The Case of the Copperhead Conspirator


(ex parte Milligan, 4 Wallace 2)


            In a sense the Civil War represented an attempt by the Southern states to erase the gloss that the Supreme Court had placed upon the Constitution during the first half of the nineteenth century. Secession could be legally justified only by restoring to the states much of the authority that john Marshall's decisions had assigned to the national government. Thus the defeat of the Confederacy permanently established the Marshall view of the Constitution, although it by no means ended the debate over the exact limits of federal and state authority.

            The war also brought new constitutional issues to the fore, the most impor­tant being the power of the government to restrict civil liberties in time of crisis. Early in the conflict Lincoln authorized the suspension of the writ of habeas corpus under certain circumstances. In May 1861, a citizen of Baltimore, John Merryman, was arrested and imprisoned by the military without trial or formal charge. He petitioned Chief Justice Taney for a writ ordering his captors to bring him into federal circuit court for a hearing. Taney granted this plea, but the local commander, General George Cadwalader, refused to obey, citing Lincoln's order. Taney then filed an opinion, ex parte Merryman, denying the right of the President to suspend habeas corpus. Only Congress could do this, he argued. Lacking executive support, Taney was unable to free the prisoner, but eventually Merryman was turned over to the civilian courts and released Without being brought to trial.

            During the remainder of the Civil War practices such as that adopted in the Merryman affair continued to be employed by the military authorities.

            Taney died in 1864 without ever having been vindicated. But the issue remained. It was finally settled by the case described here by Allan Nevins, author of the multivolume study.


The Ordeal of the Union.

On an August day in 1835 a group of young men in St. Clairsville, the seat of Belmont County in eastern Ohio, passed the rudimentary examination in law required of them and were admit­ted to the bar. One was destined to write his name high in the annals of the nation: Edwin McMasters Stanton, later secretary of war under Lincoln and Andrew Johnson. Another was to take a different road to fame-or infamy: the road of disunion activities and subver­sive conspiracy that narrowly missed, if it did not reach, treason. His name was Lambdin P. Milligan, and although he is now forgotten by all but students of civil liberties, he was briefly a national celeb­rity. The paths of Stanton and Milligan were later to cross in dra­matic fashion.

            Within a dozen years both men removed to new fields, Stanton settling in Pittsburgh and Milligan in Huntington County in north­eastern Indiana. Stanton was soon securely established as one of the nation's leading attorneys. For a time Milligan also did well, al­though handicapped by ill health. Records speak vaguely of spinal meningitis, and when he finally stood military trial he asked for special consideration on the ground of bodily ailment. However, by the time that Stanton won his famous victory in preventing the erection of a bridge over the Ohio at Wheeling as certain to obstruct Pennsylvania steamboats, Milligan was one of the more distin­guished Indiana lawyers. He was interested in railroad promotion, and the scrappy, uncertain accounts of his antebellum years indicate that he was counsel for short Indiana lines later incorporated in the Wabash and Erie systems.

            In the 1850s, if not before, Milligan began to cherish political ambitions. He was a zealous Democrat, an admirer of Thomas Jef­ferson and to a lesser degree Andrew Jackson, and a fervent states' rights man. He brought to politics certain gifts. He was generously hospitable, giving dinners to fellow attorneys, railroad men, and politicians all the way from Fort Wayne to Indianapolis. He was an interesting conversationalist, entertaining hearers by his wit, legal lore, and anecdotes of party leaders. A devout Catholic, he was a man of integrity and principle. But it is plain from the cloudy facts preserved about him that as the Civil War approached he became grimly fanatical. Indiana had been settled largely by Southerners descending the Ohio or crossing from Kentucky, and part of it was a hotbed of Southern feeling. All Milligan's sympathies lay with the South, and with the measures of Franklin Pierce and James Bu­chanan friendly to slave-state interests. He did not carry his predi­lections as far as Jesse D. Bright, the Indiana leader who owned slaves on Kentucky soil and was expelled from the Senate in 1861 for writing Confederate president Jefferson Davis a letter recom­mending a friend for employment. But he carried them as far as the demagogue Daniel Vorhees, "the tall sycamore of the Wabash," who would cheerfully have made Kansas the fifteenth slave state and was willing to accept secession; in fact, a good deal further.

            Nobody ever thought Milligan a great or important man. He and his friends hoped in 1864 that he might be nominated for governor, but he was not of sufficient caliber. He was merely a disturbing zealot, a rider of the wave of sectional passion. It is not the man who merits attention, but the terribly perilous situation which, in the midst of the Civil War, created the dramatic case of which he was the center.


            The fierce conflict between North and South no sooner gained headway, straining the old-time fealties of countless men, than the government in Washington had to meet two crucial questions: How should the nation be safeguarded against traitors? And just what should be regarded as treasonable conduct? Inevitably, radical opinion on these issues differed from conservative opinion as night from day.

            After four months of Lincoln's administration, declared the New York Daily News on July 1, 1861, civil liberties were prostrate. 'The sacred privilege of habeas corpus had been thrust aside; homes were illegally entered and searched; the private papers of citizens were seized without warrant; men were arrested without legal process, and held behind bars without a hearing. "Almost every right which American citizens have been taught to consider sacred and inaliena­ble," this proslavery daily asserted, "has been trampled upon by Mr. Lincoln and his Administration." Yet at the same time some Republican editors, some members of Congress, and many military com­manders believed that the government was grossly negligent in ferreting out traitors and that its mildness imperiled the life of the Republic.

          Late in April 1861, Lincoln had authorized General Winfield Scott to suspend the writ of habeas corpus in the communications zone between Philadelphia and Washington, and Scott had deputed this power to his principal subordinates. Military arrests began immediately. The Constitution provided that the writ might be sus­pended if, in time of rebellion or invasion, the public safety de­manded it. A few dim precedents existed. During the Revolution the Pennsylvania authorities had suspended the writ, and in 1815 An­drew Jackson had put New Orleans under martial law and arrested a judge who tried to intervene. Lincoln believed that he rather than Congress had the power and boldly exercised it. He had to deal promptly with men trying to stop the vital movement of troops from the North to the capital, and majority opinion in the critical weeks after Sumter upheld him.

          In due course Lincoln made his theoretical approach to the field of disloyalty, martial arrests, and civil liberties perfectly clear. He felt a tremendous anxiety for the safety of the government he had sworn to protect and uphold. The preservation of the Union seemed to him far more important than the uninterrupted mainte­nance of privileges and immunities which could later be restored. As he put it, a limb might well be amputated to save a life, but a life ought never to be sacrificed to save a limb. "I felt that measures, otherwise unconstitutional, might become lawful by becoming in­dispensable to the preservation of the Constitution, through the preservation of the nation." As a broad guiding rule, most people in the North apparently (we cannot be sure) regarded his statement as sound. They were willing to let the military authorities arrest suspected traitors in an endangered area, throw them into jail, and hold them behind bars until the danger was past.

          Nevertheless, so deeply ingrained in Americans was their attachment to the principles of civil liberty as laid down by Magna Carta and subsequent Anglo-American declarations that the first military arrests aroused deep uneasiness. The imprisonment of heads of the Baltimore police force, secessionist members of the Maryland legis­lature, and others troubled thoughtful observers. For one reason, some of the officers who ordered arrests were mere whippersnappers: one a major of the New York militia, another a militia captain. For another reason, the grounds offered were often weak: General Banks, in immuring the Baltimore police commissioners, merely alleged that they entertained "some purpose not known to the government" but supposedly inimical to its safety. Senator Pearce of Maryland declared in July 1861 that citizens had been imprisoned "upon intimations conveyed by base and unprincipled men, who, to gratify private malignity and personal or political hostility, have rendered persons far more respectable than themselves, and quite as loyal too, the victims of this tyrannous oppression." At the same time, officers like Ben Butler, one of the first to lead national troops through Maryland, thought the government all too gentle.

            When Congress met at Lincoln's call just before Bull Run, the debate showed how sensitive and difficult was the issue. Senator Pearce questioned not the suspension of habeas corpus but the unguarded nature of the step, and the more arbitrary of the acts committed under its shelter. He recalled how reluctant Great Brit­ain had been to use martial law in the Jacobite revolts of 1715 and 1745 and the stormiest period of the French wars, and how carefully the British government had limited the period during which per­sons arrested for treason might be held without bail or mainprise. When the Senate Judiciary Committee proposed a bill to authorize, define, and regulate the use of martial law, angry comment came from two quarters, its proponents and opponents.

            Everybody agreed that in suppressing rebellion the military au­thorities needed large powers in imperiled districts and would cer­tainly take them; no general would let his forces be hamstrung. But to define these powers was a difficult matter. Some feared the defini­tion would not go far enough; others that it would go too far. Senator Edgar Cowan of Pennsylvania saw "difficulty environing us everywhere." Senator Lyman Trumbull of Illinois pleaded elo­quently for a cautious measure as a safeguard. "I think that the idea that the rights of the citizen are to be trampled upon, and that heis to be arrested by military authority, without any regulation by law whatever, is monstrous in a free government," he said. Conservative members pointed out that loyal and disloyal people were inextrica­bly mingled in some communities, and that suspicion often fell upon the wrong persons. Radicals urged for severity because loyalty oaths meant nothing to scoundrels, and because in some places military tribunals would be more trustworthy than the civil courts.

            In the end Congress dropped the judiciary Committee bill. It contented itself with passing a mild Conspiracies Act, punishing any plot to overthrow the government or levy war against it by a fine not exceeding $5,000 and imprisonment for not more than six years. Trumbull, a staunch defender of civil liberties, urged its passage. Eight border senators, however, signed a protest declaring that its vagueness as to indictments and evidence offered a dangerous lati­tude to improper prosecutions. The sphere of military control re­mained vaguely defined, primarily because some congressmen wanted a broad grant of powers, while others insisted upon a very narrow delimitation. The sequel of this failure to set clear bounds around the authority of the government and army to deal with alleged disloyalists offers one of the unfortunate chapters of war­time history.


Arbitrary arrests became a commonplace of Northern life. Not only did no plain law exist; the administration made matters worse by failing to create a careful, well-organized, and responsible ma­chinery for operating in the twilight zone. The government lawyers could not assume the task, partly because Attorney General Edward Bates was too old, slow, and erratic, and partly because he was outspokenly hostile to military arrests. ("I am resolved," Bates wrote in 1864, "that the records of my office shall bear testimony that at least one member of the Government did, sometime, resist capricious power and the arbitrary domination of armed forces.") Lincoln at first deputed the labor to William H. Seward. The secre­tary of state was able, prompt, and shrewd, but he had all he could really manage in conducting foreign affairs and was often distress­ingly casual, circuitous, and flippant in his methods. History will never forget his remark that whenever he wanted an offender seized, he tapped a little bell on his desk, and the man was soon in durance. As the complexity of the problem of disloyalty increased, and Se­ward found the burden insupportable, Lincoln took advantage of the appointment of Stanton to the War Department early in 1862 to hand him the responsibility. This was by executive order on February 14, 1862.

          Theoretically, much could be said for giving the civilian head of the war machine responsibility for military arrests. Practically, how­ever, this transfer of functions was open to grave objections. Of all the members of the Cabinet Stanton had the least judicial mind, and was the most prone to violent and unfair acts. His handling of the lamentable case of Brigadier General Charles P. Stone at once illus­trated his worst qualities. Congressional radicals who controlled the Committee on the Conduct of the War mistakenly held Stone re­sponsible for the Ball's Bluff disaster of October 1861, in which more than half of a seventeen-hundred-man Union force was killed or captured in a battle on the Potomac upstream from Washington. Stanton ordered Stone's arrest, kept him in Fort Lafayette for more than six months on charges never specified, gave him no real trial, and finally released him without acquittal. Stone's career was blasted, and he had later to rebuild it under the Egyptian flag. Few grosser breaches of civil liberty in our history can be found than his long and causeless confinement. Other acts by Stanton were equally arbitrary.

          The total of arrests continued to grow as 1861 passed into 1862. Meanwhile, a few cases-far too few-came into court for a hearing. The situation produced so much irritation that in the session of 1861-62 Lyman Trumbull introduced a resolution calling on the executive to report the total number of alleged disloyalists held in prison, and to state under just what law they had been detained. Various colleagues expostulated with him. Henry Wilson, chairman of the Senate Committee on Military Affairs, declared that Lincoln had done quite right in making an example of leading subversion­ists, that "the turning of the doors of Fort Lafayette and Fort War­ren on their hinges silenced innumerable traitors in the loyal States." Dixon of Connecticut asserted that if Lincoln and Seward had not seized the dangerous men undermining the federal govern­ment, they would have been guilty of treason-at any rate, "moral treason."

