The Case of the Copperhead Conspirator
BY ALLAN NEVINS
(ex parte Milligan, 4 Wallace 2)
In
a sense the Civil War represented an attempt by the Southern states to erase
the gloss that the Supreme Court had placed upon the Constitution during the
first half of the nineteenth century. Secession could be legally justified only
by restoring to the states much of the authority that john Marshall's decisions
had assigned to the national government. Thus the defeat of the Confederacy
permanently established the Marshall view of the Constitution, although
it by no means ended the debate over the exact limits of federal
and state authority.
The
war also brought new constitutional issues to the fore, the most important
being the power of the government to restrict civil liberties in time of
crisis. Early in the conflict Lincoln authorized the suspension of the
writ of habeas corpus under certain circumstances. In May 1861, a citizen of
Baltimore, John Merryman, was arrested and imprisoned
by the military without trial or formal charge. He petitioned Chief Justice
Taney for a writ ordering his captors to bring him into federal circuit court
for a hearing. Taney granted this plea, but the local commander, General George
Cadwalader, refused to obey, citing Lincoln's order. Taney then filed an
opinion, ex parte Merryman,
denying the right of the President to suspend habeas corpus. Only Congress
could do this, he argued. Lacking executive support, Taney was unable to free
the prisoner, but eventually Merryman was turned over
to the civilian courts and released Without being
brought to trial.
During
the remainder of the Civil War practices such as that adopted in the Merryman affair continued to be employed by the military
authorities.
Taney
died in 1864 without ever having been vindicated. But the issue remained. It
was finally settled by the case described here by Allan Nevins,
author of the multivolume study.
The Ordeal of the Union.
On
an August day in 1835 a group of young men in St. Clairsville,
the seat of Belmont
County in eastern Ohio, passed the rudimentary examination in law required of
them and were admitted to the bar. One was destined to write his name
high in the annals of the nation: Edwin McMasters
Stanton, later secretary of war under Lincoln and Andrew Johnson. Another was
to take a different road to fame-or infamy: the road of disunion activities and
subversive conspiracy that narrowly missed, if it did not reach, treason. His
name was Lambdin P. Milligan, and although he is now
forgotten by all but students of civil liberties, he was briefly a national
celebrity. The paths of Stanton and Milligan were later to cross in dramatic
fashion.
Within a dozen years both men
removed to new fields, Stanton
settling in Pittsburgh
and Milligan in Huntington
County
in northeastern Indiana.
Stanton
was soon securely established as one of the nation's leading attorneys. For a
time Milligan also did well, although handicapped by ill health. Records speak
vaguely of spinal meningitis, and when he finally stood military trial he asked
for special consideration on the ground of bodily ailment. However, by the time
that Stanton
won his famous victory in preventing the erection of a bridge over the Ohio
at Wheeling
as certain to obstruct Pennsylvania
steamboats, Milligan was one of the more distinguished Indiana
lawyers. He was interested in railroad promotion, and the scrappy, uncertain
accounts of his antebellum years indicate that he was counsel for short Indiana
lines later incorporated in the Wabash
and Erie
systems.
In the 1850s, if not before,
Milligan began to cherish political ambitions. He was a zealous Democrat, an
admirer of Thomas Jefferson and to a lesser degree Andrew Jackson, and a
fervent states' rights man. He brought to politics certain gifts. He was
generously hospitable, giving dinners to fellow attorneys, railroad men, and
politicians all the way from Fort
Wayne to Indianapolis.
He was an interesting conversationalist, entertaining hearers by his wit, legal
lore, and anecdotes of party leaders. A devout Catholic, he was a man of
integrity and principle. But it is plain from the cloudy facts preserved about
him that as the Civil War approached he became grimly fanatical. Indiana
had been settled largely by Southerners descending the Ohio
or crossing from Kentucky,
and part of it was a hotbed of Southern feeling. All Milligan's sympathies lay
with the South, and with the measures of Franklin
Pierce and James Buchanan friendly to slave-state interests. He did not carry
his predilections as far as Jesse D. Bright, the Indiana
leader who owned slaves on Kentucky
soil and was expelled from the Senate in 1861 for writing Confederate president
Jefferson Davis a letter recommending a friend for employment. But he carried
them as far as the demagogue Daniel Vorhees,
"the tall sycamore of the Wabash,"
who would cheerfully have made Kansas
the fifteenth slave state and was willing to accept secession; in fact, a good
deal further.
