Crisis And Command Part 4

Lincoln did not seek congressional involvement in the strategic decisions about the war. Congress's main job was to supply the resources needed to win on the battlefield, a task it performed far more effectively than its Southern counterpart. Taxes were raised, bonds were sold, a federal bank reestablished, paper currency introduced, and money spent (the federal budget increased by 700 percent in the first year of the war).29 Hundreds of thousands of soldiers were trained, equipped, and organized into units, and once on the front they were fed and supplied far better than the enemy. Hundreds of thousands of soldiers were trained, equipped, and organized into units, and once on the front they were fed and supplied far better than the enemy.

The Senate established a Committee on the Conduct of the War that became a forum for investigation and criticism of Lincoln's commanders, especially those perceived to be too cautious, and for praise of those willing to take aggressive measures. Lincoln and his second Secretary of War, Edwin Stanton, did nothing to s.h.i.+eld the generals from congressional criticism, but instead seemed to see it as a welcome prod to McClellan and his fellow West Pointers.30 Beyond its oversight function, however, Congress played little significant role in setting war policy or strategy. As Phillip Paludan has written, "Congress left most decisions on the fighting to the generals, the secretary of war, and the president." Beyond its oversight function, however, Congress played little significant role in setting war policy or strategy. As Phillip Paludan has written, "Congress left most decisions on the fighting to the generals, the secretary of war, and the president."31 Military strategist Eliot Cohen has shown that the development of Civil War strategy was largely a process of civilian struggle for control of the military, which boiled down to a contest between Lincoln and his generals. Military strategist Eliot Cohen has shown that the development of Civil War strategy was largely a process of civilian struggle for control of the military, which boiled down to a contest between Lincoln and his generals.32 Throughout the war, Lincoln stayed in close contact with Grant and Sherman, reviewed their movements, and continued to suggest different strategies. He asked Francis Lieber, an expert on the laws of war at Columbia University, to draft the first modern code on the rules of warfare, and he issued it as General Orders No. 100 in April 1863. He did not ask Congress to enact it by statute. Upon learning that Confederate troops had executed surrendering black soldiers and their white officers, he threatened retaliatory action.33But perhaps no military policy was as far-reaching as the decision to emanc.i.p.ate the slaves, a measure he executed solely under his authority as Commander-in-Chief.34 In the first years of the war, Radical Republicans in Congress had kept up a drumbeat of criticism against Lincoln for not immediately ending slavery. In 1861, Lincoln reversed General Fremont's emanc.i.p.ation order in Missouri, and the following year he overturned General Hunter's freeing of slaves in Georgia, Florida, and South Carolina. Lincoln was concerned about keeping the loyalty of the slaveholding border states, especially Kentucky, the third most populous slave state and occupant of a strategic position in the Western theatre.35 Lincoln reportedly said that he hoped for G.o.d's support, but he needed Kentucky's. Lincoln reportedly said that he hoped for G.o.d's support, but he needed Kentucky's.36 Whether the federal government even had the power to abolish slavery remained unresolved. As he had proclaimed in his First Inaugural Address, Lincoln believed that slavery's preservation was a matter of state law and that the federal government had no power to touch it where it already existed. Emanc.i.p.ation might qualify as the largest taking of private property in American history, for which the government would owe just compensation under the Fifth Amendment. Another question that remained unclear was whether the United States had the right as a belligerent, under the laws of war, to free slaves. A nation at war generally had the right to seize enemy property when necessary to achieve its military goals, but it also could not, as an occupying power, simply take all property held by private citizens.37 As the conflict deepened, Lincoln's view on whether to order emanc.i.p.ation as a military measure underwent significant change. He had overturned Generals Fremont and Butler because their proclamations were essentially political -- they sought to free all slaves in their territories, even those unconnected to the fighting. When General Benjamin Butler in Virginia declared that slaves that escaped to Union lines were "contraband" property that could be kept by the Union, Lincoln let the order stand.38 Congress urged a more radical approach by enacting two Confiscation Acts: the first deprived rebels of owners.h.i.+p of their slaves put to work in the war; the second freed the slaves encountered by Union forces. Because both laws required an individual hearing before a federal judge before a slave could be freed, neither had much practical effect. Congress urged a more radical approach by enacting two Confiscation Acts: the first deprived rebels of owners.h.i.+p of their slaves put to work in the war; the second freed the slaves encountered by Union forces. Because both laws required an individual hearing before a federal judge before a slave could be freed, neither had much practical effect.39 Of greater impact was the July 1862 Militia Act, which freed the slave of any rebel, if that slave joined the U.S. armed forces.40 On August 25, 1862, Secretary of War Stanton authorized the raising of the first 5,000 black troops for the Union army. As the war grew increasingly difficult, Lincoln became convinced that emanc.i.p.ation would be a valuable weapon for the Union cause. It would undermine the Confederacy's labor force and economy while providing a much-needed pool of recruits for the Union armies. On August 25, 1862, Secretary of War Stanton authorized the raising of the first 5,000 black troops for the Union army. As the war grew increasingly difficult, Lincoln became convinced that emanc.i.p.ation would be a valuable weapon for the Union cause. It would undermine the Confederacy's labor force and economy while providing a much-needed pool of recruits for the Union armies.

As the cost of the war in blood and treasure became ever dearer, demands for an end to slavery grew louder in the North. At the same time, the border states rejected proposals for gradual emanc.i.p.ation paid for by the federal government. By late July 1862, Lincoln had a draft proclamation of emanc.i.p.ation ready and had notified his cabinet, which advised him to wait for a Union victory. Antietam provided Lincoln the moment.

While Union casualties were steep (6,000 dead and 17,000 wounded -- up to that point the most American casualties ever suffered in a single day), the Army of the Potomac had forced the Confederate army from the field. On September 22, 1862, five days after the battle, Lincoln issued the Emanc.i.p.ation Proclamation as President and Commander-in-Chief. It declared that all slaves in areas under rebellion as of January 1, 1863, "shall be then, thenceforward, and forever free; and the executive government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons."41 Lincoln stated his intention to ask Congress for compensation for the loyal slave states that voluntarily adopted emanc.i.p.ation and for Southerners who lost slaves but remained loyal to the Union. Lincoln stated his intention to ask Congress for compensation for the loyal slave states that voluntarily adopted emanc.i.p.ation and for Southerners who lost slaves but remained loyal to the Union.

The President remained clear that the war was not about slavery, but "for the object of practically restoring the const.i.tutional relation between" the United States and the rebel states. Nevertheless, his proclamation freed 2.9 million slaves, 75 percent of all slaves in the United States and 82 percent of the slaves in the Confederacy.42 On January 1, 1863, Lincoln issued the final Emanc.i.p.ation Proclamation, "by virtue of the power in me vested as Commander-in-Chief, of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States." The President rooted the const.i.tutional justification for the Emanc.i.p.ation Proclamation as "a fit and necessary war measure for suppressing said rebellion." On January 1, 1863, Lincoln issued the final Emanc.i.p.ation Proclamation, "by virtue of the power in me vested as Commander-in-Chief, of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States." The President rooted the const.i.tutional justification for the Emanc.i.p.ation Proclamation as "a fit and necessary war measure for suppressing said rebellion."43 Lincoln's dependence on his const.i.tutional authority explains the Proclamation's careful boundaries. He did not free any slaves in the loyal states, nor did he seek to remake the economic and political order of Southern society. Lincoln never claimed a broad right to end slavery. Rather, the Emanc.i.p.ation Proclamation was an exercise of the President's war power to undertake measures necessary to defeat the enemy.

With the cost of war in both men and money rising steeply, emanc.i.p.ation became a means to the end of restoring the Union. Shortly before issuing the preliminary Proclamation, Lincoln wrote to Republican newspaper editor Horace Greeley, and through him to a broad readers.h.i.+p, that his goal was to restore "the Union as it was." Emanc.i.p.ation was justified only so far as it helped achieve victory. "My paramount object in this struggle is is to save the Union, and is to save the Union, and is not not either to save or to destroy slavery," Lincoln wrote. "If I could save the Union without freeing either to save or to destroy slavery," Lincoln wrote. "If I could save the Union without freeing any any slave I would do it, and if I could save it by freeing slave I would do it, and if I could save it by freeing all all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that." the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that."44 After he issued the Proclamation, Lincoln made clear that the Commander-in-Chief Clause allows measures based on military necessity that would not be legal in peacetime. Responding to critics of the Proclamation's const.i.tutionality from his home state, he admitted that "I certainly wish that all men could be free, while I suppose you do not." Still, emanc.i.p.ation was a valid war measure. "I think the const.i.tution invests its commander-in-chief, with the law of war, in time of war," he wrote. Anything that belligerents could lawfully do in wartime, therefore, fell within the President's authority.

There was no question in Lincoln's mind that taking the enemy's property was a legitimate policy in war. "Armies, the world over, destroy enemies' property when they cannot use it; and even destroy their own to keep it from the enemy." "Civilized belligerents do all in their power to help themselves, or hurt the enemy, except a few things regarded as barbarous or cruel," such as the ma.s.sacre of prisoners or noncombatants. Lincoln would consider anything permitted by the laws of war.

Emanc.i.p.ation did not just deny the South a vital resource, but it also provided black soldiers for the war effort. Lincoln claimed that Union generals "believe the emanc.i.p.ation policy, and the use of colored troops, const.i.tute the heaviest blow yet dealt to the rebellion."45 Black soldiers saved the lives and energies of white soldiers, and indeed, the lives and rights of white civilians. "You say you will not fight to free negroes," Lincoln wrote. "Some of them seem willing to fight for you." But he closed by emphasizing again that emanc.i.p.ation was not the goal, but the means. When the war ended, "it will have been proved that, among free men, there can be no successful appeal from the ballot to the bullet; and that they who take such appeal are sure to lose their case, and pay the cost." When that day comes, Lincoln promised, "there will be some black men who can remember that, with silent tongue, and clenched teeth, and steady eye, and well-poised bayonet," they helped achieve victory. Black soldiers saved the lives and energies of white soldiers, and indeed, the lives and rights of white civilians. "You say you will not fight to free negroes," Lincoln wrote. "Some of them seem willing to fight for you." But he closed by emphasizing again that emanc.i.p.ation was not the goal, but the means. When the war ended, "it will have been proved that, among free men, there can be no successful appeal from the ballot to the bullet; and that they who take such appeal are sure to lose their case, and pay the cost." When that day comes, Lincoln promised, "there will be some black men who can remember that, with silent tongue, and clenched teeth, and steady eye, and well-poised bayonet," they helped achieve victory.

The Emanc.i.p.ation Proclamation is usually studied as a question of the war powers of the national government, though it has also been studied as a question of whether it amounted to a taking of property requiring compensation.46 What is sometimes neglected is that the Proclamation was a startling demonstration of the const.i.tutional powers of the Presidency. Lincoln decided that military necessity justified emanc.i.p.ation. The Supreme Court did not reach the question of the wartime confiscation of property until after the war, when it upheld the seizure, transfer, and destruction of private property that supported the enemy's ability to carry on hostilities. What is sometimes neglected is that the Proclamation was a startling demonstration of the const.i.tutional powers of the Presidency. Lincoln decided that military necessity justified emanc.i.p.ation. The Supreme Court did not reach the question of the wartime confiscation of property until after the war, when it upheld the seizure, transfer, and destruction of private property that supported the enemy's ability to carry on hostilities.47 While Congress pa.s.sed the two Confiscation Acts, it required individual hearings proving that a slave's owner was engaged in the rebellion or that a slave was being used in the Confederacy's war effort. Lincoln freed the slaves en ma.s.se and bypa.s.sed the painstaking judicial procedures established by Congress. The legislature authorized the acceptance of escaped slaves into the Union armed forces, but it remained for the President to organize and deploy in combat the more than 130,000 freedmen who joined the Union armies. While Congress pa.s.sed the two Confiscation Acts, it required individual hearings proving that a slave's owner was engaged in the rebellion or that a slave was being used in the Confederacy's war effort. Lincoln freed the slaves en ma.s.se and bypa.s.sed the painstaking judicial procedures established by Congress. The legislature authorized the acceptance of escaped slaves into the Union armed forces, but it remained for the President to organize and deploy in combat the more than 130,000 freedmen who joined the Union armies.

While the Proclamation had a broad scope, it also recognized the limits of presidential power. It only touched those areas, the Southern states, where slaves helped the enemy. It did not reach into the inst.i.tution of slavery in the loyal states. Emanc.i.p.ation would no longer be a justifiable war measure once the fighting ceased, and it could even be frustrated by the other branches while war continued. Congress might use its own const.i.tutional powers to establish a different regime -- a reasonable concern with Democratic successes in the 1862 midterm elections -- and allow the states to restore slavery once the war ended.

