The Wounds of War

Democracies have had their share of wartime civil libertarian outrages, despite the guarantees of constitutions and bills of rights. In Britain, at the outset of World War I, the passage of the Defense of the Realm Act--an act that destroyed the liberties of many Englishmen--led to such an environment of repression that even the English monarchy changed its German name to Windsor. During the American Civil War, there were frequent debates over civil liberties,1 including the use of arbitrary arrests and the suspension of the writ of habeas corpus by President Lincoln.2   On September 24, 1862, Lincoln issued a proclamation aimed at those who were giving comfort to the enemy.

“Now, therefore, be it ordered,” Lincoln wrote,

first, that during the existing insurrection, and as a necessary measure for suppressing the same, all rebels and insurgents, their aiders, and abettors, within the United States, and all persons discouraging the volunteer enlistments, resisting military drafts, or guilty of any disloyal practices affording aid and comfort to the rebels against the authority of the United States, shall be subject to martial law and liable to trial and punishment by courts martials and military commissions; second, that the writ of habeas corpus is suspended in respect to all persons arrested, or who are now or hereafter during the rebellion shall be imprisoned in any fort, camp, arsenal, military prison, or other place of confinement by military authority or by the sentence of any court-martial or military commission.3

This remarkable proclamation raised questions about the effectiveness in wartime of the Fourth, Fifth, and Sixth Amendments to the U.S. Constitution. It also led to the Ex parte Merryman decision, a decision rendered by U.S. Supreme Court Chief Justice Roger Taney, the author of the famous Dred Scott decision. Merryman, a secessionist arrested by military authorities, asked for intervention by civil courts, which were still operating in Maryland. He requested a writ of habeas corpus.4

Taney held that the president didn’t have the right to suspend the writ of habeas corpus.5  He called Lincoln’s position unconstitutional.6  In this case, Lincoln defied the chief justice of the U.S. Supreme Court, who said he didn’t have that power to try civilians in military courts. But Lincoln simply invoked the American president’s prerogative.

Here were the beginnings of an imperial wartime presidency. Lincoln, in a special message to Congress, agreed that he was sworn “to take care that the laws be faithfully executed.”7  He argued, however, with the support of his attorney general, that the president, along with Congress, had the right to suspend the writ of habeas corpus.

The use or abuse of these extraordinary presidential powers led to the prosecution of dissenters in military courts. A courageous American, Lambdin Milligan, convinced of the rightness of his cause, risked his life in opposition to the war policies of a popular president. Milligan, after the Civil War, was vindicated by the U.S. Supreme Court. The story is one with many parallels to today’s America--in the midst of another, seeemingly popular war--or the America of 1917 or 1941.

Milligan was part of a movement sneeringly called Copperheads, a broad, diverse group of mostly Democrats who favored a negotiated settlement of the war with the South. They were outspoken in their opposition to the methods and goals of how the war was waged. The unprecedented amounts of death and destruction sickened many of them. Many classical liberals feared that government under law would be destroyed by the war.8  Some believed that the South should be allowed to go its own way and that the Constitution was a pact of equals in which a state should be allowed to opt out.9

Some of the targets of Copperhead criticism were the draft,which had caused riots in many Northern cities; Greenbacks, the debased paper currency that the federal government used to finance the war; and the extra-constitutional policies imposed by military governors in the North. War policy critics thought that General U.S Grant was “a butcher” because, despite his victories, his casualty numbers were shocking.10  Besides, many of Lincoln’s generals viewed all criticism as ad hominem attacks on the government. They thought their opposition as tantamount to treason.11

However, these critics of the war believed they were patriots who wanted to save constitutional government. At the State Democratic Party Convention of Illinois of 1863, delegates adopted a resolution warning “That the further offensive prosecution of this war tends to subvert the Constitution and this government and entail upon this motion all the disastrous consequences of misrule and anarchy.”12

Many military governors were angered by these persistent criticisms. Some were ready to subject citizens to harsh measures. These actions were often regretted by President Lincoln, but he felt compelled to support them. 13  For instance, in Ohio, General Ambrose Burnside, the general whose egregious leadership had led to a disastrous Union defeat at Fredericksburg in 1862, issued orders that brought civilians into military courts even though the civil courts were open, functioning, and capable of trying alleged traitors.

Incensed by strictures of Copperhead leaders against the administration of the war, the general (on April 13, 1863) on his own responsibility ordered the arrest of anyone guilty of seditious utterances likely to obstruct recruiting. This was followed by the arrest, trial before a military court, conviction and sentence to imprisonment until the end of the war of former Congressman Vallandigham.14

 Lincoln wrote Burnside that, “All the cabinet regretted the necessity of arresting . . . Vallandigham, some perhaps, doubted that there was a real necessity for it--but, being done, all were seeing you through with it.”15

Clement Laird Vallandigham was probably the most notorious Copperhead. A former congressman and an unsuccessful candidate for governor of Ohio, he was tried before a military court, not on whether he had committed treason or some other high crime, but merely on the basis on whether he had violated Ambrose Burnside’s order.16

Vallandigham challenged the right of the court to try him. At his trial before a military court, the judge conceded that he had no power to decide the jurisdiction issue.17  Vallandigham was quickly convicted and ordered jailed for the duration of the war. Vallandigham petitioned to the U.S. Supreme Court, but, on a technicality, it decided not to hear the case.18  Federal courts, given the circumstances of Ex parte Merryman and the controversy with Chief Justice Taney, were becoming docile and were not going to challenge the president,19  even if he was engaging in unconstitutional actions.

Similar arrests of civilians by military commissions were also put into effect in Indiana. Edward Bates, attorney general in Lincoln’s administration, would write in the fall of 1863 that there was “a general tendency of the military, wherever stationed, to engross all power.”20

Lambdin Milligan was not nearly as famous in his time as Vallandigham, but his case would become more important. Milligan was a lawyer who had lived in Ohio and had been an officer in its National Guard. He later moved to Huntingdon County, Indiana. A minor Democratic Party official and failed gubernatorial candidate, he had been a counsel to some of those prosecuted for alleged disloyalty. Milligan could be described as a Jeffersonian and a strict constructionist. 

Milligan was also a fierce critic of the war. He argued that the South could not be subjugated; that the loyalty and sympathies of Southerners could never be won by a campaign of total war that would be waged by many Northern generals who burned and sacked many Southern cities and towns. He argued for negotiation and charged the “President and the Cabinet with doing more to prolong the war than the rebels themselves, and consequently were worse than the rebels.”21  He believed that government under law was not possible when rulers ignored the intent of those who drafted the Constitution. 

At a Democratic Party convention in Indiana in 1861, Milligan helped write a resolution that said the party had sympathy neither for the cause of secession nor for Lincoln or abolitionists. But the resolution warned “That neither written Constitutions, nor official oaths afford any guarantee against the licentiousness of the administration, and that in the wanton and palpable violations of the Constitution of the United States, in the suspension of the writ of habeas corpus, in depriving citizens of liberty and property without due process of law. . . .”22

Clearly, Milligan was becoming more than a lawyer and an obscure Democratic party official. He was about to enter into a controversy that remains a vital part in the history of liberty. On October 5, 1864, General Alvin Hovey, the commander of one of the military districts of Indiana, ordered the arrest of Milligan for his August 1864 public speech in which he had opposed Lincoln’s conduct of the war. He was tried in Indianapolis along with a group of others for supposedly conspiring to commit disloyal activities. 

Milligan was judged by a group of officers from the Indiana Volunteers. The proceedings took on a Star Chamber quality. The judge advocate, Major H.L. Burnett, stated at the trial that “The civil rights of the citizen become dead for the time being, if necessary to preserve the life of the nation.”23  Milligan, who was sick during much of the trial, refused to compromise. He invited the harshest penalty because he believed that he would be vindicated once the case was taken to a civil court. 

The military commission saw him as part of a conspiracy to destroy the nation. He was ordered to be hanged. Others were pardoned by Lincoln. Then Lincoln was assassinated and his successor, Andrew Johnson, signed the documents to have Milligan executed. Milligan’s execution was delayed by friends in both the Republican and Democratic parties. 

Also, Secretary of War Edwin Stanton, an acquaintance, was able to delay the execution of the sentence until Milligan had a chance to appeal it and seek a writ of habeas corpus. Finally, with the end of the war in the spring of 1865 and the expiration of the suspension of the writ of habeas corpus, Milligan would have one more chance to escape the hangman.

The Indiana Circuit Court, asking the U.S. Supreme Court for an opinion, received a unanimous decision in what was to be a landmark case.24  The decision was written by Justice David Davis, who had been appointed to the high Court by President Lincoln and had been his friend. However, Davis ruled that Lincoln and his government had clearly acted illegally. First, Davis held that, even if the writ of habeas corpus is rightfully suspended, civilians committing crimes must still be handed over to civilian courts, with the exception of invasions or other exceptions provided for in the constitution.25

Davis held that martial law, unjustly used by governments, ”destroys every guaranty of the Constitution, and effectively renders the military independent of and superior to the civil power---the attempt to do which by the King of Great Britain was deemed by our fathers such an offense, that they assigned it to the world as one of the causes which impelled them to declare their independence.”26  Finally, Davis laid down a standard for how and when military law can operate. “Martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war.”27

Milligan was released from prison on April 10, 1866. Many Radical Republicans, who wanted a military administration of the reconstruction, were angered by the decision. However, after nearly hanging for his belief in the principles of trial by a jury or peers, the right of free speech, and the idea of a government under law, even in wartime, Milligan is relevant today. Americans are discussing whether the president can, in wartime, take on the extraordinary powers of a Caesar.

But for those advocates of an imperial presidency, there are the words of Justice Davis:

No doctrine, involving more pernicious consequences was ever invented by the wit of man than that its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution has all the powers granted to it which are necessary to preserve its existence. . . .28

• 1Maccauley’s comment can be found in Darwin Kelley, Milligan’s Fight Against Lincoln (Jericho, N.Y.: Exposition Press, 1973) p. 23.
• 2For more on this episode in which Lincoln ignored the opinions of Supreme Court Chief Justice Roger Taney, see David Herbert Donald, Lincoln (New York: Simon & Shuster, 1995) pp. 303-04.
• 3J.D. Richardson, ed., Messages and Papers of the Presidents,Vol. 6 (Washington, D.C.:Government Printing Office, 1896), pp. 98-99.
• 4The most precious right of any society that purports to operate under law. The great legal commentator Blackstone, as quoted by Alexander Hamilton, called it, “the Bulwark of the British Constitution.” See “The Federalist Papers, “ No. 84, p. 512, (Mentor Press, New York, 1961).
• 5Donald, pp. 303-04.
• 6See Clinton Rossiter, The Supreme Court and the Commander in Chief (Ithaca, N.Y.: Cornell University Press,1976).
• 7Ibid.
• 8For an example of this, there is the position of Lord Acton, who saw the rebel cause as just. See John V. Denson, ed.,  The Costs of War. America’s Pyrrhic Victories, (New Brunswick, N.J.: Transaction Publishers, 1999) pp. 20, 27.
• 9For more on this see Roscoe Pound, The Development of Constitutional Guarantees of Liberty (New Haven, Conn.: Yale University Press, 1957) p. 102.
• 10For more on criticism of Grant as a general, see John C. Waugh, Reflecting Lincoln. The Battle for the 1864 Presidency (New York: Crown Publishers, 1997) pp. 165-70.
• 11Kelley, p. 83.
• 12Wood Gray, The Hidden Civil War. The Story of the Copperheads (New York: Viking Press, 1942) p. 146.
• 13Waugh, p. 16.
• 14See Gray, The Hidden Civil War, p. 145.
• 15Kelley, p 83.
• 16SeeWilliam Marvel, Burnside (Chapel Hill: University of North Carolina Press, 1991), pp. 236-37
• 17 Ibid.
• 18See Rossiter, The Supreme Court and the Commander in Chief, pp. 28-30.
• 19Ibid.
• 20See Marvin R. Cain, Lincoln’s Attorney General: Edward Bates of Missouri (Columbia: South Carolina University Press, 1965), pp. 165-70.
• 21Kelley, p. 40.
• 22Ibid., p. 49.
• 23Ibid., p. 87.
• 24A law professor wrote that the case would set a precedent that, “as long as the civil courts are open, military tribunals may neither supplant them nor try civilians accused of disloyalty or any other crime.” See Jethro K. Lieberman, The Evolving Constitution. How the Supreme Court Has Ruled on Issues from Abortion to Zonin (New York: Random House, 1992), pp. 329-30.
• 25Ex parte Milligan, 4 Wallace 2, 71 U.S. 2 (1866).
• 26Ibid.
• 27Ibid.
• 28Ibid.