Habeas Corpus Post Civil War

Justice David Davis

The final post in our examination of the suspension of habeas corpus during the Civil War, the first, second, third, fourth and fifth parts of which may be read here, here, here,  here and here.

Inter arma enim silent leges was a phrase not uncommon in the North during the Civil War, a time when many cherished laws and safeguards of personal liberty did fall silent. In the aftermath of the War there was a return to peace time norms.  This was reflected in the case of Ex parte Milligan, an 1866 Supreme Court case.  Lambdin P. Milligan, one of the leaders of the Knights of the Golden Circle, a “secret” Confederate organization in the North that everyone in the North seemed to know about, in Indiana was arrested in 1864, accused of being involved in a plot with others who were also arrested, to free Confederate prisoners from a POW camp and with their aid seek to topple the government of Indiana.  Milligan was tried by a military commission and sentenced to death.  Showing their neutrality in regard to the Defendant, the military commission soke at Republican party rallies in the fall of 1864.

The case was appealed to the United States Supreme Court.  Benjamin Butler, always as competent as an attorney as he was incompetent as a general, argued the case for the government.  The Defense had a high-powered team, including Jeremiah Black a former attorney general and Union general and congressman, and future president, James Garfield.  The court handed down a unanimous decision as to reversal in 1866 authored by Lincoln’s old friend from Illinois, Justice David Davis, who Lincoln had appointed to the court.  This striking passage in the decision indicated that with the ending of the War the court was going to be reasserting its role regarding the law.

The importance of the main question presented by this record cannot be overstated, for it involves the very framework of the government and the fundamental principles of American liberty.

During the late wicked Rebellion, the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question.  Then, considerations of safety were mingled with the exercise of power, and feelings and interests prevailed which are happily terminated.  Now that the public safety is assured, this question, as well as all others, can be discussed and decided without passion or the admixture of any element not required to form a legal judgment.  We approach the investigation of this case fully sensible of the magnitude of the inquiry and the necessity of full and cautious deliberation. (more…)

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Published in: on December 7, 2012 at 5:30 am  Comments Off on Habeas Corpus Post Civil War  
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