Lincoln understood that to ensure slavery's permanent end, the states would have to adopt a const.i.tutional amendment making emanc.i.p.ation permanent. Toward the end of the war, he pressed for adoption of a complete prohibition of slavery in what eventually became the Thirteenth Amendment. Ratification made the link between emanc.i.p.ation and democratic rule clear. In June 1864, Congress rejected the amendment, which would be the first since the changes to the Electoral College after the Jefferson-Burr deadlock in 1800.

After resounding Republican victories in the November elections, Lincoln called upon the same lame-duck Congress to ratify the Thirteenth Amendment. "It is the voice of the people now, for the first time, heard upon the question." In a time of "great national crisis," Lincoln said "unanimity of action" was needed, and that required "some deference to the will of the majority, simply because it is the will of the majority."48 Congress promptly agreed to ratify the amendment even before the new Republican majorities took over. Congress promptly agreed to ratify the amendment even before the new Republican majorities took over.

Lincoln's great political achievement was to meld the original purpose of the war with the new goal of ending slavery. Emanc.i.p.ation of the slaves and restoration of the Union both drew upon Lincoln's belief, expressed in his First Inaugural Address, that the Const.i.tution enshrined a democratic process in which the fundamental decisions were up to the people, as expressed in the ballot box. He tied together the concepts of popular sovereignty and liberty in the Gettysburg Address, reconciling the political structure of the Const.i.tution with the values of the Declaration of Independence.49 Lincoln justified the carnage of the battle with the prospect of preserving the "new nation," created by "our fathers," that was "conceived in Liberty, and dedicated to the proposition that all men are created equal." The equality of all men, of course, was not an explicit goal of the Union as established in the Const.i.tution, but instead was recognized by the Declaration. Lincoln called on "us the living" to dedicate themselves "to the great task remaining before us," to ensure "that this nation, under G.o.d, shall have a new birth of freedom," and "that government of the people, by the people, for the people, shall not perish from the earth."50 Restoring the Union now stood for two propositions: the working of popular democracy Restoring the Union now stood for two propositions: the working of popular democracy and and freedom and equality for all men. Emanc.i.p.ation may have been a policy justified by military necessity, but it became an end of the war as well as a means. freedom and equality for all men. Emanc.i.p.ation may have been a policy justified by military necessity, but it became an end of the war as well as a means.

Lincoln's words at Gettysburg ill.u.s.trated, as perhaps nothing else could, the President's control over national strategy in wartime. When the war began, Lincoln established the limited goal of restoring the Union, and Congress agreed in the Crittenden-Johnson resolutions, which declared that the goal of the war was preservation of the Union, while leaving alone the "established inst.i.tutions" of slavery in the existing states. Initial military strategy focused on blockading the Confederacy in the East while dividing it in the West through capture of the Mississippi. This "Anaconda" strategy would slowly strangle the South until it came back to its senses and returned to the Union.51 By the middle of 1862, stiff Southern resistance had convinced Lincoln that only unconditional surrender could end the war. National goals became both restoration of the Union and, after the Emanc.i.p.ation Proclamation, freedom for all. Strategy s.h.i.+fted to the destruction of Confederate armies in the field and the end of the government in Richmond. Lincoln's declaration that the war sought a new birth of freedom, he believed, would encourage "the army to strike more vigorous blows" by setting an example of the administration "strik[ing] at the heart of the rebellion."52 Lincoln rejected Southern peace feelers that only sought a restoration of the Union without emanc.i.p.ation. In response to one Southern effort to open negotiations, which Lincoln suspected were false anyway, the President sent emissaries with instructions that negotiations could only begin after the South accepted the Union and the permanent abandonment of slavery. This "surprise" term went beyond the Emanc.i.p.ation Proclamation, which was limited only to Confederate territory in wartime, and even Lincoln's understanding of the powers of Congress.53 Jefferson Davis spurned the Northern representatives with the words that "we are not fighting for slavery. We are fighting for Independence -- and that, or extermination, we will have." Jefferson Davis spurned the Northern representatives with the words that "we are not fighting for slavery. We are fighting for Independence -- and that, or extermination, we will have."54 Describing the exchanges later, Lincoln wrote that "between him and us the issue is distinct, simple, and inflexible. It is an issue which can only be tried by war, and decided by victory." Describing the exchanges later, Lincoln wrote that "between him and us the issue is distinct, simple, and inflexible. It is an issue which can only be tried by war, and decided by victory."55Lincoln's control over the conduct of the war had transformed the political goals of the conflict into Union and Liberty, and made the means no longer limited war, but a drive for total victory.

CIVIL LIBERTIES IN WARTIME.

THE UNIQUE NATURE of the Civil War forced the Lincoln administration to reduce civil liberties in favor of greater internal security. Unlike a war against a foreign nation, the rebellion was fought against other Americans, and events in Maryland and Missouri showed that parts of Union territory would have to be placed under military rule. The common heritage of the North and South increased the likelihood of irregular guerilla fighting, espionage, and sabotage. Southerners could operate easily behind Union lines and find supporters of their cause. Significant political dissent from Democrats and anti-war opponents worried the administration, which tried to walk a fine line between respecting free speech and the political process and preventing the disloyal from undermining the war effort. Congress did not give its immediate approval to all of Lincoln's actions; it did not enact any law regarding habeas corpus until 1863.

Lincoln initially gave Secretary of State Seward the job of operating an internal security service responsible for detaining those suspected of aiding the Confederacy. His special agents either arrested suspects themselves or asked the military or local police to do so at strategic points in cities, ports, and transportation hubs. Seward even had newspaper editors and state politicians suspected of disloyalty thrown in detention and had the mails opened to search for espionage.56 Seward boasted to a foreign diplomat that he could "ring a little bell" and have anyone in the country arrested. Seward boasted to a foreign diplomat that he could "ring a little bell" and have anyone in the country arrested.

Lincoln's domestic policies on detention logically followed those applied to combat. More than 400,000 prisoners were captured in the war by both sides. Under Lincoln's theory that the Southern states were still part of the Union, all of the members of the Confederacy were still American citizens. In war, however, the United States used force to kill and capture Confederate soldiers, destroy Confederate property, and impose martial law on occupied Confederate territory. Prisoners had no right to a jury trial, and Confederate civilians had neither a right to sue for damages for destroyed property nor a right to immediately govern themselves. Occupied Confederate states would have no right to send Senators and Representatives to Congress once Union control had returned.

The normal process of law could not handle the unique nature of the rebellion. Confederate leaders, for example, were being detained not because they were guilty of a crime, but because their release would pose a future threat to the safety of the country. What if federal authorities, Lincoln wrote in a letter published in June 1863, could have arrested the military leaders of the Confederacy, such as Generals Breckinridge, Lee, and Johnston, at the start of the war? "Unquestionably, if we had seized and held them, the insurgent cause would be much weaker," Lincoln argued. "But no one of them had then committed any crime defined in the law. Every one of them, if arrested, would have been discharged on habeas corpus habeas corpus were the writ allowed to operate." were the writ allowed to operate."57 Suspension of the writ made clear that captured Confederates could not seek the benefits of the very civilian legal system that they sought to overthrow. Suspension of the writ made clear that captured Confederates could not seek the benefits of the very civilian legal system that they sought to overthrow.

Lincoln's July 4, 1861, message to the special session of Congress mounted a powerful defense of his suspension of the writ. He argued that his presidential duty called upon him to protect the Const.i.tution first before the decisions of the Supreme Court. "The whole of the laws which were required to be faithfully executed, were being resisted, and failing of execution, in nearly one-third of the States." Saving the Union from a mortal threat, Lincoln suggested, could justify a violation of the Const.i.tution and the laws, and certainly a single provision of them. "Must they be allowed to finally fail of execution, even had it been perfectly clear, that by the use of the means necessary to their execution, some single law, made in such extreme tenderness of the citizen's liberty, that practically, it relieves more of the guilty, than of the innocent, should, to a very limited extent, be violated?" In a famous pa.s.sage, Lincoln asked, "Are all the laws, but one but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?" He suggested that painstaking attention to the habeas corpus provision would come at the expense of his ultimate const.i.tutional duty -- saving the Union. "Even in such a case, would not the official oath be broken, if the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it?"58 Lincoln performed some acrobatics to pull back from a const.i.tutional conflict. It was obvious that the nation indeed was confronted with "rebellion or invasion." Written in the pa.s.sive voice, the Const.i.tution's habeas corpus provision did not specify which branch had the right to suspend it. Lincoln quickly returned to the need for prompt executive action to address the crisis. "As the provision was plainly made for a dangerous emergency," he wrote, "it cannot be believed the framers of the instrument intended, that in every case, the danger should run its course, until Congress could be called together." A rebellion might even prevent Congress from meeting.

In an opinion issued the next day, Attorney General Edward Bates agreed that the President's duty to execute the laws and uphold the Const.i.tution required him to suppress the rebellion, using the most effective means available. If the rebels sent an army, the President had the discretion to respond with an army. "If they employ spies and emissaries, to gather information, to forward rebellion, he may find it both prudent and humane to arrest and imprison them," Bates wrote. A President must have the ability to suspend habeas in case of an emergency that required him to call out the military, the vagueness of the Suspension Clause notwithstanding. In times of emergency, "the President must, of necessity, be the sole judge, both of the exigency which requires him to act, and of the manner in which it is most prudent for him to employ the powers entrusted to him."59 Bates's legal opinion launched a frontal a.s.sault on Taney's claim to judicial supremacy in Merryman Merryman. "To say that the departments of our government are coordinate, is to say that the judgment of one of them is not binding upon the other two, as to the arguments and principles involved in the judgment." Independence required that no branch could compel another. No court could issue a writ requiring compliance by the President, just as no President could order a court how to decide a case. Bates's opinion ventured even further than Lincoln's view on Dred Scott Dred Scott, which he agreed to enforce at least as to the parties in the case. Bates's claim of the independent status of each branch implied that the President had no obligation to obey a court judgment even in that narrow case -- a position that the administration had to adopt because Lincoln had already ignored Taney's order releasing Merryman.

Bates questioned whether the courts had any competence to decide questions relating to the war. "[T]he whole subject-matter is political and not judicial. The insurrection itself is purely political. Its object is to destroy the political government of this nation and to establish another political government upon its ruins," the Attorney General reasoned. "And the President, as the chief civil magistrate of the nation, and the most active department of the Government, is eminently and exclusively political, in all his princ.i.p.al functions." A court, Bates concluded, had no authority to review these political decisions of the President. The Attorney General suggested that something like the modern political question doctrine applied to judicial review of the President's wartime decisions. Almost as an aside, Bates addressed the merits of the const.i.tutional question. He observed that the Suspension Clause was vague and did not specify whether Congress alone, or the President too could suspend habeas. He argued that it was absurd to allow habeas to benefit enemies in wartime, as it would imply that the enemy could sue for damages when the Union destroyed their arms and munitions.

In September 1862, the President turned to more aggressive measures. Military rule had displaced civilian government in areas touched by the battlefield, in the border states where confederate irregulars conducted guerilla operations, and in recaptured territory. Martial law went unmentioned in the Const.i.tution but had been used during the Revolution and the War of 1812, and had even been upheld by Chief Justice Taney in a case involving civil unrest in Rhode Island.60 Lincoln drew upon his Commander-in-Chief power to impose military rule in areas where fighting or occupation were ongoing. Lincoln drew upon his Commander-in-Chief power to impose military rule in areas where fighting or occupation were ongoing.

In a September 24, 1862, proclamation, Lincoln extended military jurisdiction beyond the battlefield to those giving a.s.sistance to the enemy behind the lines. He ordered the military to detain anyone within the United States who gave aid or comfort to the rebels, and anyone who resisted the draft or discouraged volunteers from enlisting. Detainees would have no right to seek a writ of habeas corpus and would be tried by courts-martial or military commission, a form of military court used to try the enemy or civilians for violations of the laws of war and to administer justice in occupied territory.61 Under Lincoln's order, the jurisdiction of the military commissions extended to those suspected of a.s.sisting the rebellion or disrupting the war effort well behind the front lines. Under Lincoln's order, the jurisdiction of the military commissions extended to those suspected of a.s.sisting the rebellion or disrupting the war effort well behind the front lines.

Union officials primarily deployed these authorities in or near active hostilities to detain spies and saboteurs. A common use was to capture irregular Confederate forces that were killing Union soldiers and attacking supply trains in states such as Missouri, or to maintain order in recaptured territory such as New Orleans. Civilian processes of justice simply could not handle cases of widespread violence by guerillas and Confederate soldiers in the areas around the front lines. According to existing Union records, the army conducted 4,271 military commission trials during the Civil War. About 55 percent took place in Missouri, Kentucky, and Maryland, border states that saw significant disorder and unrest, with Missouri alone accounting for about 46 percent. Almost all of these cases involved guerrilla activity, horse-stealing, and bridge-burning.62 Lincoln ordered the use of military detention and trial in the North, not because it was under direct threat of attack, but because "agitators" were interfering with the North's war effort. Although recent historical work has shown that Union officials did not exercise these authorities as broadly against political activity as some have thought, they did detain and try newspaper editors and politicians who urged disloyalty or opposition to the administration's war measures.63 The most well-known case was that of Clement Vallandigham, a former member of Congress and Ohio Democrat who was seeking his party's nomination for governor on a peace platform. Union authorities arrested Vallandigham for a speech attacking the war as "wicked, cruel, and unnecessary" because it sought to abolish slavery rather than restore the Union. He made a particular point of attacking "King Lincoln" for depriving Northerners of their civil liberties. A military commission convicted Vallandigham and sentenced him to prison for the rest of the war, but Lincoln altered the sentence to banishment to the Confederacy. The most well-known case was that of Clement Vallandigham, a former member of Congress and Ohio Democrat who was seeking his party's nomination for governor on a peace platform. Union authorities arrested Vallandigham for a speech attacking the war as "wicked, cruel, and unnecessary" because it sought to abolish slavery rather than restore the Union. He made a particular point of attacking "King Lincoln" for depriving Northerners of their civil liberties. A military commission convicted Vallandigham and sentenced him to prison for the rest of the war, but Lincoln altered the sentence to banishment to the Confederacy.

Vallandigham's case became a cause celebre to Lincoln's opponents in the North, who accused him of wielding dictatorial powers ever since the start of the war. Unlike Merryman, the Ohio Democrat had refrained from any overtly hostile actions against the United States, other than using his right to free speech to criticize the administration's wartime policies. The Supreme Court refused to hear Vallandigham's pet.i.tion for a writ of habeas corpus because a military commission was not a "court" over which it could exercise review.64 Its decision effectively removed the federal courts as a check on executive detention while hostilities were ongoing. As political protests erupted, Ohio Democrats nominated Vallandigham for governor on a platform of opposition to executive tyranny. Its decision effectively removed the federal courts as a check on executive detention while hostilities were ongoing. As political protests erupted, Ohio Democrats nominated Vallandigham for governor on a platform of opposition to executive tyranny.

In a June 12, 1863, public letter to New York Democrats, Lincoln responded that his administration had properly held Vallandigham because the Const.i.tution recognized that military rule was appropriate "when, in cases of rebellion or invasion, the public safety may require." "Under cover of 'liberty of speech,' 'liberty of the press,' and 'habeas corpus,'" Lincoln claimed, the Confederacy "hoped to keep on foot among us a most efficient corps of spies, informers, suppliers, and aiders and abettors of their cause in a thousand ways." Enemies were not just those who took up arms against the Union, but those who attempted to prevent the mobilization of its men and industry. Words could be just as deadly as bullets. "He who dissuades one man from volunteering, or induces one soldier to desert, weakens the Union cause as much as he who kills a Union soldier in battle." In one of his memorable turns of phrase, Lincoln asked: "Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert?"65 Arresting civilians for crimes and detaining the enemy in war achieved different goals in different circ.u.mstances. "The former is directed at the small percentage of ordinary and continuous perpetration of crime," Lincoln argued, "while the latter is directed at sudden and extensive uprisings against the Government." During war, detention "is more for the preventive and less for the vindictive." He rejected the Democrats' argument that military detention could run only on the battlefield or in occupied territory. Lincoln interpreted the Const.i.tution as allowing suspension of the writ "whenever the public safety" requires, not just in areas of actual combat. Lincoln remained conscious that political speech should not be suppressed. Vallandigham "was not arrested because he was damaging the political prospects of the administration, or the personal interests of the Commanding General, but because he was damaging the Army, upon the existence and vigor of which the life of the Nation depends." Lincoln closed by invoking Andrew Jackson, who, as military governor in New Orleans, arrested a newspaper editor and judge for endangering public order while the city was under threat of British invasion.66 Even as Lee's armies marched north toward Pennsylvania, Ohio Democrats sent a letter to Lincoln criticizing his domestic security policies. They claimed that the President treated the Const.i.tution as if it were different during war than peace, and that he had trampled on individual liberties. Lincoln defended his suspension of the writ on the ground that the Const.i.tution did not specify which branch held the authority to suspend. He turned to the basic difference between crime and war. The nature of war required detentions without trial, which "have been for prevention prevention, and not for punishment punishment -- as injunctions to stay injury, as proceedings to keep the peace." -- as injunctions to stay injury, as proceedings to keep the peace."

Turning to the rhetorical offensive, Lincoln accused the Ohio Democrats of encouraging resistance to lawful authority by rejecting the legitimacy of military force to restore the Union. "Your own att.i.tude, therefore, encourages desertion, resistance to the draft and the like," Lincoln claimed, "because it teaches those who incline to desert, and to escape the draft, to believe it is your purpose to protect them." Lincoln challenged the Ohio Democrats to agree that a military response to secession was valid, that they should not hinder the efficient operation of the army or navy, and that they should support the troops. They refused, but Lincoln had won the battle (but not the war) for public opinion. He had appealed to more than just military necessity, and he had carefully argued that his exercise of extraordinary powers remained within the Const.i.tution.67 Congress waited until March 1863 to approve the President's suspension of habeas corpus.68 Although some leading Republican and Democratic members of Congress had severe misgivings over the policy, some historians have read Congress's silence as implicit approval of Lincoln's actions. And indeed, the Habeas Corpus Act recognized Lincoln's suspension of the writ, immunized federal officers who detained prisoners, and left untouched executive policy on the detention of prisoners of war and the operations of military commissions. Although some leading Republican and Democratic members of Congress had severe misgivings over the policy, some historians have read Congress's silence as implicit approval of Lincoln's actions. And indeed, the Habeas Corpus Act recognized Lincoln's suspension of the writ, immunized federal officers who detained prisoners, and left untouched executive policy on the detention of prisoners of war and the operations of military commissions.

Others have argued that the Act rebuked Lincoln, because it required the military to provide the courts with lists of prisoners and to allow for their release if they were not indicted by a grand jury. As J. G. Randall has pointed out, these arguments ignore the fact that the Lincoln administration did not change its detention policies in any meaningful way. The military did not interpret the Act to apply to anyone triable by military commission or places where martial law held sway. Vallandigham himself, for example, would not have benefited from the Act. The Secretary of War or the military sometimes simply refused to provide complete lists of prisoners to the federal courts, and it appears that there was no measurable difference in the numbers of civilians arrested or released because of the Act.69 Randall estimates that the Lincoln administration detained approximately 13,500. Mark Neely puts the number at about 12,600, though the records are incomplete. Randall estimates that the Lincoln administration detained approximately 13,500. Mark Neely puts the number at about 12,600, though the records are incomplete.

Not until the end of the war did the other branches of government truly push back. In Ex parte Milligan Ex parte Milligan, the Supreme Court took up the case of an Indiana Peace Democrat who had conspired to raid federal a.r.s.enals and prisoner-of-war camps. In December 1864, a military commission convicted Milligan and sentenced him to death, later commuted to life imprisonment.70 Milligan and his coconspirators filed for a writ of habeas corpus. In 1866, the Supreme Court overturned the military commission and ordered the release of Milligan. Milligan and his coconspirators filed for a writ of habeas corpus. In 1866, the Supreme Court overturned the military commission and ordered the release of Milligan.71 It held that he could not be tried by the military because he was not a resident of a Confederate state, not a prisoner of war, and never a member of the enemy's armed force. He had been captured in Indiana, where the normal civilian courts were open, and there was no showing of a military necessity to try him outside of that system. Only if Indiana had been under attack, and the normal judicial system closed, the Court found, could Milligan be subject to military courts. It held that he could not be tried by the military because he was not a resident of a Confederate state, not a prisoner of war, and never a member of the enemy's armed force. He had been captured in Indiana, where the normal civilian courts were open, and there was no showing of a military necessity to try him outside of that system. Only if Indiana had been under attack, and the normal judicial system closed, the Court found, could Milligan be subject to military courts.

Four Justices concurred. They did not take issue with the majority's argument that the military commission lacked jurisdiction, but focused instead on the claim that Congress could have, if it had wanted to, authorized the use of military commissions. Since Congress had not authorized the use of military commissions, they agreed with the Court's outcome. Implicitly, five Justices of the Milligan Milligan majority rejected Lincoln's argument that military detention could extend to those well behind the front lines who aided the rebellion or sought to interfere with the war effort, and any claim that the Const.i.tution did not operate during the Civil War. The Const.i.tution, the majority declared, "is a law for rulers and people, equally in war and in peace, and covers with the s.h.i.+eld of its protection all cla.s.ses of men, at all times, and under all circ.u.mstances." majority rejected Lincoln's argument that military detention could extend to those well behind the front lines who aided the rebellion or sought to interfere with the war effort, and any claim that the Const.i.tution did not operate during the Civil War. The Const.i.tution, the majority declared, "is a law for rulers and people, equally in war and in peace, and covers with the s.h.i.+eld of its protection all cla.s.ses of men, at all times, and under all circ.u.mstances."

While Milligan Milligan is cited today as a ringing endors.e.m.e.nt of civil liberties in wartime, it was heavily criticized at the time and sparked a remarkable political response. Congress's authority was not presented in the is cited today as a ringing endors.e.m.e.nt of civil liberties in wartime, it was heavily criticized at the time and sparked a remarkable political response. Congress's authority was not presented in the Milligan Milligan case, but the majority's desire to reach it, and to answer it in such broad terms, plunged the Court into the maelstrom of Reconstruction politics. case, but the majority's desire to reach it, and to answer it in such broad terms, plunged the Court into the maelstrom of Reconstruction politics. Milligan Milligan suggested that any continuation of military occupation in the South was unconst.i.tutional, and signaled that Republicans would have to count the judiciary among their opponents. "In the conflict of principle thus evoked, the States which sustained the cause of the Union will recognize an old foe with a new face," wrote the suggested that any continuation of military occupation in the South was unconst.i.tutional, and signaled that Republicans would have to count the judiciary among their opponents. "In the conflict of principle thus evoked, the States which sustained the cause of the Union will recognize an old foe with a new face," wrote the New York Times New York Times. "The Supreme Court, we regret to find, throws the great weight of its influence into the scale of those who a.s.sailed the Union and step after step impugned the const.i.tutionality of nearly everything that was done to uphold it."72 Comparing Comparing Milligan Milligan to to Dred Scott, Harper's Weekly Dred Scott, Harper's Weekly declared that "the decision is not a judicial opinion; it is a political act." The declared that "the decision is not a judicial opinion; it is a political act." The New York Herald New York Herald raised the idea of reforming the Court: "[A] reconstruction of the Supreme Court, adapted to the paramount decisions of the war, looms up into bold relief, on a question of vital importance." raised the idea of reforming the Court: "[A] reconstruction of the Supreme Court, adapted to the paramount decisions of the war, looms up into bold relief, on a question of vital importance."73 Congress was determined to prevent the Court from ending Reconstruction prematurely. Radical Republicans were already at war with President Johnson, who wanted a quick readmission of the Southern states into the Union. Johnson vetoed bills to deepen Reconstruction policies, citing in part that continued occupation of the South violated Milligan Milligan. Colonel William McCardle, a Vicksburg newspaper editor held in military detention for virulent denunciation of Union authorities, challenged the const.i.tutionality of Reconstruction. In 1868, to forestall McCardle's challenge, Congress enacted legislation eliminating the Court's jurisdiction to hear appeals from military courts in the South.74 Only after Johnson's acquittal on impeachment charges, and Grant's election to the Presidency, did the Court announce in 1869 that it accepted the reduction of its jurisdiction and would not reach the merits of the Only after Johnson's acquittal on impeachment charges, and Grant's election to the Presidency, did the Court announce in 1869 that it accepted the reduction of its jurisdiction and would not reach the merits of the McCardle McCardle pet.i.tion. Thus, pet.i.tion. Thus, Milligan Milligan became the motivating factor that led to the only clear example of congressional jurisdiction-stripping in the Court's history. became the motivating factor that led to the only clear example of congressional jurisdiction-stripping in the Court's history.75Milligan may be remembered as the Court's resistance to Lincoln's wartime measures, but it also embroiled the Court in national politics of the highest order, and ultimately it led to a severe counterstroke against judicial review. may be remembered as the Court's resistance to Lincoln's wartime measures, but it also embroiled the Court in national politics of the highest order, and ultimately it led to a severe counterstroke against judicial review.

While Lincoln claimed extraordinary authority over civil liberties during the Civil War, he exercised it in a restrained manner. After examining the records of detentions and military trials, Neely concludes that more were detained than was commonly thought, but that most came from border states near the scene of fighting or were citizens of the Confederacy. Only a small number of the overall figures could be considered political prisoners.76 While hostilities were ongoing, no branch of government opposed Lincoln's internal security program. His administration cooperated at times with Congress's suspension of the writ, but at times it continued to follow military policy. Even in its decision after the war, the Supreme Court did not reverse President Lincoln's suspension of habeas corpus or the extension of martial law to the areas under occupation or threat of attack. Its decision left unclear whether its demands for the protection of citizens detained beyond the battlefield would apply to those actively a.s.sociated with the enemy. While hostilities were ongoing, no branch of government opposed Lincoln's internal security program. His administration cooperated at times with Congress's suspension of the writ, but at times it continued to follow military policy. Even in its decision after the war, the Supreme Court did not reverse President Lincoln's suspension of habeas corpus or the extension of martial law to the areas under occupation or threat of attack. Its decision left unclear whether its demands for the protection of citizens detained beyond the battlefield would apply to those actively a.s.sociated with the enemy.

Historians and political scientists have long criticized Lincoln for going too far in limiting civil liberties, but no one doubts that he did so with the best of intentions, in unprecedented circ.u.mstances. Americans were fighting Americans and the mobilization of the home front held the key to victory. It is easy today, with the benefit of hindsight, to argue that Lincoln went too far.77 But it is also impossible to know, either at the time or even now, whether his policies kept the North committed and prevented Southern successes behind the lines. Lincoln's approach to civil liberties may well have been an indispensable part of his overall strategy to win the Civil War, though one that came with a high price. But it is also impossible to know, either at the time or even now, whether his policies kept the North committed and prevented Southern successes behind the lines. Lincoln's approach to civil liberties may well have been an indispensable part of his overall strategy to win the Civil War, though one that came with a high price.

RECONSTRUCTION.

THE CIVIL WAR'S hybrid nature as a rebellion on American territory and as a traditional war colored a third major arena of presidential action -- Reconstruction. If the Confederacy were considered an enemy nation, the laws of war permitted the occupation of recaptured territory. But if the states had never left the Union, as Lincoln had argued from the beginning, they could have claimed an immediate restoration of their authority. They could again pa.s.s their own laws and run their own courts and police. If the defeated states were automatically restored to the Union, they could exercise their rights in the federal government, including the election of Senators and Representatives. In the unprecedented circ.u.mstances of the Civil War, there were no rules for the readmission of rebellious states to the Union or how much authority the national government could exercise in occupied territory.78 Lincoln did not hesitate to take the initiative in setting occupation and Reconstruction policy. He believed that the Const.i.tution concentrated in the Commander-in-Chief the rights of a nation at war, and one aspect of the nation's powers under the laws of war was the right to occupy captured territory. The conflict's nature as an insurrection gave him even greater powers. The key feature of the laws of war is to retain as much of the normal civilian governmental structure as is consistent with military necessity. An occupying military may take measures to prevent attacks on its soldiers, but it generally cannot change civil or criminal laws wholesale, and it generally leaves civilian government and its officials in place.79 But since the United States was waging war to restore its authority over rebellious authority, occupation of Southern territory inevitably involved change not just of local officials, but of the inst.i.tutions of government. But since the United States was waging war to restore its authority over rebellious authority, occupation of Southern territory inevitably involved change not just of local officials, but of the inst.i.tutions of government.

When territory in Tennessee and Louisiana fell under Northern control in 1862, Lincoln appointed military governors to establish occupation governments. As military governor of Tennessee, Andrew Johnson appointed the Secretary of State, Comptroller General, and Attorney General, as well as Nashville's mayor and city council. Elections were not held, and Tennessee did not exercise the political rights of a state within the federal system. In New Orleans, General Benjamin Butler delivered justice by military commissions, which included executing a man who had torn down the Union flag, and ran the city by decree, such as the infamous "Women's Order," which declared that any woman who showed disrespect to a Union soldier would be considered "as a woman of the town plying her avocation."80 Military commanders ordered arrests without warrant or criminal trial; the seizure of land and property for military use; the closure of banks, churches, and businesses; and the suppression of newspapers or political meetings deemed to be disloyal.81 Military courts were established that enforced law and order among civilians, without effective appeal to federal courts -- an arrangement upheld by the Supreme Court after the war, as was the whole system of occupation government. Military courts were established that enforced law and order among civilians, without effective appeal to federal courts -- an arrangement upheld by the Supreme Court after the war, as was the whole system of occupation government.82 The basic rule of occupation government was the will of the military commander, checked only by his superior officers and ultimately the President. As the Supreme Court observed when it reached cases challenging military government, the occupation was "a military duty, to be performed by the President as commander-in-chief, and instructed as such with the direction of the military force by which the occupation was held." The basic rule of occupation government was the will of the military commander, checked only by his superior officers and ultimately the President. As the Supreme Court observed when it reached cases challenging military government, the occupation was "a military duty, to be performed by the President as commander-in-chief, and instructed as such with the direction of the military force by which the occupation was held."83 Congress never played a successful role in the operation of the military governments. In 1862, out of discontent with Lincoln's reversal of General Hunter's emanc.i.p.ation order, it considered legislation to treat the Southern states as territories subject to its regulation, but Congress eventually chose to accept Lincoln's policies and put the legislation aside.84 On the question of the readmission of recaptured states, however, it held a critical const.i.tutional power -- that of judging whether to seat members of Congress. Congress, not Lincoln, would control whether any reconst.i.tuted Southern state could send Senators and Representatives. On the question of the readmission of recaptured states, however, it held a critical const.i.tutional power -- that of judging whether to seat members of Congress. Congress, not Lincoln, would control whether any reconst.i.tuted Southern state could send Senators and Representatives.