Nobody ever thought Milligan a great
or important man. He and his friends hoped in 1864 that he might be nominated
for governor, but he was not of sufficient caliber. He was merely a disturbing
zealot, a rider of the wave of sectional passion. It is not the man who merits
attention, but the terribly perilous situation which, in the midst of the Civil
War, created the dramatic case of which he was the center.
I
The fierce conflict between North
and South no sooner gained headway, straining the old-time fealties of
countless men, than the government in Washington
had to meet two crucial questions: How should the nation be
safeguarded against traitors? And just what should be regarded as treasonable
conduct? Inevitably, radical opinion on these issues differed from conservative
opinion as night from day.
After four months of Lincoln's
administration, declared the New York Daily News
on July 1, 1861,
civil liberties were prostrate. 'The sacred privilege of habeas corpus had been
thrust aside; homes were illegally entered and searched; the private papers of
citizens were seized without warrant; men were arrested without legal process,
and held behind bars without a hearing. "Almost every
right which American citizens have been taught to consider sacred and inalienable,"
this proslavery daily asserted, "has been trampled upon by Mr. Lincoln and
his Administration." Yet at the same time some Republican
editors, some members of Congress, and many military commanders believed that
the government was grossly negligent in ferreting out traitors and that its
mildness imperiled the life of the Republic.
Late in April 1861, Lincoln
had authorized General Winfield Scott to suspend the writ of habeas corpus in
the communications zone between Philadelphia
and Washington,
and Scott had deputed this power to his principal subordinates. Military
arrests began immediately. The Constitution provided that the writ might be suspended
if, in time of rebellion or invasion, the public safety demanded it. A few dim
precedents existed. During the Revolution the Pennsylvania
authorities had suspended the writ, and in 1815 Andrew Jackson had put New
Orleans under martial law and
arrested a judge who tried to intervene. Lincoln
believed that he rather than Congress had the power and boldly exercised it. He
had to deal promptly with men trying to stop the vital movement of troops from
the North to the capital, and majority opinion in the critical weeks after Sumter
upheld him.
In due course Lincoln
made his theoretical approach to the field of disloyalty, martial arrests, and
civil liberties perfectly clear. He felt a tremendous anxiety for the safety of
the government he had sworn to protect and uphold. The preservation of the Union
seemed to him far more important than the uninterrupted maintenance of
privileges and immunities which could later be restored. As he put it, a limb
might well be amputated to save a life, but a life ought never to be sacrificed
to save a limb. "I felt that measures, otherwise unconstitutional, might
become lawful by becoming indispensable to the preservation of the
Constitution, through the preservation of the nation." As a broad guiding
rule, most people in the North apparently (we cannot be sure) regarded his
statement as sound. They were willing to let the military authorities arrest
suspected traitors in an endangered area, throw them into jail, and hold them
behind bars until the danger was past.
Nevertheless, so deeply ingrained in
Americans was their attachment to the principles of civil
liberty as laid down by Magna Carta and subsequent
Anglo-American declarations that the first military arrests aroused deep uneasiness. The imprisonment of heads of the Baltimore
police force, secessionist members of the Maryland
legislature, and others troubled thoughtful observers. For one reason, some of
the officers who ordered arrests were mere whippersnappers: one a major of the New
York militia, another a
militia captain. For another reason, the grounds offered were often weak:
General Banks, in immuring the Baltimore
police commissioners, merely alleged that they entertained "some purpose
not known to the government" but supposedly inimical to its safety.
Senator Pearce of Maryland
declared in July 1861 that citizens had been imprisoned "upon intimations
conveyed by base and unprincipled men, who, to gratify private malignity and
personal or political hostility, have rendered persons far more respectable
than themselves, and quite as loyal too, the victims of this tyrannous
oppression." At the same time, officers like Ben Butler, one of the first
to lead national troops through Maryland,
thought the government all too gentle.
When Congress met at Lincoln's
call just before Bull Run,
the debate showed how sensitive and difficult was the issue. Senator Pearce
questioned not the suspension of habeas corpus but the unguarded nature of the
step, and the more arbitrary of the acts committed under its shelter. He
recalled how reluctant Great Britain had been to use martial law in the Jacobite revolts of 1715 and 1745 and the stormiest period
of the French wars, and how carefully the British government had limited the
period during which persons arrested for treason might be held without bail or
mainprise. When the Senate Judiciary Committee
proposed a bill to authorize, define, and regulate the use of martial law,
angry comment came from two quarters, its proponents and opponents.
Everybody agreed that in suppressing
rebellion the military authorities needed large powers in imperiled districts
and would certainly take them; no general would let his forces be hamstrung.
But to define these powers was a difficult matter. Some feared the definition
would not go far enough; others that it would go too far. Senator Edgar Cowan
of Pennsylvania
saw "difficulty environing us everywhere." Senator Lyman Trumbull of Illinois
pleaded eloquently for a cautious measure as a safeguard. "I think that
the idea that the rights of the citizen are to be trampled upon, and that heis to be arrested by military authority, without any
regulation by law whatever, is monstrous in a free government," he said.
Conservative members pointed out that loyal and disloyal people were inextricably
mingled in some communities, and that suspicion often fell upon the wrong
persons. Radicals urged for severity because loyalty oaths meant nothing to
scoundrels, and because in some places military tribunals would be more
trustworthy than the civil courts.
In the end Congress dropped the
judiciary Committee bill. It contented itself with passing a mild Conspiracies
Act, punishing any plot to overthrow the government or levy war against it by a
fine not exceeding $5,000 and imprisonment for not more than six years.
Trumbull, a staunch defender of civil liberties, urged its passage. Eight
border senators, however, signed a protest declaring that its vagueness as to
indictments and evidence offered a dangerous latitude to improper
prosecutions. The sphere of military control remained vaguely defined,
primarily because some congressmen wanted a broad grant of powers, while others
insisted upon a very narrow delimitation. The sequel of this failure to set
clear bounds around the authority of the government and army to deal with
alleged disloyalists offers one of the unfortunate
chapters of wartime history.
II
Arbitrary
arrests became a commonplace of Northern life. Not only did no plain law exist;
the administration made matters worse by failing to create a
careful, well-organized, and responsible machinery for operating in the
twilight zone. The government lawyers could not assume the task, partly because
Attorney General Edward Bates was too old, slow, and erratic, and partly
because he was outspokenly hostile to military arrests. ("I am
resolved," Bates wrote in 1864, "that the records of my office shall
bear testimony that at least one
member of the Government did, sometime, resist capricious
power and the arbitrary domination of armed forces.") Lincoln
at first deputed the labor to William H. Seward. The secretary of state was
able, prompt, and shrewd, but he had all he could really manage in conducting
foreign affairs and was often distressingly casual, circuitous, and flippant
in his methods. History will never forget his remark that whenever he wanted an
offender seized, he tapped a little bell on his desk, and the man was soon
in durance. As the complexity of the problem of disloyalty increased, and Seward
found the burden insupportable, Lincoln
took advantage of the appointment of Stanton
to the War Department early in 1862 to hand him the responsibility. This was by
executive order on February
14, 1862.
Theoretically, much could be said for
giving the civilian head of the war machine responsibility for military
arrests. Practically, however, this transfer of functions was open to grave
objections. Of all the members of the Cabinet Stanton had the least judicial
mind, and was the most prone to violent and unfair
acts. His handling of the lamentable case of Brigadier General Charles P. Stone
at once illustrated his worst qualities. Congressional radicals who controlled
the Committee on the Conduct of the War mistakenly held Stone responsible for
the Ball's Bluff disaster of October 1861, in which more than half of a
seventeen-hundred-man Union force was killed or captured in a battle on the Potomac
upstream from Washington.
Stanton
ordered Stone's arrest, kept him in Fort
Lafayette
for more than six months on charges never specified, gave him no real trial,
and finally released him without acquittal. Stone's career was blasted, and he
had later to rebuild it under the Egyptian flag. Few grosser breaches of civil
liberty in our history can be found than his long and causeless confinement.
Other acts by Stanton
were equally arbitrary.
The total of arrests continued to grow
as 1861 passed into 1862. Meanwhile, a few cases-far too few-came into court
for a hearing. The situation produced so much irritation that in the session of
1861-62 Lyman Trumbull introduced a resolution calling on the executive to
report the total number of alleged disloyalists held
in prison, and to state under just what law they had been detained. Various
colleagues expostulated with him. Henry Wilson, chairman of the Senate
Committee on Military Affairs, declared that Lincoln
had done quite right in making an example of leading subversionists,
that "the turning of the doors of Fort
Lafayette
and Fort
Warren
on their hinges silenced innumerable traitors in the loyal States." Dixon
of Connecticut asserted that if Lincoln and Seward had not seized the dangerous
men undermining the federal government, they would have been guilty of treason-at
any rate, "moral treason."
