmen not in Federal service. These included the regiments whose battle-tested veterans had mustered out of Federal service at the end of their 2-year commitments in May and June 1863 - including Duryee's Zouaves, Wilson's Zouaves, the 1st German Rifles, Hawkin's Zouaves, Ellsworth's Zouaves (AKA the 1st New York Fire Zouaves) and the Astor Rifles (1st German Infantry).

The 14th New York Cavalry Regiment (1st Metropolitan Cavalry) was patrolling the streets (its commander, Col. Thaddeus Mott, would later become a major general of the Egyptian Army).

The day was generally quiet. However, a series of fights took place east of Gramercy Park.

Around noon, a small group of 25 police were sent to reinforce a military detachment in the Twenty-first Precinct. They arrived to find a mob of about 200, threatening the soldiers. THe mob rushed the soldiers and seized a howitzer. The police and soldiers retreated to Jackson's Foundry at 1st Ave and 28th St. The mob increased in size and the soldiers were taking and returning fire. More soldiers arrived, fixing bayonets and pushing the mob back momentarily, only to be forced back. Eventually, a force of several companies arrived and pushed back the crowd.

Several blocks away, near 1st and 22nd, a series of skirmishes between soldiers and rioters left a cavalryman, Sgt. Charles Davids, dead. A force under Capt. Putnam went in to retrieve the body. They had managed to put the sergeant's body on a cart and move it out when the mob attacked again. Putnam drove them back and pursued them north. The mob took refuge in and around 31st Street. A pitched battle ensued, as Putnam's artillery and infantry fought the armed mob. As in earlier engagements, they cleared the streets but continued to take fire from the buildings. Putnam's companies stormed the buildings and fought room-to-room for a half hour.

Searches throughout the night turned up several weapons caches, and infantry regiments, supported by cavalry and artillery were now deployed throughout the city to support the police, militia and volunteers.

Friday, June 17 and thereafter

The riot was over and the city was quiet. Some 50,000 were estimated to have rioted. The number killed on all sides is unknown - the official death toll was 119, including 4 police officers. Numbers of dead up to 2,000 have been claimed, but while the official estimate probably missed many who died in hospitals away from the rioting or days later, there is no evidence to support the higher claims.

Historian Adrian Cook in "The Armies of the Streets" analyzed the causes of death of those on the official death toll. Most were killed by gunshots, followed by beatings with clubs, cudgels and bricks. Others were killed jumping or being thrown from buildings. Of the 18 blacks on the list, most were beaten and/or hanged. Contrary to Scorcese's "Gangs of New York" image, none were stabbed to death. About 105 police and 73 soldiers were wounded.

Property damage was extensive. Thousands of blacks were left homeless, and many fled the city. Thousands did not return - New York City's black population fell from 12,472 in 1860 to 9,945 in 1865. The Colored Orphans Asylum was rebuilt.

Martial law was never declared. The police remained the primary security force, with the military units deployed to support them. By the end of the riots, some 10,000 troops were in the city or en route.

The draft resumed on August 19 without incident. About 75% of the 150,000 total conscripts were paid substitutes.

[Roguish Lawyer]

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA:

A PROCLAMATION

Whereas, it has become necessary to call into service not only volunteers but also portions of the militia of the States by draft in order to suppress the insurrection existing in the United States, and disloyal persons are not adequately restrained by the ordinary processes of law from hindering this measure and from giving aid and comfort in various ways to the insurrection;

Now, therefore, be it ordered, first, that during the existing insurrection and as a necessary measure for suppressing the same, all Rebels and Insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to Rebels against the authority of United States, shall be subject to martial law and liable to trial and punishment by Courts Martial or Military Commission:

Second. That the Writ of Habeas Corpus is suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fort, camp, arsenal, military prison, or other place of confinement by any military authority of by the sentence of any Court Martial or Military Commission.

In witness whereof, I have hereunto set my hand, and caused the seal of the United States to be affixed.

Done at the City of Washington this twenty fourth day of September, in the year of our Lord one thousand eight hundred and sixty-two, and of the Independence of the United States the 87th.

ABRAHAM LINCOLN

By the President:

WILLIAM H. SEWARD, Secretary of State.

[Roguish Lawyer]

http://www.ashbrook.org/publicat/oped/owens/02/lincoln.html

Lincoln and Civil Liberties: War, Prudence, and Republican Government
Editorial
August 2002

by Mackubin T. Owens

There are many parallels between the steps taken by the United States since 9/11 and those that Abraham Lincoln took when confronted by our nation's greatest emergency and moment of national crisis. Just as today's terrorists take advantage of the freedom that America provides not only its own citizens, but foreigners as well, opponents of Lincoln's policies during the Civil War acted under "cover of 'liberty of speech,'" while their "spies… remain[ed] at large to help on their cause." In light of this crisis, Lincoln sought, as does the administration of George W. Bush, to achieve the proper balance between security and liberty. He acted carefully in taking what he believed to be the necessary domestic measures to prevent the collapse of the Union, and the end of republican government. Saving the Union required emergency measures that he nonetheless justified on constitutional grounds.

The debate over the proper balance between liberty and security goes back to the very founding of the American Republic. As James Madison wrote to Thomas Jefferson, "It is a melancholy reflection that liberty should be equally exposed to danger whether the government have too much or too little power." Lincoln addressed the dilemma in his July 4, 1861 message to a special session of Congress, in which he justified his emergency measures, including suspending the writ of habeas corpus, after Fort Sumter. "Is there," he asked, "in all republics, this inherent, and fatal weakness? 'Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?'"

Ultimately, the issue here is one of prudence. According to Aristotle, prudence is concerned with deliberating well about those things that can be other than they are (means). Prudence requires us to be able to adapt universal principles to particular circumstances in order to arrive at the means that are best given existing circumstances. In the case of the war against terrorism, the end is the survival of republican government. If we are to maintain this end, i.e. ensure the survival of the American Republic, what means are necessary and proper under the circumstances? What would prudence dictate regarding the balance between security and civil liberties in time of war?

In his excellent book, Republican Empire: Alexander Hamilton on War and Free Government, my good friend and Naval War College colleague Karl Walling has argued that throughout the history of the American Republic, a tension has existed between two virtues necessary to sustain republican government—vigilance and responsibility. Vigilance is the jealousy on the part of the people that constitutes a necessary check on those who hold power lest they abuse it. As Thomas Jefferson wrote, "it is jealousy and not confidence which prescribes limited constitutions, to bind those whom we are obliged to trust with power."

But while vigilance is a necessary virtue, it may, if unchecked, lead to an extremism that incapacitates a government, preventing it from carrying out even its most necessary and legitimate purposes, e.g. providing for the common defense. "Jealousy," wrote Alexander Hamilton, often infects the "noble enthusiasm for liberty" with "a spirit of narrow and illiberal distrust."

Responsibility is the statesmanlike virtue necessary to moderate the excesses of political jealousy, thereby permitting limited government to fulfill its purposes. Thus in Federalist 23, Hamilton wrote that those responsible for the nation's defense must be granted all of the powers necessary to achieve that end. Responsibility is the virtue necessary to govern and to preserve the republic from harm, both external and internal. For instance, the dangers of foreign and civil war taught Alexander Hamilton that liberty and power are not always adversaries. The "vigor of government is essential to the security of liberty."

Abraham Lincoln acted on this principle. Accordingly, both critics and advocates have argued that Lincoln essentially assumed dictatorial powers during the Civil War—that he took extra-constitutional steps to save the Union. But while the Constitution is silent on some of the steps he, took, it is possible to argue that everything he did was justifiable under the powers stipulated in Article 2 of the Constitution.

Lincoln's steps are well known. Under his constitutional powers as commander in chief of the military, he declared martial law and suspended the writ of habeas corpus in certain locations. He blockaded Southern ports. He shut down some opposition newspapers. He created tribunals similar to the ones that President Bush has established. At one point early in the war, convinced that the Maryland legislature was poised to vote an ordinance of secession, he ordered Federal troops to arrest and detain pro-secessionist lawmakers. Lincoln justified this last step on the grounds that there was "tangible and unmistakable evidence" of their "substantial and unmistakable complicity with those in armed rebellion."

Even Lincoln's supporters question the constitutionality of his actions. After the emergency had passed, the Supreme Court ruled in Ex Parte Milligan that citizens could not be tried by military courts outside of a war zone when civil courts were operating. And many contemporary historians believe his decision to suspend the Great Writ was improper.

But Lincoln was sailing in uncharted waters. The emergency he faced was unprecedented. Lincoln went out of his way to maintain constitutional forms. But those who would condemn him need to realize that the president has his own constitutional source of power: he is the Commander-in-Chief, which directly bestows upon him powers in times of military crisis that are not derivative of any congressional power. One of these powers is the prerogative.

According to John Locke, the prerogative is "the power [of the executive] to act according to discretion for the public good, without the prescription of the law and sometimes even against it." Since the fundamental law that the executive ultimately must implement is to preserve society, it is "fit that the laws themselves should in some cases give way to the executive power, or rather to this fundamental law of nature and government, viz. that as much as may be, all members of society are to be preserved."

The prerogative is rendered necessary by the fact that laws arising from legislative deliberation cannot foresee every exigency. For the safety of the republic, the executive must retain some latitude for action. Thus since Congress was not in session when Ft. Sumter was attacked, Lincoln took the steps he believed were necessary to preserve the Union, because inaction would have lost the game.

Of course, prudence dictates that the prerogative be exercised rarely, i.e. only during the most dire emergencies. Thus what is applicable during time of war is not appropriate during a time of peace. Lincoln's letter to Erastus Corning and a group of New York Democrats who had criticized his war measures is a study in the application of prudence.

He wrote "…I can no more be persuaded that the Government can constitutionally take no strong measures in time of rebellion, because it can be shown that the same could not lawfully be taken in time of peace, than I can be persuaded that a particular drug is not good medicine for a sick man, because it can be shown not to be good for a well one. Nor am I able to appreciate the danger apprehended by the meeting [of the New York Democrats] that the American people will, by means of military arrest during the Rebellion, lose the right of Public Discussion, the Liberty of Speech and the Press, the Law of Evidence, Trial by Jury, and Habeas Corpus, throughout the indefinite peaceful future, which I trust lies before them, any more than I am able to believe that a man could contract so strong an appetite for emetics during temporary illness as to persist in feeding upon them during the remainder of his healthful life."

Prudence dictates that in time of war, responsibility trumps vigilance. In response to criticism of his suspension of the writ of habeas corpus, Lincoln asked, "…are all the laws but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?" Lincoln's point is as applicable today as it was during the Civil War. If those responsible for the preservation of the Republic are not permitted the measures to save it, there will be nothing left to be vigilant about.

Mackubin Thomas Owens is professor of strategy and force planning at the Naval War College in Newport, RI, and an adjunct fellow of the Ashbrook Center. The views expressed here are his own and do not reflect the position of the War College, Navy Department, or Department of Defense.

[Airbornelawyer]

At one point early in the war, convinced that the Maryland legislature was poised to vote an ordinance of secession, he ordered Federal troops to arrest and detain pro-secessionist lawmakers. Lincoln justified this last step on the grounds that there was "tangible and unmistakable evidence" of their "substantial and unmistakable complicity with those in armed rebellion." Objection: Hearsay.

You are citing Mac Owens quoting Lincoln. However, he is not actually quoting Lincoln.

Francis Key Howard, a grandson of Francis Scott Key and editor of the Baltimore Exchange, was one of the Maryland legislators arrested in September 1861. From Fort Monroe, he wrote to the Maryland Times on September 22, 1861. In his letter, he quoted the previous Saturday's edition of The American, wherein that paper included "what purported to be a portion of Mr. Lincoln's conversation with certain parties who desired to know the grounds on which Mayor Brown was arrested." The American's source reported Lincoln saying to such parties, "Of one thing the people of Maryland may rest assured: that no arrest has been made, or will be made, not based on substantial and unmistakable complicity with those in armed rebellion against the Government of the United States. In no case has an arrest been made on mere suspicion, or through personal or partisan animosities, but in all cases the Government is in possession of tangible and unmistakable evidence, which will, when made public, be satisfactory to every loyal citizen."

