Courtroom wars: Pennsylvania judges and popular constitutional discourse in the Civil War North.

• Author: Mosvick, Nicholas

On September 14, 1863, Attorney General Edward Bates wrote in his diary that President Lincoln was "more angry than [he had] ever [seen] him" when Lincoln called a special cabinet meeting. (1) What had so raised the furor of the sanguine President? Pennsylvania courts were apparently discharging "drafted men rapidly under habeas corpus" to defeat the draft. (2) Gideon Welles, the United States Secretary of the Navy, said Lincoln was "determined to put a stop" to what he called "factious and mischievous proceedings" if possible. (3) Various opinions were given at the beginning of the meeting, but Lincoln felt the proceedings were a "formed plan of the democratic copperheads, deliberately acted out to defeat the Govt., and aid the enemy." (4) "[N]o honest man" could or did believe that state judges had any such power to release men under habeas corpus. (5) Some cabinet members, including Postmaster General Montgomery Blair, felt that a case could be made before a federal judge so that they would have legal judgment on their side. (6) Bates objected that no judicial officer could take from presidential control any prisoner by habeas corpus and suggested the administration act defensively by informing state judges and federal judges who issued writs of the cause of imprisonment while refusing to present the body. (7) The next day, in another cabinet meeting, the Lincoln administration decided Lincoln would issue a proclamation suspending the writ of habeas corpus as well as an order to refuse obedience to the writ and protect the specific officers in question for doing so. (8) The discussion showed the extent to which the Lincoln administration wished to avoid cases before state court judges, especially in Pennsylvania, in favor of the federal courts. Thus, the government would appear in the key federal district court cases of Antrim and Stingle, (9) but not enter an initial appearance in Kneedler v. Lane before the Pennsylvania Supreme Court in the fall of 1863. (10)

As Timothy Huebner suggests, nineteenth-century Americans held close to a constitutional culture that looked to protect the traditions of the founding generation. (11) Nineteenth-century Americans spoke constantly about the Constitution in newspapers, letters, and political resolutions. When the American Civil War broke out in 1861, conscription was widely considered a tyrannical measure only resorted to by despots. Voluntarism was the preferred method of recruiting an army in a democratic republic and resorting to conscription implicitly suggested the failure of volunteer citizen-soldiers and any sense of democratic responsibility. However, after the failures of the Militia Act of 1862, the Union established national conscription in March 1863. (12) The extraordinary, novel expansion of the central federal government was embodied by conscription and the suspension of habeas corpus. These significant changes were contested in state courts. Alongside the Conscription Act, Congress also passed the Habeas Corpus Act, which confirmed the suspension of the writ by President Lincoln earlier in September 1862 and also aimed to suppress the ability of state courts to accept challenges to war measures like conscription. (13) The arrival of conscription in the North was wholly new to its citizenry and, as a result, its place within the constitutional discourse of its time. Courts, legal arguments, and legal complaints--but also protests, anger, anxiety, sorrow, and political responses of ordinary citizens--made up the response to these new, broad claims of federal power represented by the national draft. Legal sources and popular responses were part of a popular discourse of constitutional meaning reflecting the evolution of law, the growth of federal supremacy, and the feelings and responses of ordinary people all at once. Together, they formed a wide-ranging conversation that made the Constitution and its meaning relevant to all citizens.

Conscription in the North during the American Civil War is a prime example of understanding the expansion of federal power. Historians are inundated with knowledge of military battlefields but not with the constitutional battles over conscription. Despite the overwhelming volume of historical inquiry into the American Civil War, relatively little has been said about the history of constitutional discourse, let alone conscription itself. Historians tend to treat constitutional arguments as secondary to the needs of the war effort and the maintenance and expansion of the nation. (14) Battles over the constitutionality of conscription in the courtroom and in public forums held drama and uncertainty similar to the battles the armies fought. Conscription in the Civil War North was an exercise in federal sovereignty, while also exploring state compliance and resistance within understandings of state and local sovereignty, including popular constitutional compliance and resistance.

Pennsylvania state courts in November 1863 produced the boldest attack on the constitutionality of conscription in Kneedler v. Lane, (15) but judges across the state disagreed on conscription well before the Pennsylvania Supreme Court decided Kneedler. In the months between the passage of the Conscription Act and the Kneedler opinion's release on November 9th, Pennsylvania courts litigated and confronted jurisdictional and related issues to the ultimate question of conscription's constitutionality. Further, United States District Judge for the Eastern District of Pennsylvania, John Cadwalader, addressed the constitutionality of both the Conscription Act and the administrative apparatus of the Boards of Enrollment set up to promulgate the Act inside states, deciding in favor of the constitutionality of the underlying act, but upholding judicial review of state courts for the decisions of the Boards of Enrollment. State judges were key actors in the intersection between law and politics; but not all law was politics, even if the state judges in question belonged to particular parties in a state with popular judicial elections. Rather, even if the judges' actions were political, it did not tell us why they chose the particular arguments that they did in deciding for or against the constitutionality of the Conscription Act.

1. THE JUDGES

   In 1863, Pennsylvania was one of many states to allow for the popular election of state supreme court judges. As such, the norm between politics and judging, discussed by G. Edward White, was made more explicit. Judges were party members and, thus, attached to the political arguments of their party, including constitutional advocacy by members and by the official party platform. (16) Thus, when the Democratic State Convention assembled in late June to nominate their candidates for governor and for supreme court judges, they also endorsed resolutions speaking to their constitutional commitments. (17) The resolutions spoke to renewing the "fidelity to the Constitution," as the Constitution embodied the "only guarantee we have for justice, liberty, and private right, without it we can have no hope of protection from bloodshed and anarchy"; (18) that the Constitution provided "to every citizen that of being secured in his life, liberty, and property, so that he cannot be deprived of either without a due form of law," a reference to both due process and the significance of habeas writs. (19) Another resolution spoke to the "plain duty" of state magistrates to "use whatever power of the law" to "protect the State and the people from lawless outrages" so that the people would not hold their liberties at the "mere will of the Federal Executive." (20) It was within this context that the state's highest judges would rule on the constitutionality of the Conscription Act.

   Pennsylvania Chief Justice Walter H. Lowrie, who was running for reelection of his judicial seat in 1863, wrote the majority opinion in the Kneedler case. (21) Chief Justice Lowrie was born in Allegheny County in 1807, where he was later elected as a district court judge in 1846 before his 1851 ascension to the Pennsylvania Supreme Court. (22) Chief Justice Lowrie previously ruled on the Militia Act of 1862 in which he spoke to the legality of conscription. (23) Senator Charles Biddle quoted the case in his arguments before the Senate, noting that Lowrie had said that the acts of the President and his subordinate provost marshals were "without right unless they are authorized by some article of the Constitution, or laws made under it and consistent with it. He can make no law that can vest in him any new authority, or that can protect those who obey his authorized orders." (24) Chief Justice Lowrie delivered a jury charge arguing that the President was subordinate to the law and, therefore, could not order subordinates to violate the law despite the Civil War. (25) The jury ruled in favor of the editor of a Democratic newspaper who had his printing press confiscated by a United States marshal under the First Confiscation Act, awarding him $512. (26)

   Justice George W. Woodward, one of three justices in the Kneedler majority, mounted a campaign in June as a Democrat for the Governorship of Pennsylvania. (27) Justice Woodward, who was once nominated by President Polk to be an associate justice of the United States Supreme Court in 1845 but failed to secure confirmation, had been on the court since 1852 when he was appointed to succeed Judge Richard Coulter who had died. (28) Republican newspapers spent the political campaign tarnishing Justice Woodward's reputation, reminding voters of his sympathetic feelings towards the Confederacy. One such article suggested that, in a discussion with Reverend Edward Strong of New Haven, Connecticut, Justice Woodward "denounced the Administration and the war in very strong and decided terms," calling it an "unconstitutional war and an abolition war" giving him no "interest whatever in the result." (29) George W. Hart's...