(The title of this post doesn’t refer to labor unions, but to the United States. During the Civil War, the United States government was known also as the “Union.” Because passions ran so hot against President Abraham Lincoln among pro-war Democrats and “Peace” Democrats, the Republican party often went by the name “Union party.”)

Democracy is perhaps the most disorderly, the messiest way to govern a nation anyone has ever invented. Take America, for example. We’re always fussing at each other. If you consider our history, grumpy snarking at other Americans isn’t new. We tend to be pig-headed about our beliefs, and people elsewhere might get the impression we don’t like each other very much. Sometimes we don’t. We’re certainly not civil sometimes in our disagreements.

But if you think it’s bad now, 150 years ago we were killing each other in our bloodiest war ever. 620,000 people died, out of a total of 1,100,000 casualties. We can’t even agree on what to call it. It’s the Civil War in the North, and (I’m told) the War Between the States in the South.

Whatever you call it, President Abraham Lincoln considered it a “rebellion.” We were at war with each other from April 1861 until April 1865.

South Carolina fired on Fort Sumter on April 12, 1861, about a month after Abraham Lincoln took office as President of the United States (March 4, 1861). From that point on, as the Southern states seceded one by one and formed the Confederate States of America (CSA), the President conceived of his main task as holding the Union together. To do that (as many Southerners saw it), he led the North into an invasion of the South. Opposition to the war sprang up all over the country, not only in the South. In the North there was significant opposition, and the Democratic party split in two.

The extreme wing of the party included those committed to maintaining their way of life, including the “peculiar institution,” — slavery — even if it meant seceding from the Union. It also included other Confederates and Secessionists all over the country, in the territories as well as in the northern states. The “War Democrats” were mostly in favor of slavery, but many who disapproved of slavery regarded the Union forces as invaders and fought to repel them. They believed that the Federal government had no right to send an army into a state.

The other wing was known as the “Peace Democrats.” They ran General George B. McClellan, the former commander-in-chief of the Army of the Potomac, as their candidate against Lincoln in the 1864 presidential election. Their aim was to end the war by negotiating with the CSA to end the war. They seem not to have noticed that the Confederacy refused to negotiate unless they were guaranteed sovereignty as a separate nation.

Washington, D. C. itself lies south of the Mason-Dixon line in the District of Columbia, which was carved out of Maryland and Virginia. It lies adjacent to West Virginia, so that until that state split off from Virginia, the capital was entirely surrounded by the Confederacy and those sympathetic to it. Virginia joined the Confederacy in April 1861. Maryland, a slave state, stayed in the Union, but it had a sizable population of strong Confederate sympathizers. When Union forces attempted to march through Baltimore to go to the aid of Fort Sumter in Virginia, in April 1861, people rioted, and the Baltimore police had to guard the soldiers on their way through town.

The region was so riddled with Secessionists the war that the Federal government soon had to cope disloyalty at all levels. The President and Congress took measures to defend the Union. Two stand out because they affected civil liberties:
1. They suspended habeas corpus.
2. They wrote a test oath so stringent it became known as the “Ironclad” oath.

Habeas corpus

Habeas corpus is Latin for “You have the body.” It is a writ (a court order) that requires an individual or a government official who has detained another person to produce the detainee before a judge to determine if the incarceration is legal or not. (1)

Guaranteed to citizens of the United States in Article 1, Section 9, of the U. S. Constitution, it means that we cannot be imprisoned without due process of law. However, Section 9 also allows for an exception to habeas corpus. “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.”

The Civil War was definitely a case of rebellion. Suspending habeas corpus began on a limited basis that gradually extended throughout the nation and even to the Territories. Lincoln first suspended habeas corpus in an executive order to General Winfield Scott along a route extending between Washington and Philadelphia. It was to give the commander of that route more power to insure that critical military supplies arrived at their destination. In October 1862 he suspended it for the duration of the war for “all persons arrested or imprisoned in any fort, camp, arsenal, military prison, or other place of confinement by any military authority or by the sentence of any court martial or military commission.” (2) In March 1863, Congress passed a suspension act that supported the President.

The “Ironclad” Loyalty Oath

During the Civil War the Federal Government sought to insure that all Federal employees were loyal to the Union. On August 6, 1861, President Lincoln signed a wartime Loyalty Test Oath into law. This oath was so binding as to its promise of loyalty that it was nicknamed the “Ironclad” Loyalty Oath. Between then and 1865 Congress gradually extended it extended until any attorney wishing to practice in a Federal court at any level had to swear to it. (Ironclad ships were proving useful to both sides in the war because cannonballs could not often penetrate their iron-plated skins and no wooden ship could stand against them.)

Binding though it might be, the Ironclad Oath combined two concepts forbidden by the Constitution: the Bill of Attainder and the ex post facto law. Article I, Section 9, paragraph 3 is very clear about these as violations of liberty. “No Bill of Attainder or ex post facto Law will be passed.”

The Bill of Attainder

“A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial. Such actions were regarded as odious by the framers of the Constitution because it was the traditional role of a court, judging an individual case, to impose punishment.” (3) It goes right along with suspending habeas corpus.

The “Ironclad Oath” required people to swear, “I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto.”

Anyone who took this oath knowing it to be untrue in his or her case committed perjury.

In Alder Gulch, people brought their politics with them, and the debate continues in historical circles as to whether or not there were more Confederates and Secessionists there or Unionists. Most people wanted to escape the war, many were veterans, and many others did not come from the places where the war was being fought. And of course, then as now, some didn’t care as long as they were left alone to dig the gold and spend it.

Ex Post Facto

Ex post facto is Latin for “after the fact.” The Ironclad Oath demanded that people swear to something they had done or an opinion they had held before they took the oath. When the oath was used in Montana Territory, some secessionists took the oath, as one man confessed years later, “with many mental reservations.”

The bloodiest war, a nation divided, civil liberties suspended — this was the national climate on May 26, 1863, when a group of men who had lost their way made one of the great gold strikes on a creek they named Alder Creek.

Next: Coming to Get the Gold

(1) http://www.law.cornell.edu/wex/habeas_corpus
(2) “Lincoln’s Suspension of the Writ of Habeas Corpus: An Historical and Constitutional Analysis.” James A. Dueholm, The Journal of the Abraham Lincoln Association, Volume 29, Issue 2, Summer 2008.
(3) The Supreme Court, William H. Rehnquist, p. 166.
Primary Source: Justice in Blue and Gray: A Legal History of the Civil War by Stephen C. Neff, March 27, 2010.

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