It may be the case that what Howard said the The American said parties said Lincoln said is in fact what Lincoln said. But wouldn't it be preferable to cite what Lincoln said:

[Airbornelawyer]

Lincoln spelled Annapolis wrong. The addressee was Lt. Gen. Winfield Scott.

[Roguish Lawyer]

During a civil war, should there be habeas rights?

AL, your view?

This stuff about Lincoln frankly is a new issue for me. Still thinking it through.

[Airbornelawyer]

Regarding the Owens quote, Maryland legislator Severn Teackle Wallis also wrote a letter from military confinement on September 22, 1861:
A Card to the Public.

I see in the editorial columns of the Baltimore American of Sept. 21st, a statement ascribed to the President of the United States, to the effect, that "no arrest has been made" in Maryland, "not based on substantial & unmistakable complicity with those in armed rebellion against the Government of the United States".

I cannot persuade myself that this statement was, in fact, ever made by Mr. Lincoln, but, no matter by whom made, I pronounce it, so far as I am concerned, an utter & unfounded falsehood. Neither directly nor indirectly have I, at any time or in any way, violated or contemplated violating my obligation to support the Constitution & obey the laws of the United States, nor have I had correspondence or connection, of any sort, with the Government or Army of the Confederate States, or any officer of either, in any shape. I challenge proof to the contrary, from any quarter, and will, in due season, give to any of my enemies at home, who assert the contrary, an opportunity of establishing it.

S. T. Wallis

Fortress Monroe

22d Sept. 1861.Of course, this is all just trivial. Whether Lincoln said it or not, I suppose he meant it, and protestations notwithstanding, Maryland secession was a real and alarming prospect in Washington. It is clear from his letter to Gen. Scott, though, that he considered these extraordinary measures - suspension of the privilege of the writ, arrest of legislators, firing on secessionist forces - to be the last resort. There is no evidence to support the notion that he was "quite willing" to engage in arbitrary and lawless action.

By the way, the quote from Harris v. Nelson is out of context, and Justice Fortas himself seems a little disingenuous. Justice Fortas wrote: "The writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action. Its pre-eminent role is recognized by the admonition in the Constitution that: "The Privilege of the Writ of Habeas Corpus shall not be suspended . . . ." U.S. Const., Art. I, 9, cl. 2." Article I, Section 9, clause 2 of the U.S. Constitution actually says "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." [emphasis added]. Leaving that last part off may have been unnecessary in the prisoner petition case on which the justice was opining, but in the context of the Civil War it is certainly worth remembering.

What seems evident is that the early targeted suspensions of the privilege of the Writ, in Maryland and Missouri, seem justifiable in the light of the security situation in those states. The main criticism of these wasn't their necessity, but the President's authority. Article I governs the legislature, so it was argued that only Congress could suspend habeas corpus.

The September 1863 suspension was based on authority under an Act of Congress of March 3, 1863, so the constitutional issue was different. Here, the breadth of the President's order seems unjustified. As Ex Parte Milligan stated, where the civil courts are still operating, civilians should not be tried by military tribunals. Merely because the country was in rebellion, and was divided into military districts, with military governors, and violence could break out, doesn't justify martial law. It isn't the existence of the war (civil or otherwise), it is the impact of the war on preventing the normal functioning of civil society, that would justify imposing martial law.

The Court expounded on the slippery slope:It will be borne in mind that this is not a question of the power to proclaim martial law when war exists in a community and the courts and civil authorities are overthrown. Nor is it a question what rule a military commander, at the head of his army, can impose on states in rebellion to cripple their resources and quell the insurrection. The jurisdiction claimed is much more extensive. The necessities of the service during the late Rebellion required that the loyal states should be placed within the limits of certain military districts and commanders appointed in them, and it is urged that this, in a military sense, constituted them the theater of military operations, and as, in this case, Indiana had been and was again threatened with invasion by the enemy, the occasion was furnished to establish martial law. The conclusion does not follow from the premises. If armies were collected in Indiana, they were to be employed in another locality, where the laws were obstructed and the national authority disputed. On her soil there was no hostile foot; if once invaded, that invasion was at an end, and, with it, all pretext for martial law. Martial law cannot arise from a threatened invasion. The necessity must be actual and present, the invasion real, such as effectually closes the courts and deposes the civil administration.As we saw in the New York Draft Riots, no martial law was declared. Under the circumstances, if Lincoln had declared martial law in the city, he probably would have been justified. So here is a situation where despite the breakdown of law and order, the preference was for maintaining civilian control.

This leads to two somewhat contradictory conclusions. If Lincoln were the power-hungry dictator some critics call him (not talking about you GH, but the Lew Rockwell crowd), he would have taken advantage of the opportunity of the Draft Riots to impose more draconian measures. On the other hand, the fact that he didn't in New York, and such measures did not prove necessary, may support the Court's conclusion in Milligan that the use of military tribunals in Indiana was unnecessary and unjustified.

[Roguish Lawyer]

Is this a Southern thing? Are you Southern boys still mad at 'ol Abe Lincoln? LOL

[Airbornelawyer]

Originally posted by Roguish Lawyer
Is this a Southern thing? Are you Southern boys still mad at 'ol Abe Lincoln? LOL I can't speak for whether GH has a Southern thing, though it seems he has set forth his views sufficiently that looking for ethnoregional motives is not necessary and is a little prejudiced. As for me, considering what defense of Lincoln I have authored, it should be noted that I am a son of Confederate veterans (though not an SCV member). AFIK, no member of my family fought for the North. Here (http://www.psy.fsu.edu/~thompson/cw/8-fl-inf/8-fl-inf-i.html) is the roster of Company I, 8th Florida Infantry. At least 20 of my relatives are on that roster, including one great-great-grandfather and two great-great-great-grandfathers. From the Civil War Soldiers and Sailors System (http://www.itd.nps.gov/cwss/soldiers.htm) database:

W.W. Rhoden
Regiment Name: 16 Georgia Infantry
Side: Confederate
Company: G
Soldier's Rank_In: Private
Soldier's Rank_Out: Private
Film Number: M226 roll 51

This was another great-great-grandfather, my mother's patrilineal great-grandfather. "Rank out" is a little misleading. Taken prisoner in Virginia at Spottsylvania Court House, he died of dysentery in Elmira, New York and is buried in the Confederate Cemetery there.

Everyone has heard of Andersonville, where 28.3% (12,912 out of 45,613) of Union POWs died during the camp's 14-month existence. At Elmira, 24.4% (2,963 out of 12,123) of Confederate POWs died between July 1864 and war's end, most due to deliberate starvation (the overall death rate at Union POW camps was about 11%, Confederate 15%). The commissary-general of prisoners, Col. William Hoffman, on August 18, 1864 put the entire camp on bread and water in "retaliation" for conditions in Confederate camps. The resulting outbreak of scurvy led to 1,870 reported cases by September 11, and epidemics of diarrhea, pneumonia and smallpox followed. As New York's winter came, more and more underfed and underclothed POWs died. When families sent clothes, Col. Hoffman allowed only items that were gray to be distributed, and burned the rest.

Elmira remains possibly the worst atrocity of the Civil War, arguably worse than Andersonville. As bad as conditions were at Andersonville for POWs, they were almost as bad as guards, and in the blockaded South, not much better for Southern civilians. Though the commandant of Andersonville was accused of cruelty, there is little evidence that the horrible conditions there were the result of any deliberate policy, unlike "Hellmira".

BTW, it's y'all Southern boys (I will also accept South'n or Suthrin')

[brownapple]

Originally posted by Roguish Lawyer
Is this a Southern thing? Are you Southern boys still mad at 'ol Abe Lincoln? LOL

I was born and raised in New York City. Can't call me a Southern boy. I just don't believe that Lincoln was the great President that he has been credited as. He was certainly not "Honest Abe", he was a politician and a lawyer.

[brownapple]

Originally posted by Airbornelawyer
There is no evidence to support the notion that he was "quite willing" to engage in arbitrary and lawless action.

I disagree. And I would point to the draft itself as an example of an arbitrary action from which resulted many other arbitrary actions.

Was the draft necessary to win the war? Possibly, but when forced conscription is necessary in order to win the battle, maybe the battle shouldn't have been won.

The draft was the beginning of the slippery slope, and other actions by Lincoln continued the path down and along that path. In my opinion, Lincoln was the first President to start us on the path that led to Franklin Delano Roosevelt and Lyndon Baines Johnson.

[Roguish Lawyer]

Originally posted by Greenhat
He was certainly not "Honest Abe", he was a politician and a lawyer.

Ouch! LOL

[Roguish Lawyer]

http://www.independent.org/tii/forums/020507ipfTrans.html

[CommoGeek]

Dave,
8th Florida, huh? They along with the 2nd and 5th regiments fought with the Army of Northern Virginia. I can recall seeing their monument at Gettysburg. IIRC they were engaged around the Devil's Den/ Little Round Top area. My family was in several different FL Regiments, but they fought in TN and GA at Chickamauga, Atlanta, etc.

You are spot on about Elmira, but I also recall Rock Island and another one that are almost as bad? I can google for that later.... Wirz deserved to hang, but he shouldn't have been the only POW camp commander to do so!

As for Lincoln, GH has stated it better than I could. If you know about his treatment of the Constitution, I guess you'd have to decide if the ends justified the means. For me, the Bill of Rights is the foundation of our country and any time that we erode those Rights, we chip away at the very foundation of what makes the US so great.

Sadly, the public's grasp of that era is minimal or nonexistent. Were they to read more about that time, they would discover that rampant racism wasn't limited to the South. I mention this because it seems that entire war was about slavery and the only "noble" and just members of society were Northern. Nothing could be further from the truth.

We have a great country, but the desire to hold that together should never come at the price of our basic rights.

[Roguish Lawyer]

So I guess you guys are OK with slavery? ;)

What was it that that great Soviet libertarian said about omelettes?

[Roguish Lawyer]

I have been too busy at work to really deal with this Lincoln issue in any meaningful way, but let me state my intention to address it at length when I get a chance.

Brief outline:

1. Lincoln was great
2. The habeas corpus thing doesn't change that

[Roguish Lawyer]

I am a disciple of Harry Jaffa.

[Airbornelawyer]

Originally posted by Greenhat
I disagree. And I would point to the draft itself as an example of an arbitrary action from which resulted many other arbitrary actions.

Was the draft necessary to win the war? Possibly, but when forced conscription is necessary in order to win the battle, maybe the battle shouldn't have been won.

The draft was the beginning of the slippery slope, and other actions by Lincoln continued the path down and along that path. In my opinion, Lincoln was the first President to start us on the path that led to Franklin Delano Roosevelt and Lyndon Baines Johnson. We drafted soldiers in World War Two. Should we not have won the battles then?

The introduction of conscription can hardly be called arbitrary by any definition (1. Determined by chance, whim, or impulse, and not by necessity, reason, or principle; 2. Based on or subject to individual judgment or preference; 3. Established by a court or judge rather than by a specific law or statute; 4. Not limited by law; despotic). It was legally enacted after long debate, based on experiences and the circumstances of the war, following numerous other alternatives to provide the necessary manpower. The law as passed had flaws, most notably the commutation fee, but the draft per se was hardly arbitrary.

The Enrollment Act was passed on March 3, 1863. This was two years into the war, four months before Gettysburg, when Union victory was far from assured. The Enrollment Act was debated for months, in Congress and in public. It followed the failure of the traditional methods of raising troops, calling on the states to call up the militia and setting quotas for each state (and bounties to be paid by the state to recruiters), to provide adequate forces.

The Enrollment Act came into effect as the army was looking at one immediate manpower problem - the expiration of 2-year enlistments of many regiments, including New York's 1st through 38th Infantry - and one to follow - the looming expiration by July 1864 of three-year enlistments of some 500,000 soldiers. The problems already encountered by the expirations of 30-day and three-month enlistments back in 1861 were also fresh on people's memories.

Add to this what was happening in the Confederacy. The Confederate Provisional Congress' re-enlistment law of Dec. 11, 1861 (the "bounty and furlough act") having proved disastrous, the Confederate Congress passed a conscription act on April 16, 1862. Under the "Act to further provide for the public defence," the Confederate Congress authorized the President "to call out and place in the military service of the Confederate States, for three years, unless the war shall have been sooner ended, all white men who are residents of the Confederate States, between the ages of eighteen and thirty-five years at the time the call or calls may be made, who are not legally exempted from military service."

