Peter i am going to use the lectern for just a minute. Thank you very much. It has been my pleasure to know our speaker tonight for more years than probably either of us would like to admit. I first met les when he was one of the brightest young graduate students at the university of illinois, where we both were studying under harold heiman, one of the greats in the field of constitutional history and reconstruction. Although les received his ba and masters degree at the university of illinois, where he was able to root for his beloved chicago cubs, he later deserted that by going to Rice University when professor hyman moved, and received his phd at Rice University, where unlike many people, he published not just one book out of his dissertation, but two. Unfortunately one of his books that he published out of his dissertation arrived at perhaps an auspicious time, the impeachment of Andrew Johnson in 1973. You may know what else happened in 1973. Les, as those of us who know him call him, has also been president of the society for historians of the gilded age, a distinguished lecturer for that organization, and a very important mover in that organization. But he has also been extremely active as author and publisher and speaker in demand all over the country. I recently saw him speaking to the texas humanities council. I am not sure how much advice they took from him, based on what i have heard, but at least it was a good talk, and he has published many books. He has taught all over the country, in fact all over the world. The university of sussex and elsewhere. I am happy to cut the short because i could talk for several minutes but i would prefer we listen to michael les benedict. [applause] michael thank you for that lovely introduction, roger. As roger says, we go back a long time and i really cannot express the great affection which i developed for him as a young guy when we were both together. I want to thank the sponsors of this conference, of course stewart winger for organizing it. It has been a pleasure to be here. I want to thank those of you who participated, both as analysts and speakers and those in the audience, because one of the beauties of conferences like this is you learn things. One of the downsides, you have to insert what you learned in a paper a few weeks ago and disrupted and katie make it too long, and worry that you have not but it is a pleasure to be able to contribute some thoughts of my own to the case of ex parte milligan in American History. In the summer of 1866, bloomingtons david davis, associate justice of the Supreme Court appointed by his longtime friend Abraham Lincoln, was hard at work in the study of his farmhouse at the site of his present mansion. He was writing the Supreme Courts opinion in the case ex parte milligan, which had been decided a few months earlier but announced without an opinion, which was promised for the following winter. He knew that it was the opportunity of a lifetime for a lawyer and judge, indeed for an american. During the civil war, davis had been dismayed at how the struggle challenged traditional and deeply felt commitment to civil liberty. Freedom of speech and press, but most especially the principle that one could not be deprived of life, liberty, except by due process of law. There were two ways the Lincoln Administration had challenged traditional notions of due process. First, it suspended the privilege of the writ of habeas corpus. At first, there was conflict but eventually everywhere in the United States. Second, it tried people for various offenses in military courts, voluntary commission, commission, rather than in the ordinary civil court. This was a punitive measure designed to punish people who have done something that had harmed the war effort. Democrats have complained mightily about both of these policies. When you combine them with the seizure of billions of dollars in slave property promised by the emancipation proclamation, democrats charged that lincoln was destroying civil liberty and property in the United States, that he was in fact creating a despotism. But davis has no problem with the suspension of the privilege of the writ of habeas corpus once congress had passed a law regularizing it in 1863. That was the habeas corpus act of 1863 and required that the administration provide list of those held. If the prisoners were charged with some offense by the end of the following term of the Federal District or Circuit Court where they were held, the prisoners had to be released. For davis and republicans, this was an appropriate limitation on Civil Liberties for the sake of the country. It took dangerous people out of circulation temporarily, but they would not suffer punishment or longterm imprisonment without a trial. As republicans said, temporary arrest was precautionary, it was not punitive. Trials by military commission was something else. They were punitive and could lead to long jail terms and even death sentences. Davis, along with many republicans, thought this could not be done without due process of law. That is what the fifth amendment to the constitution demanded and what other provisions of the constitution, especially in the bill of rights, guaranteed. The fifth amendment reads that no person shall be held to answer for capital or otherwise infamous crime unless on presentment or indictment of a grand jury, nor be deprived of life, liberty, or property without due process of law. Yet military commissions were an ordinary part of military administration in times of war. Commanders had a responsibility to protect the troops, keep order where their troops were stationed, and the authority to punish enemy combatant who violated the rules of war especially as guerrillas or spying and engaging in espionage out of uniform. And thousands of people were tried by military commissions during the civil war. Nearly all the trials occurred in the border states and in the south. That is, in active theaters of war. And