Habeas corpus has been part of English common law since the Magna Carta in 1215, and part of English statute law since 1679. The very first statute adopted by the new federal Congress under the Constitution empowered all federal courts to issue the writ. The Constitution itself mentioned the writ only once (Article I, Section 9), to permit its suspension “when in Cases of Rebellion or Invasion the public Safety may require it.” But the provision for suspension was located in the article concerning Congress, which implied that the suspension power lay there. When Andrew Jackson suspended the writ while preparing to defend New Orleans from the British in 1815, he was punished for his presumption with a $1,000 fine from a federal judge once the threatened British invasion was over.64
Roger Taney, who was still sitting as the chief justice of the United States despite his eighty-four years, was deeply antagonistic to Lincoln. He was convinced that Lincoln had no authority to repress secession, and he now looked for an opportunity to stymie Lincoln’s self-claimed war powers by contesting the suspension of the writ in Maryland. Taney got his chance in the case of John Merryman, a Confederate sympathizer and Maryland militia officer who had helped put to the torch railroad bridges leading into Baltimore during the uproar over troop passage in April 1861. Merryman, a substantial landowner in Cockeysville, was arrested on May 25, 1861, and imprisoned without a warrant in Fort McHenry. On May 26, Merryman’s brother-in-law and family lawyer hurried to Taney’s home in Washington to petition him for a writ of habeas corpus for Merryman.
Each Supreme Court justice was, in 1861, responsible not only for sitting on the high court but also for administering one of the federal circuits of appeal; Taney’s responsibility was for the Fourth Circuit Court of Appeals, which included Baltimore, and Taney promptly issued a writ of habeas corpus for Merryman to be delivered to his district courtroom in Baltimore. George Cadwalader, the commandant at Fort McHenry, refused to honor the writ, and when Taney issued a contempt citation, the U.S. marshal who carried it to Fort McHenry was refused admittance. Taney then read aloud a condemnation of Lincoln and Cadwalader, based on Taney’s conviction that “the privilege of the writ could not be suspended, except by act of Congress” and that Merryman’s arrest constituted a violation of the safeguard against “unreasonable searches and seizures.” On June 3 Taney filed his objections as Ex parte Merryman.65
For several days it seemed that Lincoln might be legally incapable of keeping pro-Southern agitators off the streets. Lincoln argued that the Constitution merely located the suspension clause among the articles describing the functions of Congress; it did not actually specify who had the authority to do the suspending, and since Congress was at that moment out of session, Lincoln saw no reason why he should let the situation in Maryland come crashing down around his ears. It was folly to dillydally over legal niceties when Confederate sympathizers were bent on committing sabotage against the Union war effort—folly to wait until the sabotage had taken place before arresting Merryman, and folly to turn Merryman over to a civil jurisdiction that would, in all likelihood, set him loose with a wink. Action to prevent this by suspending the writ lay fully within his war powers as commander in chief. “Ours is a case of Rebellion,” Lincoln argued, “in fact, a clear, flagrant, and gigantic case of Rebellion; and… in such cases, men may be held in custody whom the courts acting on ordinary rules, would discharge.”66 In the end, Lincoln ignored Taney, and the case of Ex parte Merryman became a dead letter.
This was only the beginning of a lengthy series of legal challenges (based on both constitutional and international law) generated by the war, any one of which might have interposed obstacles to the war effort that Lincoln could not ignore as easily as he had Ex parte Merryman. Two of the most famous of these challenges were the Prize Cases of 1863 and Ex parte Milligan. Prize Cases was actually a collection of suits brought against the federal government by the owners of four cargo-carrying ships stopped by the federal blockade of Southern ports in May, June, and July of 1861 and turned over to federal prize courts. Blockades were, in legal terms, something like laying a port or even an entire nation’s coastline under siege from the sea. An effort at regulating the operation of blockades had been attempted at the end of the Crimean War in 1856, when the participants in the peace negotiations in Paris drafted a four-point protocol that specified what constituted a blockade and what ships and cargoes could be seized by it. Although the United States was not a signatory to what became known as the Declaration of Paris, most of the other European nations were, and they would expect their ships to be treated under its terms by any U.S. blockade.
Prize Cases questioned the legality of the stoppage of the ships in question on two grounds. The Declaration of Paris assumed that blockades were imposed by one sovereign nation upon the ports and coasts of another sovereign nation. If (as Lincoln claimed) the southern states were not in fact a belligerent nation but only an insurrection, then a blockade of international commerce had no legal standing, and ships seized by such a blockade could not be turned over to prize courts. If the blockade was indeed legal, it would be considered an act of war, but no declaration of war had been made by Congress, the only branch of the U.S. government empowered by the Constitution to do so. Only when Congress convened in its special July 1861 session and confirmed Lincoln’s unilateral actions against the Confederacy could a blockade come into legal effect. Hence the four ships seized by the Federal navy before that time had been taken illegally.
The case was decided by the Supreme Court on March 20, 1863, with a bare 5–4 majority declaring that although the Confederacy could not be recognized as a belligerent nation on its own, the federal government could still claim belligerent rights for itself in attempting to suppress the Confederacy. Writing for the majority, Justice Robert C. Grier agreed with Lincoln that “it is not necessary that the independence of the revolted province or State be acknowledged in order to constitute it a party belligerent in a war according to the law of nations.” Justice Samuel Nelson (speaking for Taney) wrote a blistering dissent for the minority arguing that “the President does not possess the power under the Constitution to declare war… within the meaning of the law of nations… and thus change the country and all its citizens from a state of peace to a state of war.” Nothing would have pleased Taney more, or more quickly have struck a major strategic weapon from Lincoln’s hand, than if the Court had agreed with Nelson’s passionate contention that the blockade’s “capture of the vessel and cargo in this case, and in all cases before us… are illegal and void. …”67
The Republicans were shocked by how easily the change of one vote on the high court could have undercut the operation of the blockade, and calls began to go up in Congress for either a new court or the replacement of the current justices. Most of this criticism was aimed at Roger Taney, who despite his poor health insisted on holding on to his seat on the Court in an undisguised search to find more ways of checking Lincoln’s “excesses.” Taney especially yearned to hear an appeal that would give him the opportunity to issue an opinion on emancipation, which he denounced as an unconstitutional interference with property rights. But death came to Taney before an appeal did, and when Taney died in Washington on October 12, 1864, Lincoln quickly replaced him with Salmon Chase.68
The High Court gave Chase’s old Democratic inclinations freer rein than his cabinet post had, and his opinions did not actually greatly differ in substance from Taney’s, especially in the case of Ex parte Milligan. Lambdin Milligan was an Indiana Democrat who had gone beyond mere criticism of Lincoln’s policies; he had actually joined a clandestine organization, the Sons of Liberty, which smuggled supplies to the Confederacy and planned raids on Federal arsenals to obtain weapons, and in 1864 he had been the Sons’ candidate for governor of Indiana. Milligan was arrested by the military commander of the District of Indiana in October 1864 and then tried and condemned to death for treason by a military tribunal, not by the civil courts. Milligan petitioned for a writ of habeas corpus, and s
ince the war was effectively over by the time of his filing in May 1865, the federal circuit court for Indiana agreed to certify the presentation of three inquiries to the U.S. Supreme Court: Should a writ be issued? Should Milligan be released from military custody? And could he be tried by a military tribunal when the civil courts in Indiana were open and operating?
When the Chase court handed down its ruling in April 1866, it unanimously held that the writ should be issued, Milligan should be released, and military tribunals had no business trying civilians. “The guarantee of trial by jury, contained in the Constitution, was intended for a state of war as well as a state of peace,” announced the Court, “and is equally binding upon rulers and people, at all times and under all circumstances.”69 As Ex parte Milligan was not finally decided until long after the close of the war, however, it had no impact on the course of the wartime policy.
However, the Milligan case does point to another area of political difficulty Lincoln encountered, and that was the ever-increasing opposition of the Northern Democrats to the war. From the beginning of the secession crisis, pro-Union Northern Democrats had strained to support the Union cause and distance themselves from their Southern counterparts, whom they denounced as the source of so much of the secession trouble. Stephen Douglas, who wore himself into an early grave in June 1861, stumping against secession, declared, “There are but two parties, the party of patriots and the party of traitors. [Democrats] belong to the first.”
It was not a party question, nor a question involving partisan policy; it was a question of government or no government; country or no country; and hence it became the imperative duty of every Union man, every friend of constitutional liberty, to rally to the support of our common country, its government and flag as the only means of checking the progress of revolution and of preserving the Union of States.70
Lincoln, recognizing that the Democrats had garnered a healthy 44 percent of the vote in a three-way race in 1860, struggled to appease them with political and military appointments. But the spirit of Democratic-Republican bipartisanship lasted only a short while. The Northern Democrats’ view of the war was summed up in their slogan “The Constitution as it is; the Union as it was”—and, some of them were inclined to add, “the Negroes where they are.” As the Republican-dominated Congress began to issue unsecured greenbacks, raise tariffs, and gradually move toward emancipation and abolition—to enact, in other words, the Whig domestic agenda—Democratic support began to crumble. “The enormity of this bill,” wailed the Cincinnati Enquirer after the passage of the National Banking Act in 1863, “is sufficient to make General Jackson, who killed the old Bank of the United States, turn over in his coffin. … The design is to destroy the fixed institutions of the States, and to build up a central moneyed despotism.” Protective tariffs were “a great fiscal tyranny,” managed on the backs of midwestern farmers by “the iron-masters of Pennsylvania and the cotton millionaires of New England.” It was as though Henry Clay and Andrew Jackson had once more arisen to do political combat.71
The Democratic Party’s fragments fell into two basic piles. The first, known as the “War Democrats,” had no real organized leadership after the premature death of Stephen Douglas, but War Democrats such as Edwin Stanton of Pennsylvania, Joseph Holt of Kentucky, Benjamin Butler of Massachusetts, and Andrew Johnson of Tennessee were as forward as any Republican in their support for the war. However, many of them carefully defined the war they were supporting as a war to reunite the nation and suppress treason, not a war against slavery to result in racial equality. Robert C. Winthrop, a Massachusetts independent who ended up siding with the Democrats during the war, protested that
I, for one, have never had a particle of faith that a sudden sweeping, forcible emancipation could result in anything but mischief and misery for the black race, as well as the white. … The idea that the war is not to be permitted to cease until the whole social structure of the South has been reorganized, is one abhorrent to every instinct of my soul, to every dictate of my judgment, to every principle which I cherish as a statesman or as a Christian. It is a policy, too, in my opinion, utterly unconstitutional; and as much in the spirit of rebellion as almost anything which has been attempted by the Southern States. … We are not for propagating philanthropy at the point of the bayonet. We are not wading through seas of blood in order to reorganize the whole social structure of the South.72
It became increasingly difficult for many War Democrats to keep that line up: Stanton and Butler both moved over to the Republicans at a very early stage of the war and became ardent supporters of emancipation; Joseph Holt served as Lincoln’s judge advocate general. Increasingly, political momentum in the party passed to the “Peace Democrats.” Rallying around prominent Democrats such as Samuel Tilden, Horatio Seymour, and Fernando Wood of New York, Samuel S. Cox, Alexander Long, and George H. Pendleton of Ohio, George Woodward of Pennsylvania, and James Bayard and Willard Saulsbury of Delaware, the Peace Democrats reversed the War Democrats’ order of priorities: end Lincoln’s war before it destroyed the country, even if it meant conceding Southern independence.73
The Republicans looked on the agitation of the Peace Democrats as just more evidence of the same dangerous Democratic policies that had brought on the war in the first place, and so it was not long before partisanship yielded to howling accusations of treason. “These men make the conditions of peace the humiliation of the North,” protested the Philadelphia Press. “If they will not serve the country, they should not become the enemies of those in the country’s service.” At first it was only a matter of name-calling: in the fall of 1861, Ohio Republicans began comparing leading Peace Democrats to copperhead rattlesnakes, and “Copperhead” became the standard Republican way of talking about Democrats. Few of these opposition Democrats were really cut from the same cloth: even Peace Democrats were divided between peace-at-any-price extremists and moderates who wanted to end the war but not at the price of outright disloyalty. Little in these distinctions got much attention in the fevered atmosphere of the war, however. As Confederate agents attempted to manipulate Democratic dissent into outright resistance, army generals began removing Democratic judges from their benches, Democratic preachers from their pulpits, and Democratic newspapers from the mail. Estimates of the actual number of arrests by military authorities vary, from only about 4,400 all the way up to 35,000. But each one of these was treated as an insufferable violation of civil liberties, and each one only heightened Democratic resentments at Lincoln’s administration.74