The Federal Militia Act of 1862, signed into law on July 17, came in response to the manpower pressures in the North and the Confederate conscription act. Its main change to existing law was to allow the President to call up state militias into national service for up to nine months, rather than three, but it still relied on states to devise the means to fulfill their quotas. General Order No. 94 of August 4, 1862 then directed the states to call up 300,000 militia into Federal service for nine months. The main result of the requirement to enroll in the militia was to spur volunteers. The July and August 1862 call-ups resulted in 508,000 volunteers and draftees - 421,465 three-year enlistees and 86,360 9-month enlistees (the breakdown is unknown, as many states' militia draftees, given the option of joining volunteer regiments, were then counted as volunteers).

This system still relied on states to devise their own drafts to fulfill their quotas, with mixed results and rioting, so the 1863 Enrollment Act was crafted and enacted, more formalizing the process (but still seen primarily as a way of inducing volunteers).

Far from acting arbitrarily, it seems clear Lincoln had thought through the issues:At the beginning of the war, and ever since, a variety of motives pressing, some in one direction and some in the other, would be presented to the mind of each man physically fit for a soldier, upon the combined effect of which motives, he would, or would not, voluntarily enter the service. Among these motives would be patriotism, political bias, ambition, personal courage, love of adventure, want of employment, and convenience, or the opposites of some of these. We already have, and have had in the service, as appears, substantially all that can be obtained upon the voluntary weighing of motives. And yet we must somehow obtain more, or relinquish the original object of the contest, together with all the blood and treasure already expended in the effort to secure it. To meet this necessity the law for the draft has been enacted. You who do not wish to be soldiers, do not like this law. This is natural; nor does it imply want of patriotism. Nothing can be so just, and necessary, as to make us like it, if it is disagreeable to us.
...
This law was considered, discussed, modified, and amended, by Congress, at great length, and with much labor; and was finally passed, by both branches, with a near approach to unanimity. At last, it may not be exactly such as any one man out of Congress, or even in it Congress, would have made it-- It has been said, and I believe truly, that the Constitution itself is not altogether such as any one of its framers would have preferred. It was the joint work of all; and certainly the better that it was so.
...
The principle of the draft, which simply is involuntary, or enforced service, is not new. It has been practiced in all ages of the world. It was well known to the framers of our Constitution as one of the modes of raising armies, at the time they placed in they instrument the provision that "the Congress shall have power to raise and support armies". It had been used, just before, in establishing our independence; and it was also used under the Constitution in 1812. Wherein is the peculiar hardship now? Shall we shrink from the necessary means to maintain our free government, which our grand-fathers employed to establish it, and our own fathers have already employed once to maintain it? Are we degenerate? Has the manhood of our race run out?
...Again, a law may be both Constitutional and expedient, and yet may be administered in an unjust and unfair way-- This law belongs to a class, which class is composed of those laws whose object is to distribute burdens or benefits on the principle of equality. No one of these laws can ever be practically administered with that exactness which can be conceived of in the mind.
...
This sort of difficulty applies in full force, to the practical administration of the draft law. In fact the difficulty is greater in the case of the draft law-- First, it starts with all the inequality of the Congressional Districts, but these are based on entire population, while the draft is based upon those only who are fit for soldiers, and such may not bear the same proportion to the whole in one District, that they do in another. Again, the facts must be ascertained, and credit given, for the unequal numbers of soldiers which have already gone from the several Districts. In all these points errors will occur in spite of the utmost fidelity. The government is bound to administer the law with such an approach to exactness as is usual in analogous cases, and as entire good faith and fidelity will reach. If so great departures as to be inconsistent with such good faith and fidelity, or great departures occurring in any way, be pointed out, they shall be corrected; and any agent shown to have caused such departures intentionally, shall be dismissed.

With these views, and on these principles, I feel bound to tell you it is my purpose to see the draft law faithfully executed.I do not object to abide a decision of the United States Supreme Court, or of the judges thereof, on the Constitutionality of the draft law. In fact, I should be willing to facilitate the obtaining of it; but I can not consent to lose the time while it is being obtained. We are contending with an enemy who, as I understand, drives every able bodied man he can reach, into his ranks, very much as a butcher drives bullocks into a slaughter pen. No time is wasted, no argument is used. This produces an army which will soon turn upon our now victorious soldiers already in the field, if they shall not be sustained by recruits, as they should be. It produces an army with a rapidity not to be matched on our side, if we first waste time to re-experiment with the volunteer system, already deemed by Congress, and palpably in fact, so far exhausted, as to be inadequate; and then more time, to obtain a Court decision, as to whether a law is constitutional, which requires a part of those not now in the service, to go to the aid of those who are already in it; and still more time, to determine with absolute certainty, that we get those, who are to go, in the precisely legal proportion, to those who are not to go.

My purpose is to be, in my action, just and Constitutional; and yet practical, in performing the important duty, with which I am charged, of maintaining the unity, and the free principles of our common country.

[Airbornelawyer]

The concept of compulsory military service is far from alien to the American political culture. The concept of the muster dated to colonial times, and was based on the Anglo-Saxon fyrd. Several states used conscription in the American Revolution to fulfill the quotas requested of them, including Pennsylvania, Massachusetts, New Hampshire, Connecticut and Virginia. On February 6, 1778, the Continental Congress recommended that all states adopt draft laws, but the arrival of French reinforcements forestalled the need for more general conscription.

During the War of 1812, a conscription act was passed, but the war ended before any drafts were undertaken.

Far from being a shift away from basic American ideals toward a centralized government, the Federal Militia Act of 1862 and the Enrollment Act of 1863 (and the Confederate Conscription Act of 1862 for that matter) were seen as a return to the principles of the founding, as set forth in the Uniform Militia Act of 1792.

Under the Uniform Militia Act, Congress mandated "that each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia by the captain or commanding officer of the company, within whose bounds such citizens shall reside...".

Unless specifically excepted, everyone that language covered was automatically in the militia. It was not a question of volunteering. And under the Militia Clauses of the Constitution, Congress has the power "...to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;" When called forth, "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States..."

