University of Mississippi eGrove Electronic Theses and Dissertations Graduate School 2019 Courtroom Wars: Constitutional Battles over Conscription in the Civil War North Nicholas Matthew Mosvick University of Mississippi Follow this and additional works at: https://egrove.olemiss.edu/etd Part of the History Commons Recommended Citation Mosvick, Nicholas Matthew, "Courtroom Wars: Constitutional Battles over Conscription in the Civil War North" (2019). Electronic Theses and Dissertations. 1572. https://egrove.olemiss.edu/etd/1572 This Dissertation is brought to you for free and open access by the Graduate School at eGrove. It has been accepted for inclusion in Electronic Theses and Dissertations by an authorized administrator of eGrove. For more information, please contact [email protected]. COURTROOM WARS: CONSTITUTIONAL BATTLES OVER CONSCRIPTION IN THE CIVIL WAR NORTH A dissertation submitted to the University of Mississippi in partial fulfillment of the requirements for the degree of Doctor of Philosophy by Nicholas Matthew Mosvick May 2019 Copyright © 2019 by Nicholas Mosvick All rights reserved. ABSTRACT In February 1863, Congress considered a bill to create for the first-time conscription at the national level. Democratic politicians vigorously protested that the proposed act was unconstitutional and destroyed the state militias. When Congress passed the Enrollment Act, commonly known as the “Conscription Act,” on March 3, 1863, outcry from Democrats about the unconstitutionality of national conscription immediately followed. In New York and Pennsylvania, Democratic newspaper editors and politicians decreed the act the worst among the Lincoln war measures in threatening to subvert the constitutional republic and to transform the United States into a despotism under the control of an autocratic President. The act was “utterly repugnant” to the Constitution and the structure of federalism that left states to control their own militias. Quickly, these constitutional criticisms transformed into court challenges to the act. These challenges were usually based on drafted soldiers seeking writs of habeas corpus to be released from federal authority in the form of the provost marshal. New York state courts focused most often on the question of state jurisdiction, with New York’s judges divided on the meaning of the Supreme Court precedent of Ableman v. Booth and whether it precluded state court jurisdiction over questions concerning the constitutionality of Congressional acts by writ of habeas corpus . One judge, John McCunn of the City Court of New York and a well-known Democrat connected to Tammany Hall, issued an opinion in the midst of the New York City Draft Riots claiming that the act was unconstitutional, but New York’s higher courts never answered the question. In Pennsylvania, both federal and state courts decided on the constitutionality of conscription. Federal District Court Judge John Cadwalader upheld the power to conscript in two 1863 decisions but frustrated the Lincoln administration both by maintaining a role for federal judges to review the decisions of the Boards of Enrollment and his issuing of writs of habeas corpus to release soldiers. The Pennsylvania Supreme Court issued the most important case on the subject in November 1863, Kneedler v. Lane , finding the Conscription Act constitutional. The constitutional conservative victory was short-lived, as the decision was overturned two months later. As the history of twentieth-century conscription cases evidences, it would be the last time the courts seriously considered the constitutional argument against conscription. ii TABLE OF CONTENTS ABSTRACT ii ACKNOLEDGEMENTS iv INTRODUCTION 1 CHAPTER ONE: THE ROAD TO CONSCRIPTION 47 CHAPTER TWO: CONSTITUTIONAL CONSERVATIVES BATTLE CONSCRIPTION IN CONGRESS 85 CHAPTER THREE: CONTESTING THE CONSCRIPTION ACT IN NEW YORK 127 CHAPTER FOUR: CONFLICT AND CONSTITUTIONALISM IN THE KEYSTONE STATE 174 CHAPTER FIVE: THE HIGH WATERMARK FOR CONSTITUTIONAL CONSERVATIVES : KNEEDLER V . LANE 205 CONCLUSION: POST -1863 JUDICIAL BATTLES AND 20 TH CENTURY CHALLENGES TO CONSCRIPTION 254 BIBLIOGRAPHY 304 iii ACKNOWLEDGEMENTS First and foremost, I have to thank my partner and wife, Lindsey Bartlett Mosvick, for her support over five and a half years of graduate school and research after the intensity of law school. She served as my editor, my confidante, and my biggest cheerleader. She also gave me the greatest gift and impetus to finish this dissertation-our son, Connor. I thank the Arch Dalrymple III Department of History for financial support from the moment I entered the program. I was able to get to the archives I needed because travel money was always readily available. The Center for Civil War Research’s McMinn Fellowship