© 2018 ROBERT O. FAITH ALL RIGHTS RESERVED ‘THIS DESPOTIC AND ARBITRARY POWER’: BRITISH DIPLOMACY AND RESISTANCE IN THE HABEAS CORPUS CONTROVERSY OF THE AMERICAN CIVIL WAR A Dissertation Presented to The Graduate Faculty of The University of Akron In Partial Fulfillment Of the Requirements for the Degree Doctor of Philosophy Robert O. Faith May, 2018 ii ‘THIS DESPOTIC AND ARBITRARY POWER’: BRITISH DIPLOMACY AND RESISTANCE IN THE HABEAS CORPUS CONTROVERSY OF THE AMERICAN CIVIL WAR Robert O. Faith Dissertation Approved: Accepted: ______________________________ ______________________________ Advisor Department Chair Dr. Walter Hixson Dr. A. Martin Wainwright ______________________________ ______________________________ Co-Advisor Dean of the College of Arts and Sciences Dr. Lesley Gordon Dr. John Green ______________________________ ______________________________ Committee Member Interim Dean of the Graduate School Dr. Kevin Adams Dr. Chand Midha _____________________________ ______________________________ Committee Member Date Dr. Gina Martino ______________________________ Committee Member Dr. Karl Kaltenthaler iii ABSTRACT The following dissertation explores the impact of President Abraham Lincoln’s suspensions of the writ of habeas corpus on British nationals living in the Union and Anglo-American diplomacy during the American Civil War. By drawing primarily upon State Department records and private British diplomatic correspondence, as well as Union military records, the dissertation argues that the British habeas experience in the Union reveals the broader scope of the habeas corpus problem under Lincoln. During the American Civil War, the military arrests of Britons under Lincoln’s habeas policy presented both governments with a persistent foreign policy problem. Between 1861 and 1865, diplomats at the British Legation prioritized the protection of Britons living in the Union against various forms of military injustice, and devoted considerable energy toward relieving Britons wrongfully arrested or tried by Union military courts. Although Lincoln’s habeas policy placed a serious strain on Anglo-American relations during the latter part of 1861, and even pushed Lincoln to publicly embrace an unconstrained constitutional view of executive habeas suspension far earlier than scholars have recognized, the U.S. State Department and British Legation in Washington ultimately handled the problem successfully at the diplomatic level through a policy of cautious cooperation. Protecting Britons tried by military courts between 1862 and 1865 proved more difficult, however, as both governments struggled to negotiate the contentious boundary between citizenship and nationality inherent in such cases and as the Union military did not always accommodate British requests for cooperation or leniency. Across iv the Atlantic, many Britons inside and outside of the London government consistently condemned Lincoln’s suspension of habeas corpus as a dangerous blow to civil liberty, and the president’s policy contributed significantly to widespread anti-Union sentiment in England during the war. In analyzing the broader British habeas corpus experience under Lincoln, this dissertation will contribute to our understanding of Civil War Anglo- American relations, habeas corpus and civil liberties on the Northern homefront, Lincoln’s constitutionalism, and the conflicting and amorphous nature of “citizenship” and “liberty” within the crucible of Civil War America. v DEDICATION To the memory of Nathan Patrick Montler (1991-2014) vi ACKNOWLEDGEMENTS The support of so many family members, colleagues, and friends went into the making of this dissertation beyond those mentioned here. I would like to especially thank the members of my committee from the University of Akron and Kent State University: Walter Hixson, Kevin Adams, Gina Martino, and Karl Kaltenthaler, for supporting my project from the beginning, and whose comments greatly improved this dissertation with every draft. Most importantly, I would like to thank Lesley Gordon, now at the University of Alabama, for being an incredible advisor every step of the way. For me, she is both a teacher and scholarly mentor of the highest order, and deserves far more gratitude than I can adequately express on paper. I would also like to thank Martha Santos who, as graduate coordinator in the history department for most of my time at the University of Akron, helped me through more administrative problems than I can count. Finally, I would like to thank my wife, Ashleigh, whose unwavering love and support keeps me going not just as an historian, but as a person. vii TABLE OF CONTENTS CHAPTER I. INTRODUCTION1 Habeas Corpus: Transatlantic Origins and Transformations of the “Great Writ of