William H. Rehnquist - All the Laws but One: Civil Liberties in Wartime

Table of Contents

To Nancy

Are all the laws, but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated?

President Lincoln, in a message to a special session of Congress, July 4, 1861

ACKNOWLEDGMENTS

MY EDITOR OF FIRST RESORT has been my daughter, Nancy Spears. She has told me that she felt one of her principal tasks was to make me sound less like a lawyer, and I hope she has succeeded. I know that the manuscript profited from her carefully considered and finely tuned suggestions. My editor at Alfred Knopf, Patricia Hass, has also done an admirable job, and made me sound even less like a lawyer.

In gathering research materials for the book, I have been greatly assisted by Shelley Dowling, the Librarian of the Supreme Court, and Patricia McCabe, Linda Maslow, Catherine Romano, and Sara Sonet of the Library staff. In gathering photographs for the book, I received valuable help from Alan Fern, Director of the National Portrait Gallery, and Ann Shumard and Anthony Segaria of his staff. Similar assistance was furnished by Gail Galloway, the Curator of the Supreme Court, and Catherine Fitts of her staff. Special thanks are due to Franz Jantzen for his efforts in obtaining hard-to-get photographs, and Judy Bowman of the Army Museum of Hawaii and Jane Halsman Bellow of the Philippe Halsman Estate have also lent their assistance.

My secretaries, Janet Barnes and Laverne Frayer, have faithfully and cheerfully transcribed drafts and more drafts of the manuscript.

Finally, former law clerks Craig Bradley, Ted Cruz, Rick Garnett, and David Hoffman, and former aide Greg Michael, helped me out with various portions of the manuscript.

ILLUSTRATIONS

Following page 112

President Abraham Lincoln, 1863
Photograph by Alexander Gardner, National Portrait Gallery, Smithsonian
Institution, Gift of the James Smithson Society, CBS Television Network,
and James Macatee

Chief Justice Roger B. Taney
Photograph by Mathew Brady, Collection of the Supreme Court of the
United States

Secretary of State William Henry Seward
Photographer unknown, National Portrait Gallery, Smithsonian Institution

Secretary of War Edwin M. Stanton
Engraving by Bobbett & Hooper after Henry Louis Stephens, National Portrait
Gallery, Smithsonian Institution

General Ambrose Burnside
Photograph by Mathew Brady, National Portrait Gallery, Smithsonian Institution

Justice David Davis
Artist unknown, Collection of the Supreme Court of the United States

John Wilkes Booth
Photograph by Charles DeForest Fredricks, National Portrait Gallery,
Smithsonian Institution

Mary Surratt
Photographer unknown, Collection of the Library of Congress; LC-B816-1347

President Woodrow Wilson
Painting by John Christen Johansen, National Portrait Gallery, Smithsonian
Institution; transfer from the National Museum of American Art; gift of an
anonymous donor through Mrs. Elizabeth C. Rogerson, 1926

Justice Oliver Wendell Holmes
Drawing by Samuel Johnson Woolf, National Portrait Gallery, Smithsonian
Institution; Gift of Thomas S. Corcoran and Gallery purchase

Judge Learned Hand
Photograph by Philippe Halsman, National Portrait Gallery,
Smithsonian Institution

President Franklin Delano Roosevelt
Painting by Henry Salem Hubbell, National Portrait Gallery, Smithsonian
Institution; transfer from the National Museum of American Art, gift of Willard
Hubbell, 1964

Secretary of War Henry Stimson
Drawing by Samuel Johnson Woolf, National Portrait Gallery, Smithsonian
Institution; Gift of Muriel Woolf Hobson and Dorothy Woolf Ahern

Chief Justice Harlan F. Stone
Drawing by Samuel Johnson Woolf, National Portrait Gallery, Smithsonian
Institution; Gift of Muriel Woolf Hobson and Dorothy Woolf Ahern

Justice Hugo Black
Photograph by Harris & Ewing, Collection of the Supreme Court of the
United States

Lieutenant General Robert Richardson
Photographer unknown, Courtesy of the U.S. Army Museum of Hawaii

Judge Delbert Metzger
Photographer unknown, Courtesy of the Honolulu Star-Bulletin

CHAPTER 1

Mr. Lincoln Goes to Washington

A COLD DRIZZLE of rain was falling February 11 when Lincoln and his party of fifteen were to leave Springfield on the eight oclock at the Great Western Railway Station. Chilly gray mist hung on the circle of the prairie horizon. A short locomotive with a flat-topped smokestack stood puffing with the baggage car and special passenger car coupled on; a railroad president and superintendent were on board. A thousand people crowded in and around the brick station, inside of which Lincoln was standing. One by one came hundreds of old friends, shaking hands, wishing him luck and Godspeed, all faces solemn. Even huge Judge Davis, wearing a new white silk hat, was a somber figure.1

On that dreary Illinois winter day in 1861, President-elect Abraham Lincoln began his journey to Washington, D.C., where he hoped to be inaugurated as President on March 4. Hoped to because there were already rumors afloat that secessionist sympathizers would somehow prevent his inauguration from taking place. In the November presidential election, Lincoln had prevailed over three opponents, receiving 180 electoral votes. The incumbent Vice President, John Breckenridge, the candidate of the South, received 72; John Bell, the candidate of the Constitutional Union Party, 39; and Lincolns longtime Democratic opponent Stephen Douglas, only 12. But the electoral vote did not tell the whole story of this bitterly contested election. Lincoln received a minority of the popular vote, slightly less than 1.9 million votes out of a total of some 4.7 million. In ten states of the South, he did not get a single popular vote. Indeed, he was not even on the ballot in some states. He was elected by the nearly solid electoral votes of the North, together with those of California and Oregon. In an election dominated by the issue of the extension of slavery, Lincoln received no electoral votes from any state south of the Ohio River.

Unquestionably, then, he was a sectionally chosen President, and soon after his election the states of the Deep South began to carry out their threat to secede from the Union. Within days of the election, the two Senators from South Carolina resigned their seats, and the state legislature enacted a bill calling a convention to determine whether it should secede from the Union. Delegates were duly elected, and on December 20, 1860, the convention voted to take South Carolina out of the Union. By the time Lincoln was boarding the train to Washington, South Carolina, Georgia, Florida, Alabama, Mississippi, and Louisiana had passed ordinances of secession, and delegates from these states were meeting in Montgomery, Alabama, to launch the Confederate States of America.

From the rear platform of the car that would bear him and his party on their slow and circuitous journey to Washington, Abraham Lincoln said goodbye to his Springfield friends:

My friendsNo one, not in my situation, can appreciate my feeling of sadness at this parting. To this place, and the kindness of these people, I owe everything. Here I have lived a quarter of a century, and have passed from a young to an old man. Here my children have been born, and one is buried. I now leave, not knowing when, or whether ever, I may return, with a task before me greater than that which rested upon Washington. Without the assistance of that Divine Being, who ever attended him, I cannot succeed. With that assistance I cannot fail. Trusting in Him, who can go with me, and remain with you and everywhere for good let us confidently hope that all will yet be well. To His care commending you, as I hope you and your prayers will commend me, I bid you an affectionate farewell.2