The New York Draft Riots - Civil Disturbances in the Wartime Rear

[Airbornelawyer]

Thursday, July 16

Governor Seymour's proclamation appeared in the morning papers:

Proclamation.

Whereas, It is manifest that combinations for forcible resistance to the laws of the State of New York and the execution of civil and criminal process exist in the city and county of New York, whereby the peace and safety of the city and the lives and property of its inhabitants are endangered: and

Whereas, The power of the said city and county has been exerted, and is not sufficient to enable the officers of the said city and county to maintains the laws of the State and execute the legal process of its officers; and

Whereas, Application has been made to me by the Sheriff of the city and county of New York to declare the said city and county to be in a state of insurrection:

Now, therefore, I, Horatio Seymour, Governor of the State of New York and Commander-in-Chief of the forces of the same, do, in its name and by its authority, issue this proclamation in accordance with the statute in such cases made and provided and do hereby declare the city and county of New York to be in a state of insurrection; and give notice to all persons that the means provided by the laws of this State for the maintenance of law and order will be employed to whatever degree may be necessary, and that all persons who shall, after the publication of this proclamation, 'resist, or aid in resisting, any force ordered out by the Governor to quell or suppress such insurrection' will render themselves liable to the penalties prescribed by law.

Two full regiments had arrived and were resting up, and a third, the Seventy-fourth Regiment New York National Guard, was expected to arrive some time that day.

Several thousand troops were in the city, but no one knew exactly how many. Besides the Naval Brigade, the two National Guard Infantry Regiments, the U.S. Infantry companies drawn from the forts, and other troops in Federal service, there were any number of militiamen and Guardsmen not in Federal service. These included the regiments whose battle-tested veterans had mustered out of Federal service at the end of their 2-year commitments in May and June 1863 - including Duryee's Zouaves, Wilson's Zouaves, the 1st German Rifles, Hawkin's Zouaves, Ellsworth's Zouaves (AKA the 1st New York Fire Zouaves) and the Astor Rifles (1st German Infantry).

The 14th New York Cavalry Regiment (1st Metropolitan Cavalry) was patrolling the streets (its commander, Col. Thaddeus Mott, would later become a major general of the Egyptian Army).

The day was generally quiet. However, a series of fights took place east of Gramercy Park.

Around noon, a small group of 25 police were sent to reinforce a military detachment in the Twenty-first Precinct. They arrived to find a mob of about 200, threatening the soldiers. THe mob rushed the soldiers and seized a howitzer. The police and soldiers retreated to Jackson's Foundry at 1st Ave and 28th St. The mob increased in size and the soldiers were taking and returning fire. More soldiers arrived, fixing bayonets and pushing the mob back momentarily, only to be forced back. Eventually, a force of several companies arrived and pushed back the crowd.

Several blocks away, near 1st and 22nd, a series of skirmishes between soldiers and rioters left a cavalryman, Sgt. Charles Davids, dead. A force under Capt. Putnam went in to retrieve the body. They had managed to put the sergeant's body on a cart and move it out when the mob attacked again. Putnam drove them back and pursued them north. The mob took refuge in and around 31st Street. A pitched battle ensued, as Putnam's artillery and infantry fought the armed mob. As in earlier engagements, they cleared the streets but continued to take fire from the buildings. Putnam's companies stormed the buildings and fought room-to-room for a half hour.

Searches throughout the night turned up several weapons caches, and infantry regiments, supported by cavalry and artillery were now deployed throughout the city to support the police, militia and volunteers.

Friday, June 17 and thereafter

The riot was over and the city was quiet. Some 50,000 were estimated to have rioted. The number killed on all sides is unknown - the official death toll was 119, including 4 police officers. Numbers of dead up to 2,000 have been claimed, but while the official estimate probably missed many who died in hospitals away from the rioting or days later, there is no evidence to support the higher claims.

