McGinty Brian. Lincoln and the Court

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Nelson was seventy-two and in relatively good health but neither as energetic

nor as assertive as he had been in earlier years. Grier was seventy and in fail-

ing health.

though much of the court’s work in early 1865 was pedestrian, the

judges were aware that potentially explosive issues could arise at any time.

Many men had been arrested during the war, held without beneﬁt of habeas

corpus, and denied trials and bail.

Some were civilians who had been tried by

military commissions and sentenced to imprisonment or, in some cases, death.

The legal community was sharply divided as to the constitutionality of these

trials, and petitions seeking to set them aside had been ﬁled in federal courts.

Lincoln had been aware of the challenges and was almost resigned to the fact

that the Supreme Court would eventually rule on them. He had chosen Chase

as chief justice in large part because Chase shared his war aims and could be de-

pended on to sustain his most important war measures. But he knew that a Su-

preme Court judge could never commit himself in advance to a particular rul-

ing, and that it was always possible one of his appointees (there were ﬁve in all)

would disappoint him.

Cases challenging military commissions had reached the court before Chase

became chief justice, but, like the potentially explosive Ex parte Vallandigham,

they had been dismissed on jurisdictional grounds.

In March 1863 Congress

had passed a comprehensive statute on the subject of habeas corpus, intending

not only to defuse the hotly contested issue of whether the power to suspend

rested with the president or with Congress (the question that Taney had

decided against Lincoln in Merryman), but also to establish a regularized pro-

cedure under which persons arrested by military authorities in the loyal states

would have access to the courts.

The new statute provided, ﬁrst, that the

president “is authorized” to suspend the writ anywhere in the United States,

“whenever, in his judgment the public safety may require it.” (It did not say

that the president “is hereby authorized” to suspend the writ.)

Second, it re-

quired the secretary of state and the secretary of war to prepare lists of all citi-

zens of loyal states who were held as prisoners (other than as prisoners of war)

by order of the president or either of the secretaries, and to furnish the lists to

the judges of the federal district and circuit courts. Third, it provided that, if a

grand jury adjourned without indicting a person named on a list, the person

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was entitled to release upon taking an oath of allegiance to the federal govern-

ment.

In February 1865, a petition for habeas corpus and for certiorari was ﬁled

in the Supreme Court on behalf of a man named John Dugan, who had been

arrested on charges of robbing an army paymaster in the District of Columbia.

In January, the Supreme Court of the District of Columbia had issued a writ

of habeas corpus on behalf of Dugan, directed to the superintendent of the

Old Capitol Prison. The superintendent declined to comply because Lincoln

had personally ordered that the writ of habeas corpus be suspended in Dugan’s

case.

When the court declined to proceed further, Dugan’s attorneys ﬁled their

petition in the U.S. Supreme Court, asking that a writ of certiorari be issued

to the lower court and a writ of habeas corpus to the prison superintendent.

Lincoln was concerned. Gideon Welles was also concerned, for he believed

that Chase might use this opportunity to strike a blow for judicial indepen-

dence by invalidating Lincoln’s suspension. The secretary of the navy sus-

pected that Chase intended “to make himself felt by the Administration when

he can reach them.”

Welles wrote in his diary: “There is no man with more

ﬁerce aspirations than Chase, and the bench will be used to promote his per-

sonal ends.”

On February 27, the Supreme Court granted certiorari “returnable forth-

with” in Dugan’s case. Since the Court was nearing its adjournment, it could

have put the hearing over until the following term, which would begin in De-

cember. But habeas corpus was one of the cornerstones of liberty, and it took

precedence over other matters. Dugan’s attorney asked the Court to proceed to

a hearing without delay. But Attorney General Speed urged the justices to wait

until the ofﬁcial record was brought up from the lower court. The Court agreed

with Speed and, on March 3, ordered that the case of In Re John Dugan be con-

tinued to the next term. But by then the ﬁghting was over, Dugan had regained

his freedom, and his attorney asked that his petition be dismissed.

Thus did

Lincoln and his administration narrowly miss an arrow aimed at the heart of

their war program in February 1865.

on wednesday morning, February 1, 1865, Senator Charles Sumner en-

tered the chamber of the Supreme Court in the company of an attorney from

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his state who was seeking admission to the bar. At eleven o’clock, the judges

ﬁled into the room and took their seats. Chief Justice Chase stood for a mo-

ment, bowed to the assembled attorneys, and took his seat with what a newspa-

per reporter described as “a great presence.” Sumner then rose to address the

judges: “May it please the Court, I move that John S. Rock, a member of the

Supreme Court of the State of Massachusetts, be admitted to practice as a

member of this Court.”

The chief justice nodded his head as he granted the

motion, conﬁdent that on that day he had struck a blow for freedom and equal-

ity, for Rock was not simply a Massachusetts attorney but the ﬁrst African

American attorney ever admitted to the bar of the Supreme Court.

Sumner, who shared Chase’s passion for racial equality, was thrilled. The

new attorney was a man of impressive attainments, a native of New Jersey

whose free-black parents had sacriﬁced mightily so he could stay in school until

he was eighteen years old. After graduation, Rock taught school and studied

dentistry, medicine, and ﬁnally law. He was active with abolitionist societies in

Philadelphia and Boston, where he settled in the mid-1850s, and he became an

effective speaker and writer on abolitionist issues. Ill health forced him in 1859

to travel to Paris for special medical treatment. His trip there was made dif-

ﬁcult by the Dred Scott–like ruling of James Buchanan’s secretary of state, Lewis

Cass, that blacks were not eligible to carry U.S. passports because they were

not citizens. Back in Boston, Rock practiced law, continued his work with abo-

litionist societies, and, in 1863, helped recruit African American soldiers for

the Fifty-fourth Massachusetts Regiment. In 1864 he wrote Senator Sumner to

ask for his help in gaining admission to practice before the Supreme Court, but

he was told that nothing could be done so long as Roger Taney was the chief

justice. “I suppose,” Rock wrote to a friend, “the old man lives on out of

spite.”

After Taney died, Rock renewed his request, and Sumner told him to

come to Washington. His admission to the Supreme Court on February 1 was

also accompanied by a friendly welcome in the hall of the U.S. House of Rep-

resentatives.

Sumner believed that Rock’s admission would settle a host of difﬁcult is-

sues for African Americans, for if they were good enough to practice law in the

highest court in the land, it would be “difﬁcult for any restriction on account of

color to be maintained any where.” “Street cars,” Sumner said, “would be open

afterwards.”

But Sumner was too optimistic. Even in the Supreme Court

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there was a backlash against the black man’s admission. Justice Davis was not

in Washington when Rock made his appearance there, but he learned of it in

Illinois and thoroughly disapproved. He complained that Sumner’s “radical-

ism” was running athwart “every body’s prejudices” and asked: “What object of

swearing in the negro man, as an attorney of [the] U.S. Supreme Court[?] He

had no business there & never would....Thenegro can never be elevated to

social & political rights in this country & all wise statesmen know it. But re-

publics make politicians & not statesmen.”

Although Davis’s views were clearly racist by the standards of later genera-

tions, they were not unusual for a man of his time and region, born in Mary-

land, educated in Ohio, and grown to maturity in central Illinois, where he was

surrounded by men and women from slaveholding states. Davis was a ﬁrm de-

fender of the Union and an opponent of slavery, but he never indulged in “rad-

ical” notions of racial equality. Justice Wayne’s biographer, Alexander A. Law-

rence, suggests that Wayne was also offended by Rock’s admission. He points

out that the Georgian was absent from court on February 1 and suggests that

Rock’s admission was “more than a Judge who had concurred in the still unre-

versed Dred Scott decision could stomach.”

But Charles Fairman has noted

that Wayne was absent for several days before and after the black attorney’s ap-

pearance and that he “was not a Judge who made resentful demonstrations.”

If Lincoln was aware of Rock’s admission to the Supreme Court, there ap-

pears to be no record that he made any comment on it. It was not customary

for the president to follow the day-to-day operations of the Supreme Court,

and if he did hear of it, it is difﬁcult to imagine that he would have objected to

the admission of an African American attorney. Although his own views on ra-

cial equality had evolved over the years, he had never denigrated blacks. The

day of Rock’s admission to the Supreme Court was also the day on which Lin-

coln celebrated the passage of the Thirteenth Amendment, a day of triumph

for the president and for African Americans.

On several occasions during the war, Lincoln had invited the African

American abolitionist and editor Frederick Douglass (whom he called “one of

the most meritorious men in America”) to visit him, both at the White House

and at his summer retreat at the Soldiers’ Home in Washington. Douglass later

wrote that, in Lincoln’s company, he was “never in any way reminded of my

humble origin, or of my unpopular color.” And on the day of his second inau-

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guration, when Lincoln caught sight of Douglass across the crowded East Room

in the White House, he called out, “Here comes my friend Douglass.” Douglass

later said that he was sure that Lincoln called out to him in such a voice so

“that all around could hear him.”