          However, powerful editors ranged themselves on Trumbull's side. William Cullen Bryant of the Evening Post denounced methods which savored of the old lettres de cachet. "For months we have read of arrests without a single cause of them having been specified." Horace Greeley had a Tribune correspondent hand Seward a letter declaring that whenever the government arrested decent citizens without strong reason, "you tear the whole fabric of society." And the editor of the Washington National Intelligencer wrote (February 12, 1862): "The neglect to bring a single person to trial when so many have been arrested, does not authorize any very satisfactory inference with regard to the efficiency of the government in ferret­ing out real traitors, or in preserving the innocent accused from the unlawful detention."

          It was to Lincoln's credit that early in 1862, when General McClellan was about to advance upon Richmond and hopes of an early victory ran high, he ordered that all political prisoners in military custody be released upon parole and granted an amnesty for past offenses. Extraordinary arrests by the military authorities would continue: all spies, secret agents, and conspirators whom the secretary of war regarded as dangerous to the public safety would be taken up and kept in custody. But the old slate was wiped clean. And it was to Stanton's credit that he adopted a sensible course for sifting the great body of prisoners held on various charges, and releasing most of them. He appointed John A. Dix and Edwards Pierrepont as commissioners to examine those held in the New York area and render a quick verdict. Visiting Fort Lafayette and other prisons, by April 1862 they had practically finished their work. The judge advocate of the army for the Washington area was empow­ered to dispose of prisoners arrested in the Federal District and adjacent Virginia. Governor David Tod of Ohio was authorized to use a special agent to investigate cases, with a promise that any prisoner would be released on his recommendation.

          Early in 1863, however, after the bloody disaster at Fredericks­burg, discontent and disloyalty rose to new heights, and nowhere more threateningly than in the Middle West. Lincoln's Emancipa­tion Proclamation became final on New Year's Day. It not only angered friends of the South, but aroused fears that a host of liber­ated blacks would inundate Ohio, Indiana, and Illinois. Losses on Mississippi Valley battlefields were heavy, and Democratic families bore their full share. A great many voters who had supported the struggle while it was simply a national war for the Union took a hostile attitude when it seemed to become a Republican war to destroy slavery, establish a strong central government, and hold the South in subjection.

          Nor were real economic grievances wanting. Astute farmers of the Middle West saw plainly that the new high tariffs which enriched industry were injurious to agriculture, for they limited the ability of Europe to buy farm products. Daniel Voorhees delivered resentful speeches in the House on the subject. Western agrarians perceived also that while they suffered from a glut of grain and rising freight and elevator charges, Eastern manufacturers got most of the fat war contracts, and Eastern capitalists pocketed the large profits made by banks and railroad lines.

          Naturally a cry for peace went up in many quarters. Early in 1863 the Democratic central committee in Indiana published an address which urged the "great duty of pacification or honorable adjust­ment" and advocated "compromise." Naturally, too, volunteering sank, and as army morale declined many soldiers went absent with­out leave. "Desertions [are] occurring daily, and encouraged at home," wrote General Lew Wallace. Union enthusiasts demanded more arrests. When the impetuous General Burnside took com­mand of the Department of the Ohio (which included Indiana) early in 1863, he issued a general order asserting that he would not tolerate declarations of sympathy for the enemy, or any other form of "express or implied treason." Implied treason was something new to the jurisprudence of English-speaking countries.

          The stage was being set for the arrest of the Ohio copperhead Clement L. Vallandigham-and for the case ex parte Milligan. For Milligan was coming under suspicion for his supposed connection with what was later termed the great Northwestern Conspiracy. Beyond a doubt a conspiracy to array large groups in the old North­west against the war did take form in 1862-63. But how formidable was it?


From the beginning of the war many Southerners had cherished a hope that, once Confederate victories bred a spirit of defeatism in the North, Indiana, Illinois, Missouri, and possibly Iowa would desert the struggle. Some Northern copperheads, sharing the hope, laid plans to realize it. How could this colossal defection be accom­plished? By the formation of a Northwestern Confederacy.

            "All people will recollect," wrote Stephen A. Douglas's old-time lieutenant, James A. Sheahan, in his Chicago Post of July 12, 1864, a paper for war Democrats, [that the Northwestern Confederacy] was a common topic of conversation in the spring of 1862 among "Northern men of Southern principles," who scouted the idea that Grant would take Vicksburg as they are now pooh­poohing the idea that he will take Richmond. In all the larger cities of the Northwest, and in many of the smaller ones, these Northwestern Confeder­acy disunionists were bold in avowing and vociferous in advocating the traitorous scheme, whenever it could be done without personal danger. It was even supported in the columns of Mr. Vallandigham's shameless news­paper in this city [Sheahan meant Wilbur F. Storey's Chicago Tinges], and the subject was not allowed to drop until the fall of Vicksburg reopened the Mississippi, and put an end to all immediate hopes of its realization.

Later it was revived.

            Milligan, as a Northerner with Southern principles, violently de­tested the warlike governor of Indiana, Oliver P. Morton. He op­posed Morton's successful effort in 1861-62 to maintain a state arsenal for supplying Indiana regiments with ammunition. He was outraged by the movement of Grant's troops into Kentucky and the capture of Forts Henry and Donelson. When Lincoln, in the sum­mer of 1862, after McClellan's failure, called for 300,000 more troops, and Governor Morton worked valiantly to fill Indiana's quota of 31,350 recruits, Milligan did everything in his power to discourage enlistments. The patriotic Indianapolis Daily journal cas­tigated him, along with Voorhees and Thomas A. Hendricks, in burning terms. These seditionists cheered for Jeff Davis, it declared; they gloated over Union losses; they plotted to obstruct volunteer­ing; and while weeping for slavery, they had not a single tear for the death of brave Union boys.

            By 1863 government policy was more severe. Liberalized in the first half of 1862, it became stringent during the second half. As successive Northern defeats and the rebirth of fears for the safety of Washington made disloyalty bolder, the administration felt less inclined to take risks. Moreover, the first limping draft law in the summer of 1862 resulted in an ebullition of evasion and resistance which the War Department thought it had to repress by the use of extraordinary powers. Any man who left his community to escape conscription, or encouraged or abetted such evasion, was subject to abrupt military arrest. Public sentiment generally approved the apprehension of "skeedaddlers," forty of whom were caught in a sin­gle day at Rouses Point on the Canadian boundary. Yet when a number of prominent Democratic politicians were jailed for their denunciations of the war and administration policy, angry protests arose. Horatio Seymour of New York and Vallandigham of Ohio were particularly vocal.

          Lincoln made matters worse by a most unfortunate proclamation of September 24, 1862, announcing that "all Rebels and Insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practise ... shall be subject to martial law and liable to trial and punishment by Courts Martial or Military Commission." This was going far, indeed, in overriding the civil courts. Moreover, as it came two days after the Emancipation Proclamation, it seemed to offer a threat of overcoming all opposition to that measure by harsh punitive arrests.

          Meanwhile, Milligan's bitter opposition to the war in 1862-63 attracted nearly as much attention in Indiana as Vallandigham's activities in Ohio. General Burnside, determined to punish "implied treason," had failed in his effort to extend martial law over Indiana, but federal agents followed Milligan closely, noting his actions, taking down his speeches, and watching for any support he gave to plans for a Northwestern Confederacy. They found evidence, ac­cording to subsequent allegations, that on or about October 1, 1863, he conspired with William A. Bowles, Andrew Humphreys, Stephen Horsey, and other Indiana copperheads to overthrow the government, and for this purpose helped organize a secret society, the Order of American Knights, or Order of Sons of Liberty­"erected on the dissolved fragments of the Knights of the Golden Circle," which had become discredited. One conspirator identified by government agents was a Kentuckian, Joshua F. Bullitt, and another a Missourian, J. A. Barrett, suggesting that the group might be formulating a broad Northwestern plan. They met in Indianapo­lis in complete secrecy.

            Federal agents also gathered evidence that about a month later the group distributed arms to various malcontents for resisting the draft. They further alleged that the plotters held another meeting in Indianapolis on or about May 16, 1864, for flagrantly disloyal purposes. This time Milligan, Bowles, and others crossed the line of treason, for they communicated details of their scheme for an armed uprising later in the year to the Confederates, and asked for the cooperation of Confederate forces.

