Warfare and the Rule of Law

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Warfare and the Rule of Law


Civil Liberties in Wartime. War and the apprehension of war have tested and sharpened American ideas about free speech and the judicial process ever since the sedition controversy of 17981800. During the Civil War, a conflict fought to enforce allegiance to the federal government, the problem of reconciling duties of loyalty and rights of expression was particularly acute. Not surprisingly, at times the federal government significantly restricted the liberties of its citizens, especially at moments and in places of particular peril to Union authority. For the most part, however, the federal government interfered with constitutional freedoms less aggressively in the Civil War than it would in either World War I or World War II. The political leaders of the mid

nineteenth century were not necessarily more libertarian than their successors, but the government machinery available to suppress dissent was much weaker and less rationally organized.

Maryland. Some of the most forceful federal measures took place at the outset of the war, while Maryland debated disunion. The secession of the state would have compelled the abandonment of the federal capital in Washington, D.C., and the Lincoln administration moved decisively to suppress supporters of the Confederacy. In May 1861 Army officials imprisoned suspected Baltimore secessionists in Fort McHenry, including the grandson of Francis Scott Key, who had written the Star Spangled Banner during a British attack on the fortress during the War of 1812. When the state legislature met in Frederick four months later, the army arrested thirty-one suspected secessionist delegates and several of their supposed allies, including the mayor of Baltimore. All of these prisoners were held until Unionist sentiment stabilized and the state elected a new legislature in November. The army then released prisoners who took an oath of allegiance to the federal government; the last of the group remained in prison until December 1862.

Suspending the Writ of Habeas Corpus. The writ of habeas corpus (Latin for you should have the body) is a document that a law enforcement individual must possess in order to bring a party before a court or judge. The Great Writ, as it is called, is part of Anglo-American common law tradition and protects an individual from illegal imprisonment. As part of the military intervention in Maryland, President Lincoln ordered suspension of this procedure in the area between Philadelphia and Washington. John Merryman, one of the Maryland secessionists imprisoned in May 1861, challenged Lincolns order by filing a petition in the federal circuit court in Baltimore for issuance of a writ of habeas corpus. The Supreme Court justice responsible for the circuit was Chief Justice Roger B. Taney, who granted the petition in Ex Parte Merryman. Although Congress was not in session, Taney reasoned that the Constitution permitted only Congress, not the president, to suspend the writ of habeas corpus. The Lincoln administration defied the order. Are all the laws, but one, to go unexecuted, the president asked Congress when it assembled on 4 July, and the government itself go to pieces, lest that one be violated? During the next sixteen months, Lincoln extended north to Maine the military line along which the writ was suspended, and he also declared the writ suspended in Missouri and on Key West, Florida.

Conscription. The transformation of the Union war effort after the failure of the 1862 campaign in Virginia, and particularly the gradual institution of a draft, led to a more expanded suspension of the writ of habeas corpus. Secretary of War Edwin Stanton declared the writ of habeas corpus suspended throughout the country on 8 August 1862, for draft evaders and all persons arrested for disloyal practices, especially the act of discouraging enlistment in the army. This proclamation gave federal officials sweeping powers to identify individuals as disloyal and lock them up, and within one month more than 350 Northerners were imprisoned. By the time Lincoln confirmed Stantons order in September, however, public outcry over the arrests and the successful filling of the draft quota had caused the War Department to relax its enforcement practices. Renewed conscription efforts and suspension of the writ again went together in March 1863, when Congress ratified Lincolns habeas corpus policy and enacted a more stringent draft. The unpopularity of the conscription act, dramatized by the New York City draft riots in July 1863, in turn prompted Lincoln to proclaim again in September that the writ was suspended throughout the North. By this time, however, such proclamations essentially served as publicity gestures to reinforce the draft rather than actual changes in the administration of justice.


In the legends of the Old West, no other outlaws are more preeminent than Frank (18441915) and Jesse (18471882) James. Popular imagination views them as latter-day Robin Hoods who stole from the rich and gave to the poor; however, the historical facts are not so flattering. The brothers were born in Clay County, Missouri, the sons of a preacher. During the Civil War they rode with Confederate guerrilla leaders William C. Quantrill and Bloody Bill Anderson, and participated in several atrocities. When the conflict ended in 1865, Missouri guerrillas, unlike regular Confederate soldiers, did not receive amnesty from the federal government.

Frank and Jesse James went home as outlaws, and between 1866 and 1881 they robbed banks, stagecoaches, and trains in Missouri, Kansas, Kentucky, Iowa, Mississippi, West Virginia, Texas, and Minnesota. The James gang usually consisted of former Confederate guerrillas such as the Younger brothersCole and Jim. They became heroes to many former Confederates living in Missouri, and eastern newspapers sensationalized their exploits. Pinkerton detectives made several unsuccessful attempts to capture the brothers, and the governor of Missouri placed a $5,000 bounty on each of their heads.

Jesse was the more violent of the two brothers, pistol-whipping and shooting his victims indiscriminately. During a December 1869 robbery at the Daviess County Savings Bank in Gallatin, Missouri, Jesse shot the cashier merely because he resembled a Union officer who had killed Bloody Bill Anderson during the war. The most spectacular robbery by the James gang occurred in Northfield, Minnesota, in 1876, during which it fought a twenty-minute gun battle with the townspeople. Jesse James was killed in 1882 by a former gang member. Frank James surrendered to the authorities two years later, stood trial for murder, and was acquitted. He lived the remainder of his life in a peaceful manner, giving tours of his birthplace and selling pebbles from his brothers grave.

Source: Paul Trachtman, The Gunfighters (New York: Time-Life Books, 1974).

Military Jurisdiction. The expanded authority of military tribunals in the Civil War raised legal issues that went beyond the suspension of the writ of habeas corpus, for the writ is only one of the many procedural guarantees of fairness recognized by the American judicial system. Trial of civilians by military courts raised the question of how far judicial processes would be displaced by army standards of justice. It should be noted that military law often provided for its own procedural safeguards, including an appellate process that in capital cases reached up to the president. But military proceedings inevitably tended to be improvisational and could easily be perceived as merely executing the orders of a commanding officer. Careful analysis of these cases has revealed a striking disparity between the broad authority granted to military commissions and the limited circumstances under

which these tribunals tried civilians. In 1863, for example, Congress recognized military contractors as a part of the army and authorized military commissions to hear and pass sentence in cases of contract default. In practice, however, most cases involved defendants directly aiding the Confederacy. Of the approximately forty-two hundred cases in which military courts tried civilians, almost half pertained to the guerrilla war in Missouri, many involving bridge burning, horse stealing, or acts of violence. Similar patterns applied throughout the border states and occupied territory of the Confederacy, which together with Washington, D.C., accounted for 95 percent of military trials of civilians.

The Court of Public Opinion. The most celebrated military trial of the war did not involve a blockaderunner or saboteur, but a leading Democratic critic of the Lincoln administration. While commanding along the Ohio River in April 1863, Gen. Ambrose Burnside issued an order threatening execution or banishment to anyone committing express or implied treason. Clement Vallandigham, leader of the peace wing of the Democratic Party and a candidate for governor of Ohio, tested the decree in a well-publicized antiwar address. Burnside had Vallandigham arrested at his home in Dayton and tried by a military commission in Cincinnati. On the recommendation of the commission, Burnside ordered Vallandigham imprisoned for the duration of the war. The affair prompted an outcry that military tribunals had become a tool for suppressing free speech and ensuring Republican Party domination. Lincoln responded by commuting Vallandighams sentence to exile to the Confederacy, and on 25 May 1863 Union soldiers escorted Vallandigham across the lines under flag of truce. The candidate traveled through the Confederacy before leaving for Canada on a blockade-runner and resuming his campaign for governor of Ohio. Meanwhile, Democrats led protests throughout the North that forced Lincoln to issue his most extended wartime pronouncement on civil liberties in a letter addressed to Democratic congressman Erastus Corning. As usual Lincoln focused less on analyzing constitutional niceties than on winning popular support for his determination to do as much as may seem to be required by the public safety.

The Supreme Court. The retreat of army officials from military trials of civilians demonstrates the restraint in this practice that was more typical than the sensational case of Clement Vallandigham. In February 1864 an army commission reviewing sentences imposed on blockade-runners concluded that military commissions could only try civilians in sites of ongoing war where martial law had been declared. This conclusion anticipated a similar ruling by the Supreme Court in 1866 in Ex Parte Milligan, a case reviewing the imprisonment of Indiana Democrat Lambdin P. Milligan, who had spoken out against the war. In a ringing celebration of civil liberties, the Supreme Court ruled that the military could not try a civilian if the local courts remained open. The Court declared that the Constitution is a law for rulers and people, equally in war and in peace. No doctrine involving more pernicious consequences, was ever invented by the wit of man, than that any of its provisions can be suspended during any of the great exigencies of government. In a sense the ruling had little practical effect, for the war was now over. But in another way the implications of Ex Parte Milligan were far-reaching, for the decision was widely interpreted in order to limit the power of Congress to work through the army or federal agencies during Reconstruction.


Abraham Lincoln, from letter to Erastus Corning and Others, 12 June 1863:

He who dissuades one man from volunteering, or induces one soldier to desert, weakens the Union cause as much as he who kills a Union soldier in battle. Yet this dissuasion or inducement may be so conducted as to be no defined crime of which any civil court could take cognizance. [The] provision of the Constitution that the privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it, is the provision which specially applies to our present case. This provision plainly attests the understanding of those who made the Constitution, that ordinary courts of justice are inadequate to cases of rebellionattests their purpose that, in such cases, men may be held in custody whom the courts, acting on ordinary rules, would discharge.

Society for the Diffusion of Political Knowledge, from reply to President Lincolns Letter of 12 June 1863:

We can not acquiesce in your dogmas that arrests and imprisonment, without warrant or criminal accusation, in their nature lawless and arbitrary, opposed to the very letter of constitutional guarantees, can become in any sense rightful, by reason of a suspension of the writ of habeas corpus. We deny that the suspension of a single and peculiar remedy for such wrongs brings into existence new and unknown classes of offenses, or new causes for depriving men of their liberty. [Y]our doctrine undisguisedly is, that suspension of this writ justifies arrests without warrant, without oath, and even without suspicion of treason or other crime.


Mark E. Neely Jr., The Fate of Liberty: Abraham Lincoln and Civil Liberties (New York: Oxford University Press, 1991);

J. G. Randall, Constitutional Problems Under Lincoln, revised edition (Urbana: University of Illinois Press, 1951).