the accused ranged from confederate guerrillas to saboteurs and spies, whose actions clearly did violate the laws of war, too outspoken confederate sympathizers in areas that were still contested, to cheating peddlers and prostitutes and thieves hanging around military camps. Davis had no problem with these military trials. But the legal justification for the smaller number of trials in the northern states were not so clear. Men were tried for discouraging enrollment in the armed forces. Fomenting resistance to the draft, and encouraging desertion. Those were clearly the kinds of acts that military commissions punish according to the International Laws or. Laws of war. But what about an offender like the famous clement elva landy, who gave public speeches and disaffected areas of the midwest, where the majority of the people were really critical of the war. He gave public speeches that are bitterly attacking the administration, and saying the war was both wrong and hopeless. What about people arrested on the order that one of the innumerable marshals for even less significant criticisms of the war, and criticisms of the infringement of civil liberty that were saying all around them. That punishable interferes with the war effort. Could those are arrestees be tried by military commission . Lincolns War Department decided that the requirement of the habeas corpus act if nothing else, if those sorts of people were arrested and held and unable to get out of jail with a writ of habeas corpus, i could only be held on the habeas corpus act of 1863 for a limited amount of time. If the government did not bring an indictment to them, bring them a trial in front of a civil court they would be released. Lincolns War Department decided the requirements of the habeas corpus act did not apply to people who were brought to trial by military commission. The administration argued that those trials substituted for the indictments that the government was supposed to bring in the civil court. Those convicted in such military courts were not entitled to release at the and of the terms of the Circuit Court, local court, that filed their arrest. In other words, the governor the governments, could evade the 1863 law by holding military trials. Democrats denied, and many whigs as well denied on this Civil Liberties issue. They denied that the war justified the suspension of protections of civil liberty specified in the constitution. Republicans argued that the constitution did justify these kinds of suspension, and the issue was debated in congress, and newspapers, and pamphlets, in stump seats. Democrats made it the central issue of the elections of 1863 and 1864. They made the trial of clement l landing a desperate of the landing which he answered just as forcefully, all of which were published and put before the people before the election of 1864. The milligan trial was part of this debate, designed to prove to the public that the danger was real, and that therefore the military trials were justified. And as we know, it worked. Lincoln won the election of 1864 largely on that issue, convincing the American People there were real copperheads who put the war effort at risk. He later told his brotherinlaw that he had been afraid if things went on as they had, civil liberty would, as he wrote his brotherinlaw, would be all gone. It was not only davis was worried. Many republicans had begun to worry as well. In march, 1865 they try to pass an amendment, an appropriations bill to ban trials by military commission altogether. The leader, the congressman who moved the proposal in the house of representatives was the ultra radical republican from maryland, henry winter davis. That was david davis cousin. His proposal passed the house. The house of representatives voted to end all military commissions on a bill moved by david davis cousin, a radical republican. It lost in the senate when republican senators said, how can you reverse the very decision that the americans decided, that the people decided in the election of 1864 . It was pleading guilty to the democratic charge, and suggested that lincoln should have lost the election. But once the war was over, davis determined to insert the Supreme Court into this great debate and he determined to do so on the side of those who wanted to uphold constitutional liberties in the time of crisis. And he had the perfect case well, almost perfect case. A prominent indiana democrat named Landon Milligan and others had tried to organize critics of the Lincoln Administration to defend themselves against despotism, and i think you here today how seriously those people took the threat of despotism. If they were unarmed, if they had no organization, how would they resist if their fears came true and the Lincoln Administration would infringe so many other rights, interfered with the election of 1864 in order to control a unit they have lost. So they organized, they wanted to organize these people. These people, by the way, or sometimes violently resisting. People trying to catch draft rogers, dodgers, assaulting marshals who were trying to an role people in the draft. Individually, where resisting in various ways. Mulligan and his confederates wanted to organize them in case there was a final confrontation. They persuaded the landy and to become the titular leader of what they called sons of liberty. Confederate agents in canada decided to use the protein organization to free confederate prisoners of war being held in the north and launched an uprising in the union armys rear. Milligan and his associates excepted the confederate agent money and it appears their advice. They were arrested, tried by that military commission at a propitious time for Abraham Lincoln, the fall of 1864, and milligan was sentenced to death. Davis made out about milligans guilt, but why not try them in front of a jury in an ordinary federal court question mark they were unlikely to get off, which was one of the things that would