As the war wore on, Radical Republicans in Congress were determined to set a high bar before restoring rebel states to the Union. Lincoln wanted an easier path to peace. His initial promise of returning the "Union as it was" suggested that he would be open to allowing states to return with slavery intact, and for a time, he pursued a similar policy in the loyal border states. Congressional leaders wanted a greater role in Reconstruction and a more radical reshaping of Southern society which included the abolition of slavery. Congress refused to seat representatives sent by Louisiana, but at the same time identified no clear path in the war's first years on the readmission of the states of the Confederacy.

Lincoln seized the initiative in his 1863 annual message, delivered less than a month after the Gettysburg Address. He rejected the idea that a Confederate state would be ent.i.tled to automatic readmission to the Union upon occupation. "An attempt to guaranty and protect a revived State government, constructed in whole, or in preponderant part, from the very element against whose hostility and violence it is to be protected," Lincoln observed, "is simply absurd."85 While setting the terms of political debate, the President paid careful attention to const.i.tutional details. While setting the terms of political debate, the President paid careful attention to const.i.tutional details.

Lincoln based his right to set the terms for Reconstruction on his plenary power to grant pardons, and the Const.i.tution's provision guaranteeing to every state a "republican form of government." He proposed a plan that required at least 10 percent of a state's voters in the 1860 election to take an oath of loyalty and obedience to the Emanc.i.p.ation Proclamation and Congress's laws against slavery. Lincoln excluded from chances of a pardon all ranking Confederate civilian and military officials, any federal Congressmen or officers who joined the rebellion, or any who had not treated black soldiers as prisoners of war. When a former Confederate state reached the 10 percent requirement, it would be permitted to form a government. In exchange, the reconstructed states would retain their pre-war names, boundaries, const.i.tutions, and laws, so long as they accepted the end of slavery. While Lincoln set out the first plan for Reconstruction, he recognized that only Congress could decide whether to seat the elected Congressmen of the reconstructed states.86 Lincoln's plan set relatively easy terms because he wanted to get Louisiana back into the Union as quickly as possible. He hoped Louisiana's example would weaken the resolve of other Southern states and end the war. Republican Congressmen, however, worried that allowing the Southern states to return too soon would lead to the oppression of the black freedmen. They drafted an alternative, the Wade-Davis Bill, which required a state to write a new const.i.tution ending slavery and providing protections to the former slaves.87 Only those who took an oath of past and future loyalty -- known as the "ironclad" oath -- could elect delegates to the const.i.tutional convention, and it required 50 percent, rather than Lincoln's 10 percent, of the 1860 voters to take the oath before the state could elect a government. Confederate officeholders and members of the Confederate armed forces could not vote. The bill gave federal officials and judges authority to override state laws that attempted to continue involuntary servitude. Reconstruction under Congress's plan would take longer and require the federal government to play a far more intrusive role in state politics. Only those who took an oath of past and future loyalty -- known as the "ironclad" oath -- could elect delegates to the const.i.tutional convention, and it required 50 percent, rather than Lincoln's 10 percent, of the 1860 voters to take the oath before the state could elect a government. Confederate officeholders and members of the Confederate armed forces could not vote. The bill gave federal officials and judges authority to override state laws that attempted to continue involuntary servitude. Reconstruction under Congress's plan would take longer and require the federal government to play a far more intrusive role in state politics.

As casualties increased in the summer of 1864, Republicans in Congress believed that more, rather than fewer, radical measures were needed. The Wade-Davis Bill pa.s.sed by healthy majorities. Though he had taken the position that the veto should not be used over policy disagreements, Lincoln resorted to a pocket veto in July 1864 to reject the Wade-Davis Bill. Because Congress had submitted the bill at the end of its session, Lincoln's veto gave Congress no chance to override. Lincoln considered Wade-Davis to be at odds with his theory of the Civil War by treating the Confederate states as if they had left the Union during the rebellion. Wade-Davis, he wrote in an unusual veto message, would have set aside the new const.i.tutions that had been adopted by Arkansas and Louisiana. Nor could Congress ban slavery in the states without a const.i.tutional amendment. When Republican Senator Zachariah Chandler of Michigan responded, at the signing of the other bills pa.s.sed during the congressional session, that Lincoln had already banned slavery, the President answered: "I conceive that I may in an emergency do things on military grounds which cannot be done const.i.tutionally by Congress."88 Above all, Lincoln sought flexibility in Reconstruction policy. He was willing to accept the restoration of any state that met Wade-Davis's standards, but he also kept his own approach, which allowed Southern states to rea.s.sume their political rights under more lenient standards. Above all, Lincoln sought flexibility in Reconstruction policy. He was willing to accept the restoration of any state that met Wade-Davis's standards, but he also kept his own approach, which allowed Southern states to rea.s.sume their political rights under more lenient standards.

Lincoln's fellow Republicans did not let his pocket veto go unchallenged. The authors of the bill, Senator Benjamin Wade and Congressman Henry Davis, issued a "manifesto" in the New York Tribune New York Tribune attacking Lincoln for his "grave Executive usurpation." Congress, not the President, controlled the restoration of the Union. The President's veto to protect his Reconstruction policies violated the separation of powers. "A more studied outrage on the legislative authority of the people has never been perpetrated," they claimed. In words not much different from those of the Democrats who had long accused Lincoln of dictators.h.i.+p, they portrayed his veto as "a blow...at the principles of republican government" and declared that "the authority of Congress is paramount and must be respected." The President "must confine himself to his executive duties -- to obey and execute, not make the laws." attacking Lincoln for his "grave Executive usurpation." Congress, not the President, controlled the restoration of the Union. The President's veto to protect his Reconstruction policies violated the separation of powers. "A more studied outrage on the legislative authority of the people has never been perpetrated," they claimed. In words not much different from those of the Democrats who had long accused Lincoln of dictators.h.i.+p, they portrayed his veto as "a blow...at the principles of republican government" and declared that "the authority of Congress is paramount and must be respected." The President "must confine himself to his executive duties -- to obey and execute, not make the laws."89 Coming a few months before the 1864 election, the Wade-Davis manifesto gave heart to Lincoln's opponents. Democrats praised the two Republicans "found willing at last to resent the encroachments of the executive on the authority of Congress." It also inspired Republicans who wanted to replace Lincoln. Their electoral fortunes that summer had waned with Union failures to capture Richmond and Atlanta. The future turned so bleak that