“I saw you in the crowd today, listening to

my inaugural address,” the president said. “How did you like it?”

Douglass replied: “Mr. Lincoln, I must not detain you with my poor opin-

ion, when there are thousands waiting to shake hands with you.” “No, no,”

Lincoln said. “You must stop a little[,] Douglass; there is no man in the country

whose opinion I value more than yours.”

It is hard to imagine that such a

president would have taken umbrage at the honor accorded John Rock in the

Supreme Court.

But honors do not always translate into real accomplishments. Despite his

distinction as the ﬁrst member of his race to be admitted to practice in the Su-

preme Court of the United States, John Rock would never live to see the day

when he or his fellow African Americans could freely “ride on streetcars,”

much less vote, or hold ofﬁce, or live where they pleased. “Black codes” were

already being enacted in both Northern and Southern states that would deny

equal rights on the basis of race, and Rock was destined to die an unexpected

death on December 3, 1866, at the age of forty-one—less than two years after

Lincoln’s own death—knowing that slavery had been outlawed in his native

land but that other basic rights had yet to be extended to members of his race.

the supreme court adjourned on March 10, 1865, fourteen weeks after it

began its December term. The justices whose health permitted them to travel

then set out for their homes and circuit duties. Chase headed ﬁrst to Baltimore,

for he had fallen heir to Taney’s old Fourth Circuit, which included Delaware,

Maryland, Virginia, and North Carolina. After sitting for a short time in Balti-

more, the chief justice was back in Washington on April 14, when Lincoln was

assassinated. After administering the presidential oath to Andrew Johnson, he

had to decide whether to go into Virginia on circuit duty. He conferred with

Justice Wayne, who had a similar decision to make; Wayne’s Fifth Circuit in-

cluded South Carolina, Georgia, Alabama, Mississippi, and Florida. Wayne

had not gone on circuit duty since the war began, and he did not feel the time

was yet ripe to do so. Military commissions were still operating in the South,

and habeas corpus was still suspended. Chase and Wayne agreed that it was

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“unbecoming” for them to travel to the South under these circumstances.

soon as the new president thought it “wise and safe” to revoke the suspension

of habeas corpus, Chase said, he would be willing to hold court anywhere in

the circuit assigned to him.

David Davis, who had been in Illinois during all of the Court’s 1864–65

term, was attending to his circuit court duties in Chicago when he received

news of Lincoln’s death. Though his neck was still painful, he sent a messenger

to all of the local judges, asking them to adjourn their courts and bring the law-

yers before him. On Saturday, April 15, speaking from his circuit court bench,

he told the assembled lawyers that the nation had been “stricken by a great ca-

lamity and a great sorrow. My sorrow is a double one. I sorrow not only as a citi-

zen of the United States but as a personal and devoted friend of the President.”

From Washington, Robert Todd Lincoln, the deceased president’s eldest

son, telegraphed Davis, asking him to “come at once to Washington and take

charge of my father’s affairs.”

Although exhausted and still in pain, Davis

dropped all of his Illinois business to head East, where he met with the Lincoln

family and made arrangements to administer the president’s estate in

Sangamon County, Illinois. For the next several months, Davis took great care

to provide for Mrs. Lincoln and her two children, even accepting an appoint-

ment to act as guardian of the fourteen-year-old Tad Lincoln. He was able to

invest Lincoln’s assets wisely, so that by the time they were ready to be distrib-

uted two years later, they had doubled in value. Against the insistence of the

grateful Robert Todd Lincoln, Davis refused to accept any fee for his work for

the Lincoln family. Mrs. Lincoln wrote him: “Permit me to say, that in no

hands save your own could our interest have been so advantageously placed.

Please accept my grateful thanks for all your kindness to myself & family.”

While Chase was administering the oath to Andrew Johnson and David

Davis was taking charge of Abraham Lincoln’s estate, John Catron remained

gravely ill at his home in Nashville. The Tennessean’s advanced age and long

illness had prepared his colleagues for his imminent death, which came on May

30, 1865. President Johnson made no immediate effort to nominate a succes-

sor. Catron had been absent from the Court for so long that his death did not

make a practical difference in the Court’s operations, and there was a general

feeling that ten judges was not a practical number. With an even number of

judges, it was always possible that a vote would be equally divided, in which

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case the judgment appealed from would be afﬁrmed without a ruling on the

merits. If the Court were expanded to eleven, it would be unwieldy. For the

time being at least, the Court would continue its work with just the remaining

nine judges.

david davis was well enough to resume his circuit-court work in Indiana

in the spring. He went to Indianapolis, where David McDonald had recently

been appointed as the federal district judge. Working together, Davis and Mc-

Donald took up some serious cases in the circuit court. One was a petition

for habeas corpus ﬁled on behalf of a man named Lambdin P. Milligan, who

was held prisoner near Indianapolis under authority of a military commission.

Milligan was a lawyer and a minor politician (he had made an unsuccessful bid

for the Democratic nomination for governor of Indiana in 1864) with well-

known Southern sympathies. Arrested on October 5, 1864, by order of Brevet

Major General Alvin P. Hovey, commander of the military district of Indiana,

Milligan was charged with “conspiracy against the government of the United

States,” “affording aid and comfort to rebels against the authority of the United

States,” “inciting insurrection,” “disloyal practices,” and “violation of the laws

of war.”

Between October 21 and December 6, Milligan and four other men,

Horace Heffren, William A. Bowles, Stephen Horsey, and Andrew Humphrey,

were tried before a military commission organized by order of General Hovey.

All of the men were members of the Sons of Liberty, a secret “army” dedi-

cated to ending the war on terms favorable to the South. (Ohio’s Clement L.

Vallandigham was the “Supreme Commander” and Milligan a “major general”

of the Sons of Liberty.) They objected vigorously to the commission’s jurisdic-

tion, arguing that they were entitled to be indicted and tried in a civil court

under the Habeas Corpus Act of 1863. But their arguments were overruled,

largely on the basis of the Supreme Court’s ruling in Ex parte Vallandigham that

it had no jurisdiction to review the proceedings of military commissions.

the second week of the trial, charges against Heffren were dropped when he

agreed to testify against the other defendants. The evidence of guilt was strong

(although not without some conﬂict) and, after due deliberations, the commis-

sion convicted Milligan, Bowles, Horsey and Humphrey. Humphrey was sen-

tenced to hard labor for the duration of the war, while the others were ordered

to be hanged.

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Faced with a death sentence, Milligan arranged for Joseph E. McDonald, a

prominent Indianapolis lawyer and Democratic politician, to become his attor-

ney. (McDonald was a former congressman and state attorney general and had

beaten Milligan for the gubernatorial nomination in 1864.) McDonald went to

Washington to plead Milligan’s case with President Lincoln. In spite of the

president’s busy schedule, Lincoln and the attorney sat up until almost eleven

o’clock at night reviewing the papers in the case. Lincoln told McDonald he

found “certain errors and imperfections in the record” and would send it back

to Indiana for correction. “You may go home, Mr. McDonald,” he said, with a

pleased expression, “and I’ll send for you when the papers get back; but I appre-

hend and hope there will be such a jubilee over yonder” (pointing to the hills

of Virginia just across the river) “we shall none of us want any more killing

done.”

Until that time, however, Lincoln would keep Milligan and his fellow

defendants “in prison awhile to keep them from killing the Government.”

But Lincoln was assassinated and Andrew Johnson became president be-

fore Milligan’s record could be corrected and sent back to Washington. When

the papers ﬁnally got back to the White House, Andrew Johnson was in a

mood to “make treason odious.” The trial of those implicated in Lincoln’s as-

sassination had begun on May 13 in Washington before a military commission,

pursuant to Johnson’s own order. Johnson approved all three of the Indiana

sentences and directed that Milligan and his fellow defendants be executed on

May 19, 1865.

On May 10, a petition for writ of habeas corpus was ﬁled on behalf of

Milligan and the others in the circuit court in Indianapolis. Now frantic efforts

began to save the men’s lives. Indiana’s Republican governor Oliver P. Morton

(who had earlier urged that Milligan be tried) sent Schuyler P. Colfax, the Re-

publican speaker of the House of Representatives, to Washington with a letter

protesting the scheduled executions. And Justice Davis and Judge McDonald

wrote President Johnson, urging him to issue a stay so the case could be

reviewed in the federal courts, and ultimately in the Supreme Court. In their

letter, the judges said they did not “call in question the guilt of these men. We

are satisﬁed that their trial had a most salutary effect on the public mind by de-

veloping and defeating a most dangerous and wicked conspiracy against our

government.” But, they pointed out, the military commission under which

Milligan and the others were tried was “a new tribunal unknown to the Com-

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mon Law,” and there were “serious doubts” about its jurisdiction over civilians.

“Would it not be wiser,” Davis and McDonald asked, “to defer the execution of

these men until the Supreme Court of the United States have passed on the

question of the jurisdiction of the court that tried them?” Johnson responded

by commuting all of the sentences to life imprisonment.

Back in Indianapolis, Davis and McDonald proceeded to hear Milligan’s

petition. It was apparent that the judges were strongly inclined in Milligan’s

favor on the issue of jurisdiction, but they wanted to submit the matter to

the Supreme Court for a ﬁnal and authoritative pronouncement. So they is-

sued a certiﬁcate of division and framed three questions for answer by the high

tribunal:

1. Should a writ of habeas corpus be issued?

2. Should Milligan be discharged from custody?

3. Did the military commission have jurisdiction to try and sentence

Milligan?

The record in Ex parte Milligan was ﬁled in the Supreme Court on Decem-

ber 27, 1865. On February 5, 1866, the Court ordered that arguments begin on

Monday, March 5. On March 2, Attorney General Speed ﬁled a motion to dis-

miss the case for lack of jurisdiction, and the Court directed that arguments on

this motion be heard at the same time as the argument on the merits.

While the justices were waiting for arguments to begin in Ex parte Milligan,

another important issue was working its way toward them. The Supreme Court

had convened for its December term on Monday, December 6, 1865. Two

days later, Reverdy Johnson had appeared to ask for early hearing of a peti-

tion ﬁled on behalf of Augustus H. Garland, an attorney from Arkansas who

had formerly been a member of the Supreme Court bar but whose member-

ship had lapsed during the war. Garland’s petition to reinstate his membership

was complicated by an enormous issue then shaking the legal and political

communities in both the North and the South: the requirement that ex-

Confederates demonstrate their loyalty to the United States by taking so-

called test oaths. The issue of the oaths, while important, was only part of

the even larger issue of how the states formerly in rebellion should be “recon-

structed,” and whether men who had taken up arms against the United States

during the war were now to be included in the political life of the nation, or

wholly excluded from it.

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As early as July 1862, Congress had enacted what was known as the Iron-

Clad Oath, which required all civil and military ofﬁcers of the United States

(except the president himself) to swear (or afﬁrm) that they had never volun-

tarily borne arms against the United States (after becoming citizens); that they

had never voluntarily given “aid, countenance, counsel, or encouragement” to

persons engaged in armed hostility against the government; that they had

never sought or accepted any ofﬁce under any authority hostile to the United

States, or voluntarily supported such an authority; and that they would in the

future support and defend the Constitution of the United States against all en-

emies, foreign and domestic.

In January 1865 the law was amended to require

all persons seeking admission to the bar of any federal court (or appearing in

such a court by reason of a previous admission) to take the same oath.

In ac-

cordance with the federal statute, the Supreme Court on March 10, 1865,

adopted the requirement as one of its rules.

Oath requirements were also being enacted in many states. Missouri signi-

ﬁed its intention of requiring an oath in a new state constitution that was nar-

rowly adopted by the state’s voters in June 1865. The new constitution stated

that designated persons must swear they had never been in “armed hostility to

the United States”; never given “aid, comfort, countenance, or support to per-

sons engaged in any such hostility”; never “in any manner, adhered to the ene-

mies, foreign or domestic, of the United States”; never “advised or aided any

person to enter the service of such enemies”; and never expressed “sympathy

with those engaged in exciting or carrying on rebellion against the United

States.”

Missouri’s oath applied broadly to public ofﬁcers, ofﬁcers of public

and private corporations, professors and teachers, trustees, attorneys, bishops,

priests, deacons, ministers and other clergymen, and even ordinary voters. Any

person who held an ofﬁce, practiced a profession, or exercised a function speci-

ﬁed in the state constitution, after having failed to take the oath, was subject to

a ﬁne in the amount of $500 and imprisonment in the county jail for up to six

months. Falsely taking the oath would subject a guilty person to prosecution

for perjury and imprisonment for not less than two years.

It was a draconian

measure, and one that was almost sure to arouse ﬁerce opposition in a state

whose wartime population was bitterly divided on the great questions of seces-

sion and slavery.

Augustus H. Garland was unable to take the new oath required by the Su-

preme Court’s rules because he had a record of high-proﬁle participation in the

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