Cabinet Meeting Held to Discuss Interference with the Draft

September 14, 1863

Treasury Secretary Salmon P. Chase takes Massachusetts Governor John Andrew to the White House to meet with President Lincoln.  Chase writes in his diary: “Governor Andrew came in to breakfast.  Afterwards I went with him to the President, where I found Secretary Stanton, to whom I recommended ‘Scotty’ for a medal, as I had promised him.  Stanton said he would order one engraved, as soon as I sent him the name and inscription.  At eleven a meeting of Heads was held.  The President said that the applications for discharges by drafted men and deserters were very numerous, and were granted under circumstances which show that the Judges are disposed to defeat the objects of the law.  He expressed the opinion that States Courts had no authority to issue a Writ of Habeas Corpus for any person in the custody of United States officers, claiming to act under the national law.  He proposed, therefore, to direct officers holding persons in such custody, to make a return of the fact that they were so held, and to refuse to obey the writ, and if force should be used to overcome it by force….[discussion by various cabinet members]…The President thought there was no doubt of the bad faith in which the Writ was now being used; Mr. Seward thought it indispensable to assert the authority of the Government at once; and Mr. Bates expressed the opinion that the President as head of the Army could not be interfered with by any civil authority whatever; but as in his action as Commander-in-Chief superior to any process, and might properly instruct his officers and disregard such process; and this without any suspension of the Writ of Habeas Corpus, except as incident to the exercise of his legitimate authority.–Mr. Stanton thought prompt action necessary.  The President ended the discussion by saying he would prepare such an order as he thought best, and would see us again tomorrow at half-past two.  The conversation then turned upon Writs of Habeas Corpus issued from Federal courts, when it appeared that the number of discharges made by two Federal Judges in Pennsylvania, Cadwalader at Philadelphia, and McCandless at Pittsburgh, largely exceeded the number discharged by all the State Courts put together.  So it at once became evident that an order to reach the State courts only would be inefficient.”

Navy Secretary Gideon Welles writes in his diary: “The President called a special Cabinet council this morning at eleven.  The course pursued by certain judges is, he says, defeating the draft.  They are discharging the drafted men rapidly under habeas corpus, and he is determined to put a stop to these factious and mischievous proceedings if he has the authority.  The Secretary of State and Attorney-General have each been consulted and declare they have no doubt of his authority.  Mr. Blair was satisfied the President had the legal power, but whether the measure proposed, which is an order from the President directing the provost marshals to disregard the writ, or to make return that the person to be discharged was held by authority of the President, was perhaps not the best process. Mr. Chase feared civil war would be inaugurated if the privilege was suspended.  Mr. Usher had doubts and uncertainties.

The President was very determined, and intimated that he would not only enforce the law, but if Judge Lowrie and other continued to interfere and interrupt the draft he would send them after Vallandigham.  As considerable discussion had taken place, he was prepared to act, though willing to listen to, and, if mistaken, to defer to, others.  Up to this point neither Mr. Stanton or myself had taken part in the discussion, though Stanton had undoubtedly expressed his opinion and prompted the proposed action.

I remarked that the subject was not new to me,–that I had two or three times experienced this interference by judges to release men from service, not in relation to the recent draft, but that we were and had been suffering constant annoyance.  Vessels were delayed on the eve of the sailing, by interference of State judges, who assumed jurisdiction and authority to discharge enlisted men in the national service in time of war, on habeas corpus.  I had as high regard and reverence for that write as any one, but it seemed to me there should be some way to prevent its abuse.  A factious and evil-minded judge–and we had many such holding State appointments–could embarrass the Government, could delay the departure of a vessel on an important mission, involving perhaps war or peace, or interrupt great military movements by an abused exercise of this writ,– could stop armies on the march.  I had questioned whether a local State or municipal judge should have this power to control national naval and military operations in a civil war, during the existence of hostilities, and suggested that, especially in time of war, United States judges were the only proper officers to decide in these naval and military cases affecting the law and service of the United States.  Hitherto the Army had suffered less than the Navy, and I was not sorry the subject had been brought forward by others.

The President said he would prepared and submit a paper at an adjourned meeting for criticism to-morrow at 9 A.M.

Attorney General Edward Bates writes in his diary: “At 11 a.m. C.C. (By special call) to consider the difficulties arising out of the frequent and increasing issue of writs of Hab: corp: for soldiers and military prisoners.  At first there seemed to be various opinions.  The Prest. Was great moved – more angry than I ever saw him – declared that it was a formed plan of the democratic copperheads, deliberately acted out to defeat the Govt., and aid the enemy.  That no honest man did or could believe that the State Judges have any such power &c.

Some (e.g. M. Blair) suggested that a case be made, before a Federal Judge, so that we might have a legal judgment on our side.

I objected that no judicial officer, had power to take a prisoner or soldier, out of the hand[s] of the Prest, by Hab: Corp: and proposed that we act purely upon the defensive – i. E. inform the judge who issued the writ, of the cause of imprisonment, refuse to deliver the body, and retain possession, by force, if need be.  And in case of attempt to punish the officer, for contempt, protect him, by force if need be.

“I resisted the idea, held out by some, of vengeance, or penal justice, by imprisoning the judge who issued the writ.”

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