Historian Adrian Cook in "The Armies of the Streets" analyzed the causes of death of those on the official death toll. Most were killed by gunshots, followed by beatings with clubs, cudgels and bricks. Others were killed jumping or being thrown from buildings. Of the 18 blacks on the list, most were beaten and/or hanged. Contrary to Scorcese's "Gangs of New York" image, none were stabbed to death. About 105 police and 73 soldiers were wounded.

Property damage was extensive. Thousands of blacks were left homeless, and many fled the city. Thousands did not return - New York City's black population fell from 12,472 in 1860 to 9,945 in 1865. The Colored Orphans Asylum was rebuilt.

Martial law was never declared. The police remained the primary security force, with the military units deployed to support them. By the end of the riots, some 10,000 troops were in the city or en route.

The draft resumed on August 19 without incident. About 75% of the 150,000 total conscripts were paid substitutes.

[Roguish Lawyer]

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA:

A PROCLAMATION

Whereas, it has become necessary to call into service not only volunteers but also portions of the militia of the States by draft in order to suppress the insurrection existing in the United States, and disloyal persons are not adequately restrained by the ordinary processes of law from hindering this measure and from giving aid and comfort in various ways to the insurrection;

Now, therefore, be it ordered, first, that during the existing insurrection and as a necessary measure for suppressing the same, all Rebels and Insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to Rebels against the authority of United States, shall be subject to martial law and liable to trial and punishment by Courts Martial or Military Commission:

Second. That the Writ of Habeas Corpus is suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fort, camp, arsenal, military prison, or other place of confinement by any military authority of by the sentence of any Court Martial or Military Commission.

In witness whereof, I have hereunto set my hand, and caused the seal of the United States to be affixed.

Done at the City of Washington this twenty fourth day of September, in the year of our Lord one thousand eight hundred and sixty-two, and of the Independence of the United States the 87th.

ABRAHAM LINCOLN

By the President:

WILLIAM H. SEWARD, Secretary of State.

[Roguish Lawyer]

http://www.ashbrook.org/publicat/ope...2/lincoln.html

Lincoln and Civil Liberties: War, Prudence, and Republican Government
Editorial
August 2002

by Mackubin T. Owens

There are many parallels between the steps taken by the United States since 9/11 and those that Abraham Lincoln took when confronted by our nation's greatest emergency and moment of national crisis. Just as today's terrorists take advantage of the freedom that America provides not only its own citizens, but foreigners as well, opponents of Lincoln's policies during the Civil War acted under "cover of 'liberty of speech,'" while their "spies… remain[ed] at large to help on their cause." In light of this crisis, Lincoln sought, as does the administration of George W. Bush, to achieve the proper balance between security and liberty. He acted carefully in taking what he believed to be the necessary domestic measures to prevent the collapse of the Union, and the end of republican government. Saving the Union required emergency measures that he nonetheless justified on constitutional grounds.

The debate over the proper balance between liberty and security goes back to the very founding of the American Republic. As James Madison wrote to Thomas Jefferson, "It is a melancholy reflection that liberty should be equally exposed to danger whether the government have too much or too little power." Lincoln addressed the dilemma in his July 4, 1861 message to a special session of Congress, in which he justified his emergency measures, including suspending the writ of habeas corpus, after Fort Sumter. "Is there," he asked, "in all republics, this inherent, and fatal weakness? 'Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?'"

Ultimately, the issue here is one of prudence. According to Aristotle, prudence is concerned with deliberating well about those things that can be other than they are (means). Prudence requires us to be able to adapt universal principles to particular circumstances in order to arrive at the means that are best given existing circumstances. In the case of the war against terrorism, the end is the survival of republican government. If we are to maintain this end, i.e. ensure the survival of the American Republic, what means are necessary and proper under the circumstances? What would prudence dictate regarding the balance between security and civil liberties in time of war?

In his excellent book, Republican Empire: Alexander Hamilton on War and Free Government, my good friend and Naval War College colleague Karl Walling has argued that throughout the history of the American Republic, a tension has existed between two virtues necessary to sustain republican government—vigilance and responsibility. Vigilance is the jealousy on the part of the people that constitutes a necessary check on those who hold power lest they abuse it. As Thomas Jefferson wrote, "it is jealousy and not confidence which prescribes limited constitutions, to bind those whom we are obliged to trust with power."

But while vigilance is a necessary virtue, it may, if unchecked, lead to an extremism that incapacitates a government, preventing it from carrying out even its most necessary and legitimate purposes, e.g. providing for the common defense. "Jealousy," wrote Alexander Hamilton, often infects the "noble enthusiasm for liberty" with "a spirit of narrow and illiberal distrust."

Responsibility is the statesmanlike virtue necessary to moderate the excesses of political jealousy, thereby permitting limited government to fulfill its purposes. Thus in Federalist 23, Hamilton wrote that those responsible for the nation's defense must be granted all of the powers necessary to achieve that end. Responsibility is the virtue necessary to govern and to preserve the republic from harm, both external and internal. For instance, the dangers of foreign and civil war taught Alexander Hamilton that liberty and power are not always adversaries. The "vigor of government is essential to the security of liberty."

Abraham Lincoln acted on this principle. Accordingly, both critics and advocates have argued that Lincoln essentially assumed dictatorial powers during the Civil War—that he took extra-constitutional steps to save the Union. But while the Constitution is silent on some of the steps he, took, it is possible to argue that everything he did was justifiable under the powers stipulated in Article 2 of the Constitution.

Lincoln's steps are well known. Under his constitutional powers as commander in chief of the military, he declared martial law and suspended the writ of habeas corpus in certain locations. He blockaded Southern ports. He shut down some opposition newspapers. He created tribunals similar to the ones that President Bush has established. At one point early in the war, convinced that the Maryland legislature was poised to vote an ordinance of secession, he ordered Federal troops to arrest and detain pro-secessionist lawmakers. Lincoln justified this last step on the grounds that there was "tangible and unmistakable evidence" of their "substantial and unmistakable complicity with those in armed rebellion."

Even Lincoln's supporters question the constitutionality of his actions. After the emergency had passed, the Supreme Court ruled in Ex Parte Milligan that citizens could not be tried by military courts outside of a war zone when civil courts were operating. And many contemporary historians believe his decision to suspend the Great Writ was improper.

But Lincoln was sailing in uncharted waters. The emergency he faced was unprecedented. Lincoln went out of his way to maintain constitutional forms. But those who would condemn him need to realize that the president has his own constitutional source of power: he is the Commander-in-Chief, which directly bestows upon him powers in times of military crisis that are not derivative of any congressional power. One of these powers is the prerogative.

According to John Locke, the prerogative is "the power [of the executive] to act according to discretion for the public good, without the prescription of the law and sometimes even against it." Since the fundamental law that the executive ultimately must implement is to preserve society, it is "fit that the laws themselves should in some cases give way to the executive power, or rather to this fundamental law of nature and government, viz. that as much as may be, all members of society are to be preserved."

The prerogative is rendered necessary by the fact that laws arising from legislative deliberation cannot foresee every exigency. For the safety of the republic, the executive must retain some latitude for action. Thus since Congress was not in session when Ft. Sumter was attacked, Lincoln took the steps he believed were necessary to preserve the Union, because inaction would have lost the game.

Of course, prudence dictates that the prerogative be exercised rarely, i.e. only during the most dire emergencies. Thus what is applicable during time of war is not appropriate during a time of peace. Lincoln's letter to Erastus Corning and a group of New York Democrats who had criticized his war measures is a study in the application of prudence.

He wrote "…I can no more be persuaded that the Government can constitutionally take no strong measures in time of rebellion, because it can be shown that the same could not lawfully be taken in time of peace, than I can be persuaded that a particular drug is not good medicine for a sick man, because it can be shown not to be good for a well one. Nor am I able to appreciate the danger apprehended by the meeting [of the New York Democrats] that the American people will, by means of military arrest during the Rebellion, lose the right of Public Discussion, the Liberty of Speech and the Press, the Law of Evidence, Trial by Jury, and Habeas Corpus, throughout the indefinite peaceful future, which I trust lies before them, any more than I am able to believe that a man could contract so strong an appetite for emetics during temporary illness as to persist in feeding upon them during the remainder of his healthful life."

Prudence dictates that in time of war, responsibility trumps vigilance. In response to criticism of his suspension of the writ of habeas corpus, Lincoln asked, "…are all the laws but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?" Lincoln's point is as applicable today as it was during the Civil War. If those responsible for the preservation of the Republic are not permitted the measures to save it, there will be nothing left to be vigilant about.

Mackubin Thomas Owens is professor of strategy and force planning at the Naval War College in Newport, RI, and an adjunct fellow of the Ashbrook Center. The views expressed here are his own and do not reflect the position of the War College, Navy Department, or Department of Defense.

[Airbornelawyer]

At one point early in the war, convinced that the Maryland legislature was poised to vote an ordinance of secession, he ordered Federal troops to arrest and detain pro-secessionist lawmakers. Lincoln justified this last step on the grounds that there was "tangible and unmistakable evidence" of their "substantial and unmistakable complicity with those in armed rebellion."

Objection: Hearsay.

You are citing Mac Owens quoting Lincoln. However, he is not actually quoting Lincoln.

Francis Key Howard, a grandson of Francis Scott Key and editor of the Baltimore Exchange, was one of the Maryland legislators arrested in September 1861. From Fort Monroe, he wrote to the Maryland Times on September 22, 1861. In his letter, he quoted the previous Saturday's edition of The American, wherein that paper included "what purported to be a portion of Mr. Lincoln's conversation with certain parties who desired to know the grounds on which Mayor Brown was arrested." The American's source reported Lincoln saying to such parties, "Of one thing the people of Maryland may rest assured: that no arrest has been made, or will be made, not based on substantial and unmistakable complicity with those in armed rebellion against the Government of the United States. In no case has an arrest been made on mere suspicion, or through personal or partisan animosities, but in all cases the Government is in possession of tangible and unmistakable evidence, which will, when made public, be satisfactory to every loyal citizen."

It may be the case that what Howard said the The American said parties said Lincoln said is in fact what Lincoln said. But wouldn't it be preferable to cite what Lincoln said:

[Airbornelawyer]

Lincoln spelled Annapolis wrong. The addressee was Lt. Gen. Winfield Scott.

[Roguish Lawyer]

During a civil war, should there be habeas rights?

AL, your view?

This stuff about Lincoln frankly is a new issue for me. Still thinking it through.

[Airbornelawyer]

Regarding the Owens quote, Maryland legislator Severn Teackle Wallis also wrote a letter from military confinement on September 22, 1861:

A Card to the Public.

I see in the editorial columns of the Baltimore American of Sept. 21st, a statement ascribed to the President of the United States, to the effect, that "no arrest has been made" in Maryland, "not based on substantial & unmistakable complicity with those in armed rebellion against the Government of the United States".

I cannot persuade myself that this statement was, in fact, ever made by Mr. Lincoln, but, no matter by whom made, I pronounce it, so far as I am concerned, an utter & unfounded falsehood. Neither directly nor indirectly have I, at any time or in any way, violated or contemplated violating my obligation to support the Constitution & obey the laws of the United States, nor have I had correspondence or connection, of any sort, with the Government or Army of the Confederate States, or any officer of either, in any shape. I challenge proof to the contrary, from any quarter, and will, in due season, give to any of my enemies at home, who assert the contrary, an opportunity of establishing it.

S. T. Wallis

Fortress Monroe

22d Sept. 1861.

Of course, this is all just trivial. Whether Lincoln said it or not, I suppose he meant it, and protestations notwithstanding, Maryland secession was a real and alarming prospect in Washington. It is clear from his letter to Gen. Scott, though, that he considered these extraordinary measures - suspension of the privilege of the writ, arrest of legislators, firing on secessionist forces - to be the last resort. There is no evidence to support the notion that he was "quite willing" to engage in arbitrary and lawless action.

By the way, the quote from Harris v. Nelson is out of context, and Justice Fortas himself seems a little disingenuous. Justice Fortas wrote: "The writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action. Its pre-eminent role is recognized by the admonition in the Constitution that: "The Privilege of the Writ of Habeas Corpus shall not be suspended . . . ." U.S. Const., Art. I, 9, cl. 2." Article I, Section 9, clause 2 of the U.S. Constitution actually says "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." [emphasis added]. Leaving that last part off may have been unnecessary in the prisoner petition case on which the justice was opining, but in the context of the Civil War it is certainly worth remembering.

What seems evident is that the early targeted suspensions of the privilege of the Writ, in Maryland and Missouri, seem justifiable in the light of the security situation in those states. The main criticism of these wasn't their necessity, but the President's authority. Article I governs the legislature, so it was argued that only Congress could suspend habeas corpus.

The September 1863 suspension was based on authority under an Act of Congress of March 3, 1863, so the constitutional issue was different. Here, the breadth of the President's order seems unjustified. As Ex Parte Milligan stated, where the civil courts are still operating, civilians should not be tried by military tribunals. Merely because the country was in rebellion, and was divided into military districts, with military governors, and violence could break out, doesn't justify martial law. It isn't the existence of the war (civil or otherwise), it is the impact of the war on preventing the normal functioning of civil society, that would justify imposing martial law.

The Court expounded on the slippery slope:

It will be borne in mind that this is not a question of the power to proclaim martial law when war exists in a community and the courts and civil authorities are overthrown. Nor is it a question what rule a military commander, at the head of his army, can impose on states in rebellion to cripple their resources and quell the insurrection. The jurisdiction claimed is much more extensive. The necessities of the service during the late Rebellion required that the loyal states should be placed within the limits of certain military districts and commanders appointed in them, and it is urged that this, in a military sense, constituted them the theater of military operations, and as, in this case, Indiana had been and was again threatened with invasion by the enemy, the occasion was furnished to establish martial law. The conclusion does not follow from the premises. If armies were collected in Indiana, they were to be employed in another locality, where the laws were obstructed and the national authority disputed. On her soil there was no hostile foot; if once invaded, that invasion was at an end, and, with it, all pretext for martial law. Martial law cannot arise from a threatened invasion. The necessity must be actual and present, the invasion real, such as effectually closes the courts and deposes the civil administration.

As we saw in the New York Draft Riots, no martial law was declared. Under the circumstances, if Lincoln had declared martial law in the city, he probably would have been justified. So here is a situation where despite the breakdown of law and order, the preference was for maintaining civilian control.

This leads to two somewhat contradictory conclusions. If Lincoln were the power-hungry dictator some critics call him (not talking about you GH, but the Lew Rockwell crowd), he would have taken advantage of the opportunity of the Draft Riots to impose more draconian measures. On the other hand, the fact that he didn't in New York, and such measures did not prove necessary, may support the Court's conclusion in Milligan that the use of military tribunals in Indiana was unnecessary and unjustified.

[Roguish Lawyer]

Is this a Southern thing? Are you Southern boys still mad at 'ol Abe Lincoln? LOL

[Airbornelawyer]

Originally posted by Roguish Lawyer
Is this a Southern thing? Are you Southern boys still mad at 'ol Abe Lincoln? LOL

I can't speak for whether GH has a Southern thing, though it seems he has set forth his views sufficiently that looking for ethnoregional motives is not necessary and is a little prejudiced. As for me, considering what defense of Lincoln I have authored, it should be noted that I am a son of Confederate veterans (though not an SCV member). AFIK, no member of my family fought for the North. Here is the roster of Company I, 8th Florida Infantry. At least 20 of my relatives are on that roster, including one great-great-grandfather and two great-great-great-grandfathers. From the Civil War Soldiers and Sailors System database:

W.W. Rhoden
Regiment Name: 16 Georgia Infantry
Side: Confederate
Company: G
Soldier's Rank_In: Private
Soldier's Rank_Out: Private
Film Number: M226 roll 51

This was another great-great-grandfather, my mother's patrilineal great-grandfather. "Rank out" is a little misleading. Taken prisoner in Virginia at Spottsylvania Court House, he died of dysentery in Elmira, New York and is buried in the Confederate Cemetery there.

