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.

The court ruled that the suspension of the writ of habeas corpus was constitutional:

This nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have wise and humane rulers sincerely attached to the principles of the Constitution.  Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln, and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate.  If our fathers had failed to provide for just such a contingency, they would have been false to the trust reposed in them.  They knew — the history of the world told them — the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued human foresight could not tell, and that unlimited power, wherever lodged at such a time, was especially hazardous to freemen.  For this and other equally weighty reasons, they secured the inheritance they had fought to maintain by incorporating in a written constitution the safeguards which time had proved were essential to its preservation.  Not one of these safeguards can the President or Congress or the Judiciary disturb, except the one concerning the writ of habeas corpus.

It is essential to the safety of every government that, in a great crisis like the one we have just passed through, there should be a power somewhere of suspending the writ of habeas corpus.  In every war, there are men of previously good character wicked enough to counsel their fellow-citizens to resist the measures deemed necessary by a good government to sustain its just authority and overthrow its enemies, and their influence may lead to dangerous combinations.  In the emergency of the times, an immediate public investigation according to law may not be possible, and yet the period to the country may be too imminent to suffer such persons to go at large.  Unquestionably, there is then an exigency which demands that the government, if it should see fit in the exercise of a proper discretion to make arrests, should not be required to produce the persons arrested.

However, Milligan’s trial before a military commission was unconstitutional because there was no necessity for martial law in Indiana at the time of his arrest:

It follows from what has been said on this subject that there are occasions when martial rule can be properly applied.  If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society, and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course.  As necessity creates the rule, so it limits its duration, for, if this government is continued after the courts are reinstated, it is a gross usurpation of power.  Martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction.  It is also confined to the locality of actual war.  Because, during the late Rebellion, it could have been enforced in Virginia, where the national authority was overturned and the courts driven out, it does not follow that it should obtain in Indiana, where that authority was never disputed and justice was always administered.  And so, in the case of a foreign invasion, martial rule may become a necessity in one state when, in another, it would be “mere lawless violence.”

Chief Justice Chase and three other Justices agreed with the ruling, holding that under the Habeas Corpus Act of 1863 was entitled to be released from military custody, however they disagreed that a military commission could not constitutionally try the Defendant:

Where peace exists, the laws of peace must prevail.  What we do maintain is that, when the nation is involved in war, and some portions of the country are invaded, and all are exposed to invasion, it is within the power of Congress to determine in what states or district such great and imminent public danger exists as justifies the authorization of military tribunals for the trial of crimes and offences against the discipline or security of the army or against the public safety.

In Indiana, for example, at the time of the arrest of Milligan and his co-conspirators, it is established by the papers in the record, that the state was a military district, was the theatre 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.

With the ending of the War so ended the Habeas Corpus Act of 1863 which, by its terms, was in force only during the period of “the current rebellion”.  The Habeas Corpus Act of 1867 greatly expanded the right of American citizens to petition federal courts for a writ of habeas corpus, the only exception being prisoners held for military offenses or for aiding the Confederacy.  During Reconstruction the Civil Rights Act of 1871 granted the right to the President to suspend habeas corpus in certain limited circumstances, but that is a subject for another day.

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