McGinty Brian. Lincoln and the Court

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Confederate government. Born in Tennessee in 1832, he had moved to Arkan-

sas in the 1850s to practice law, and there became involved in politics. He was

a delegate to the Arkansas secession convention in 1861, a delegate to the

Confederate Provisional Congress from 1861 to 1862, a representative from

Arkansas to the Confederate Congress from 1862 to 1864, and a member of

the Confederate Senate from 1864 to 1865. His previous practice in the Su-

preme Court in Washington did not excuse him from having to take the oath

now required by the rules. Garland and vocal oath opponents like Reverdy

Johnson were anxious to argue the constitutionality of the oath requirement

and obtain an early order of the Supreme Court striking it down. Garland’s

case, together with that of a Louisiana attorney named Robert Marr, who

had also participated in the Confederate government, was set down for early

argument.

The Missouri test oath was contested when a young Catholic priest named

John Cummings was arrested and charged with performing his priestly duties

without ﬁrst having taken the oath. After offering Mass and preaching to his

congregation, Father Cummings was arrested, indicted, and convicted in the

Pike County Circuit Court. When he refused to pay his $500 ﬁne, he was

clapped into jail. Local attorneys quickly noticed his plight and made arrange-

ments to challenge the required oath in court. The ﬁrst case was heard in the

Missouri Supreme Court, which sustained the oath. Then a writ of error was

obtained from the United States Supreme Court, alleging the violation of

a right under the United States Constitution.

The issues raised by Father

Cummings’s arrest were similar to those raised by Garland’s bid to resume his

practice in the Supreme Court, so the two cases were set down for argument to-

gether. Referred to as the Test Oath Cases, they were scheduled to be heard im-

mediately after the arguments in Ex parte Milligan.

A formidable array of legal talent was on hand when arguments began

in Ex parte Milligan on March 5, 1866. Appearing for Milligan were his India-

napolis attorney Joseph E. McDonald, former U.S. attorney general Jeremiah

Sullivan Black, Justice Field’s brother David Dudley Field, and a thirty-three-

year-old congressman from Ohio named James A. Garﬁeld. Field may have

been the most eminent of Milligan’s attorneys, though he was rivaled by Black,

who had not only served three years as Buchanan’s attorney general but had

also spent four years as chief justice of the Supreme Court of Pennsylvania and

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two years as reporter of decisions for the United States Supreme Court. Black

had served brieﬂy as Buchanan’s secretary of state and then, on February 5,

1861, been nominated to sit on the Supreme Court. He missed conﬁrmation

because Lincoln had already been elected president and the Senate was in no

mood to conﬁrm any nominee of the lame-duck Buchanan. Garﬁeld was a

learned lawyer and a college president as well as a successful major general in

Union army operations in Kentucky and Tennessee. Almost everybody in the

courtroom in March 1866 knew that Chief Justice Chase aspired to be presi-

dent; nobody could have guessed that Garﬁeld was the only man in the room

that day who would actually attain that ofﬁce, winning election in 1880 and

serving brieﬂy as president before he, like Lincoln, was felled by an assassin’s

bullet in 1881.

The government was represented by the new attorney general, James Speed,

former Ohio attorney general Henry Stanbery, and Benjamin F. Butler, the

blustery Massachusetts lawyer and Union major general who had earned the

sobriquet “Beast Butler” during the six months he served as military governor

of Louisiana in 1862. Butler was appearing in the capacity of special counsel for

the United States.

McDonald opened the argument for Milligan, reviewing the facts of the

case and arguing that his client should never have been tried before a military

commission, because the Constitution and the laws of Congress both guaran-

teed him a trial in civilian courts, with all of the procedural guarantees of fair-

ness provided in such courts. Garﬁeld examined precedents in English and

American law relating to the jurisdiction of military tribunals, arguing that the

acts with which Milligan and his codefendants had been charged were clearly

criminal in nature, and that they should have been charged under criminal

statutes, not military orders. Black’s argument was long and forceful. He char-

acterized the military commission that tried Milligan as a “strange tribunal”

and charged that it had jurisdiction over neither the parties nor the subject

matter of the case. He invoked the provisions of the Habeas Corpus Act of

1863 and stated that Milligan and his codefendants fell squarely within its

terms. They were being held pursuant to orders of the president and had not

been indicted by a grand jury. They were thus entitled to their liberty under

the terms of the act. More important, they were entitled to their liberty under

terms of the Constitution. There was no ﬁghting in Indiana when Milligan was

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arrested—he was a civilian, and the courts in his state were open and function-

ing. Under those circumstances, Black argued, the Constitution clearly re-

quired that Milligan be tried in a civilian court.

For the government, Stanbery argued that the case was not properly before

the Court because a certiﬁcate of division was issuable only in a contest be-

tween adverse parties, and this was an ex parte matter, with only one party be-

fore the Court. Attorney General Speed and Benjamin Butler argued the mer-

its of the action. They emphasized the president’s “sovereignty in carrying on

war” and argued that he was “the sole judge of the exigencies, necessities, and

duties of the occasion.” Speed argued that the constitutional requirements for

trial in civil cases were “all peace provisions of the Constitution” and fell “si-

lent amidst arms.” It was a foolish argument and provoked Justice Miller to

comment (in a private letter) that Speed was “certainly one of the feeblest men

who has addressed the Court this term.”

The Milligan arguments continued for six and a half days, from March 5

through March 13, at which time the Court took up the Test Oath Cases. Da-

vid Dudley Field was once again before the bar, now representing Cummings

and Garland. (Apparently neither of the Field brothers felt any embarrassment

on account of their close relationship, or ever suggested that it would be im-

proper for one brother to sit in judgment in a case in which the other was an

advocate.) Reverdy Johnson also appeared for Cummings and Garland, and

Montgomery Blair, Lincoln’s former postmaster general and one of the attor-

neys of record in Dred Scott v. Sandford, ﬁled a brief on their behalf. The state

of Missouri was represented by George P. Strong, a St. Louis attorney, and Mis-

souri’s U.S. senator John B. Henderson.

Field, Johnson, and Blair argued that the challenged oaths were invalid

under the United States Constitution because they amounted to ex post facto

laws and bills of attainder. The Constitution contains two provisions dealing

with laws of this kind. Article I, Section 9, clause 3 (which applies to Con-

gress) provides: “No bill of attainder or ex post facto law shall be passed.” And

Article I, Section 10, clause 1 provides (in relevant part): “No state shall...

pass any bill of attainder [or] ex post facto law.”

An ex post facto law is a law that imposes a punishment for an act that was

not punishable when it was committed; or imposes additional punishment for

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the act; or changes the rules of evidence so that less or different testimony is

required to convict a person for commission of the act. A bill of attainder is a

legislative act that imposes a punishment without a judicial trial. Field, John-

son, and Blair argued that depriving a person of the right to practice a profes-

sion or business, to hold public or private ofﬁce, or to vote, was a punish-

ment that offended both of these provisions of the Constitution, for it was not

illegal during the war merely to “encourage” the Southern insurrectionists, to

express “sympathy” for their cause, or a “desire for their triumph.” The new

oath requirements made all of those things illegal, they argued, and did so ret-

roactively, imposing punishments on all those who could not take the pre-

scribed oaths.

It was also argued on behalf of Father Cummings that imposing the oath

requirement on a clergyman was a violation of freedom of religion, for it pur-

ported to prevent a duly ordained priest from ministering to his ﬂock in accor-

dance with the mandates of his church. And it was argued on behalf of Augus-

tus Garland that the oath requirement unconstitutionally deprived him of the

beneﬁts of the pardon that President Andrew Johnson had given him in July

1865. In that action, the president had pardoned Garland for “all offences”

committed by him in connection with the Southern rebellion, and the pardon

was conditioned only upon his taking an oath to faithfully support and defend

the Constitution, the Union, and all laws and proclamations relating to eman-

cipation. Garland had taken that oath. Article II, Section 2 of the Constitu-

tion states: “The President . . . shall have power to grant reprieves and pardons

for offenses against the United States, except in cases of impeachment.” Sub-

jecting Garland to the new Supreme Court oath deprived him, his attorneys

argued, of the beneﬁts of the presidential pardon.

the arguments in Ex parte Garland continued from March 13 to March

15, while those in Cummings v. Missouri extended from March 15 through

March 20. In all, the Court devoted six days to the arguments in the Test

Oath Cases. But even this was not enough to reach a decision. On April 2,

President Johnson issued a proclamation declaring that the insurrection in the

Southern states was at an end.

The following day, Chief Justice Chase an-

nounced from the bench that, on the facts stated in the petition and exhibits,

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the Court had reached a decision in Ex parte Milligan, answering the three

questions that had been certiﬁed from Indiana:

1. A writ of habeas corpus ought to be issued.

2. Milligan ought to be discharged from custody according to the Habeas

Corpus Act of 1863.

3. The military commission had no jurisdiction to legally try and sentence

Milligan.

There was no statement of reasons for the decision, and Chase announced

that the Court’s opinion would be read at the next term, set to begin in De-

cember, “when such of the dissenting judges as see ﬁt to do so will state their

grounds of dissent.” On the same date, Chase announced that Cummings v.

Missouri would be continued to the next term, “curia advisari vult” (the court

will be advised). This Latin phrase signaled that the Court had not yet reached

a decision on the test oaths and had ordered a delay for further consideration.

With this somewhat puzzling order, the Supreme Court adjourned on April 3,

and the justices left Washington for their circuits.

The Court’s vote in Ex parte Milligan had been divided ﬁve to four, with

Nelson, Grier, Clifford, Davis, and Field in the majority and Chase, Wayne,

Miller, and Swayne in the minority. Under the long-established rules of the

Court, if the chief justice was in the majority, he would designate one of the

judges to write the opinion, but if he was in the minority, the designation

would be made by the senior associate justice in the majority—in this instance,

Samuel Nelson. Nelson assigned the Milligan opinion to David Davis. (Neither

Nelson nor Davis apparently thought there was anything wrong with the same

judge deciding the case in both the circuit court and the Supreme Court. In

later years, a judge who had decided a case in the circuit court would routinely

decline to participate in the decision of the same case in the Supreme Court.)

Davis had no doubt that the military commission that had tried Milligan

was unconstitutional, but he was not sure of all the legal reasons for reaching

that conclusion. He had never regarded himself as a legal scholar, and opinion

writing did not come easily to him.

He was determined, however, to research

the law and, when doubts occurred to him, to write his fellow justices for help.

Davis left Washington, attended to his circuit court work, and then headed

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home to Bloomington, Illinois, to spend the rest of the summer composing his

opinion.

While Davis was laboring over his Milligan opinion, reports were circulat-

ing in the newspapers that the Test Oath Cases had also been decided. The

newspapers reprinted a letter written by Reverdy Johnson, to the effect that

the judges had decided that the oaths were unconstitutional but had deferred

the announcement of a decision to give one of the judges more time to write an

opinion. The reports created a lot of controversy in Missouri, where elections

were coming up in the fall and the validity or invalidity of the Missouri oath

could well have a decisive effect on the outcome. (If the oaths were struck

down, many Democrats who would otherwise be ineligible to vote would be

able to cast ballots.) Justice Miller heard the reports and wrote to Chase:

“Whatever may be our guesses at the individual conclusions of the members of

the Court, it is certainly false that the Court ever decided the case, or even

took a vote upon it. Not only so but there are several members of the Court,

who have never as far as I know expressed any opinion on the subject.”

Chase

agreed, though he had to admit that he had “no memoranda of what took

place” when the case was discussed. Later statements made by Grier and Nel-

son indicated that Field had been wavering on the question of the Missouri

oath and that Grier had suggested that decisions in both cases be postponed to

allow Field time for more reﬂection. Whatever the cause, there was a serious

misunderstanding among the judges. Chase had kept no records on their dis-

cussion of the case, and it was his responsibility as chief justice to do so. This

lapse, coupled with the suggestion that Chase was personally interested in the

case and wanted to affect its outcome, led historian Charles Fairman to con-

demn his “loose” administration and to write that: “Danger attended this way

of doing business, especially in any situation where Chase had a strong per-

sonal concern for the outcome.”

the justices were back in Washington on December 3 for the opening

of the Court’s new term. Two weeks later, on December 17, Justice Davis read

his opinion in Ex parte Milligan.

He began by stating that the controlling question in the case was whether

the military commission convened by General Hovey in Indianapolis had juris-

diction to try and sentence Milligan, who was a civilian. “No graver question

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was ever considered by this court,” Davis wrote, “nor one which more nearly

concerns the rights of the whole people; for it is the birthright of every Ameri-

can citizen when charged with crime to be tried and punished according to

law....Ifthere was law to justify this military trial, it is not our province to in-

terfere; if there was not, it is our duty to declare the nullity of the whole pro-

ceedings.”

Davis referred to key provisions of the Constitution protecting the

rights of those accused of crime: the freedom from unreasonable search and sei-

zure guaranteed by the Fourth Amendment; the right to a grand jury indict-

ment guaranteed by the Fifth Amendment; the right to due process of law, as

guaranteed by that same Fifth Amendment; the right to a speedy and public

trial by an impartial jury, as guaranteed by the Sixth Amendment; and the

right to be tried by a jury, as guaranteed by Article III, Section 2.

Davis noted the difference between a suspension of the privilege of the

writ of habeas corpus (as had occurred in Ex parte Merryman) and a trial and

conviction by a military commission. If the privilege of the writ has been val-

idly suspended, the government is not required to produce an arrested person

in answer to a writ of habeas corpus. But the “Constitution goes no further,”

Davis said. “It does not say, after a writ of habeas corpus is denied a citizen, that

he shall be tried otherwise than by the course of the common law.” Even if the

writ is suspended, an accused person cannot be tried, convicted, and punished

unless he is ﬁrst accorded his constitutional rights of trial by jury and due pro-

cess of law.

The law permits an exception when “martial law” has been validly de-

clared. Martial law can be declared in cases of foreign invasion or civil war, Da-

vis said, if “the courts are actually closed, and it is impossible to administer

criminal justice according to law.” But martial law is proper only “where war re-

ally prevails,” where “there is a necessity to furnish a substitute for the civil au-

thority...topreserve the safety of the army and society.” In such a case, as “no

power is left but the military, it is allowed to govern by martial rule until the

laws can have their free course.”

There was no war in Indiana when Milligan

was arrested, and the courts were open and functioning. Under those circum-

stances, trial by a military commission was neither necessary nor constitution-

ally permissible. Davis continued with a memorable statement, one of the

“thunderously quotable” phrases that, when uttered, take on an importance be-

yond their literal meaning.

He wrote:

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The Constitution of the United States is a law for rulers and people,

equally in war and in peace, and covers with the shield of its protec-

tion all classes of men, at all times and under all circumstances.

Pursuant to this “law for rulers and people,” Milligan and his fellow defendants

were entitled to their freedom.

Contrary to the announcement he made when the court adjourned in

April, Chief Justice Chase did not dissent from Davis’s decision. Instead, he

ﬁled a concurring opinion in which he agreed that Milligan was entitled to be

released under a writ of habeas corpus, but for different reasons than those as-

serted by Davis. He referred to the Habeas Corpus Act of 1863, which provided

that persons held under military authority were entitled to release if they were

not indicted by the grand jury convened in their district. Milligan and his

codefendants had been named on a list provided to the district judge in India-

napolis as required by the act. However, they had not been indicted by the

grand jury. For this reason, they were entitled to be released under the terms of

the act itself.

Chase noted that the crimes with which Milligan was charged “were of the

gravest character” and that the record in his case amply demonstrated his guilt.

But he agreed with Davis that it was “more important to the country and to ev-

ery citizen that he should not be punished under an illegal sentence...than

that he should be punished at all.” Since the Habeas Corpus Act was ample

justiﬁcation for Milligan’s release, he objected to the implication in Davis’s

opinion that Congress had no power under the Constitution to enact such a

statute. “Congress has the power not only to raise and support and govern ar-

mies,” Chase wrote, “but to declare war. It has therefore the power to provide

by law for carrying on war.” Indiana was a military district at the time Milligan

was arrested; it “had actually been invaded in the past”; and it “was constantly

threatened with invasion.” Chase had no doubt that, “in such a time of public

danger,” Congress was empowered under the Constitution to organize military

commissions, and when it enacted the Habeas Corpus Act it had done just

that. The fact that the federal courts were open was not sufﬁcient grounds for

denying Congress the power to authorize military commissions, for the courts

“might be open and undisturbed in the execution of their functions, and yet

wholly incompetent to avert threatened danger or to punish, with adequate

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promptitude and certainty, the guilty conspirators.”

Justices Wayne, Swayne,

and Miller joined in Chase’s concurring opinion.

the court’s decisions in the Test Oath Cases were announced on Janu-

ary 14, 1867. Cummings v. Missouri and Ex parte Garland were, like Milligan,

ﬁve-to-four decisions. Justice Field, joined by Wayne, Nelson, Grier, and Clif-

ford, delivered the majority opinions in both cases. Miller, joined by Chase,

Swayne, and Davis, issued a powerfully argued dissent that was applicable to

both cases.

Field acknowledged that in Missouri during the war there had been a

“struggle for ascendancy...between the friends and the enemies of the

Union” and that the struggle had aroused “ﬁerce passions.” It would have been

“strange,” Field said, if the Missouri constitution had not exhibited “some

traces of the excitement” amidst which it was adopted. But the framers of the

United States Constitution had intended to guard against this kind of excite-

ment and passion. Field found the severity of the Missouri oath “without any

precedent that we can discover.” It embraced “more than thirty distinct afﬁr-

mations or tests.” It was retrospective rather than prospective. It embraced “all

the past from this day; and, if taken years hence, it will also cover all the inter-

vening period.” Further, the Missouri oath referred not only to overt acts of

hostility against the government but also to “words, desires, and sympathies.”

“If one has ever expressed sympathy with any who were drawn into the Rebel-

lion,” Field noted, “even if the recipients of that sympathy were connected by

the closest ties of blood, he is as unable to subscribe to the oath as the most ac-

tive and the most cruel of the rebels.”

Field carefully examined the constitutional rules relating to bills of attain-

der and ex post facto laws and found both provisions offended by the Missouri

oath. The Missouri oath purported, in some cases, to punish conduct that was

not illegal when it was committed, and in others, to increase the penalties for

conduct previously declared to be illegal. It reversed the constitutional rule of

the presumption of innocence by requiring oath takers to deny their guilt to es-

cape the punishment. And depriving a person of a vocation, a position, an

honor, or a privilege open to others was “punishment, and can be in no other-

wise deﬁned.”

Field found the oath in Ex parte Garland subject to objections much like

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those in Cummings v. Missouri. Requiring attorneys who wished to practice (or

continue to practice) in the federal courts to take the oath punished them for

past conduct. The law imposing the oath was thus objectionable as an ex post

facto law and a bill of attainder. Beyond that, the oath deprived Augustus

Garland of the beneﬁts of his presidential pardon. The power of the president

to grant pardons and reprieves, Field said, is “unlimited,” except for the stated

case of impeachment. The power was not subject to legislative control and could

not be diminished by an act of Congress requiring a pardoned person to swear

that he had not committed the offense for which he was pardoned. If Congress

could thus exact further punishment from the oath taker, “the pardon may be

avoided, and that accomplished indirectly which cannot be reached by direct

legislation.” Field thus concluded that Garland was entitled to practice in the

Supreme Court, as was Robert Marr, whose legal situation was identical.

Miller’s dissent was ﬁled in Ex parte Garland, but it applied to Cummings v.

Missouri as well. He carefully analyzed the legal history of bills of attainder and

ex post facto laws and determined that both terms contemplated criminal pro-

ceedings that inﬂicted punishment. He denied that the oaths before the Court

imposed any punishments at all. They merely required that the affected per-

sons declare their loyalty to the United States. Oaths were required all the

time of ofﬁceholders, attorneys, and other persons, he said. Their purpose was

to establish qualiﬁcations for an ofﬁce, a profession, or a calling. It was well

within the power of Congress “to require loyalty as a qualiﬁcation of all who

practice in the national courts.” Miller noted that the Constitution required

that the president and vice president be natural-born citizens.

“Is this a pun-

ishment to all those naturalized citizens who can never attain that qualiﬁca-

tion?” he asked. In some states, the law prescribed that judges could not be

more than sixty years of age. “To a very large number of the ablest lawyers in

any State,” Miller said, “this is a qualiﬁcation to which they can never attain,

for every year removes them further away from the designated age. Is it a pun-

ishment?” Since establishing a qualiﬁcation for an ofﬁce did not “punish” those

who could not meet the qualiﬁcation, Miller said, Garland’s presidential par-

don was irrelevant. The pardon relieved Garland of any punishment for his as-

sociation with the Confederate government. It did not, and could not, relieve

him of the qualiﬁcations imposed on all persons who sought to practice law in

the Supreme Court of the United States.

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