The Milligan case by Allan Nevins in Garraty, 101-118 + Lincoln and War Powers exhibit (House Divided Project)
Almost nothing better illustrates James Madison’s insight about the Constitution, that every word decided a question between “power & liberty,” than the question of how to balance civil liberties and wartime necessity. Students grappled with these profound issues in their readings about ex parte Milligan (1866) and Lincoln and War Powers. The following represents a selection of comments from the email reflections by the class participants.
Overview
These sets of readings covered both the ex parte Milligan trial, and a more holistic view of Lincoln regarding his presidential authority. Specific to this, it was Lincoln’s interpretation of his presidential authority, and how this led to the suspension of civil liberties for several known rebels. In reading this case, I saw many similarities between this and the post-war suspensions that would come after.
Lambdin Milligan was a lawyer, democrat, states right activist, and most importantly an anti-war advocate. He resided in Indiana and condemned Lincoln for his abuse of civil liberties, most importantly his suspension of habeas corpus. Lincoln temporarily took away habeas corpus in 1861 and granted the military the power to arrest any traitor of the union, without probable cause, or a trial. This itself had many constitutionality questions, such as how far was too far? How could this be defined and justified? Even Lyman Trumbull, a Republican in the Senate, saw how this was encroaching on civil liberties and proposed a resolution demanding that there be legitimate and concrete reasons for each person being held in prison.
When Lincoln ordered a general to suspend habeas corpus in a certain part of the United States, people in the North seemed to be content with allowing the military to have the power to arrest people with a reason but without a trial (Garraty, 104). However, their strong “attachment to the principles of civil liberty” made them question their previous thoughts when arrests became a normality in the North (Garraty 104-105; 106).
The Milligan Case and Its Contested Legacy
Through allowing military commissions to take over the duties of civilian courts in lands occupied and surrounded by military action, Lincoln deeply angered Southerners as well as Northern Democrats who saw this as an infringement upon their civil liberties. Lambdin P. Milligan was an Indiana lawyer who sympathized with the South and believed that it was up to him and his conspirators to overthrow the local government through an armed uprising.
While Milligan was pardoned by Johnson following the conclusion of the war, his case still remained at large and came before the Supreme Court in 1866. It again brought to question the powers of a government during wartime and the length that it can go to counteract treason. Precedents were supplied from previous cases involving members of the Royal Navy in 1745 and the British Army in 1782 in which members were punished for believing themselves to be above the law. In the case of Milligan, he was acquitted representing a great step forward in the civil liberties of American Citizens. While the case represented a victory, it still wasn’t the end of controversial wartime decisions made by the US Government, as multiple occasions during the 20th Century produced extremely controversial decisions regarding wartime powers of arrest and internment still widely discussed today.
In April, 1866, the Supreme Court took up the case, Ex Parte Milligan. The court was faced with the issue of whether the United States had the power — in an area free of military operations where the civil courts were still operating — to suspend the rights of citizens and send them to a military court for arrest, trial, and sentencing. The court held that the military commission that tried and sentenced Milligan had no jurisdiction since the state was removed from the battle front and the civil courts in Indiana were still open. Although many people celebrated this decision, I think, in light of recent events in the U.S. that the court’s decision gave too much liberty to citizens at a time of national crisis. Shouldn’t the outcome of this case depend on the nature of the crime against the U.S., instead of whether the courts are open? Might a military court be the best place to try acts of sedition? Should it depend on the circumstances of the national crisis? The decision was too cut and dried in my opinion.
Lincoln and War Powers
Suspending a fundamental constitutional right sounded like imposing martial law in Lincoln’s own nation (an action outside the Rules of War as described by Lincoln’s own expert). But the civil courts did not provide an alternative speedy enough to save the day. Although not nearly as slow as today, the criminal courts in Lincoln’s time were unlikely to have prevented an uprising–punishment and deterrence yes, but prevention or defense no.
The Lincoln and War Powers text discusses the expanded powers of the president during times of national security, but most importantly discusses four limits on said powers. In the modern day many people quote from Lincoln’s expansion of power during the Civil War but fail to mention his own self-imposed limits. He never did anything that was forbidden by the Constitution, allowed himself to be kept in check by Congress and the Supreme Court, followed the international rules of war, and never tried to side step elections. This is a complicated subject because many of these checks are fairly vague. What does it mean to follow the Constitution? Can that not be subject to interpretation? And what is exactly is allowed in warfare? These are debates that continue to exist because there is no clear answer, and especially in the age of extreme partisan discourse, each side will favor an interpretation that benefits them. Lincoln acted with initiative in ways that he believed would help the most during the war effort, and this sometimes included doing things without Congressional approval for example. But this was something that he believed to be allowed within the Constitution.