Lincoln's Code

by John Fabian Witt

  Milligan belonged to a quasi-military organization known as the Sons of Liberty, in which he held the position of supreme commander. In July and August 1864, the Sons of Liberty worked with Confederate agents to organize an uprising in the northwestern states of Indiana, Illinois, Ohio, Missouri, and Kentucky. They aimed to detach the Northwest from the Union and to free the tens of thousands of Confederate soldiers held in the Union prison camps at Chicago and on Johnson’s Island in Lake Erie. With suitcases of cash supplied by the Confederate agents, the plotters purchased shipments of firearms to make good on their plans. But Union men had infiltrated the Sons of Liberty for months. And when Indiana officials discovered the arms, the plot unraveled quickly. Along with six other men, Milligan was arrested in October by forces under Alvin P. Hovey, commander of the military district of Indiana. When one of the plotters agreed to testify for the government, Judge Advocate Henry Burnett (who would soon assist Holt in the Lincoln assassination trial) tried and convicted Milligan in a military tribunal for conspiring against the United States, aiding and comforting the rebels, inciting insurrection, and violating the laws of war by introducing Confederate agents behind Union lines and running an organization of unlawful combatants. The tribunal sentenced Milligan to death.

  Milligan petitioned for a writ of habeas corpus in May 1865. When his case got to the Supreme Court in February of the following year, his lawyers rehearsed all the arguments that had been made by the critics of military commissions since 1862. Milligan’s position was that, as “an inhabitant, resident, and citizen of Indiana,” he could not be accused of violating the laws of war. Only a soldier could violate the laws of war, he insisted, though Union practice on this point had been otherwise for most of the war. The Civil War hero and future president James Garfield argued for Milligan in the Supreme Court alongside Jeremiah Black, former attorney general of the United States under James Buchanan, and the prominent New York lawyer David Dudley Field, brother of Supreme Court Justice Stephen Field.

  Garfield led off, and Field spoke longest, but Black’s argument won the day. As attorney general, Black had maintained that the federal government lacked the authority to use force against the seceding states. Now he contended that U.S. military commissions could not exercise a law of war authority to try citizens accused of offenses committed outside a war zone when the civil courts were open for business and the civil authorities were “in full exercise of their functions.” The Constitution, he said, forbade such military commissions. Arguing for the government, his opponents contended that “the laws of war must be treated as paramount.” But in Black’s view the Constitution was supreme. It was the sovereign prerogative of the people of the United States to deny their government powers regardless of whether the laws of war allowed those powers to other nations. As to Attorney General Speed’s defense of the military commission in the Lincoln assassination case, Black could hardly contain his contempt. Could the armed forces really “take and kill” or “try and execute . . . persons who had no sort of connection with the Army or Navy”? Black condemned the entire apparatus of Holt’s Bureau of Military Justice as a “dark and bloody machinery” of death.

  Arguing for the United States, Ohio lawyer Henry Stanberry (a close confidant of the president) entered a brief objection to the Court’s jurisdiction. But Stanberry, whom Johnson would soon make attorney general after pushing Speed out of office, quickly made way for the sitting attorney general and Benjamin Butler, who took breathtakingly broad positions in defense of military commissions. Once war was declared, they contended, “all peace provisions of the Constitution” and “all other conventional and legislative laws and enactments” fell “silent amidst arms.” The president in wartime had at his disposal “all the means and appliances by which war is carried on by civilized nations.” In short, they argued, the only limit on the president’s power in wartime was set out by the laws of war.

  Speed left it to Butler, who had received the first contraband slaves at Fort Monroe in May 1861, to defend the argument. Butler urged the Court to heed the lessons of the war’s great turning point. What, after all, had been the basis for Emancipation other than the president’s awesome law of war authority? Had not John Quincy Adams argued that the federal government could seize slaves in wartime on the ground that the law of nations replaced “all municipal institutions” in time of war? Contesting the gag rule against antislavery petitions in the Congress, Adams had argued that “all the powers incident to war are by necessary implication conferred upon the government of the United States” in wartime, not from “any internal, municipal source, but from the laws and usages of nations.” The law of war, Adams had contended in the 1830s and 1840s, “breaks down every barrier so anxiously erected for the protection of liberty, property, and life.” As Butler could not resist observing, Adams was the son of a founding father, the son of the second president of the United States, and himself the sixth president. And it was his arguments on slavery and the laws of war that Lincoln, the sixteenth president, had taken up to emancipate the slaves on January 1, 1863. If Adams’s arguments would sustain Emancipation, Butler contended, surely they would support military commissions as well.

  Observers of the Milligan case have been mystified ever since by Speed’s and Butler’s arguments. The case had made available to them a much more modest position. During the course of the conflict there had been nearly 1,000 military commission prosecutions for violating the laws of war. Justice Wayne had approved such a commission in the Vallandigham case just two years before. Lambdin Milligan had been tried and convicted of (among other things) violating the laws of war. Nonetheless, Butler and Speed defended the Milligan commission not as a device for punishing violations of the laws of war, but as a legitimate exercise of martial law generally. They contended that the laws of war afforded the president and the Army the power to declare martial law even outside active war zones and to prosecute U.S. citizens and others before military tribunals so long as the “quality of the acts” charged made them the “proper subject of restraint by martial law.” They had made a broad argument where a narrow one would have sufficed to sustain Milligan’s conviction.

  The reason was that Speed and Butler were not really arguing about Lambdin Milligan at all. Their arguments were calculated not to sustain his conviction but to defend the authority of military commissions and martial law during postwar Reconstruction. That was why Butler made Emancipation so central to his argument. The Milligan case would be a referendum on the future of the project that Lincoln had begun in the fall of 1862, the project that had produced Lieber’s General Orders No. 100 and that underlay the Union’s uncompromising approach to the laws of war. It would have been no great victory to win a slender ruling upholding Milligan’s confinement. The federal courts sustained precisely such a narrow defense of military commissions two years later when a judge in Florida ruled that Dr. Samuel Mudd’s conviction in the trial of the Lincoln conspirators had been a lawful one. (One hundred and fifty years later, a federal judge in Washington, D.C., would rule the same way when he rejected Dr. Mudd’s grandson’s challenge to the accuracy of the military records in his grandfather’s case.) What was unclear in early 1866, and what Speed and Butler hoped to vindicate, was the availability of the laws of war as a basis for federal authority moving forward into Reconstruction.17

  The justices of the Supreme Court understood exactly what was at stake. One day after the president’s April 2, 1866, peace proclamation, the Court signaled its rejection of Speed’s arguments, ruling without explanation that the military tribunal lacked authority to try Milligan and that he ought therefore to be discharged from custody. In December, when the Court resumed session, Justice David Davis issued an opinion explaining the Court’s April ruling. Davis had once claimed (wrongly) that Lincoln never supported the use of military tribunals against anyone other than soldiers. But Davis must have confused his own resistance to the tribunals for his friend’s, for he now soundly rejected the tribun
als that Lincoln had helped to set in motion in September 1862 and whose decisions Lincoln had reviewed for the rest of the war. The Constitution, Davis wrote, was the law “equally in war and in peace . . . at all times, and under all circumstances.” To the contention that the laws and usages of war allowed military courts, Davis replied that such laws could have no application to citizens in loyal states where the courts were open. And to the argument that the writ of habeas corpus had been suspended by Congress for prisoners like Milligan in March 1863, Davis replied that the interpretation Holt and Stanton had given to the 1863 habeas legislation for more than three years was wrong. The War Department had contended that the habeas legislation had no application to men charged with violations of the laws of war. That was why the wartime military commissions had relied so heavily on the laws of war to circumvent the Congress and the courts. But Davis countered that Milligan—a citizen of Indiana never in the Confederate service—could not possibly be counted as a prisoner of war. Adopting Milligan’s argument that he could not be charged with violating the laws of war unless he was a lawful combatant, Davis charged the government with wanting to have its cake and eat it too: “If he cannot enjoy the immunities attaching to the character of war, how can he be subject to their pains and penalties?”

  Indeed, Davis went further. Just weeks before he issued the opinion of the Court, the elections of 1866 had produced a landslide in favor of the Republicans in Congress, a victory that was certain to strengthen the hand of the Republican program of Reconstruction. Knowing this, and knowing full well that the Congress would very likely rely on its war powers to extend military tribunals, Davis held not only that the president could not employ a military tribunal in Milligan’s case, but that the Congress could not do so either. Chief Justice Chase, who had been one of the strongest antislavery voices in the Lincoln cabinet, dissented from this last point along with three other justices. Looking forward to the Reconstruction efforts on the horizon, Chase insisted that Congress might do what the president alone could not. But Chase’s opinion captured only a minority of the Court’s votes.

  Justice Davis left open a slim chance that military commissions in the former rebel states might be treated differently. He would have allowed commissions in states that were “the locality of actual war.” But few at the time doubted that the Milligan decision signaled the Court’s intent to put tight limits on the law of war powers of the Congress in the era of Reconstruction. Many Republicans likened the ruling to the Dred Scott decision of 1857. (Thaddeus Stevens insisted that Milligan was worse.) Other critics, including the usually restrained New York Times, accused the Court of taking the side of those who had so recently “assailed the Union.” White southerners rejoiced when President Johnson cited the decision as grounds for releasing whites convicted by military commissions of crimes against freedpeople. At last, the editors of the Richmond Enquirer wrote, “the revolutionary proceedings of the Congress are promised a check.”

  A month after he issued his opinion, Davis commissioned former justice Benjamin Curtis to write a defense of the Court’s Milligan decision. It was Curtis who in 1862 had written a stinging critique of Lincoln’s Emancipation decision. It was Curtis who had lent his voice to warn of the “scenes of bloodshed, and worse than bloodshed” in the servile insurrections he was sure would follow on Emancipation’s heels. It was Curtis who had denied that civilized peoples could free their slaves in wartime. Now it was Curtis to whom Justice Davis turned to help bring an end to the awesome powers that the laws of war and Emancipation had created.

  AS THE SUPREME COURT checked and constrained the law of war powers of the legislative branch, members of the Thirty-ninth Congress had been working hard to establish a new source of federal authority in the formerly rebel states, one that would no longer rest on the authority offered by the international laws of war. At the end of April 1866, the Joint Committee on Reconstruction reported a draft of what would become the Fourteenth Amendment to the Constitution. After weeks of debate and compromise, the House and the Senate proposed a final version on June 16, 1866. If ratified by three quarters of the states, Section 1 of the amendment promised to prohibit states from abridging the privileges or immunities of citizens of the United States, depriving “any person of life, liberty, or property, without due process of law,” or denying any person “the equal protection of the laws.” Section 5 would provide the Congress the “power to enforce, by appropriate legislation,” the amendment’s substantive provisions. Here at last was a durable basis for the federal government’s authority in the South.

  But Congress’s effort to move away from the “grasp of war” theory quickly ran into obstacles of its own. Encouraged by the president, all but one of the white southern state governments refused to ratify the Fourteenth Amendment proposed by Congress. Race riots in which whites assaulted blacks in Memphis and New Orleans, as well as a spate of violence against freedpeople and Union men across the South, recalled the bitter skirmishes of the war itself. Emboldened by the election results of the fall of 1866, a frustrated Thirty-ninth Congress temporarily returned to the laws of war for one last time in the Reconstruction saga.

  ON MARCH 2, 1867, Congress passed the Military Reconstruction Act over Johnson’s veto. The act, which became law on the very last day of the Thirty-ninth Congress, divided the ten rebel states (all but Tennessee, which had already been restored to the Congress) into five military districts and set out the conditions under which their representatives would be readmitted to the Congress, conditions that included ratification of the Fourteenth Amendment and adoption of new state constitutions with universal male suffrage. The legislation ran directly contrary not only to Johnson’s efforts to restore the southern states but also (as its opponents noted) to the Supreme Court’s Milligan decision. For it aimed to put the relations between the federal government and the rebel states back on a war footing, where the laws of war would supply Congress with wide-ranging authority. Indeed, the legislation’s central justification was precisely the “grasp of war” theory that had sustained the Freedmen’s Bureau Extension Act the year before.

  Thaddeus Stevens introduced the military reconstruction bill in the House by rehearsing his theory of the power of conquerors under the law of nations. Most Republicans, however, followed Congressman John Bingham of Ohio, Holt’s old colleague in the Judge Advocate General’s office and veteran of the Lincoln assassination trial, by citing the “unlimited power for the common defense” that the “law of nations” conferred on all countries. Zachariah Chandler, a Republican senator from Michigan, argued that the “laws of war” had given Lincoln the power to appoint military governors and concluded that the same laws of war authorized the Congress to order the reorganization of the former rebel states. William D. Kelley, the founder of a family dynasty in Philadelphia politics and a stalwart Republican, argued that the bill did only what the “law of nations and his oath of office justified Abraham Lincoln in doing.”

  Notwithstanding that the Supreme Court majority in the Milligan case had seemed to put military commissions beyond Congress’s control, the act expressly authorized military commissions whenever military district commanders believed they were necessary. The act’s critics thus contended—with good reason—that it could not possibly survive constitutional scrutiny in the courts. Writing for the president, Attorney General Henry Stanberry revealed why he had left the argument on the merits of the Milligan case at the Supreme Court to Speed and Butler. In a blistering opinion, he condemned the use of military commissions.

  Yet if the Reconstruction Act had returned once more to the law of war power that Lincoln developed, it also set in motion the return of constitutional normalcy and the end of the era in which the federal government could invoke the laws of war to exercise extraordinary powers. John Bingham had come out of the Lincoln assassination trial with a chastened sense of the law of war powers he had exercised as a judge advocate. Now, on the floor of the House, Bingham emphasized that the bill inst
ituted military rule “only until the people by a solemn vote at the polls, under the authority of the national law and the protection of the national Army, shall have assented to the constitutional amendment and set up a just and republican government.” Once the Fourteenth Amendment was in place, the Congress would have a basis for legislating protections for the freedpeople and Unionists of the South without invoking the laws of war. Radicals like Thaddeus Stevens had taken to the war powers argument with fierce enthusiasm, in part because they believed that only the war power and the full authority of the U.S. Army could protect the freedpeople. In many respects, Stevens turned out to be right. But Bingham and the moderate wing of the Republican Party in Congress had come to see those same powers as a temporary and dangerous aberration in American law. The Reconstruction Act mobilized the laws of war precisely for the purpose of bringing the Civil War chapter of their history to a close.

  OVER THE NEXT two years, the Congress, President Johnson, and the Supreme Court staged an elaborate dance around the authority asserted by the Military Reconstruction Act and its successors.

  Two pieces of legislation enacted the same day as the Military Reconstruction Act aimed to insulate the War Department’s military commissions from the president’s control. The Tenure of Office Act limited Johnson’s authority to remove cabinet officials like Stanton without Congress’s consent. A rider to the annual appropriations act passed the same day required that all military orders pass through Stanton. Together, the measures sought to allow the War Department to function without Johnson’s interference. Within a year, Johnson’s attempt to circumvent the congressional limitations would lead the House to impeach him.