Themes of the American Civil War
Liberty Secured The Republican Contribution
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| Liberty Secured The Republican Contribution Like the proverbial fate of eggs in an omelette, it would have been remarkable if this first war fought on American soil had not left a legacy of civil rights violations on both sides. Lincoln used a medical rather than a culinary analogy, rejecting fears that military arrests in time of emergency would lead to a permanent loss of liberty in peacetime, a proposition he could not believe anymore than that a man could contract so strong an appetite for emetics during temporary illness, as to persist in feeding upon them throughout the remainder of his healthful life.” 22 Temporary as they were, there were some serious derogations from the Constitution in the name of preserving it. The case against Lincoln rests mainly on military arrests and trials. The first charge is that he abused executive power by suspending the writ of Habeas Corpus in April, 1861, by executive proclamation to deal with an immediate and serious threat to the capital. The writ had, and continues to have, iconic status in the annals of liberty. It was the means of obliging the executive to come before a court to show its authority for holding a man prisoner. It was a guarantee against being thrown into jail arbitrarily without time limits or prospects of trial. The Constitution recognized that there were times it might be necessary when in cases of rebellion or invasion the public safety may require it Lincoln judged that this was such a case. Among those arrested was an alleged saboteur, John Merryman, whose lawyer filed fora writ of Habeas Corpus and gave Chief Justice Roger Taney, on circuit in Maryland, the opportunity to decide, on May 26, 1861, that only Congress could suspend the writ. Lincoln’s proclamation was, in his opinion, an unconstitutional breach of the separation of powers. 23 Taney issued a writ of Habeas to General George Cadwalader, who held Merryman at Fort McHenry. Cadwalader ignored it and Lincoln ignored Taney. In March, Congress subsequently authorized the President to suspend the writ, an authority he put to good use throughout the war. 24 Just how many military arrests were made during the war is a matter of conjecture, but 38,000 maybe a conservative estimate. Especially in the border states, and in the areas close to the battlefields, there was a very serious Constitutional Powers • 327 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. 25 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. 26 328 • 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 Constitution Download 2.25 Mb. Share with your friends:
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