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Curbing Civil Liberties

The Controversy of Military Tribunals

Clement L. Vallandigham

         One of the great legal controversies during the Civil War was raised, however, when citizens were subjected to military tribunals in regions remote from military operations and where the civil courts were unaffected by the course of the war. The controversy erupted in 1863-1864, particularly in Ohio, Indiana and Illinois, where many Democrats who were strongly opposed to the President’s war policies that they demanded a negotiated peace and engaged in efforts to obstruct the prosecution of the war.  

        The most famous wartime military tribunal case involved Clement L. Vallandigham, one of the national leaders of the Copperheads and a former Democratic Congressman from Ohio who, in 1863, was placed under military arrest, and was tried and convicted for a public speech bitterly denouncing the Lincoln Administration. The five-member military tribunal found Vallandigham guilty of disloyal sentiments with the object of weakening the government.  Before a huge throng of some 15,000 to 20,000 people, Vallandigham had declared the war, “wicked, cruel and unnecessary, asserted the right under the First Amendment to criticize the government, and urged citizens to use the “ballot box” to “hurl King Lincoln from his throne.”  His speech drew rousing cheers from the crowd.  There is little doubt that Vallandigham’s speech, like Congressman Matthew Lyon’s speech criticizing the Adams Administration during the Quasi-War, would have been punished under the 1798 Sedition Act, as was Lyon’s.  But that statute had been repealed and those punished—including Lyon—had been  pardoned by President Jefferson. America, moreover, had long since rejected the English doctrine of seditious libel. 

Ex Parte Vallandigham

       President Lincoln was surprised and embarrassed by his administration’s arrest of Vallandigham.  John Hay, Lincoln’s secretary, said that if the President had been consulted before any proceedings were initiated,” he “would not have permitted them.”  Lincoln’s security policy sought draft dodgers, deserters and bridge burners, not leaders of the Democratic Party, and no speakers such as Vallandigham. Lincoln’s own view of free speech, libertarian in scope, was that Vallandigham was protected in his right to criticize Lincoln and his policies. As Lincoln understood the arrest, Vallandigham could be punished, not for the expression of his views, but for his relative success in helping to persuade men to desert.

      Vallandigham appealed his conviction, first to federal court and then the U.S. Supreme Court, with no success. The federal judge dismissed Vallandigham’s petition, which asserted that he had been denied his constitutional right to due process of law. The court reasoned that the President “is invested with very high powers” and “is amendable for an abuse of his authority by impeachment.”  He fared no better before the High Tribunal with the argument that the jurisdiction of a military commission did not extend to a citizen who was not a member of the military forces. In Ex part Vallandigham (1864), the Supreme Court refused to review the case, declaring that its authority, derived from the Constitution and the Judiciary Act of 1789, did not extend to the proceedings of a military commission because the tribunal was not a court. The Supreme Court, wrote Justice James Wayne in the official opinion, “cannot without disregarding its frequent decisions and interpretation of the Constitution in respect to its judicial power, originate a writ of certiorari to review or pronounce any opinion upon the proceeding of a military commission.”

Ex Parte Milligan

       Soon after the Civil War ended, the Supreme Court finally considered the constitutionality of Lincoln’s use of military tribunals to try civilians.  With this case, the Court also laid down fundamental boundaries on the scope of martial law.  In October 1864, Lambdin P. Milligan, a citizen of Indiana, was arrested by federal troops, tried by a military commission and sentenced to be hanged. Milligan was a Peace Democrat who believed the South should be allowed to leave the Union in peace. He had become a leader in an organization that planned to raid prisons in the Midwest and release Confederate prisoners of war. Although President Lincoln had suspended the writ of habeas corpus in the area, Milligan’s attorneys filed a petition seeking the writ with the nearest federal court.  The court’s two judges disagreed on the merits and certified the case to the Supreme Court. In Ex parte Milligan, the Court finally considered the question of the constitutionality of Lincoln’s use of military tribunals to try civilians. The Court held that the government could not constitutionally use military tribunals to try civilians, even in times of war or insurrection, if the civil courts were open and functioning, as they were in Indiana.  To justify the use of military commissions, Justice David Davis, speaking for a 5-4 majority, reasoned that “necessity must be actual and present: the invasion real, such as effectually closes the courts and deposes the civil administration.” The case involved “the very framework of the government and the fundamental principles of American liberty.”  The Constitution, Davis said, “is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.” In a closing, trumpet call for an enduring Constitution, Davis wrote: “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.”

      Chief Justice Chase, writing for the four-judge minority, agreed that Milligan must be discharged, but feared that the Court was imposing unwise limits on the government’s ability to deal with the insurrection by denying to Congress the power to authorize military commissions such as the one in Indiana. Chase was concerned that the regular federal courts might be “open and undisturbed” and yet “wholly incompetent to avert threatened danger.”  He feared that the majority opinion would be interpreted to cripple the constitutional power of the government in times of invasion or rebellion.

     The long-term effect of Milligan was to stand as defense of individual liberty in both civilian and military concerns, and it restored some of the prestige the Court lost by its decision in Dred Scott v. Sandford (1857). On the entry of the United States into World War I, President Woodrow Wilson emphasized Ex parte Milligan in renouncing any intention of suspending the Bill of Rights for the duration of the war, though in fact there were well known limitations on freedom of speech and press.