Davis Suspends Habeas Corpus

Davis

One of the most common complaints of the people on either side of the Civil War was that the right to a writ of habeas corpus was suspended. Habeas corpus means in Latin, “you have the body.” It is used to prevent the government from illegally holding prisoners without having evidence to bring charges against them. The Constitutions of both the United States and Confederate States guaranteed the writ of habeas corpus, but allowed it to be suspended when necessary for the public safety. The Confederate Congress gave President Jefferson Davis that power several times during the Civil War, including 150 years ago today, on February 15, 1864. An act was passed suspending the writ in a list of enumerated cases, including treason, conspiracies to overthrow the government, and spying. This is in contrast to Abraham Lincoln, who first revoked the writ, and then had his actions approved by Congress.

Confederate Capitol

Davis met some opposition in these measures, most notably from Alexander Stephens, his vice-president. Stephens denounced Davis as a tyrant and returned home to Georgia, virtually abandoning his office. He gave a speech on the issue on March 16, 1864 to the Georgia Legislature. “In my judgment," he said, "this act is not only unwise, impolitic and unconstitutional, but exceedingly dangerous to public liberty." He believed that the Congress and President could suspend habeas corpus, but they were still restrained by another clause which forbid the removal of "of liberty, without due process of law."

Lincoln Approves the Lieber Code

Francis Lieber

 150 years ago today, Lincoln issued General Order No. 100, implementing the Lieber Code for the humane treatment of prisoners. The Lieber Code is named after Francis Lieber, a German philosopher who immigrated to America. He was the first self-titled political scientist, as a professor at Columbia College. He sided with the North, and helped Lincoln draft the orders defining the laws of war.

Although the code was issued as only an order for the United States army, it was eventually adopted by the Confederacy, and other armies across the world. It became one of the foundational expressions of the international laws of war. It said that war was between societies, so that civilians of the opposing nation were indeed enemies, but it also said that they should be spared whenever militarily possible. It also established rules for dealing with captured property, both public and private, spies, deserters. You can read the entire order here.

Kansas Joins the Union

John Brown

Today, 150 years ago, Congress voted for Kansas to join the Union. The history of Kansas was very important in the conflict that resulted in the Civil War.

One of the main issues before the war was the debate over whether the states that wished to enter the Union would forbid or allow slavery. The slave states wished to add more states to preserve their representation in Congress, and the free states wanted slavery to be forbidden. The Kansas-Nebraska Act of 1854 created two territories and said that the inhabitants could choose the new state's position on Slavery. This lead to a race of immigration between the pro-slavery "Border Ruffians" and the "Free-Staters." John Brown, who would later lead the attack on Harper's Ferry, went to Kansas to attempt to outlaw slavery by force of arms. Under his leadership the two factions came into conflict in what was called "Bleeding Kansas." Two competing governments were started, and several constitutions were written. Eventually the Free-Staters prevailed and the people adopted the Wyandotte Constitution.

On February 15th, 1860 a bill was introduced into the Senate to admit Kansas into the Union under that constitution. The bill was delayed by the South for almost one year, but their power was broken on January 21st when ten Southern senators withdrew from the senate because several states had seceded. The South's power was gone, and the bill was passed 36 to 16 and was signed by the president on January 29th.

This episode showed that since many of the Southern states had seceded, the South had lost its power. The remaining slave holding states no longer had the power to resist the North, and it appeared that unless the North tried to conciliate them and preserve the Union, they too would be forced to secede.

The Slave Trade

A Slave Ship

Most people today confuse Southern slavery with the slave trade, but they were actually very different things. The slave trade was the process of buying kidnapped slaves from Africa and bringing them over to Europe or America. By the time of the drafting of the US Constitution many people realized that this was an evil that should be outlawed, but because some states would not join the new nation if the slave trade was not protected for some length of time, the Congress was not allowed to outlaw it until 1808. However, it may surprise you which states opposed the slave trade. Virginia, although it had the highest percentage of slaves at 39%, had already outlawed the slave trade and had no problem with the Congress outlawing it has well. It was the states in the deep south that supported the slave trade.

Even though the North did not have a large number of slaves, they were the ones that owned and manned the ships that carried on the slave trade. Thomas Jefferson wrote this about the debate over the Declaration of Independence:

The clause too, reprobating the enslaving [of] the inhabitants of Africa, was struck out in complaisance to South Carolina and Georgia, who had never attempted to restrain the importation of slaves, and who on the contrary still wished to continue it. Our northern brethren also I believe felt a little tender under those censures; for tho' their people have very few slaves themselves yet they had been pretty considerable carriers of them to others.¹

By 1808 several more states had outlawed the slave trade and Congress outlawed it on January 1st, the earliest date that it was permitted to by the Constitution. When the Southern States left the Union and formed the Confederacy, not only did they not try to reestablish the slave trade, it was actually outlawed in the Confederate Constitution. They did not want to be associated with what they considered the evil practice of the slave trade.

1. Autobiography of Thomas Jefferson, p. 16-17. Source.