The 1836-37 Revised Statutes of North Carolina provide an example of how one was to be enrolled: "That all free white men and white apprentices, citizens of this state, or of the United States, residing in the State, who are or shall be of the age of eighteen, and under the age of forty-five years, shall, as soon as is practicable, be severally and respectively enrolled in the militia of this State, by the captain or commanding officer of the infantry company within the bounds of whose district...such citizen shall reside; and it shall, at all times, be the duty of every captain or commanding officer of any community, to enrol every such citizen, except as hereinafter excepted; and also those between the ages aforesaid, and not exempt by law, who may from time to time, come to reside within the bounds of his district, and remain therein thirty days; and he shall without delay, notify such citizen of his enrolment, by a proper non-commissioned officer of the company, by whom the notice may be given."The main limitations on Federal power were time - the Uniform Militia Act limited call-ups to 3 months - and state regulation of the militia in peacetime. Regarding the latter, the main reason why the army ran into manpower problems in 1861-1863 was what the states had done to the militias after 1792. The Uniform Militia Act (and the Calling Forth Act also passed that year), while making everyone a member of the militia, ceded almost all authority for organizing the militia to the states. And under Section 2 of the Uniform Militia Act, states found they could exempt almost anyone they wanted from serving: "...all persons who now are or may hereafter be exempted by the laws of the respective states, shall be, and are hereby exempted from militia duty, notwithstanding that their being above the the age of 18 and under the age of 45 years." Further, no penalties were placed on states that failed or refused to create and maintain militias.

States soon began unburdening themselves of the responsibility of maintaining their militias. Taking advantage of Section 2, Massachusetts exempted everyone aged 41-45. Then everyone aged 35-45. Then everyone under 21 and over 30. Other classes of exemptions, such as serving in volunteer fire companies, were added. "Clergymen, schoolmasters, professors and students in colleges, Quakers, engine men, and other large classes of persons" were exempted [quoting the Mass. Supreme Court]. There were other exemptions: in 1855, the state disbanded all militia companies composed primarily of Irishmen.

Most states shifted from a compulsory militia system to a volunteer militia system. According to John K. Mahon (The History of the Militia and the National Guard):In 1831 Delaware abolished its [militia] system altogether. Massachusetts eliminated compulsory service in 1840, followed by Maine, Ohio, Vermont in 1844, Connecticut and New York in 1846, Missouri in 1847, and New Hampshire in 1851. Indiana classified its militia according to age in 1840, and exempted all but the young men from service. New Jersey withdrew the right to imprison a man for failure to pay a militia fine in 1844; Iowa did the same in 1846, Michigan in 1850, and California in 1856.The Army did not generally oppose the shift to volunteer militias. The disorganized, ignored in peacetime, militias called up in the War of 1812 were a disaster. By contrast, the volunteer militias generally fought well in the Mexican War (except for the 3,700 one-year men - one third of his force - who abandoned Gen. Scott between Vera Cruz and Mexico City when their enlistment ended).

[Team Sergeant]

I’m beginning to think that AL is not an attorney at all, and is actually the editor for the history channel! (which BTW is one of my favorite channels.)

I sure enjoy the posts AL!

(If you decide to institute the posting of pictures to correlate with the topics we’d most likely see more SEALS join PS.com)

TS

[brownapple]

Originally posted by Airbornelawyer
We drafted soldiers in World War Two. Should we not have won the battles then?

The Draft was a mistake in WWII in my opinion. It certainly was not necessary to the winning of the war.

Actually, in my opinion, conscription is always a mistake. Slavery is not any better a thing because it is in the service of the nation.

And militia service, restricted in time and location, is significantly different from conscription that sends men to foreign lands "for the duration".

[Sacamuelas]

Originally posted by Team Sergeant
I’m beginning to think that AL is not an attorney at all, and is actually the editor for the history channel! (which BTW is one of my favorite channels.)

I sure enjoy the posts AL!
TS

Agreed 100%. Some sort of mutant with his ability to seemingly know everything and never be exposed for posting incorrect facts.

Just another, yet NEW, reason I hate lawyers. LOL ;) Just kidding AL, you are a credit to your profession.

Now RL OTOH, well he is smart, but we just never post topics or questions that are "not in his area of expertise"! hahaha

[Airbornelawyer]

Originally posted by Team Sergeant
(If you decide to institute the posting of pictures to correlate with the topics we’d most likely see more SEALS join PS.com) Pictures?

From Frank Leslie's Illustrated Newspaper, August 1, 1863, a depiction of Capt. Schirmer's German artillerymen and New York militiamen (note the Zouave pantaloons) dispersing rioters at the site of the lynching of Abraham Franklin:

[Airbornelawyer]

Though not particularly sympathetic to poor Irishmen, England was sympathetic to the Confederacy, so this depiction in the August 15, 1863 edition of The Illustrated London News of soldier and rioters on 1st Avenue between 18th and 19th Streets paints the rioters more favorably than Republican-owned papers in the US did:

[Airbornelawyer]

At 600kB far too big to attach, but here's a link to the Uniform Militia Act of 1792, as published in the Columbian Centinel of June 2, 1792: http://www.earlyamerica.com/earlyamerica/firsts/conscription/ccjune2.jpg

[Airbornelawyer]

Originally posted by Greenhat
The Draft was a mistake in WWII in my opinion. It certainly was not necessary to the winning of the war.

Actually, in my opinion, conscription is always a mistake. Slavery is not any better a thing because it is in the service of the nation.

And militia service, restricted in time and location, is significantly different from conscription that sends men to foreign lands "for the duration". As regards your last point, it does not apply to Mr. Lincoln's draft. Enrolling Act of March 3, 1863, Section 11: "And be it further enacted, That all persons thus enrolled shall be subject, for two years after the first day of July succeeding the enrolment, to be called into the military service of the United States, and to continue in service during the present rebellion, not, however, exceeding the term of three years; and when called into service shall be placed on the same footing, in all respects, as volunteers for three years, or during the war, including advance pay and bounty as now provided by law." [emphasis added]

It does apply to Mr. Roosevelt's. The Selective Service and Training Act of 1940 was amended after Pearl Harbor to lengthen the term of service from one year to the duration plus six months.

As for conscription = slavery, I find that a difficult viewpoint to credit. It is certainly not true as a matter of law or American tradition. Not being either an anarchist or a Rothbardian libertarian, I don't consider it true as a moral principle. Human liberty is about duties as well as rights.

Do you consider military service to be slavery? The military has laws against desertion. As Rothbard argues "In addition to demanding the end of conscription, then, the libertarian also proposes to do away with the entire concept of a term of enlistment and the practice of slavery this implies." (of course, in the Rothbard school, jury duty = slavery, anti-strike laws = slavery, taxation = slavery, subpoenas = slavery, among other things).

[brownapple]

Originally posted by Airbornelawyer
As regards your last point, it does not apply to Mr. Lincoln's draft. Enrolling Act of March 3, 1863, Section 11: "And be it further enacted, That all persons thus enrolled shall be subject, for two years after the first day of July succeeding the enrolment, to be called into the military service of the United States, and to continue in service during the present rebellion, not, however, exceeding the term of three years; and when called into service shall be placed on the same footing, in all respects, as volunteers for three years, or during the war, including advance pay and bounty as now provided by law." [emphasis added]

It does apply to Mr. Roosevelt's. The Selective Service and Training Act of 1940 was amended after Pearl Harbor to lengthen the term of service from one year to the duration plus six months.

3 years service, starting in 1863, in the South. How is that not service in a foreign land for the duration? You do know the Civil War ended in 1865, don't you? And the South was very much a foreign land.

As for conscription = slavery, I find that a difficult viewpoint to credit. It is certainly not true as a matter of law or American tradition. Not being either an anarchist or a Rothbardian libertarian, I don't consider it true as a moral principle. Human liberty is about duties as well as rights.

Duties and rights. Correct. Freely taken on duties and rights. How do you describe slavery? I describe it as the forced labor of humans for others for the gain of the others. Isn't that what conscription is?

Do you consider military service to be slavery? The military has laws against desertion. As Rothbard argues "In addition to demanding the end of conscription, then, the libertarian also proposes to do away with the entire concept of a term of enlistment and the practice of slavery this implies." (of course, in the Rothbard school, jury duty = slavery, anti-strike laws = slavery, taxation = slavery, subpoenas = slavery, among other things).

No, I don't consider military service slavery (not under voluntary enlistment or commissioning) because the servicemember agrees to the terms of the service. The terms are voluntary, not forced.

[Roguish Lawyer]

Greenhat, it is nice to see someone who is philosophically consistent. Although I consider myself generally to be a libertarian, I am more of a conservative on certain issues. The draft is one of them. I believe that conscription, while a bad thing, can be necessary and justified on traditional social contract grounds.

[Roguish Lawyer]

OK, not what I promised, but I like this to start this off:

http://www.americanpresident.org/history/abrahamlincoln/

Biography: A Life in Brief

When Abraham Lincoln was elected President in 1860, seven slave states left the Union to form the Confederate States of America, and four more joined when hostilities began between the North and South. A bloody civil war then engulfed the nation as Lincoln vowed to preserve the Union, enforce the laws of the United States, and end the secession. The war lasted for more than four years with a staggering loss of over 600,000 Americans dead. Midway through the war, Lincoln issued the Emancipation Proclamation, which freed all slaves within the Confederacy and changed the war from a battle to preserve the Union into a battle for freedom. He was the first Republican President, and Union victory ended forever the claim that state sovereignty superseded federal authority. Killed by an assassin's bullet less than a week after the surrender of Confederate forces, Lincoln left the nation a more perfect Union and thereby earned the admiration of most Americans as the country's greatest President.

Born dirt-poor in a log cabin in Kentucky in 1809, Lincoln grew up in frontier Kentucky and Indiana, where he was largely self-educated, with a taste for jokes, hard work, and books. He served for a time as a soldier in the Black Hawk War, taught himself law, and held a seat in the Illinois state legislature as a Whig politician in the 1830s and 1840s. From state politics, he moved to the U.S. House of Representatives in 1847, where he voiced his opposition to the U.S. war with Mexico. In the mid-1850s, Lincoln left the Whig Party to join the new Republican Party. In 1858, he went up against one of the most popular politicians in the nation, Senator Stephen Douglas, in a contest for the U.S. Senate. Lincoln lost that election, but his spectacular performance against Douglas in a series of nationally covered debates made him a contender for the 1860 Republican presidential nomination.


Fighting for Unity and Freedom

In the 1860 campaign for President, Lincoln firmly expressed his opposition to slavery and his determination to limit the expansion of slavery westward into the new territories acquired from Mexico in 1850. His election victory created a crisis for the nation, as many southern Democrats feared that it would just be a matter of time before Lincoln would move to kill slavery in the South. Rather than face a future in which black people might become free citizens, much of the white South supported secession. This reasoning was based upon the doctrine of states' rights, which placed ultimate sovereignty with the states.

Lincoln vowed to preserve the Union even if it meant war. He eventually raised an army and navy of nearly 3 million northern men to face a southern army of over 2 million soldiers. In battles fought from Virginia to California (but mainly in Virginia, in the Mississippi River Valley, and along the border states) a great civil war tore the United States apart. In pursuing victory, Lincoln assumed extralegal powers over the press, declared martial law in areas where no military action justified it, quelled draft riots with armed soldiers, and drafted soldiers to fight for the Union cause. No President in history had ever exerted so much executive authority, but he did so not for personal power but in order to preserve the Union. In 1864, as an example of his limited personal ambitions, Lincoln refused to call off national elections, preferring to hold the election even if he lost the vote rather than destroy the democratic basis upon which he rested his authority. With the electoral support of Union soldiers, many of whom were given short leaves to return home to vote, and thanks to the spectacular victory of Union troops in General Sherman's capture of Atlanta, Lincoln was decisively reelected.

What started as a war to preserve the Union and vindicate democracy became a battle for freedom and a war to end slavery when Lincoln issued the Emancipation Proclamation in January of 1863. Although the Proclamation did not free all slaves in the nation -- indeed, no slaves outside of the Confederacy were affected by the Proclamation -- it was an important symbolic gesture that identified the Union with freedom and the death of slavery. As part of the Proclamation, Lincoln also urged black males to join the Union forces as soldiers and sailors. By the end of the war, nearly two hundred thousand African Americans had fought for the Union cause, and Lincoln referred to them as indispensable in ensuring Union victory.


