Guest Essayist: Gennie Westbrook

Article 1 Section 9, Clause 2 of the U.S. Constitution enshrines the “Great Writ,” a protection against arbitrary imprisonment that dates back at least to the Magna Carta of 1215: “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.” The writ provides that, when government holds a suspect in custody, he has the right to be taken before a judge who determines whether there is good cause for the arrest, and must be released if there is no legitimate reason for government to hold him.

President Abraham Lincoln faced a quandary regarding this protection during the Civil War. In the earliest days of the war, Lincoln ordered the military to arrest anyone between Washington and Philadelphia suspected of subversive acts or speech, explicitly suspending writs of habeas corpus. Virginia and other southern states had seceded, Maryland seethed with secessionist sentiment, and it was vital to the survival of Washington, D.C. that Maryland remain in Union hands. Lincoln was severely criticized for his limited suspension of habeas corpus, but he believed this step was essential to carry out his oath of office to defend the Constitution during the time of rebellion and imminent invasion. Lincoln knew that only Congress had the authority to suspend habeas corpus, but Congress was not in session as the war began, and he submitted his action to congressional approval. In his July 4, 1861 message to Congress, he asked, “Are all the laws but one to go unexecuted, and the government itself go to pieces lest that one be violated?” Congress endorsed the presidential action. Lincoln expanded the suspension throughout the United States in 1862, and Congress formally suspended the protection with the Habeas Corpus Act of 1863.

Estimates of the number of civilians arrested by military authorities during the Civil War range from 13,000 to 38,000, most of them in the border states between the Union and the Confederacy where agents on both sides sought to push the border states to their respective sides. For example, John Merryman, a prominent Baltimore businessman and vocal secessionist, was arrested and charged with treason for supporting the Confederacy. He demanded that he be released from prison and charged in open court, claiming his right to have the charges against him heard by a civilian judge, not by a military commission. The Supreme Court was not sitting at the time, but Chief Justice Roger Taney, directly presiding over Merryman’s habeas corpus case in circuit court, ordered that Merryman be set free. He ruled that only Congress, not the president, has authority to suspend habeas corpus, and that, even if Congress so ordered, Merryman’s case must be heard in civilian court since he was not in the military. Lincoln ignored Taney’s order in ex parte Milligan, but the Court was powerless to enforce its ruling against the administration.

Clement Vallandigham, another prominent citizen, was a former member of the U. S. House of Representatives from Ohio and leader of the Copperhead Democrats who opposed Lincoln and demanded immediate peace with the South. On May 1, 1863, Vallandigham made a public speech at Mount Vernon, Ohio. He charged that the Civil War was “a war for the purpose of crushing out liberty and erecting a despotism,” “a war for the freedom of blacks and the enslavement of whites,” that “the war could have been honorably terminated months ago,” and that Ohio General Order 38 restricting free speech was “a base usurpation of arbitrary authority.” He urged his listeners “to refuse to submit to such restrictions on their liberties.” By this time, President Lincoln had extended the suspension of habeas corpus throughout the nation and authorized local officials to arrest anyone disloyal to the Union. A week after his speech, Vallandigham was arrested at his home during the night.

He was charged before a military court with “declaring sympathy for the enemy” and “treasonable utterance.” The government argued that opposition speech in wartime threatened the security of the nation and was not worthy of constitutional protection. Vallandigham maintained that the Constitution guaranteed him the freedom to express his opinions. He also contended that the military commission had denied him due process, had no authority over him as a civilian, and that he was entitled to a jury trial. The military tribunal sentenced him to imprisonment until the end of the war, and Vallandigham appealed the ruling to the Supreme Court. In 1864, in ex parte Vallandigham, the Court unanimously refused to hear Vallandigham’s case, saying that it had no jurisdiction over military commissions.

Though Lincoln insisted that the power to suspend habeas corpus was essential in wartime, he believed that speeches such as Vallandigham’s posed no actual threat to the Union. He stressed to his commanders to exercise careful discretion in assuring that a threat was “manifest and urgent,” before making an arrest, but ultimately he deferred to their judgment. In order to keep Vallandigham from becoming a Copperhead martyr in public opinion, Lincoln commuted his sentence and banished him to the Confederacy. Soon Vallandigham made his way to Canada, where he ran for governor of Ohio, but he lost in a landslide of pro-Union sentiment in the state. Lincoln allowed him to travel freely in the United States, and Vallandigham ran unsuccessfully for several political offices in the post-war years. He returned to his law practice in Ohio and died in 1871.

Lambdin Milligan was a lawyer living in Indiana, and, like Vallandigham, an outspoken critic of the Lincoln administration’s war policy. Concurrent with the arrests of some other Indiana Copperhead leaders, Milligan was arrested at his home in October 1864 in connection with a plot to release and arm Confederate prisoners in northern prison camps. The government accused Milligan of working with a secret organization to aid the Confederacy and charged him with treason. He was tried before a military tribunal, convicted, and sentenced to be hanged in May, 1865. Milligan appealed to civilian courts, challenging his conviction by a military proceeding. Though battles raged in other parts of the country, Indiana was not a military district, Milligan was not connected with the military, and was not engaged in hostile actions against the U.S. when arrested. After Lincoln’s assassination and the end of the war, President Andrew Johnson postponed the execution to give the Supreme Court time to hear the case.

In 1866, Justice David Davis wrote the Court’s unanimous opinion that Milligan’s trial by military commission was unconstitutional, and he must be released. Justice Davis famously wrote,

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 protection all classes of men, at all times and under all circumstances. 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. Such a doctrine leads directly to anarchy or despotism…

Justice Davis explained that as long as the civilian courts are operating, which they were in Indiana at the time of Milligan’s arrest, the right of civilians to a jury trial must be maintained.

[The Founders knew that] trial by an established court, assisted by an impartial jury, was the only sure way of protecting the citizen against oppression and wrong. Knowing this, they limited the suspension to one great right, and left the rest to remain forever inviolable.

Released from prison, Milligan sued those who had been involved in his incarceration, but his jury awarded him only five dollars. He returned to his law practice for the next 25 years, and he died in 1899.

The Supreme Court’s rulings in ex parte Vallandigham and ex parte Milligan set a long-standing pattern regarding wartime cases. During war, with the very real dangers of sabotage, desertion, draft evasion, insurrection, espionage and other threats to the survival of the republic, the Supreme Court tends to defer to the elected branches and their willingness to narrow constitutional protections of rights. For example, in Vallandigham’s 1864 case, the Supreme Court declined to interfere with the president’s wartime policy and refrained from passing judgment regarding his conviction by military tribunal. According to the Constitution, the president is commander in chief, and the war-making power belongs to Congress. The judiciary has no role in the prosecution of a war. Once the war is over, the Court tends to restore a stricter interpretation of the rights of individuals, as in Milligan’s case, returning to a more robust commitment to civil liberties and protection of the rights of the accused. This pattern of judicial interpretation is seen throughout the military conflicts of the twentieth century and remains controversial with the terrorism-related cases of the twenty-first.

Ex Parte Vallandigham 1864 Supreme Court decision:

Ex Parte Milligan 1866 Supreme Court decision:

Gennie Westbrook, formerly a classroom teacher, is a Madison Fellow (2000 TX), and senior advisor for education at The Bill of Rights Institute.

Sources Consulted

“Abraham Lincoln and Habeas Corpus,” Presidents and the Constitution Volume 1, The Bill of Rights Institute, 2009, pp. 48-55.

Herman Belz, “Civil War,” The Oxford Companion to the Supreme Court, Kermit Hall (ed) 1992, p. 153.

Veronica Burchard, “Clement Vallandigham” Conflict and Continuity, The Bill of Rights Institute, 2006 pp. 107-108

David Greenberg, “Uncivil Courts,” Slate, December 5, 2001.

“Habeas Corpus,” Online Etymology Dictionary

Dennis Keating, “Lincoln’s Suspension of Habeas Corpus,” The Cleveland Civil War Roundtable, 2012.  

William Rehnquist, The Supreme Court: How it Was, How it Is, New York: Quill, 1987, p 148

Geoffrey R. Stone, Perilous Times: Free Speech in Wartime, New York: W.W. Norton and Company, 2004, p. 126.

1 reply
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    Thank you again for an excellent essay.

    I have read extensively about the civil and I consider Lincoln one of the greatest Presidents and men to ever live. But as the author states in general is true for me personally, suspending our rights during war time remains with me controversial. Given man’s propensity to aggregate and abuse power, it is only a matter of time before the slack judiciary during war time is not “restored to a more robust commitment to civil liberties and protection of rights” when the war is over. Given our separation of powers we have reason to hope and believe that, that day is still in the distant future.



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