allowed for one year committed to research and writing, which undoubtedly sped up my completion. To my dissertation adviser April Holm, I marvel at your patience, insight, and commitment to getting through everything I wrote, even when my chapters were far too long. You made me do the important work of learning to distill complex problems down to understandable prose. To John Neff, I appreciate your ability to see the big picture and ask the tough questions that force a writer to focus on what matters. To Christopher Green, your unparalleled knowledge of all things legal both overwhelmed me and allowed me to see how all the cases I studied fit together. To Paul Polgar, thank you for entering the Civil War fray so I could use your early nineteenth-century insight. And thanks to many others who gave their support over the years, especially Jonathan Gienapp, who has continued to offer mentorship even from the far away space of Palo Alto. Many thanks also go to my advisers at the University of Virginia. Charles McCurdy, who introduced me to the subject of this dissertation and set me on this long path eleven years ago. No one else could have made the UVA Law legal history program what it has become. To Gary Gallagher, whom I grew up reading and admiring but only treated me with candor, respect, and humor and had far more time for me than could have been expected. To my grandparents for first giving me the thirst for knowledge and love of reading. Especially my grandfather, Roger, who was my model for everything I ever wanted to accomplish in life-I can only hope to be half the teacher, friend, and scholar you were. To my brother Mitch, who often listened to me ramble about my dissertation research at unusual hours of the night with unfeigned interest. And to my parents, who understood my passion and took pride in my accomplishments, even if like any good Minnesotan, they had no idea what I was doing in Mississippi. And finally, no historian gets too far without the help of archivists who can point you in directions you never imagined. Thanks to the Historical Society of Pennsylvania, the Federal Archives at Philadelphia, the Federal Archives in New York City, the New York Historical Society, and the Pennsylvania State Archives. iv INTRODUCTION In the middle of 1863, New York’s Metropolitan Record published a pamphlet imaging President Lincoln on trial for crimes against the Constitution. In the “Trial of the Constitution,” Lincoln was charged by the “Spirit of the Constitution” with violating the Constitution with every war-time measure passed by his administration and the Republican Congress. The “Trial of the Constitution” envisioned the Founding Fathers, from Washington to Jefferson to Madison to Hamilton, alongside the political triumvirate of Webster, Clay, and Calhoun putting Lincoln on the stand to be cross-examined. They accused Lincoln of ignoring the long-standing constitutional traditions dear to many Americans, through his war policies of suspending habeas corpus , his emancipation policy, and putting the whole able-bodied male population at his command by conscription. The pamphlet called conscription an infamous law that was not only “subversive of the Constitution” but also but transgressed state sovereignty. 1 It was a visceral image that encapsulated the contentious public constitutional debate occurring throughout 1863 in the north over Lincoln’s war measures. While constitutional conservatives challenged policies like confiscation, emancipation, and the suspension of habeas corpus on constitutional grounds, the locus of public constitutional debates in 1863 centered on conscription. By the twentieth century, from the terrors of the 1 “Trial of Abraham Lincoln by the great statesmen of the republic: A council of the past on the tyranny of the present. The spirit of the Constitution on the bench-Abraham Lincoln, prisoner at the bar, his own counsel,” New York Metropolitan Record (1863), 5-11. 1 trenches in World War I to the horrors of the Vietnam War, judicial receptivity to constitutional claims against conscription had faded even if many remained convinced the draft is unconstitutional. This dissertation shows that most constitutional arguments against conscription were exhausted during the Civil War and while the twentieth century saw new spins upon those constitutional objections, the judiciary become unwilling to listen despite attempts to revisit the issues despite the serious challenges brought before them. As Timothy Huebner suggests, nineteenth-century Americans embraced a constitutional culture that looked to protect the traditions of the founding generation. Shared constitutional culture refers to the ways in which nineteenth-century Americans saw the Constitution as a central feature