Personal Tragedies and Triumphs

While the war raged, Lincoln also suffered great personal anguish over the death of his beloved son and the depressed mental condition of his wife, Mary. The pain of war and personal loss affected him deeply, and he often expressed his anguish by turning to humor and by speaking eloquently about the meaning of the great war which raged across the land. His Gettysburg Address, delivered after the Battle of Gettysburg, as well as his second inaugural in 1865, are acknowledged to be among the great orations in American history.

Almost all historians judge Lincoln as the greatest President in American history because of the way he exercised leadership during the war and because of the impact of that leadership on the moral and political character of the nation. He conceived of his presidential role as unique under the Constitution in times of crisis. Lincoln was convinced that within the branches of government, the presidency alone was empowered not only to uphold the Constitution, but also to preserve, protect, and defend it. In the end, however, Lincoln is measured by his most lasting accomplishments: the preservation of the Union, the vindication of democracy, and the death of slavery -- accomplishments achieved by acting "with malice towards none" in the pursuit of a more perfect and equal union.

[Roguish Lawyer]

Another one:

http://www.enterstageright.com/archive/articles/0301lincoln.htm

Abraham Lincoln: America's greatest president

By Charles A. Morse
web posted March 26, 2001

Abraham Lincoln was the nation's greatest president because he saved the Republic from it's gravest crisis. In the process of doing so, he abolished the barbarous institution of slavery. Lincoln confronted an extensive conspiracy to destroy the Union and through the force of his leadership, personality, perseverance, and courage, he saved the day. While Lincoln condemned slavery, he viewed it as a states right at the time of his election in 1860. This raises questions concerning why, upon his election, some states chose to secede from the Union.


Lincoln on February 5, 1865
The issue of slavery was pulling the nation apart in the decades leading up to the secession crisis of 1860-1861. There was a growing awareness that slavery, the idea of a human being owning another human being as property, was immoral and contradicted stated American precepts. The practical maintenance of slavery was requiring an expansion of federal power. Slave states, while advocating states rights, demanded federal intervention in support of slavery.

The Fugitive Slave Act of 1850 required federal marshals to hunt down and arrest slaves who had escaped to free states. In Boston, soldiers battled an angry crowd who were trying to stop the arrest of an escaped slave. A policemen was killed in the melee and the escaped slave was hauled back to captivity. Essentially, slavery was extended into the free states through federal enforcement. This added fuel to the abolitionist fire.

The Kansas-Nebraska Act of 1854 gutted laws going back to the Northwest Ordinance, enacted by the pre-Constitution Articles of Confederation, which prohibited slavery in certain territories. After 1854, all territories could choose slavery which led to virtual war in Kansas between pro- and anti- slave forces. As a result of the infamous Dred Scott decision of 1857, by the Supreme Court, no Black, slave or free, living in a slave or free state, had any rights at all. This was the most blatant act of judicial activism in American history.

Slavery, over time, resulted in the development of two separate cultures and economies. Slave states tended to be agrarian with wealth and power concentrated in the hands of large plantation owners. Free states increasingly industrialized and experienced an emerging middle class with the proliferation of small business and small property ownership. Civil War historian Bruce Catton quotes Lincoln on the cause of secession: "[C]ombinations too powerful to be suppressed by the ordinary machinery of peacetime government had assumed control of various Southern states."

Based on contemporary writings, Lincoln was most likely referring to the Knights of the Golden Circle, a secretive fraternal organization that counted amongst it's over 65 000 members, the "brains" of the south as well as influential northerners. KGC founder, Dr. George W.L. Bickley derived the name for his organization from his plan to create a huge slaveholding empire stretching from the southern states through Mexico and Central America and circling Cuba in the center. Bickley stated that if Lincoln was elected president, "Washington, not Mexico, would become the target."

Britain and France positioned themselves to enter the war on the side of the South. Britain sent 11 000 troops to Canada while France installed Archduke Maximilian as emperor of Mexico. French troops were poised on the Texas border. America was encircled. Lincoln responded with a naval blockade and a military alliance with Russia. Russian ships would make their way to New York and San Francisco harbors.

Lincoln also faced draft riots in major northern cities the most deadly occurring in Manhattan. Pro- southern Copperheads, with ties to the Confederate KGC, conspired to create a "Northwest Confederacy" in Ohio, Indiana, Illinois, Minnesota and Michigan by seizing federal arsenals and releasing Confederate prisoners. Lincoln stated "The enemy behind us is more dangerous to the country than the enemy before us."

Lincoln, before being sworn in as president, was faced with the rebellion of eleven southern states. He faced a subversive conspiracy in the north that would make the Communist conspiracy of the 20th century look like child's play. He faced a military threat from Britain and France, the world's two superpowers at the time, both of whom were siding with the insurrection. He was also faced with intrigue from the international banking establishment, a subject that will be covered at a later date. Lincoln faced down all of these threats and triumphed. He was an indispensable man and we owe him an enormous debt of gratitude.

Chuck Morse is the author of Thunder out of Boston which you can buy at Amazon.com.

[The Reaper]

Well, I don't know about all of that, but in the "Star Trek" episode, he couldn't fight for squat, and the Klingon kicked his rail-splittin' ass.

TR

[Roguish Lawyer]

Originally posted by The Reaper
Well, I don't know about all of that, but in the "Star Trek" episode, he couldn't fight for squat, and the Klingon kicked his rail-splittin' ass.

TR

OK, now it is clear that what you said privately to me earlier is correct! LMAO

[Airbornelawyer]

Originally posted by The Reaper
Well, I don't know about all of that, but in the "Star Trek" episode, he couldn't fight for squat, and the Klingon kicked his rail-splittin' ass.

TR Don't fault Lincoln for that. Like Vegas Elvis, he wasn't in his prime at the time. And Kahless was the greatest of all Klingon warriors. Remember his words: "qaStaHvsIS wa'ram loS SaD Hugh SljlaH qetboqh loD" (A running man can cut four thousand throats in one night.).

[Solid]

AL, can you levitate by any chance?

:D