The most sensational and illuminating of these civil liberties cases concerned the Democratic candidate for governor of Ohio in 1863, Clement Laird Vallandigham. Forty-three years old and the most handsome politician in America, Vallandigham sat in Congress from 1858 until 1863, when Republicans in the Ohio legislature successfully gerrymandered his district out from under him. It was not hard to see why. Vallandigham wore the “Copperhead” tag as a badge of honor, even to the point of fashioning a lapel pin made from the head of a copper penny. “I am not a Northern man. I have little sympathy with the North, no very good feeling for, and I am bound to her by no tie whatsoever, other than what once were and ought always to be among the strongest of all ties—a common language and common country,” Vallandigham said in 1859. If anything, he was as much a secessionist and sectionalist as the Calhounites. “I am a Western Man, by birth, in habit, by education… and … wholly devoted to Western interests,” even “a Western Sectionalist, and so shall continue to the day of my death.”75
In January 1863 Vallandigham decided to run for governor of Ohio, and thereupon he ran afoul of Major General Ambrose Burnside. A thoroughgoing War Democrat and now commander of the Department of the Ohio, Burnside issued a general order that forbade “the habit of declaring sympathies for the enemy” and threatened that “persons committing such offenses will be at once arrested, with a view to being tried… or sent beyond our lines into the lines of their friends”—“their friends,
” of course, meaning the Confederates. Vallandigham became an obvious target for Burnside’s order, and on May 1, 1863, Burnside planted several spies in an election crowd that Vallandigham was due to address. Vallandigham made numerous incautious remarks about a “wicked, cruel, and unnecessary war” that was “not being waged for the preservation of the Union” but for “the purpose of crushing out liberty and erecting a despotism,” and he declared “that he was at all times, and upon all occasions, resolved to do what he could to defeat the attempts now being made to build up a monarchy upon the ruins of our free government.” In peacetime this sort of rhetoric would hardly have gotten Vallandigham more than a few column-inches in the newspapers, but now it was enough to set General Burnside off like a Roman candle. Four days later, a company of Federal soldiers broke down the door of Vallandigham’s house and hauled him off to Cincinnati for a military trial.76
Vallandigham was no fool: though a military commission easily found him guilty of violating Burnside’s general order and sentenced him to imprisonment in Fort Warren, in Boston harbor, he appealed for a writ of habeas corpus and cast himself as a martyr in the cause of the Constitution. Sensing the political Pandora’s box that Vallandigham’s arrest could easily open, Lincoln changed his sentence from imprisonment to banishment in the Confederacy. But Lincoln was unable to escape the eruption of attack and abuse from Northern Democrats that followed, and when the Ohio Democrats met in Columbus in June to select a nominee for the Ohio governorship, a crowd of as many as 100,000 showed up to demand Vallandigham’s nomination. Vallandigham’s absentee campaign slowly evaporated without his magnetic presence, however, and a daring Confederate raid into Ohio under John Hunt Morgan frightened Ohioans into a clearer sense of their wartime priorities. When the votes were tallied in the fall elections, Vallandigham lost his long-distance bid for the governorship by 100,000 votes. Relieved, Lincoln turned his attention to matters other than Vallandigham, and when he was advised in the summer of 1864 that Vallandigham had slipped back into Ohio, disguising himself with a set of false whiskers and a cape, Lincoln merely recommended that the new departmental commander leave Vallandigham alone. “Watch Vallandigham and others closely,” Lincoln advised, but “otherwise do not arrest without further order. …”77
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