get them off. This was a guy that was going to be convicted if you tried him in a civil case. Davis personally made sure that the death sentence was not carried out so that milligan could petition for writ of habeas corpus. The petition went to the Circuit Court on which he himself joined another judge to hear the petition. Then davis arranged with that judge to disagree on whether, answering the petition was legitimate and whether milligan should be released. If two judges disagreed on circuit, according to the law in 1864 and 1865, the disagreement automatically went up to the Supreme Court. So this was a case davis had arranged because he wanted to test this question and have the court contribute to the debate. Everyone knew it was a great case. The court assigned seven days for oral argument. The foremost democratic constitutional lawyers in the country appeared for milligan. They added a young republican congressman who had expressed reservations about military commissions and that fight in the house of representatives, future president james garfield. Davis arranged for his wife, sarah, to sit in the ladies gallery and she reflected his excitement when she wrote their son is considered the most important case ever brought before the Supreme Court. Milligans lawyers made great oral arguments. They described the angloamerican heritage of liberty. They stressed the Founding Fathers suspicions of executive power. Garfield echoed those arguments but also argued that the military trial was inconsistent with the provisions of the habeas corpus act which he had helped to pass. The arguments on behalf of the government did not come close. Two matching these great legal for rations. Attorney general james speed was way out of his depth. He brought in the bombastic radical republican general Benjamin Butler to help. That made sense, he thought, because butler had been the military commander in new orleans where butler had exercised military authority to the fullest. Surely a good lawyer like butler had figure out why he was authorized to do it. Butler had figured that out, and he gave that argument to the Supreme Court. He did it in the bombastic, stump speech style that worked for him when he was litigating in front of juries. His argument was that in wartime, the laws of war justified military, that justified military commissions who preceded the constitution. In times of war, the law of necessity trumped civil and constitutional rule. It was an argument guaranteed to alienate a court. But especially davis, davis, like lincoln had been awhig. They prided themselves on respect for the judiciary and they blasted the democrats for pandering they pointed to Andrew Jacksons like the one protecting cherokee indians from the state of georgias playing claim he could take over their land. It is not true but it was rumored that jackson had said John Marshall has given his opinion on that cherokee subject. Let him enforce it, and he might as well have said, because the court was able to enforce it. When they were young whigs, both davis and lincoln had observed the great debate in congress from 1842 to 1844. Andrew jackson, as military commander in new orleans in 1814, had pronounced martial law and had instituted military commissions to prosecute people who he thought were dangerous. He banished people from the town and one of the victims petitioned the local federal judge in 1814 for writ of habeas corpus. He was being held. The local judge issued the petition, he simply brought the guide to court to make the decision. Jackson arrested the judge. And banished him from the city. When it was all over the judge came back and demanded the jackson answer for his actions. Jackson refused to come. The judge instituted a contempt of court fine of 1200. To his credit, Andrew Jackson paid it but in 1842 he asked congress to reimburse him for what he had paid. All of the democrats in congress favored giving him the money because he had done nothing wrong. They all argued that in a crisis like occurred in new orleans, the law of necessity justified Andrew Jackson even putting a judge in jail. Every whig said jackson was wrong and to reimburse him for that fine would manifest in the most obvious way disrespect for judiciary. That is when davis and lincoln were young whigs. The primary protection of constitutional right lay in the courts and late in the peoples respect for the law. That was davis background and unlike begin who modified his view, davis still. Butlers argument supporting everything that was wrong. Lincolns argument was taken to its logical conclusion. So in april 1865, the justices agreed unanimously that the military trial was unconstitutional and that milligan had to be released. They agreed on the decision but not the reasoning. The chief justice and three colleagues said they would write up there dissension separately because davis had done so much to get the case for the court. Chase naturally assigned the opinion to him. He wanted to do more than established a binding precedent on the court. He wanted to show how to demonstrate the governments power in times of great crisis. He wanted to save civil liberty with an eloquent, unanswerable argument. He wanted to address the people as well as the lawyers. He wanted to write an opinion for the age, and he grew drew upon the great orations in the argument and the arguments of reverend e johnson. He tried to pursue military commission saying it did not have jurisdiction over the lincoln assassin. Of course he failed, but his argument was published all over and it was quite a great argument. As i said, davis was not much concerned with the military trials. He was concerned with the trial of a citizen of indiana for 20 years past, and never in the military or naval service, arrested at his home in a state not under immediate threat from confederate troops. It was the perfect case. After a long and technical consideration of jurisdiction to counteract what he thought was