However, powerful editors ranged
themselves on Trumbull's
side. William Cullen Bryant of the Evening
Post denounced methods which savored of the old lettres de cachet. "For
months we have read of arrests without a single cause of them having been
specified." Horace Greeley had a Tribune correspondent hand Seward
a letter declaring that whenever the government arrested decent citizens
without strong reason, "you tear the whole fabric of society." And
the editor of the Washington National
Intelligencer wrote (February 12, 1862): "The
neglect to bring a single person to trial when so many have been arrested, does
not authorize any very satisfactory inference with regard to the efficiency of
the government in ferreting out real traitors, or in preserving the innocent
accused from the unlawful detention."
It was to Lincoln's
credit that early in 1862,
when General McClellan was about to advance
upon Richmond
and hopes of an early victory ran high, he ordered that all political prisoners
in military custody be released upon parole and granted an amnesty for past
offenses. Extraordinary arrests by the military authorities would continue: all
spies, secret agents, and conspirators whom the secretary of war regarded as
dangerous to the public safety would be taken up and kept in custody. But the
old slate was wiped clean. And it was to Stanton's
credit that he adopted a sensible course for sifting the great body of
prisoners held on various charges, and releasing most of them. He appointed
John A. Dix and Edwards Pierrepont as commissioners
to examine those held in the New
York area and render a quick verdict.
Visiting Fort
Lafayette
and other prisons, by April 1862 they had
practically finished their work. The judge advocate of the army for the Washington
area was empowered to dispose of prisoners arrested in the Federal
District and adjacent Virginia.
Governor David Tod of Ohio
was authorized to use a special agent to investigate cases, with a promise that
any prisoner would be released on his recommendation.
Early in 1863, however, after the bloody disaster at Fredericksburg,
discontent and disloyalty rose to new heights, and
nowhere more threateningly than in the Middle
West. Lincoln's
Emancipation Proclamation became final on New Year's Day. It not only angered
friends of the South, but aroused fears that a host of liberated blacks would
inundate Ohio,
Indiana,
and Illinois.
Losses on Mississippi
Valley
battlefields were heavy, and Democratic families bore their full share. A great
many voters who had supported the struggle while it was simply a national war
for the Union took a hostile attitude
when it seemed to become a Republican war to destroy slavery, establish a
strong central government, and hold the South in subjection.
Nor were real economic grievances
wanting. Astute farmers of the Middle West
saw plainly that the new high tariffs which enriched industry were injurious to
agriculture, for they limited the ability of Europe
to buy farm products. Daniel Voorhees delivered resentful speeches in the House
on the subject. Western agrarians perceived also that while they suffered from
a glut of grain and rising freight and elevator charges, Eastern manufacturers
got most of the fat war contracts, and Eastern capitalists pocketed the large
profits made by banks and railroad lines.
Naturally a cry for peace went up in
many quarters. Early in 1863 the Democratic central committee in Indiana
published an address which urged the "great duty of pacification or
honorable adjustment" and advocated "compromise." Naturally,
too, volunteering sank, and as army morale declined many soldiers went absent
without leave. "Desertions [are] occurring daily, and encouraged at
home," wrote General Lew Wallace. Union
enthusiasts demanded more arrests. When the impetuous General Burnside took command
of the Department of the Ohio
(which included Indiana)
early in 1863, he issued a general order asserting that he would not tolerate
declarations of sympathy for the enemy, or any other form of "express or
implied treason." Implied treason was something new to the jurisprudence
of English-speaking countries.
The stage was being set for the arrest
of the Ohio
copperhead Clement L. Vallandigham-and for the case ex parte
Milligan. For Milligan was coming under suspicion for his supposed
connection with what was later termed the great Northwestern Conspiracy. Beyond
a doubt a conspiracy to array large groups in the old Northwest against the
war did take form in 1862-63. But how formidable was it?
III
From
the beginning of the war many Southerners had cherished a hope that, once
Confederate victories bred a spirit of defeatism in the North, Indiana, Illinois, Missouri, and possibly Iowa would desert the
struggle. Some Northern copperheads, sharing the hope, laid plans to realize
it. How could this colossal defection be accomplished? By
the formation of a Northwestern Confederacy.
