Diary of Gideon Welles: Monday, September 14, 1863

The President called a special Cabinet council this morning at eleven. The course pursued by certain judges is, he says, defeating the draft. They are discharging the drafted men rapidly under habeas corpus, and he is determined to put a stop to these factious and mischievous proceedings if he has the authority. The Secretary of State and Attorney-General have each been consulted and declare they have no doubt of his authority. Mr. Blair was satisfied the President had the legal power, but whether the measure proposed, which is an order from the President directing the provost marshals to disregard the writ, or to make return that the person to be discharged was held by authority of the President, was perhaps not the best process. Mr. Chase feared civil war would be inaugurated if the privilege of the writ of habeas corpus was suspended. Mr. Usher had doubts and uncertainties.

The President was very determined, and intimated that he would not only enforce the law, but if Judge Lowrie and others continued to interfere and interrupt the draft he would send them after Vallandigham. As considerable discussion had taken place, he was prepared to act, though willing to listen to, and, if mistaken, to defer to, others. Up to this point neither Mr. Stanton or myself had taken part in the discussion, though Stanton had undoubtedly expressed his opinion and prompted the proposed action.

I remarked that the subject was not new to me, — that I had two or three times experienced this interference by judges to release men from service, not in relation to the recent draft, but that we were and had been suffering constant annoyance. Vessels were delayed on the eve of sailing, by interference of State judges, who assumed jurisdiction and authority to discharge enlisted men in the national service in time of war, on habeas corpus. I had as high regard and reverence for that writ as any one, but it seemed to me there should be some way to prevent its abuse. A factious and evil-minded judge — and we had many such holding State appointments — could embarrass the Government, could delay the departure of a vessel on an important mission, involving perhaps war or peace, or interrupt great military movements by an abused exercise of this writ, — could stop armies on the march. I had questioned whether a local State or municipal judge should have this power to control national naval and military operations in a civil war, during the existence of hostilities, and suggested that, especially in time of war, United States judges were the only proper officers to decide in these naval and military cases affecting the law and service of the United States. Hitherto the Army had suffered less than the Navy, and I was not sorry the subject had been brought forward by others.

The President said he would prepare and submit a paper at an adjourned meeting for criticism to-morrow at 9 A.M.

SOURCE: Gideon Welles, Diary of Gideon Welles, Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30, 1864, p. 431-3