Everyone has heard of Andersonville, where 28.3% (12,912 out of 45,613) of Union POWs died during the camp's 14-month existence. At Elmira, 24.4% (2,963 out of 12,123) of Confederate POWs died between July 1864 and war's end, most due to deliberate starvation (the overall death rate at Union POW camps was about 11%, Confederate 15%). The commissary-general of prisoners, Col. William Hoffman, on August 18, 1864 put the entire camp on bread and water in "retaliation" for conditions in Confederate camps. The resulting outbreak of scurvy led to 1,870 reported cases by September 11, and epidemics of diarrhea, pneumonia and smallpox followed. As New York's winter came, more and more underfed and underclothed POWs died. When families sent clothes, Col. Hoffman allowed only items that were gray to be distributed, and burned the rest.

Elmira remains possibly the worst atrocity of the Civil War, arguably worse than Andersonville. As bad as conditions were at Andersonville for POWs, they were almost as bad as guards, and in the blockaded South, not much better for Southern civilians. Though the commandant of Andersonville was accused of cruelty, there is little evidence that the horrible conditions there were the result of any deliberate policy, unlike "Hellmira".

BTW, it's y'all Southern boys (I will also accept South'n or Suthrin')

Originally posted by Roguish Lawyer
Is this a Southern thing? Are you Southern boys still mad at 'ol Abe Lincoln? LOL

I was born and raised in New York City. Can't call me a Southern boy. I just don't believe that Lincoln was the great President that he has been credited as. He was certainly not "Honest Abe", he was a politician and a lawyer.

Originally posted by Airbornelawyer
There is no evidence to support the notion that he was "quite willing" to engage in arbitrary and lawless action.

I disagree. And I would point to the draft itself as an example of an arbitrary action from which resulted many other arbitrary actions.

Was the draft necessary to win the war? Possibly, but when forced conscription is necessary in order to win the battle, maybe the battle shouldn't have been won.

The draft was the beginning of the slippery slope, and other actions by Lincoln continued the path down and along that path. In my opinion, Lincoln was the first President to start us on the path that led to Franklin Delano Roosevelt and Lyndon Baines Johnson.

[Roguish Lawyer]

Originally posted by Greenhat
He was certainly not "Honest Abe", he was a politician and a lawyer.

Ouch! LOL

[Roguish Lawyer]

http://www.independent.org/tii/forum...7ipfTrans.html

[CommoGeek]

Dave,
8th Florida, huh? They along with the 2nd and 5th regiments fought with the Army of Northern Virginia. I can recall seeing their monument at Gettysburg. IIRC they were engaged around the Devil's Den/ Little Round Top area. My family was in several different FL Regiments, but they fought in TN and GA at Chickamauga, Atlanta, etc.

You are spot on about Elmira, but I also recall Rock Island and another one that are almost as bad? I can google for that later.... Wirz deserved to hang, but he shouldn't have been the only POW camp commander to do so!

As for Lincoln, GH has stated it better than I could. If you know about his treatment of the Constitution, I guess you'd have to decide if the ends justified the means. For me, the Bill of Rights is the foundation of our country and any time that we erode those Rights, we chip away at the very foundation of what makes the US so great.

Sadly, the public's grasp of that era is minimal or nonexistent. Were they to read more about that time, they would discover that rampant racism wasn't limited to the South. I mention this because it seems that entire war was about slavery and the only "noble" and just members of society were Northern. Nothing could be further from the truth.

We have a great country, but the desire to hold that together should never come at the price of our basic rights.

[Roguish Lawyer]

So I guess you guys are OK with slavery?

What was it that that great Soviet libertarian said about omelettes?