"All people will
recollect," wrote Stephen A. Douglas's old-time lieutenant, James A. Sheahan, in his Chicago Post of July 12, 1864, a paper for
war Democrats, [that the Northwestern Confederacy] was a common topic of
conversation in the spring of 1862 among "Northern men of Southern
principles," who scouted the idea that Grant would take Vicksburg as they
are now poohpoohing the idea that he will take
Richmond. In all the larger cities of the Northwest, and in many of the smaller
ones, these Northwestern Confederacy disunionists
were bold in avowing and vociferous in advocating the traitorous scheme,
whenever it could be done without personal danger. It was even supported in the
columns of Mr. Vallandigham's shameless newspaper in
this city [Sheahan meant Wilbur F. Storey's Chicago Tinges], and the subject was not allowed
to drop until the fall of Vicksburg reopened the Mississippi, and put an end to
all immediate hopes of its realization.
Later it was revived.
Milligan, as a Northerner with
Southern principles, violently detested the warlike governor of Indiana,
Oliver P. Morton. He opposed Morton's successful effort in 1861-62 to maintain
a state arsenal for supplying Indiana regiments with
ammunition. He was outraged by the movement of Grant's troops into Kentucky and the capture of
Forts Henry and Donelson. When Lincoln, in the summer of
1862, after McClellan's failure, called for 300,000 more troops, and Governor
Morton worked valiantly to fill Indiana's quota of 31,350
recruits, Milligan did everything in his power to discourage enlistments. The
patriotic Indianapolis Daily journal castigated
him, along with Voorhees and Thomas A. Hendricks, in burning terms. These
seditionists cheered for Jeff Davis, it declared; they gloated over Union
losses; they plotted to obstruct volunteering; and while weeping for slavery, they
had not a single tear for the death of brave Union boys.
By 1863 government policy was more
severe. Liberalized in the first half of 1862, it became stringent during the
second half. As successive Northern defeats and the rebirth of fears for the
safety of Washington
made disloyalty bolder, the administration felt less inclined to take risks.
Moreover, the first limping draft law in the summer of 1862 resulted in an ebullition of evasion and resistance
which the War Department thought it had to repress by the use of extraordinary
powers. Any man who left his community to escape conscription, or encouraged or
abetted such evasion, was subject to abrupt military arrest. Public sentiment
generally approved the apprehension of "skeedaddlers,"
forty of whom were caught in a single day at Rouses Point on the Canadian
boundary. Yet when a number of prominent Democratic politicians were jailed for
their denunciations of the war and administration policy, angry protests arose.
Horatio Seymour of New York
and Vallandigham of Ohio were particularly vocal.
Lincoln made matters worse by a most
unfortunate proclamation of September 24, 1862, announcing
that "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 practise ... shall be subject to martial law and liable to
trial and punishment by Courts Martial or Military Commission." This was
going far, indeed, in overriding the civil courts. Moreover, as it came two
days after the Emancipation Proclamation, it seemed to offer a threat of
overcoming all opposition to that measure by harsh punitive arrests.
Meanwhile, Milligan's bitter
opposition to the war in 1862-63
attracted nearly as much attention in Indiana
as Vallandigham's activities in Ohio.
General Burnside, determined to punish "implied treason," had failed
in his effort to extend martial law over Indiana,
but federal agents followed Milligan closely, noting his actions, taking down his
speeches, and watching for any support he gave to plans for a Northwestern
Confederacy. They found evidence, according to subsequent allegations, that on
or about October 1, 1863, he conspired with William A. Bowles, Andrew
Humphreys, Stephen Horsey, and other Indiana
copperheads to overthrow the government, and for this purpose helped organize a
secret society, the Order of American Knights, or Order of Sons of Liberty"erected on the dissolved fragments of the
Knights of the Golden Circle," which had become discredited. One
conspirator identified by government agents was a Kentuckian, Joshua F.
Bullitt, and another a
Missourian, J. A. Barrett, suggesting that the group might be formulating a
broad Northwestern plan. They met in Indianapolis
in complete secrecy.
Federal agents also gathered
evidence that about a month later the group distributed arms to various
malcontents for resisting the draft. They further alleged that the plotters
held another meeting in Indianapolis
on or about May
16, 1864, for flagrantly disloyal purposes. This time Milligan,
Bowles, and others crossed the line of treason, for they communicated details
of their scheme for an armed uprising later in the year to the Confederates,
and asked for the cooperation of Confederate forces.
With this evidence in hand, the
military authorities took action. They went further than with Vallandigham, whose seizure on flimsy grounds by General
Burnside in May 1863 had caused Lincoln
so much embarrassment, and had ended merely in temporary deportation. On October 5, 1864, they arrested
Milligan at his home, under orders of General Alvin P. Hovey,
commanding in Indiana.
Keeping him in close confinement, Hovey brought him
on October 21 before a military commission in Indianapolis.
This body found him guilty of inciting insurrection and giving aid and comfort
to the enemies of the United
States, and sentenced him to be
hanged on May
19, 1865. Milligan, expert in law, at once petitioned the Federal
Circuit Court for the District of Indiana to be discharged from what he termed
his unlawful imprisonment, and in due course the case came before the Supreme
Court in Washington.
The rigor shown by General Hovey, and the celerity with which the military tribunal
imposed a death sentence, owed much to the fact that just before the arrest and
trial the so-called Northwestern Conspiracy had come to a head. The plot, as
given final form, had fantastic scope. It was nothing less than a plan to use
the Sons of Liberty to seize federal and state arsenals in Ohio, Indiana, and
Illinois; to release the prisoners of war held in Camp Douglas (Chicago), Camp
Morton (Indianapolis), Camp Chase (Columbus, Ohio), and on Johnson's Island in
Lake Erie; to arm these prisoners from the arsenals; and after creating terror
by arson and pillage, to march against the Union troops in Missouri and
Kentucky, where Confederate forces would be ready to lend assistance.
The boldness of the scheme was
impressive, but how much support did it have in men and money? Apparently a
good deal, for Confederate leaders and Eastern copperheads were actively
involved. Jacob Thompson, a Mississippian who had been secretary of the
interior under Buchanan, C. C. Clay, former senator from Alabama,
and Ben Wood, congressman from New
York, owner of the New York Daily News
and brother of Fernando Wood, were all participants. The summer of 1864 found
this trio in Canada.
They hoped that the Northwestern uprising and a New
York outbreak akin to the Draft Riots
might be timed to occur simultaneously. This fact is revealed in a letter,
hitherto unpublished, which Clay sent to Jacob Thompson on August 3, 1864, from St.
Catherine's in
Canada:
I
have just parted from Ben Wood, who expected to see you in Toronto.
He knows nothing more of our speculations than he knew before meeting me. He
had an impression of the storm impending and about to burst in the West, and
expressed a willingness to see it and even to help it rage. He says there is a
large body of laboring men in New
York who can be commanded any day to aid
in throwing off the yoke of the tyrant, if they had the arms. He thinks these
can easily be obtained. If there be insurrection in the West, a riot in New
York would checkmate any effort to
suppress it. You will understand without fuller explanation.
Ben Wood was doubtless revolving plans
for getting the needed weapons by sacking arms shops and breaking into
regimental armories. Thompson was perfecting a pleasant scheme, later put into
effect, for setting fires in New
York hotels. Money was not a problem, for Clay went on to explain to Thompson that he
had plenty from rebel sources. According to federal agents, the Confederacy had
supplied half a million dollars.
"Holcombe arranges with me,"
Clay continued
(Judge J. P. Holcombe of Virginia being a Confederate commissioner in Canada), that we can invest twenty thousand dollars in New York with profit especially to assist the other operation in
the West. The former will secure the fruits of the latter. I sent
ten thousand dollars to X according to his and Holcombe's understanding with
you. I have advanced to Captain C. [John B. Castleman
of Kentucky] $250 for the purpose on which you sent him to the Falls ... If
you see Ben Wood you can confide more
than I have done to him, I think, for he is among the staunchest and boldest of
our friends.
A
full history of this sinister but utterly impracticable Northwestern
Conspiracy, of the work of the officers detailed from the Southern army to
assist it—Colonel St. Leger Grenfell and Captain T. H. Hines being the chief of
the attempts to capture the U.S.S. Michigan,
a little vessel of eighteen guns stationed on Lake Erie, and of the gathering
of desperate men in Chicago, would require more space than it is worth, for it
all came to naught. General Basil W. Duke declared later that "visionary
and desperate" as the scheme appeared, "it was in reality very nearly
the last hope the South had of prolonging the war." Grant's hammer blows
in Virginia
were plainly bringing the conflict close to its end. The conspirators' plan was
to time the outbreak for the Democratic National Convention meeting in Chicago
the last week in August 1864.
"August 28th," writes the
author of a sensational account of the conspiracy, "dawned upon at least a
hundred thousand strangers in Chicago,
both gentlemen of the Convention and the ruffians of the Sons of
Liberty." Their numbers had been swollen by fugitives from the draft. Some
were well armed, a few even possessing muskets. Weapons for at least ten
thousand men, according to another sensational record, had been smuggled into
the city. But Colonel B. J. Sweet, commandant at Camp
Douglas,
had obtained ample warning of the plot and was watching suspicious characters
like a sharptaloned hawk. Guards at the camp and
garrisons elsewhere in the Northwest had been reinforced. As the Sons waited
for orders, word reached their leaders that a government agent, Felix G. Stidger, had wormed his way into the central recesses of
the Sons of Liberty, obtained full particulars of their designs, and carried
them to Union headquarters. They saw at once that the game was up. While the
Democratic Convention still continued, they told their followers that the
precaution of the military authorities made any attack impossible.
The frustrated Sons hastily left
Chicago, some for home, some for Canada,
and some for the border
states, but all uttering
threats of vengeance. Colonel Grenfell and a few others remained in the city,
totally impotent. The Northwestern Conspiracy, in which Milligan was
undoubtedly implicated-though nobody knows how far had proved an utter fiasco.
But as the press learned a good deal about it, while army officers knew more,
it had an influence on the stern action of the military commission which
condemned Milligan and two others to death. Fortunately for Milligan, the war
ended before the date of his execution. After Lincoln's
assassination, President Andrew Johnson first respited
him, and then commuted his sentence to life imprisonment.
IV
The
issue which came before the Supreme Court in April 1866 in ex parte
Milligan was simple. It was the question of whether the government
had the power, in an area free from invasion or rebellion, and not a theater
of military operations-an area where the civil courts were in full discharge of
their duties-to suspend the constitutional immunities of a citizen and consign
him to a military commission for arrest, trial, and sentence. The guilt or
innocence of Milligan was not in question. What was challenged was the right of
a military commission, deriving its powers entirely from martial law, to try
and punish him. Lincoln
had declared in his proclamation of September 24, 1862,
that all insurgents, with their aiders and abettors,
should be subject to martial law. Was this declaration valid in places where
ordinary grand jury presentments and jury trials were still available, or was
it valid only where this system of justice was paralyzed?
Four distinguished men, James A.
Garfield, Jeremiah S. Black, Joseph Ewing McDonald, and David Dudley Field, appeared
for Milligan. The logical force and eloquence of their pleas, the interest of'
the precedents they cited, and the far-reaching import of the Court's decision
combined to make the case one of the most memorable in our history. Milligan
Is personal record, however heinous, could be set aside. The all-important
question was the nature of the line to be drawn around the powers of government
in internal war, and the limits of the line protecting civil liberties. In the
published proceedings, the opening plea of the government attorneys, James
Speed, Henry Stanbery, and Benjamin F. Butler,
occupies less than eight pages. The plea of Garfield,
however, fills twenty-seven pages, that of Black twenty-six, and that of Field
sixty pages. Ben Butler then made a reply of fourteen pages.
The weight as well as the volume of
the arguments was heavily against the government. Field showed that when the
military trial began, no known enemy in arms could be found in the state of Indiana;
none within hundreds of miles. He showed that on the day set for Milligan's
execution as an act of military necessity, Confederate
resistance had ceased, and all was submission from the Rio
Grande to Katahdin.
Black recalled that when Washington
called out troops to quell the Whiskey Rebellion, he never thought of
suspending constitutional guarantees in Pennsylvania.
The court was reminded that liberal members of the House of Representatives,
late in the war, had attached to an appropriation bill an amendment declaring
that, except for military personnel or alleged spies, "no person shall be
tried by court-martial or military commission in any State or Territory where
the courts of the United States are open," and when congressmen objected,
these liberals defeated the appropriation rather than recede.
Particularly telling were the
precedents from Anglo-American history which Garfield
cited. He showed that in 1745 a Lieutenant Frye serving on the British warship Oxford
in the West Indies was ordered by
his superior to arrest another officer, but doubting the legality of the
action, he demanded a written directive. For this he was himself arrested and
tried by a naval court, which sentenced him to fifteen years' imprisonment and
debarred him forever from the royal service. He at once brought an action in a
civil court in England
against the president of the naval tribunal. This court awarded him one
thousand pounds for illegal detention and sentence, and informed him that he
might arrest and sue any member of the naval tribunal. The incensed Frye
promptly had two more members arrested.
After this, fifteen naval officers
headed by a rear admiral met and formally declared it a gross insult to the
British navy that any civil officer, however highly placed, should cause the
arrest of a naval officer for any of his official acts. Thereupon Lord Chief
Justice Willes had all fifteen men arrested and
brought before him. Despite their efforts to enlist the king, this courageous
judge persevered so energetically in his determination to maintain the supremacy
of the civil authority that after two months' examination the fifteen signed a
humble letter of apology. This letter the Lord Chief Justice placed in the
Remembrance Office "as a memorial to the present,
and future ages, that whoever set themselves up in opposition to the laws, or
think themselves above the law, will in the end find themselves
mistaken."
Still more impressive, as cited by Garfield,
was the case of GovernorJoseph Wall of the African
colony of Goree. In 1782 the brutal Wall,
suspecting that the garrison was about to mutiny, assembled five hundred
British soldiers on parade, held a hasty consultation with some officers, and
ordered Private Benjamin Armstrong, a supposed ringleader, seized, stripped,
tied to an artillery wheel, and given eight hundred lashes with a one-inch
rope. Armstrong died. Some years later Governor Wall was brought before the
most august civil tribunal in England
to answer for the murder of the poor private. Three eminent jurists listened to
the pleas. Wall's counsel argued that as governor and military commander at Goree he held the power of life and death in time of
mutiny, and was the sole judge of the necessities of the case. After a patient
hearing, the jurists decisively vindicated the supremacy of the civil system of
justice. They found Wall guilty of murder, sentenced him to death, and saw that
he was executed.
The decision of the majority of the
Supreme Court in ex
parte Milligan, as read by Chief
Justice Chase on April
3, 1866, was decisive. It declared that since the civil courts
had been open in Indiana,
and the state far removed from the battlefront, the military commission had
possessed no legal jurisdiction for trying and sentencing Lambdin
P. Milligan. Of course, no judicious person had any sympathy with the zealot
who had apparently wished to see the Confederacy triumph, the Union riven asunder, and the institution of slavery preserved.
He (like many others) had been severely penalized, by his long illegal
imprisonment while the Supreme Court was waiting to rule on the
constitutionality of military arrests and trials, but in view of the
impediments he had offered the prosecution of the war, he got off rather
lightly. He had a certain compensation, too, in the
immortality he received in the lawbooks and
constitutional histories; in the fact that, as Chief Justice Warren declared in
1962, his case was a landmark which firmly established the principle that when
civil courts are open and operating, resort to military tribunals for the
prosecution of civilians is impermissible."
Many observers then and later
believed with John W. Burgess of Columbia
University
that the decision drew too rigid a line around the powers of
the government in dealing with disloyalty in time of war or civil commotion.
Radical leaders in Reconstruction days hotly denounced it. "That
decision," said Thaddeus Stevens on January 3, 1867, "although
in terms not as infamous as the Dred Scott decision,
is yet far more dangerous in its operation upon the lives and liberties of the
loyal men of this country." His view was that only military tribunals
could protect carpetbaggers and blacks against seditious enemies of the
national government in some parts of the South. In the First Reconstruction Act
of 1867, Congress provided for military jurisdiction and for trial by military
commissions of the precise kind that the Milligan decision had stigmatized as
illegal. Although such trials were clearly unconstitutional, efforts to prevent
the enforcement of the military provisions by injunction suits broke down when
the Supreme Court, intimidated by Congress, dismissed the suits as outside its
competence.
But the Milligan decision
nevertheless represented a great triumph for the civil liberties of Americans
in time of war or internal dissension. The cautious Supreme Court might
temporarily sidestep its implications, but it stood. No less respected a
historian than William A. Dunning declared that Lincoln's
proclamation of September
12, 1862, upon martial law and military arrests had offered
"a perfect platform for a military despotism." So it had, and although
Lincoln
was the last man in the world to make himself such a despot, he might
conceivably have a successor some day who, unless a
clear line were drawn, would permit the erection of a martial autocracy. The
line was now emphatically delineated. The Supreme Court established the rule
that, no matter how grave the emergency, and no matter how high the public
excitement, the civil authority is supreme over military authority; that
wherever such civil authority is established and its ordinary judicial
procedures are operating, its protections of the citizen shall remain absolute
and unquestionable. The heart of this decision is the heart of the difference
between the United States of
America and Nazi Germany or the Soviet
Union.