Transcripts For CSPAN3 Ex Parte Milligan Supreme Court Case

Transcripts For CSPAN3 Ex Parte Milligan Supreme Court Case 20170102

Students at the university of illinois where we both were studying under harold hymen, one of the greatest of the field of constitutional history and reconstruction. And although les received his b. A. And masters degree at the university of illinois, where he was able to root for his beloved chicago cubs, he later disserted that by going to Rice University when professor hymen moved there and received his ph. D. At Rice University where unlike many people he published not just one book out of his dissertation but two. And fortunately one of his books that he published out of his dissertation arrived at a perhaps auspicious time, the impeachment of Andrew Johnson in 1973. You may know what else happened in 1973. Les, as though of us who know him call him, has also been president of the society for historians of the guilded age. He was also a distinguished lecturer for that organization. And a very important mover in that organization, but les has also been extremely active as an author and publisher and speaker, in demand all over the con tri. I recently saw him speaking to the texas humanities counsel. Im not sure how much advice they took from him based on what i heard, but at least it was a good talk, and hes published many books. He has taught all over the country. In fact, all over the world. University of sussex, university in japan and elsewhere. And it is my great pleasure to cut this short because i could talk for many, many minutes about les, but i would rather that we listen to michael les benedict. [ applause ]. Well, thank you for that lovely introduction, roger. As roger says, we go back a long time. I really cant express the great affection of which i developed for him as a young guy when we were both together. I want to thank the sponsors of this conference and of course stewart winger for organizing it. Its been a pleasure to be here. I want to thank those of you who who participated both as panelists and speakers and also in the audience because one of the beauties of conferences like this is you learn things. One of the down sides is you have to insert what you learned into the paper that you wrote a few weeks ago and disrupted and maybe make it run too long and worry whether youve cut too much in order to accommodate what you wanted to add, but it is a pleasure to be able to contribute some thoughts of my own to the case of exparty milligan in American History. So, 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 caparte milligan which had been decided a few months earlier. He knew that it was the opportunity of a life time 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 commitments to civil liberty. Freedom of speech and press, but most specially the principle that one could not be deprived of life, liberty except by due process of law. There were two ways that the Lincoln Administration had challenged stra digsal notions of due process. First, it suspended the privilege of the writ of habeas corpus. At first in immediate theaters of conflict but eventually everywhere in the United States. Second, it tried people for various offenses in military courts, military commissions. Rather than in the ordinary civil courts. This was a punitive measure designed to punish people who had done something that had that had harmed the war effort. Democrats had complained mightily about both of these policies. When you combine them with the see soour of billions of dollars of 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 december pitism. Now, davis had no problem with the suspension of the privilege of the writ of habeas corpus once congress had passed a law regularizing it in 1963. That was the habs you corp. Us act of 1863. If the prisoners werent 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 liberty 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. Now, trials by military commission were Something Else again. They were punitive and could lead to long jail terms and even death sentences. Davis along with many republicans thought that 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, of course, 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 yet yet military commissions were an ordinary part of military administration in times of war. Commanders had a responsibility to protect their troops, keep order where their troops were stationed and the authority to punish enemy combatants who violated the laws of war, especially fighting as gorillas out of uniform or sabotage or es spee knowledge, again, 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 an act of war. And the accused ranged from confederate gorillas to sab tors and spies whose actions clearly did violate the laws of war, to outspoken confederate sympathizers in areas that were still contested, to cheating peddlers and prostitutes and thieves hanging around the military camps. Davis had no problem witht 1200 indictment that government was supposed to bring in the civil courts. Those convicted in such military courts were not entitled to relief at the end of the terms of the Circuit Courts, local courts, that followed their arrests. In other words, the government could evade the 1863 law by holding military trials. Lincolns actions became the center of an intense public debate over civil liberty in times of crisis. Democrats denied and many wigs as well denied old wigs, people not yet republicans and were only now beginning to alie with the democrats on this Civil Liberties issue. They denied that the war justified the suspension of protections of civil liberty specified in the constitution. Republicans, union of war democrats, argued that the constitution did justify these kinds of suspensions and the issue was debated in congress, in newspapers, in pamphlets, in stump speeches. Democrats made it the central issue of the elections of 1863 and 1864. They made the trial of clement landing them the test case politically, addressing powerful political letters to lincoln, which he answers 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 really put the the war effort at risk. But davis was not convinced. He told lincoln that the military commissions in the north were unconstitutional. He was worried that his friend had defended them so successfully that he seemed to have won the public debate. He later told his brotherinlaw that he had been afraid that if things went on as they had, civil liberty, as he wrote his brotherinlaw, would be all gone. And it was not only davis who was worried. Many republicans had begun to worry as well. In march, 1865, they tried to pass an amendment to an appropriations bill to ban trials by military commissions all together. The leader, the congressman who moved the proposal in the house of representatives was the ultra radical republican from maryland Hunter William davis. That was david davis cousin. His proposal passed the house. The house of representatives voted to end all military commissions on an amendment to an appropriations bill moved by david daviss cousin, henry david davis, a radical republican. It lost in the senate. 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. Once the war was over, davis determined to insert the Supreme Court into this great debate and he determined to do son the side of those who wanted to uphold constitutional liberties in times of crisis and he had the perfect case. Well, almost the perfect case. A locally prominent indiana democrat named Landon Milligan and a number of others had tried to organize critics of the Lincoln Administration to defend themselves against december petism. I think youve heard today how seriously those people took the threat of december pitism. If they were unarmed, if they had no organization, how would they resist if their fears came true and the Lincoln Administration, who had infringed so many other rights, interfered with the election of 1864 in order to control it even if they had lost . So they organized. They wanted to organize these people, these people, by the way, were already sometimes violently resisting people trying to catch draft dodgers, assaulting marshalls who were trying to enroll people in the draft. They saw all of this as a dep vision of their liberties and individually people were resisting in various ways. Milligan and his confederates wanted to organize them in case there was a final confrontation. They persuaded landing them to become the itular leader of what they called the sons of liberty. Confederate agents in canada decided to use the prod yen organization to free confederate prisoners of war being held in the north and launch an uprising in the union armys rear. Milligan and his associates accepted the confederate agents money and it appears their advice. They were arrested, tried by that military commission at the propitious time for Abraham Lincoln of the fall of 1864 and milligan was sentenced to death. Now, davis had no doubt about milligans guilt, but why not try them before a jury in an ordinary federal court . They were unlikely to get off, which is one of the things that made this a good case, not a great case to try to interfere with somebody who then might get off with treason. This was a guy who 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 a writ of habeas corpus. The petition went to the Circuit Court on which he himself joined another judge to hear the petition. Then davis arraigned with that judge to disagree on whether answering the petition was legitimate and whether milligan should be released. If two Circuit Court judges, if two judges rather, 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 has expressed reservations about military commissions in that fight in the house of representatives. Future president james a. Garfield. Davis arranged for his wife, sarah, to sit in the ladys gallery and she reflected his excitement when she wrote their son its considered the most important case ever brought before the Supreme Court. Milligans lawyers made great oral arguments. They described the Angle American 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 to matching these great legal oruations. Attorney general james speed was way out of his depth. He brought in the bombastic radical republican general benjamin f. Butler to help him. 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 figured out why he was authorized to do it. Butler had figured that out and he gave that argument to the Supreme Court. And he did t 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 superseded the constitution. In times of war, the law of necessity trumped civil and constitutional law. It was an argument guaranteed to alienate a court. But especially davis. Davis, like lincoln, had been a wig boy. The wigs had prided themselves on their respect for law and for the judiciary. They had blasted democrats for pandering to the masses at the expense of the law. They pointed to Andrew Jacksons disregard for Supreme Court decisions he disagreed with, like the one up hoeding the constitutionality of the National Bank and the one protecting cherokee indians from the state of georgias claim that they could take over their land. Its not true, but it was rumored that jackson had said John Marshall has given his opinion on that charity. Let him enforce it. And he might as well said it because the court was unable to enforce it. When they were young wigs, both davis and lincoln, had observed the great debate in congress from 1842 to 1844. Andrew jackson has military commander in new orleans in 1814 had pronounced marshall law and had instituted military commissions to prosecute people who he thought was dangerous. He had banished people from the town and one of the victims petitioned the local federal judge in 1814 for writ of habeas corpus. The local judge issued the petition which simply brought the guy before him for the decision. Jackson arrested the judge. And banished him from the city. When it was all over, the judge came back and demanded that jackson answer for his actions. Jackson refused to come. The judge instituted contempt of court fine of 1,200. To his credit, Andrew Jackson paid it. But in 1842, he asked congress to reimburse him for what he had paid. All 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 in putting a judge in jail rather than permitting a writ of habeas corpus. Every wig had said that jackson had been wrong and said to reimburse him for that fine would manifest in the most obvious way, disrespect for the judiciary. Thats when davis and lincoln were young wigs. The wigs, the primary protection of constitutional rights, lay in the court and lay in the peoples respect for the law. Now, that was davis background and unlike lincoln who had modified his views in this regard, davis still stuck to him. Butlers arguments supported everything that was wrong. Lincolns argument 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 they didnt agree on the reasoning. Chief justice sam p. Chase and three colleagues said they would write up their decision in a concurring opinion separately. And because davis had done so much to get the case before the court, chase naturally assigned the majority opinion to him. Now, davis wanted to do more than merely establish a legal precedent binding on the courts. He wanted to settle the great public debate on how to interpret the governments constitutional 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 ajs and he drew upon what milligans lawyers drew up in their argument. He drew upon the great wig constitutional lawyer johnson. Johnson tried to persuade the military commission to concede that it didnt 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 that had taken place in the actually theories of war. 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. Now after long, technical consideration of jurisdiction to counteract what he thought was going to be the basis for the minority reservations, he turned to the main question. No graver question has ever been considered by this court, nor one which nearly concerns the rights of the whole people he wrote. The decision does not depend on arguments or judicial precedence. All of those precedence merely illustrated the deeper history, the extent of the struggle to preserve liberty and to rel

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