Liberty”……………………………………………………………………..8 Historiography……………………………………………………………….14 Habeas Corpus and Civil Liberties under Lincoln…………………………...15 Great Britain and the American Civil War…………………………………..27 Methodology and Sources……………………………………………............41 Chapter Outline………………………………………………………………44 II. THE ORIGINS OF LINCOLN’S HABEAS POLICY AND ITS EARLY IMPLICATIONS FOR ANGLO-AMERICAN RELATIONS…………………………..50 The Context of Anglo-American Diplomacy at the Outset of the Civil War…………………………………………………………………………...51 Actions without Precedent: Lincoln’s Early Suspensions of the Writ of Habeas Corpus………………………………………………………………………..60 Ex Parte Merryman to Ex Parte McQuillon……………………………………..65 III. GREAT BRITAIN’S RESPONSE TO LINCOLN’S HABEAS CORPUS POLICY, 1861………………………………………………………………………………………87 Further Developments Surrounding Lincoln’s Habeas Policy through British Eyes, 1861……………………………………………………………………91 The Nature of Military Arrests of Britons during 1861………………….......96 The British Government’s Official Response to Lincoln’s Habeas Policy……………………………………………………………………….103 viii The Lincoln Administration’s Rebuttal…………………………………….110 The Official British Outlook at the End of 1861…………………………...116 IV. THE BRITISH HABEAS EXPERIENCE UNDER LINCOLN, 1862-1865………121 Lincoln’s Habeas Policy and the British Parliament……………………….123 Further Developments in Lincoln’s Habeas Policy through British Eyes, 1862- 65……………………………………………………………………………131 Further Developments: Nationwide Habeas Suspension, August-September 1862…………………………………………………………………………134 Further Developments: Britons and the Habeas Corpus Act of 1863………138 Further Developments: Lincoln’s Final Suspension Proclamation, September 1863…………………………………………………………………………143 Habeas Corpus at War’s End……………………………………………….146 The Nature of Military Arrests of Britons under Lincoln, 1862-65………..148 V. BRITISH NATIONALS AND MILITARY JUSTICE DURING THE AMERICAN CIVIL WAR…………………………………………………………………………….159 The Nature of Martial Law vs. Suspension of Habeas Corpus……………..163 Habeas Corpus, Martial Law, and Military Trials during the American Civil War………………………………………………………………………….164 Military Trials of British Nationals during the American Civil War……….170 The Courts-Martial Trials of British Union Soldiers……………………….175 “English Bayonets in English Hands”: British Nationals Tried by Military Commission………………………………………………………………...180 Prosecuting “the Gentler Sex”: Trials of British Women by Military Commission………………………………………………………………...187 “So Blatant an Enemy to Our Government”: British Nationals, Military Trials, and Treason…………………………………………………………………192 VI. POPULAR BRITISH OBSERVATIONS AND ATTITUDES SURROUNDING LINCOLN’S HABEAS POLICY………………………………………………………207 ix First-hand British Observations: William Howard Russell………………...210 First-hand British Observations: Anthony Trollope………………………..215 First-hand British Observations: Sir James Fergusson……………………..220 “The Tyrant’s Plea of Necessity”: The British Press, Lincoln’s Habeas Corpus Policy, and Anti-Unionism in England……………………………………..224 A British Intellectual Critique of Lincoln’s Habeas Policy………………...237 VII. CONCLUSION……………………………………………………………………245 BIBLIOGRAPHY………………………………………………………………………258 x CHAPTER I INTRODUCTION On April 27, 1861, President Abraham Lincoln authorized his General-in-Chief, Winfield Scott, to suspend the privilege of the writ of habeas corpus along the “military line” between Washington, D.C. and Philadelphia in response to violent protests in Baltimore which, if left unchecked, might threaten the safety of the Union capital.1 In the context of the American Civil War, Lincoln’s habeas corpus suspension policy—which eventually encompassed the entire North by the fall of 1862—essentially allowed military officials on the ground to arrest civilians suspected of broadly defined disloyal activities and hold them without charges for an indefinite period of time. Those arrested under Lincoln’s habeas suspension therefore could not count on the courts for legal redress, so long as the military power was willing to suppress the power of the civil courts to enforce due process of habeas procedures. Throughout the Civil War, the attitudes of Lincoln and his supporters toward executive suspension reflected a willingness to subordinate individual liberties to the paramount goal of national preservation in time of war, while those of his critics reflected a fear that his example would lead to a permanent contraction of American civil liberties. Before Lincoln, no President of the United States had unilaterally suspended the writ of habeas corpus. With this fateful step, Lincoln’s suspension of the writ set in motion a widespread repression of 1 See Lincoln’s first suspension order in Roy P. Basler, ed., Collected Works of Abraham Lincoln (New Brunswick, N.J.: