5
Civil Liberties and
the Civil War
Ex parte Milligan (1866)
T
he security of the nation and the protection of civil liberties are essential goals of government in the United States. The Preamble to the U.S.
Constitution proclaims the intent to “insure domestic Tranquility, provide for the common defence...and Secure the Blessings of Liberty.”However,
during a national crisis, such as the Civil War, there is inevitably severe tension between these two imperatives of constitutional government: maintaining
both the security of the nation and the security of civil liberties for every individual within the nation. Shortly after the outbreak of war, President Abraham
Lincoln made a speech to Congress in which he expressed his concern about
whether the government, in order to maintain national security and safety,
“must be too strong for the liberties of its own people” or, in order to respect
constitutional guarantees of rights to liberty, must be “too weak to maintain
its own existence.”
More than three years later, on December 28, 1864, Lambdin P. Milligan
was convinced that the U.S. government had acted too strongly against his
constitutional rights to liberty. A federal military commission had convicted
Milligan of treason against the United States and sentenced him to be hanged
on May 19, 1865. Milligan was an alleged participant in a plot to release
Confederate prisoners from jail and provide them with arms so they could
join a Rebel invasion of Indiana. From his prison cell in Indianapolis, Milligan wrote a letter to Edwin M. Stanton, Lincoln’s secretary of war. Milligan
claimed that he had been wrongly imprisoned and convicted and asked the
help of his “old acquaintance and friend.”
More than nineteen years before his imprisonment, Lambdin Milligan
and Edwin Stanton had taken the bar exam together in order to practice law
in Ohio. Milligan hoped that Stanton might remember him favorably and ask
the President to pardon him or at least overturn his death sentence in favor of
a lesser punishment. There is no evidence that Stanton replied to Milligan.
Lambdin Milligan’s predicament was a product of President Lincoln’s
strong response to the outbreak of the Civil War that followed the secession
of several southern states from the federal union in 1861 and their founding
of the Confederate States of America. Lincoln quickly imposed extraordinary
limitations on civil liberties in order to defend the United States against unusual threats posed by war between the United States and the Confederacy.
He suspended the privilege of the writ of habeas corpus first in Maryland,
where many Confederate sympathizers posed a threat to the U.S. government
in nearby Washington, D.C., and later in other parts of the country in order
Ex parte Milligan
• 71 U.S. 2 [4 Wall. 2] (1866)
• Decided: April 3, 1866
• Vote: 9–0
• Opinion of the Court: David Davis
• Concurring opinions: Salmon P.
Chase (James M. Wayne, Noah
Swayne, and Samuel F. Miller)
Civil Liberties and the Civil War 45
to permit the military to take punitive action against anyone who threatened the
safety or security of the United States.
A writ of habeas corpus (in Latin, “you shall have the body”) requires officials to bring a person whom they have arrested and held in custody before a
judge in a court of law, where they must convince the judge that there are lawful reasons for holding the prisoner. If the judge finds the reasons unwarranted,
then the judge frees the prisoner. Thus, the writ of habeas corpus is a strong
protection for individuals against government officials who might want to jail
them because they belong to unpopular groups or express criticism of the government. Article 1, Section 9 of the Constitution says, “The privilege of the Writ
of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or
Invasion of the public Safety may require it.”
On May 27, 1861, President Lincoln’s suspension of the writ of habeas
corpus was challenged by John Merryman, who had been arrested for allegedly
burning bridges in order to stop federal troops from passing through Maryland
on their way to defend Washington, D.C., against an imminent attack by Confederate forces. Merryman was confined in a military prison. He sought
relief in a federal court, which resulted in the case of Ex parte Merryman;
Chief Justice Roger Taney presided, sitting in this instance as a circuit court
judge. (When the Latin phrase ex parte, meaning “from the part of,” is used in
the title of a case it signifies that the action was taken on behalf of the person
named in the title of the case. It does not require the notification of or participation by an opposing party.)
Chief Justice Taney rebuked President Lincoln by ruling that only Congress
had the authority to suspend the writ of habeas corpus, as the constitutional
provision for suspending the writ appears in Article 1 of the Constitution, which
pertains to the powers and duties of Congress. Taney also pointed to the rights of
a person accused of crimes listed in the Fifth and Sixth Amendments of the Constitution, which, in his opinion, precluded the trial of Merryman in a military
tribunal instead of a civilian court. The chief justice ordered John Merryman
released from prison.
President Lincoln ignored Chief Justice Taney’s decision in the Merryman
case. A few weeks later, in his message to a special session of Congress on July
4, 1861, the President justified his suspension of the writ of habeas corpus and
other limitations on civil liberties as necessary to defend the United States in the
national emergency created by the Civil War. Congress voted for a resolution to
endorse the President’s restrictions on civil liberties and gave public notice that
the Constitution provides for the suspension of the writ “when in Cases of Rebellion or Invasion the public safety may require it.” John Merryman, however,
was never brought to trial.
Bolstered by the support from Congress, President Lincoln expanded his
national security policy. The President issued an executive order to ban the U.S.
Postal Office from distributing any “disloyal” publications. He extended suspension of the writ of habeas corpus beyond Maryland to other regions of the
United States critically threatened by its enemies, such as the border states of
Kentucky and Missouri, and Northern states with many Confederate sympathizers, such as Indiana. Consequently, thousands of civilians were arrested and held
without trial.
On September 24, 1862, President Lincoln issued the following executive
order:
46 The Pursuit of Justice
Now, therefore, be it ordered, 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 volunteer
enlistments, resisting militia drafts, or guilty of any disloyal practice, affording
aid and comfort to Rebels against the authority of the United States, shall be subject to and liable to trial and punishment by Courts Martial or Military Commission: the Writ of Habeas Corpus is suspended in respect to all persons arrested, or
who now, or hereafter during the rebellion shall be, imprisoned in any fort, camp,
or arsenal, military prison, or other place of confinement by any military authority or by the sentence of any Court Martial or Military Commission.
Congress not only endorsed this executive order, but a few months later,
in March of 1863, reinforced the order by enacting legislation to provide that
“any order of the president, or under his authority, made at any time during the
existence of the present rebellion, shall be a defense in all courts to any action or
prosecution . . . for any search, seizure, arrest, or imprisonment.”
Following these national security measures taken by the President and Congress, people suspected of aiding the wartime enemy, such as Lambdin Milligan, were detained in military prisons and tried by military tribunals. Military
authorities had gathered evidence of Milligan’s participation in a conspiracy to
release and arm Rebel prisoners. Milligan certainly was an outspoken Confederate sympathizer, but it was not necessarily clear that he had committed treason
by conspiring against his country in time of war.
Milligan was tried in a military court even though civilian courts were open
and operating in Indiana throughout the Civil War. Although Confederate raiders had occasionally entered Indiana from Kentucky for short periods, Indiana
was not an ongoing theater of military operations during the Civil War, and it
seemed safe and secure from any military threat at the time of Milligan’s arrest.
In a civil court, there would have been full recognition of his right to a fair trial
under the Constitution, but in a military tribunal the rights of an accused person
were quite constricted.
The military court convicted Milligan of conspiracy against the United
States and sentenced him to death. Milligan applied to a U.S. circuit court in
Indiana for a writ of habeas corpus. He claimed that his trial and conviction
were unconstitutional and asked for his constitutional right to a trial by jury in
a civil court.
While Milligan’s appeal was pending, an assassin killed President Lincoln.
His successor, President Andrew Johnson, ordered a stay of Milligan’s execution until June and then commuted the sentence to life in prison. The case finally
went to the U.S. Supreme Court as “a petition for discharge from unlawful imprisonment.” The justification for this petition on behalf of Milligan was that he
had been unlawfully incarcerated, tried, and convicted by a military commission
when the appropriate venue for his case was a civil court within Indiana. Oral
arguments before the Court began on March 6, 1866, nearly a year after the end
of the Civil War. Attorney General James Speed led the lawyers representing the
federal government. Prominent among the counsel for the petition on behalf of
Milligan was James A. Garfield of Ohio, who later became the twentieth President of the United States. The issue before the Court did not involve the question
of Milligan’s guilt or innocence. Rather, it pertained to whether the government
in wartime could suspend the constitutional rights of citizens under the Fifth and
Sixth Amendments and set up military courts in areas that were free from inva-
Civil Liberties and the Civil War 47
sion or rebellion and in which the civilian courts were open and operating.
The government’s lawyers argued for the primacy of martial law and military authority in this case and claimed that civil liberties were “peace provisions
of the Constitution, and like all other conventional and legislative laws and enactments are silent amidst arms, and when the safety of the people becomes the
supreme law.”
Counsel for the petitioner disagreed vehemently with the government’s argument that civil liberties could be suspended during a war that threatened the
very existence of the nation. James A. Garfield said,
Such a doctrine...is too monstrous to be tolerated for a moment; and I trust and
believe that...it will receive its just and final condemnation. Your decision will...
establish forever this truth,of inestimable value to us and to mankind, that a republic can wield the vast enginery of war without breaking down the safeguards
of liberty; can suppress insurrection, and put down rebellion, however formidable, without destroying the bulwarks of law; can, by the might of its armed
millions, preserve and defend both nationality and liberty.
The Court unanimously decided for the petition on behalf of Milligan.
Justice David Davis presented the opinion of the Court, in which four justices
joined him. Chief Justice Salmon Chase presented a concurring opinion, which
was joined by three justices.
The Court ruled that suspending the writ of habeas corpus and trying civilians in a military court when there were civilian courts open and operating
violated the Constitution. Because Indiana had been far removed from the battle
zone, the Court argued, the military tribunal had no jurisdiction to try Milligan;
neither the President nor Congress could legally deny his rights to a civilian trial
by jury and due process of law as guaranteed by the Fifth and Sixth Amendments. Justice David Davis memorably wrote in support of constitutionally
guaranteed rights to civil liberty in wartime,
The Constitution of the United States is a law for rulers and people, equally in
war and in peace, and covers with the shield of its protection all classes of men,
at all times, and under all circumstances. No doctrine, involving more pernicious
consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a
doctrine leads directly to anarchism 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; as has been
happily proved by the result of the great effort to throw off its just authority.
Further, Justice Davis wrote for the Court’s majority against the contention
by the government’s lawyers that a military commission had jurisdiction in this
case under the “laws and usages of war.” Davis said,
This court has judicial knowledge that in Indiana the Federal authority was always unopposed, and its courts always open to hear criminal accusations and
redress grievances; and no usage of war could sanction a military trial there
for any offence whatever of a citizen in civil life, in no wise connected with
the military service. Congress could grant no such power.... One of the plainest
constitutional provisions was, therefore, infringed when Milligan was tried by
a court not ordained and established by Congress, and not composed of judges
appointed during good behavior.
48 The Pursuit of Justice
The Court’s majority acknowledged that the privilege of the writ of habeas
corpus could be suspended under the terms of the Constitution’s Article 1, Section 9. However, suspension of the writ, said Davis, allows only the detention
of suspects by the government, not their trial by a military tribunal when the
civil courts are open. Davis wrote, “Martial law cannot arise from a threatened
invasion. The necessity must be actual and present; the invasion real, such as
effectually closes the courts and deposes the civil administration.” Davis noted
that this was not the situation in Indiana.
In his concurring opinion, Chief Justice Salmon Chase agreed with the
Court’s majority that there were no legal grounds for keeping Milligan in custody and that he should be released. However, the chief justice disagreed with
the part of Justice Davis’s opinion that held the federal government could never
authorize military trials of civilians when the civil courts were open. Rather,
Chase argued that under its war powers Congress could make laws needed to
successfully conduct a war. Thus, if Congress concluded that the civil courts
were not capable of punishing treason, it could enact legislation providing for
military courts to try suspects. Chief Justice Chase wrote,
Congress has the power. . . to provide by law for carrying on war. This power
necessarily extends to all legislation essential to the prosecution of war with
vigor and success....
In Indiana...the state was a military district, was the theater of military operations, had been actually invaded, and was constantly threatened with invasion. It
appears, also, that a powerful secret association, composed of citizens and others, existed within the state, under military organization, conspiring against the
draft, and plotting insurrection, the liberation of the prisoners of war at various
depots, the seizure of the state and national arsenals, armed cooperation with the
enemy, and war against the national government.
We cannot doubt that, in such a time of public danger, Congress had power,
under the Constitution, to provide for the organization of a military commission,
and for trial by that commission of persons engaged in this conspiracy. The fact
that the Federal courts were open was regarded by Congress as sufficient reason
for not exercising the power; but that fact could not deprive Congress of the right
to exercise it. Those courts might be open and undisturbed in the execution of
their functions, and yet wholly incompetent to avert threatened danger, or to punish, with adequate promptitude and certainty, the guilty conspirators.
In Indiana, the judges and officers of the court were loyal to the government.
But it might have been otherwise.
The Court’s decision in Ex parte Milligan brought a mixed public response.
Civil libertarians hailed it. However, many loyal citizens who had sacrificed
and suffered for the Union’s cause in the Civil War resented Milligan’s release
from prison because evidence in his case suggested that he may have been a traitor and certainly had been a Confederate sympathizer. Many Republican Party
leaders in Congress not only detested such disloyal citizens as Milligan, but also
feared that the Court’s ruling could unduly restrict their plans for “reconstruction” of the former Confederate states. For example, the 1867 Reconstruction
Act passed by Congress authorized military tribunals to maintain public safety
in southern states where black persons had been targets of violence. Congressional leaders feared that the Milligan ruling could be used to disallow this use
of martial law to protect black people, whose rights might be at risk under the
authority of local civilian courts, in which judges and juries might be unfairly
Civil Liberties and the Civil War 49
prejudiced against them.
In the long run, legal experts have hailed the Court’s Milligan decision as a
bulwark of liberty in times of war or internal turmoil, and the Court has never
repudiated it. But the Supreme Court has not always strictly followed its own
ruling. During World War II, when the Court permitted the internment of
U.S. citizens of Japanese ancestry, it ignored limits on the government’s
war powers implied by the Milligan decision. And criticism of parts of Justice
Davis’s opinion for the Court in Ex parte Milligan has continued, from Chief
Justice Chase’s concurring opinion to supporters of the federal government’s
policy in the twenty-first-century “War on Terror.” These critics have expressed
concern that the Court’s categorical ban of martial law whenever and wherever
civilian courts are open could disable the government from acting quickly and
decisively in a crisis for the protection of national security.
50 The Pursuit of Justice
President Lincoln’s Message to Congress
in Special Session
Shortly after the start of the Civil War in mid-April 1861, President Abraham Lincoln
called a special session of Congress to convene on July 4, Independence Day. The President intended to present his plans for conducting a war to maintain the integrity of the
United States against the rebellion of several of its southern states. In his speech to this
special session of Congress, President Lincoln explained his goals in the Civil War and
presented his plans for conducting and winning this war. In particular, he offered reasons
for restricting civil liberties under certain conditions in order to maintain the nation during
an unparalleled national crisis.
Fellow-citizens of the Senate and House of Representatives:
Having been convened on an extraordinary occasion, as authorized by the Constitution, your attention is not called to any ordinary subject of legislation.
At the beginning of the present Presidential
term, four months ago, the functions of the Federal
Government were found to be generally suspended
within the several States of South Carolina, Georgia,
Alabama, Mississippi, Louisiana, and Florida....
Finding this condition of things, and believing
it to be an imperative duty upon the incoming Executive, to prevent, if possible, the consummation of
such attempt to destroy the Federal Union, a choice
of means to that end became indispensable....
And this issue embraces more than the fate of
these United States. It presents to the whole family
of man the question, whether a constitutional republic, or a democracy—a government of the people,
by the same people—can, or cannot, maintain its
territorial integrity, against its own domestic foes. It
presents the question, whether discontented individuals, too few in numbers to control administration,
according to organic law, in any case, can always,
upon the pretences made in this case, or on any other
pretences, or arbitrarily, without any pretence, break
up their Government, and thus practically put an end
to free government upon the earth. It forces us to
ask: Is there, in all republics, this inherent and fatal
weakness? Must the government, of necessity, be
too strong for the liberties of its own people, or too
weak to maintain its own existence?
So viewing the issue, no choice was left but to
call out the war power of the government; and so to
resist force, employed for its destruction, by force,
for its preservation....
Soon after the first call for militia, it was considered a duty to authorize the Commanding General, in
proper cases, according to his discretion, to suspend
the privilege of the writ of habeas corpus; or, in other
words, to arrest, and detain, without resort to the ordinary processes and forms of law, such individuals as he might deem dangerous to the public safety.
This authority has purposely been exercised but very
sparingly. Nevertheless, the legality and propriety of
what has been done under it, are questioned; and
the attention of the country has been called to the
proposition that one who is sworn to “take care that
the laws be faithfully executed” should not himself
violate them. . . . The whole of the laws which were
required to be faithfully executed, were being resisted, and failing of execution, in nearly one-third
of the States. Must they be allowed to finally fail of
execution, even had it been perfectly clear, that by
the use of the means necessary to their execution,
some single law, made in such extreme tenderness of
the citizen’s liberty, that practically, it relieves more
of the guilty, than of the innocent, should to a very
limited extent, be violated?
To state the question more directly, are all the
laws, but one, to go unexecuted, and the government
itself go to pieces, lest that one be violated? Even in
such a case, would not the official oath be broken,
if the government should be overthrown, when it
was believed that disregarding the single law would
tend to preserve it? But it was not believed that this
question was presented. It was not believed that any
Civil Liberties and the Civil War 51
law was violated. The provision of the Constitution
[about the privilege of the writ of habeas corpus in
Article 1, Section 9]...is a provision that such privilege may be suspended when, in cases of rebellion,
or invasion, the public safety does require it. It was
decided that we have a case of rebellion, and that the
public safety does require the qualified suspension
of the privilege of the writ which was authorized
to be made. Now it is insisted that Congress, and
not the Executive, is vested with this power. But the
Constitution itself, is silent as to which, or who, is to
exercise the power; and as the provision was plainly
made for a dangerous emergency, it cannot be believed the framers of the instrument intended, that
in every case, the danger should run its course, until
Congress could be called together; the very assem-
bling of which might be prevented, as was intended
in this case, by the rebellion....
It was with the deepest regret that the Executive found the duty of employing the war-power, in
defence of the government, forced upon him. He
could not but perform this duty, or surrender the existence of the government....You will now, according
to your own judgment, perform yours. He sincerely
hopes that your views, and your action, may so accord with his, as to assure all faithful citizens, who
have been disturbed in their rights, of a certain, and
speedy restoration to them, under the Constitution,
and the laws. And having thus chosen our course,
without guile, and with pure purpose, let us renew
our trust in God, and go forward without fear, and
with manly hearts.
ABRAHAM LINCOLN July 4, 1861
52 The Pursuit of Justice