problem of internal security. It was not always easy to tell combatants from noncombatants. Draft dodgers, Confederate sympathizers, opportunists, and saboteurs made life
difficult for the military, and often the only solution was to lock them up. It was an option which was pursued unwillingly when the perceived threat came solely from political speech but there were some exceptions. General Ambrose Burnside’s enthusiasm for the suppression of treasonable expression in the Department of the Ohio made Clement
Vallandigham an unnecessary martyr in the cause of freedom of speech.
Tried by military tribunal, imprisoned, and denied the writ of Habeas from a federal court unwilling to challenge the scope of the President’s executive powers, he was eventually banished beyond Confederate lines, a fate that did not prevent him from returning to run unsuccessfully for the governorship of Ohio in The military arrest that left the most important legacy was not that of Merryman or Vallandigham,
but that of Lambdin Milligan, a prominent
Copperhead arrested in Indiana for allegedly conspiring to aid the
Confederacy. In common with over 4,000 others he was tried by a military tribunal. If there was a defensible case for doing this in areas so disrupted that the ordinary courts no longer functioned, it was not true in Indiana,
where the civil courts were open. Milligan was sentenced to death in He survived the sentence and the war, however, to give his name to one of the best known of the Supreme Court’s opinions on constitutional liberties in time of war.
Ex parte Milligan, decided in 1866, gave a Court now comprising a majority
of Republican appointees, and under anew Chief
Justice, Samuel Chase, an opportunity to assert the supremacy of the
Constitution even in wartime. The government, it said, had no authority to try civilians by military tribunals where the civil courts were open. It has often been noted that this great victory for civil liberties in wartime came after the end of hostilities, too late to have any impact As Edward
Corwin observed:
It shows, to be sure, that two or three years after a great emergency has been safely weathered and the country has reaped the full benefit of the extraordinary
measures which it evoked, a judicial remedy maybe forthcoming for some individual grievances which these produced, and a few scoundrels like Milligan escape a hangman’s noose—but it shows little more.
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It was seen in a more negative light than that by Republicans and Bureau agents involved in Reconstruction. It appeared to benefit white liberty at the expense of black, and to make their tasks more difficult, which may explain why, in practice, military tribunals continued to be used in the South even after the ruling.
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Pat Lucie
It was not the whole story, however. Far from being
cavalier about the rule of law, both the Lincoln administration and the congressional Republicans who reached into the Constitution to find new powers to prosecute the war were inconstant discussion about what the checks and balances meant.
Lincoln’s correspondence reveals both a genuine reluctance to limit liberty or suspend any of the Constitution’s guarantees and a clear-sighted shouldering of responsibility for doing so when it was necessary. From the War
Department came an important treatise. Secretary of War William Whiting,
LL.B., LLD, produced
The Government’s War Powers under the ConstitutionShare with your friends: