New Light on Cohen v. Wright: California's First Loyalty Oath Case

Abstract

NATIONAL LIFE, argued a Republican party campaign appeal in 1862, should be maintained and perpetuated... by the ramification of test oaths into all departments of society-mechanical, mercantile, agricultural, and professional.' This approach to a solution of the northern disloyalty problem of the Civil War received widespread application. By the end of 1863, the national Congress and more than a dozen loyal states enacted loyalty oath legislation. California was one of those states.2 To be sure, organized disloyalty in California in 1863 was neither a threat to the safety of the Union nor a danger to the security of the state. Lincoln's extraordinary internal security apparatus had long since cast its network to the Pacific shore. This unprecedented mechanism, sanctioned in Lincoln's opinion by his constitutional powers as commander-in-chief, carelessly cut across traditional boundaries of the federal system and ignored the separation of powers practice of American government. Federal, state, and local officers, military and civil officials of all levels of government, and executive, legislative, and judicial personnel, were all involved in antidisloyalty activities. In California, for example, internal security responsibilities were shared in 1863 by Union Army and Navy commanders, agents of the national State, Treasury, and Post Office Departments, Congress' deputies of the Joint Committee on the Conduct of the War and of the House Committee on the Loyalty of Government Employees, and special civilian provost marshals only vaguely under War Department control. State militiamen, home guard units, municipal policemen, and members of patriotic volunteer organizations assisted national government officers and carried out purely local security policies. Vigilante excesses were common results of this mixture of personnel, policies, and purposes. Arbitrary arrests of sus-