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Civil liberties and the Civil War

Written by Joseph A. Ranney, Attorney at Law
Phone: (608) 283-5612

At the beginning of the Civil War the Union had no difficulty recruiting soldiers in Wisconsin and elsewhere. In fact, enthusiasm was so high that many young men had to be turned away. But as the war dragged on and casualties mounted, it became increasingly difficult to get the troops needed through enlistments. In 1862, Congress was forced to pass the first draft law in American history.

The draft was very unpopular and caused riots all across the United States. In November 1862 several riots broke out in eastern Wisconsin. The worst was in the Ozaukee County community of Port Washington. On the day set for the draft, a large mob attacked federal headquarters and prevented the draft from taking place. The mob assaulted and stoned federal officials and rampaged through Port Washington's streets, leaving fires and destruction in its wake.

The next day, Governor Edward Salomon sent troops to the scene and restored order. The troops arrested several mob leaders and held them without trial at Camp Randall in Madison, which was then a military post. The mob leaders were not soldiers, and Wisconsinites asked: what right does the military have over civilians? President Lincoln had faced similar questions about military arrests of war opponents in other states, and he gave the strongest answer possible under the circumstances. "Are all the laws to go unexecuted," he asked, "and the government itself go to pieces, lest [civil liberties] be violated?"

Edward Ryan, one of Wisconsin's most famous lawyers and a future chief justice of the state Supreme Court, forced Wisconsin to decide this issue for itself. Ryan argued throughout the war that Lincoln should not have any special war powers outside the U.S. Constitution, even if that meant losing the war. His position was very unpopular with most Wisconsinites and he paid a high political and personal price for his beliefs.

Ryan was hired by Nicholas Kemp, one of the mob leaders, to challenge President Lincoln's and Governor Salomon's power to arrest civilians. Ryan applied to the Wisconsin Supreme Court for a writ of habeas corpus -- that is, a judicial order freeing Kemp. Lincoln argued that in wartime, he had the power to suspend habeas corpus.

The court faced a deep crisis: its judges were deeply loyal to the Union, but they were also bound to observe the rule of law. In the case of In re Kemp (1863), they decided that the law must prevail. Chief Justice Luther Dixon stated that the Port Washington riot did not pose a real threat to the federal government: it was "riotous, but not insurrectionary." Therefore Lincoln could not assert emergency powers. Under the Constitution only Congress could suspend habeas corpus, but it had not done so.

Dixon ordered Lincoln to release Kemp, but in order to avoid a direct clash with the federal government he postponed enforcement of the court's decision. Dixon realized that Lincoln also faced a dilemma: should he obey the law if that meant the United States would lose the war? Lincoln, said Dixon:

...(H)as been governed by the highest motives of patriotism and honor. ... As not infrequently happens in the affairs of war, it is easier to point out mistakes after they are committed, than to see and avoid them amid the difficulties and dangers by which the military commander is at the moment surrounded.

Lincoln was deeply concerned about Dixon's decision and had doubts whether, even if he appealed to the U.S. Supreme Court, the high court would reverse Dixon. He ultimately decided to risk and appeal, but before it was filed he found a more successful path to his goal: in March 1863, Congress authorized him to suspend habeas corpus. Both Lincoln and the Wisconsin court faced difficult decisions, and both acquitted themselves well. Lincoln took constant care to use his war powers simply as a means to preserve the Union rather than for power's sake, and the court fulfilled its duty to preserve the rule of law in times where that was very difficult indeed.

Note: The views expressed in this article are the author's alone. Distributed as a public service by the Wisconsin Supreme Court in honor of the state's sesquicentennial.

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