McGinty Brian. Lincoln and the Court
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armies, there was good reason for distinguishing the two cases. There was no
reason, however, for turning back from the broad principle that, in the Ameri-
can system of justice, the power of military courts is limited by the Constitu-
tion; that the president, whether he be Abraham Lincoln, Franklin D. Roose-
velt, or George W. Bush, is constrained by basic principles of constitutional
law; that the courts, headed by the Supreme Court of the United States, will
always exercise their independent power to review the actions of military
courts, compare them to the Constitution, and strike them down when viola-
tions are found.
there is no reason to suspect that Lincoln himself did not accept this
principle. While Justice David Davis was writing his Milligan opinion, he was
asked by William H. Herndon, Lincoln’s former law partner in Springfield, for
a statement about the deceased president. Herndon was gathering material for
a projected Lincoln biography and sought information from men who had
known the president well. In answering Herndon, Davis naturally thought
about Lincoln’s own views on the military trials. He told him:
Mr. Lincoln was advised, and I also so advised him, that the various
military trials in the Northern and Border States, where the courts
were free and untrammelled, were unconstitutional and wrong; that
they would not and ought not to be sustained by the Supreme Court;
that such proceedings were dangerous to liberty. He said he was op-
posed to hanging; that he did not like to kill his fellow-man; that if
the world had no butchers but himself it would go bloodless....Iam
fully satisfied therefore that Lincoln was opposed to these military
commissions especially in the Northern States, where everything was
open and free.
29
Whether Justice Davis’s recollection was entirely accurate, it is clear that
Lincoln took no pleasure from the military commissions, or from any of the
other measures whereby the legal rights of ordinary citizens were denied during
the war. He made it clear that military arrests and trials rested on grounds of
military necessity and would continue only so long as the necessity continued.
After the necessity was over, the arrests would cease. In his “Corning letter” of
June 1863, in which he defended his suspension of the writ of habeas corpus,
Lincoln and the Court
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312
Lincoln said that he was unable to “appreciate the danger...that the Ameri-
can people will, by means of military arrests during the rebellion, lose the right
of public discussion, the liberty of speech and the press, the law of evidence,
trial by jury, and Habeas Corpus, throughout the indefinite peaceful future,
which I trust lies before them, any more than I am able to believe that a man
could contract so strong an appetite for emetics during temporary illness, as to
persist in feeding upon them through the remainder of his healthful life.”
30
The
president was saying that, just as “emetics” are necessary when a man is sick but
not when he regains his health, so military arrests and trials are necessary when
a nation’s security is threatened by forces that the civil courts are incompetent
to deal with, but not when the normal function of the courts is restored. He
saw no danger that his temporary measures would lead to a permanent loss of
liberty. In his annual message to Congress in December 1864, with victory on
the horizon but not yet attained, Lincoln admitted that the “executive power
itself would be greatly diminished by the cessation of actual war.”
31
That is, in
time of peace, the power of the commander in chief to suspend habeas corpus
and to order military arrests and trials would not be what it was while the war
raged on.
Milligan is less important as a rule of law than as a reaffirmation of judicial
independence. It is hard to imagine that a case will ever again arise in which
an American citizen, not engaged in combat and not acting as an enemy agent,
is arrested, tried, and convicted by a military commission in a state in which
there is no fighting and in which the courts are open and functioning—and in
which the Supreme Court is called to pass upon the constitutionality of the
proceedings only after the conflict is over. The fact that the fighting was al-
ready over when Milligan was decided may help to explain why it was not de-
cided in the same manner as Ex parte Vallandigham or Ex parte Quirin. When
Justice Wayne denied jurisdiction in Vallandigham, and when a unanimous Su-
preme Court upheld the military commission in Quirin, war was still being
waged. When Justice Davis decided Milligan, the war was won, the fighting had
stopped, and the national security was no longer in peril.
Despite all of this, Milligan still stands tall among decisions of the Civil
War Court, for it affirms the proposition, indispensable in a society that values
the rule of law, that the Supreme Court will not turn its back on the Constitu-
tion. The federal judiciary will not mindlessly accede to the wishes of the exec-
Afterword: The Legacy
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313
utive or legislative branches of the government when vital constitutional prin-
ciples are at stake. The case also stands for the proposition that partisan
loyalties will not trump important constitutional principles, for the opinion in
Milligan was written by a Republican judge appointed by a Republican presi-
dent and announced at a time when Republicans controlled Congress. Yet the
judge rendered a decision that defied his own party, honored the Constitution,
and did honor to the Court.
one of lincoln’s most notable actions was taken without any authoriza-
tion or ratification by Congress. He issued the Emancipation Proclamation on
his own authority as commander in chief and spurned suggestions that Con-
gress should join him as its author. Twice during the war Congress passed
“confiscation acts,” providing in various terms that slaves owned by Southern
rebels would be forfeited to the use of the Union army.
32
Lincoln had little en-
thusiasm for these acts, which he believed had serious constitutional objec-
tions, and he was hesitant about enforcing them. He always recognized that
Congress had no constitutional power to decree an emancipation of slaves
within any states. When some of his generals took steps to free slaves in their
military districts, he countermanded their orders, reserving to himself “as Com-
mander-in-Chief of the Army and Navy” the power to “declare the Slaves of
any state or states, free.”
33
And when, on January 1, 1863, he issued his final
proclamation of emancipation, it was drafted in sternly legalistic language,
carefully chosen for its constitutional import. The proclamation recited that it
was issued “by virtue of the power in me vested as Commander-in-Chief of the
Army and Navy of the United States in time of actual armed rebellion against
[the] authority and government of the United States, and as a fit and necessary
war measure for suppressing said rebellion.” It was directed only against states,
or parts of states, “wherein the people thereof respectively, are this day in rebel-
lion against the United States.” And it concluded with a statement that the
proclamation was “sincerely believed to be an act of justice, warranted by the
Constitution, upon military necessity.”
34
The Emancipation Proclamation has been criticized because it did not ap-
ply generally to all of the slaves in all of the country. It had no application to
Missouri, Kentucky, Maryland, or Delaware, slave states that never seceded
from the Union, nor to Tennessee or the counties in Louisiana and Virginia
Lincoln and the Court
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314
that were occupied by Union troops when the proclamation was issued. When
asked why the proclamation did not apply nationally, Lincoln explained that it
had “no constitutional or legal justification, except as a military measure” and
that certain areas were exempted “because the military necessity did not apply
to the exempted localities.” If he extended it into those localities, he said, he
would do so “without the argument of military necessity, and so, without any
argument, except the one that I think the measure politically expedient, and
morally right.” “Would I not thus give up all footing upon constitution or law?”
he asked. “Would I not thus be in the boundless field of absolutism?”
35
As con-
stitutional scholar Akhil Reed Amar has stated, the very fact that the procla-
mation did not apply throughout the country “reinforced Lincoln’s legal au-
thority to make it. The holes and exceptions were themselves proof that
Lincoln’s was indeed a military (and thus executive) decision as distinct from a
moral one (which would have required express legislative backing).”
36
The proclamation has also been criticized on the ground that it lacks
the eloquence and passion of Lincoln’s other great utterances, the Gettysburg
Address and the Second Inaugural. In 1948, historian Richard Hofstadter
grumbled that the proclamation “had all the moral grandeur of a bill of lad-
ing.”
37
More recently, however, historian Allen C. Guelzo has explained what
Hofstadter apparently did not understand, that the Proclamation was “a legal
document” and that “legal documents cannot afford very much in the way of
flourishes.”
38
Lincoln knew that his Emancipation Proclamation would be sub-
jected to the most rigorous analysis in the courts, possibly by Chief Justice
Taney himself. And so he took pains to articulate his constitutional authority
for issuing it—his own powers as commander in chief, and the military neces-
sity posed by the Southern rebellion. Lincoln was not so naive, however, as
to believe that all of his critics would accept his constitutional justification
for the proclamation. He knew that it might fall before judicial attack, and so
he joined other opponents of slavery who sought to amend the Constitution
to prohibit slavery throughout the country. Their efforts were crowned with
success in 1865 when the Thirteenth Amendment passed Congress and was
ratified by the requisite number of states. The constitutional amendment re-
moved the possibility that the Supreme Court might one day issue its own
“proclamation” against the Emancipation Proclamation.
If Lincoln is most often criticized today for his suspension of habeas cor-
Afterword: The Legacy
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315
pus, and for abridging the constitutional rights of civilians, he was most en-
thusiastically praised in the years immediately following the war for his Eman-
cipation Proclamation, and for his preservation of the Union. Whether the
criticism or the praise comes closer to the mark is perhaps a matter of opinion.
For those who benefited from emancipation and the preservation of the Union,
however, for those who shared the president’s own exultation in the “new birth
of freedom” he described at Gettysburg, the answer will always be clear.
Lincoln and the Court
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316
notes
bibliography
acknowledgments
index
Notes
Abbreviations
ajp-lc Andrew Johnson Papers, Library of Congress
al Abraham Lincoln
alp-lc Abraham Lincoln Papers, Library of Congress
cg Congressional Globe
cw Collected Works of Abraham Lincoln, ed. Roy P. Basler
ddp-lc David Davis Papers, Library of Congress
dmpp-mhs David M. Perine Papers, Maryland Historical Society
ebwp-lc Elihu B. Washburne Papers, Library of Congress
emsp-lc Edwin McMasters Stanton Papers, Library of Congress
fed. cases Federal Cases
jehp-mhs John Eager Howard Papers, Maryland Historical Society
jsbp-lc Jeremiah Sullivan Black Papers, Library of Congress
lc Library of Congress
ltp-lc Lyman Trumbull Papers, Library of Congress
mhs Maryland Historical Society
nyep New York Evening Post
nyh New York Herald
nyt New York Times
nytrib New York Tribune
or The War of the Rebellion: A Compilation of the Official Records of the Union
and Confederate Armies
rbt Roger B. Taney
rbtp-lc Roger B. Taney Papers, Library of Congress
rbtp-mhs Roger B. Taney Papers, Maryland Historical Society
s. ct. Supreme Court Reporter
spc Salmon P. Chase
spcp-lc Salmon P. Chase Papers, Library of Congress
stats. United States Statutes at Large
u.s. United States Supreme Court Reports
usc United States Constitution
whsp-lc William H. Seward Papers, Library of Congress
Introduction
1. Simon, Lincoln and Chief Justice Taney.
2. See Farber, Lincoln’s Constitution, 30–31, 44, 49, 51–52, 58, 68, 77, 79–85, 87–91.
3. CW, 1:112.
4. Steiner, An Honest Calling, 56.
5. CW, 1:112.
6. Bruce, Lincoln and the Riddle of Death, 14.
7. The Law Practice of Abraham Lincoln: Complete Documentary Edition (Champaign:
University of Illinois Press, 2000), a DVD publication, lists twenty of Lincoln’s
cases that were appealed to the U.S. Supreme Court. In some, he represented a
party only at the trial level, in others at an intermediate appellate level. In Moore
v. Brown, 11 How. (52 U.S.) 413 (1850), he filed the record in the U.S. Supreme
Court but did not argue the case. In Forsyth v. Reynolds, 15 How. (56 U.S.) 358
(1853), he filed a brief but did not participate in the oral argument. In Lewis v.
Lewis, 7 How. (48 U.S.) 776 (1849), he presented an oral argument. See discussion
in Chapter 1.
8. CW, 2:82.
9. Ibid.
10. Dred Scott v. Sandford, 19 How. (60 U.S.) 393 (1857). See Chapter 2 for discus-
sion.
11. Holzer, Lincoln at Cooper Union, 28, 51–54.
12. Ibid., 144, 233.
13. AL to Albert G. Hodges, April 4, 1864, ALP-LC.
14. USC, Art. I, Sec. 8, clause 17 (District of Columbia); Art. IV, Sec. 3, clause 2 (ter-
ritories). See discussion in Chapter 2.
15. USC, Art. IV, Sec. 2, clause 3.
16. AL, Notes for Speech in Kansas and Ohio, September 16–17, 1859, ALP-LC.
17. See Davis’s Farewell Speech to the U.S. Senate, January 21, 1861, CG, 36th
Congress, 2nd Session, 1861, 487; also Inaugural Address as Provisional Presi-
Notes to Pages 1–5
ﱟﱟﱗﱟﱟ
320
dent of the Confederacy, February 18, 1861, Crist and Dix, Papers of Jefferson Da-
vis, 46–50.
18. Richardson, Compilation, 7:3161–3162, 3166–3167; for further discussion, see
Chapter 1.
19. Taney’s views as to the constitutionality of secession were expressed in an untitled,
eight-page memorandum in his own handwriting that was donated to the Library
of Congress in 1929. This memorandum has been labeled (apparently by a library
archivist) “Fragment of a Manuscript Relating to Slavery in the United States,”
RBTP-LC. Although the memorandum is undated, internal evidence indicates
that it was written between January 26 and February 1, 1861. It was Taney’s prac-
tice during the war to set forth his views on controversial constitutional issues for
possible use in Supreme Court opinions, if and when those issues should come
before the Court. For description and discussion of this memorandum, see
Fehrenbacher, Dred Scott Case, 554–555, 711n.5; for further discussion of Taney’s
views on secession, see Chapter 7.
20. Lincoln expressed these views in his First Inaugural Address. CW 4:252; see discus-
sion in Chapter 1. See also Farber, Lincoln’s Constitution, 78–79, 86, 102, 108–109,
111.
21. USC, Art. II, Sec. 2.
22. USC, Art. II, Sec 1; for discussion of Lincoln’s First Inaugural Address, see Chapter 1.
23. CW, 2:401.
24. Ibid.
25. Donald, Lincoln Reconsidered, 148–149.
26. Borrett, Letters from Canada and the United States, 252–253.
27. Steiner, An Honest Calling, 40–41.
28. The jurisdiction of the federal courts extends only to “cases” or “controversies”
arising under the Constitution or laws of the United States. USC, Art. III, Sec. 2.
29. USC, Art. III, Sec. 1.
30. Kohn, “Failing Justice,” 91.
31. Swisher, “Mr. Chief Justice Taney,” 212, 226–227.
32. Rehnquist, All the Laws but One, 222.
1. A Solemn Oath
1. NYT, March 5, 1861, p. 1.
2. Ibid.
3. NYTrib, March 17, 1857, p. 5.
4. Swisher, Roger B. Taney, 322.
5. See Chapter 2.
6. Fehrenbacher, Dred Scott Case, 560.
Notes to Pages 6–15
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321