PUTTING DOWN THE DEMOCRATS
In the election of 1860 the free states gave Lincoln only 54 percent of their votes; if the border states are included, this figure drops to slightly under 49 percent. The party was obviously in danger of losing control of Congress and, in 1864, of the presidency. Prudence dictated the use of energetic measures, and the appeal to arms put powerful weapons into Republican hands. Part of the Republicans' campaign stock-in-trade before the war had been to stigmatize Northern Democrats as puppets of the Slave Power. Now when Democrats opposed Republican policies or tried to defeat Republicans at the polls, it was easy to depict them as still collaborating with the South. By this line of reasoning, political dissent could properly be treated as dangerous and disloyal conduct. In wartime it was a patriotic duty to suppress disloyalty, that is, to use whatever means were feasible to defeat the Democrats at the polls. Therefore the Lincoln administration and Republican state governments at times resorted to a policy of repression that sometimes provided the margin of victory in crucial elections.
One device was arbitrary arrest by military and civil officers of the Federal government and the states, by local police, or by private vigilante groups. Many arrests were probably made in a sincere attempt to control persons suspected of giving actual aid to the enemy. Others followed a political act that was regarded as disloyal. For example, when some Northerners, like some Southerners, criticized conscription as unconstitutional, they could be arrested for impeding the draft or encouraging soldiers to desert. Finally, there were many arrests for the simple purpose of helping Republicans to win elections.
All this was made possible by Lincoln's suspension of the privilege of the writ of habeas corpus, thus permitting arrest without warrant and indefinite imprisonment without trial. Previously a considerable body of legal and judicial opinion had held that only the legislative branch could suspend the writ; even during the war Congress never clearly agreed that this right was lodged in the executive branch. When military authorities repelled his writ for the release of a prisoner held at Fort McHenry, Chief Justice Taney, in Ex parte Merryman (1861), denied the President's right to suspend the writ. Lincoln not only rejected Taney's opinion, but he may have considered arresting the Chief Justice himself. Lincoln argued that because the Constitution did not say where the suspending power was located, the emergency justified his assuming it; and in any event it would be better to break a single law than to let "the Government itself go to pieces." Throughout the war Lincoln acted on the premise that he had the power and right to commit unconstitutional acts if he believed the alternative was the breakup of the Union. This made the President's discretion the measure of the law. In March 1863, in the Habeas Corpus Act, Congress stated that the President was "authorized" to suspend the writ, thus leaving unanswered the question of where the power to do so was located, and gave Federal officials immunity from prosecutions arising out of arbitrary arrests. It also ostensibly provided for the release of loyal persons against whom no indictments were found. Provost Marshal General Joseph Holt, who presided over the internal police apparatus, ruled that the law did not cover persons liable to trial by military commission, permitting the protective clause of the act to be circumvented by declaring martial law.
Martial law went much further than the mere suspension of habeas corpus; it permitted not only imprisonment, but punishment by military commissions for offenses unknown to civil law. Lincoln formally took this additional step by executive proclamation on September 24, 1862, two days after his preliminary Emancipation Proclamation. " . . . All persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to the rebels . . . shall be subject to martial law, and liable to trial and punishment by courts-martial or military commission." A system of provost marshals was established throughout the Northern states to enforce this decree. Military arrest and punishment of civilians in places far removed from the scene of war where civil courts were open was a practice foreign to the experience of that generation and, as carried out by the Lincoln administration, was without precedent or sequel in American history.
Incomplete statistics show that the War Department incarcerated 13,000 persons during the last three years of the war. The number seized by other executive departments or by state and local authorities will probably never be known, but the grand total of arbitrary arrests could not have fallen far short of 20,000. The vast majority of prisoners were never tried, indicating the flimsy quality of the charges, but were imprisoned for varying periods and then released on promise of future "loyal" behavior. As for the use of martial law, that matter was dealt with by the Supreme Court in 1866 (Ex parte Milligan). Speaking for the Court, Justice David Davis said that martial law "can never exist where courts are open. . . . It is also confined to the locality of actual war." Otherwise "republican government is a failure, and there is an end to liberty regulated by law." L. P. Milligan, who had been sentenced to death by a military commission in Indiana, was released. Opposition was likewise intimidated by the temporary suppression of about 300 newspapers that expressed the "wrong" sentiments, to say nothing of those attacked by partisan mobs. Military authorities were known to invade sitting courts and disrupt the proceedings, even to arrest the judge on the bench.
There were times when the line between political and military actions was so indistinct as to excuse summary arrests. That was the case in Maryland early in the war ( when Merryman was seized); then hostile citizens threatened to cut off access to Washington from the North, and the state seemed on the verge of seceding. Arrests of prominent Marylanders, including a substantial fraction of the legislature, were understandable under the circumstances. For the most part, however, such intervention was not a response to any imminent danger.
An especially effective technique used in the border states was a "loyalty" oath enforced by the army that tended to disfranchise Democrats whether or not they had given aid or comfort to the enemy. Although extreme measures were most common in the border states, they were often used elsewhere too. By extreme measures is meant the arrest of anti-Republican candidates and voters, driving anti-Republican voters from the polls or forcing them to vote the Republican ticket, preventing opposition parties from holding meetings, removing names from ballots, and so forth. These methods were employed in national, state, and local elections. Not only did the army interfere by force, it was used to supply votes. Soldiers whose states did not allow absentee voting were sent home by order of the President to swell the Republican totals. When voting in the field was used, Democratic commissioners carrying ballots to soldiers from their state were on at least one occasion unceremoniously thrown into prison, while Republican agents were offered every assistance. Votes of Democratic soldiers were sometimes discarded as defective, replaced by Republican ballots, or simply not counted.
These means sometimes determined the outcome of elections at every level. In the congressional contest of 1862, when popular sentiment in several states turned against the party in power, military control of elections in the border states saved the Republican majority in the House of Representatives. As for the presidential election of 1864, statistics are suggestive. In those states where soldier votes can be separated from the rest, Lincoln received 56.3 percent of the civilian vote and 77.6 percent of the soldier vote. In the border states party alchemists were strikingly successful in transmuting Democratic dross into Republican gold. There Lincoln's handful of 22,615 votes in 1860 ( three-fourths from Missouri) became 164,153 in 1864. Kentucky, for example, gave Lincoln 1364 votes in 1860 and 27,786 four years later. By contrast to these startling increases, votes for Lincoln in the nonborder North increased by only 11.1 percent, including the soldier vote, while the Democratic vote in the same states increased by 10.9 percent. Lincoln's share of the nonborder vote was about 1 percent larger than in 1860. It seems plain that without the use of military force and other extraordinary means in 1864, the Republicans would have been a popular minority in those states and quite possibly would have lost the election. A shift of only 38,111 votes in the right places, less than 1 percent of the 4,015,902 votes cast, would have given the election to McClellan.
(North Against South: The American Illiad, Ludwell H. Johnson, pp. 123–127)