            With this evidence in hand, the military authorities took action. They went further than with Vallandigham, whose seizure on flimsy grounds by General Burnside in May 1863 had caused Lincoln so much embarrassment, and had ended merely in temporary deporta­tion. On October 5, 1864, they arrested Milligan at his home, under orders of General Alvin P. Hovey, commanding in Indiana. Keeping him in close confinement, Hovey brought him on October 21 before a military commission in Indianapolis. This body found him guilty of inciting insurrection and giving aid and comfort to the enemies of the United States, and sentenced him to be hanged on May 19, 1865. Milligan, expert in law, at once petitioned the Federal Circuit Court for the District of Indiana to be discharged from what he termed his unlawful imprisonment, and in due course the case came before the Supreme Court in Washington.

            The rigor shown by General Hovey, and the celerity with which the military tribunal imposed a death sentence, owed much to the fact that just before the arrest and trial the so-called Northwestern Conspiracy had come to a head. The plot, as given final form, had fantastic scope. It was nothing less than a plan to use the Sons of Liberty to seize federal and state arsenals in Ohio, Indiana, and Illinois; to release the prisoners of war held in Camp Douglas (Chi­cago), Camp Morton (Indianapolis), Camp Chase (Columbus, Ohio), and on Johnson's Island in Lake Erie; to arm these prisoners from the arsenals; and after creating terror by arson and pillage, to march against the Union troops in Missouri and Kentucky, where Confederate forces would be ready to lend assistance.

            The boldness of the scheme was impressive, but how much sup­port did it have in men and money? Apparently a good deal, for Confederate leaders and Eastern copperheads were actively in­volved. Jacob Thompson, a Mississippian who had been secretary of the interior under Buchanan, C. C. Clay, former senator from Alabama, and Ben Wood, congressman from New York, owner of the New York Daily News and brother of Fernando Wood, were all participants. The summer of 1864 found this trio in Canada. They hoped that the Northwestern uprising and a New York outbreak akin to the Draft Riots might be timed to occur simultaneously. This fact is revealed in a letter, hitherto unpublished, which Clay sent to Jacob Thompson on August 3, 1864, from St. Catherine's in Can­ada:


I have just parted from Ben Wood, who expected to see you in Toronto. He knows nothing more of our speculations than he knew before meeting me. He had an impression of the storm impending and about to burst in the West, and expressed a willingness to see it and even to help it rage. He says there is a large body of laboring men in New York who can be com­manded any day to aid in throwing off the yoke of the tyrant, if they had the arms. He thinks these can easily be obtained. If there be insurrection in the West, a riot in New York would checkmate any effort to suppress it. You will understand without fuller explanation.


          Ben Wood was doubtless revolving plans for getting the needed weapons by sacking arms shops and breaking into regimental armo­ries. Thompson was perfecting a pleasant scheme, later put into effect, for setting fires in New York hotels. Money was not a prob­lem, for Clay went on to explain to Thompson that he had plenty from rebel sources. According to federal agents, the Confederacy had supplied half a million dollars.

          "Holcombe arranges with me," Clay continued


 (Judge J. P. Hol­combe of Virginia being a Confederate commissioner in Canada), that we can invest twenty thousand dollars in New York with profit espe­cially to assist the other operation in the West. The former will secure the fruits of the latter. I sent ten thousand dollars to X according to his and Holcombe's understanding with you. I have advanced to Captain C. [John B. Castleman of Kentucky] $250 for the purpose on which you sent him to the Falls ... If you see Ben Wood you can confide more than I have done to him, I think, for he is among the staunchest and boldest of our friends.


A full history of this sinister but utterly impracticable Northwestern Conspiracy, of the work of the officers detailed from the Southern army to assist it—Colonel St. Leger Grenfell and Captain T. H. Hines being the chief of the attempts to capture the U.S.S. Michigan, a little vessel of eighteen guns stationed on Lake Erie, and of the gathering of desperate men in Chicago, would require more space than it is worth, for it all came to naught. General Basil W. Duke declared later that "visionary and desperate" as the scheme appeared, "it was in reality very nearly the last hope the South had of prolonging the war." Grant's hammer blows in Virginia were plainly bringing the conflict close to its end. The conspirators' plan was to time the outbreak for the Democratic National Convention meeting in Chicago the last week in August 1864.

          "August 28th," writes the author of a sensational account of the conspiracy, "dawned upon at least a hundred thousand strangers in Chicago, both gentlemen of the Convention and the ruffians of the Sons of Liberty." Their numbers had been swollen by fugitives from the draft. Some were well armed, a few even possessing muskets. Weapons for at least ten thousand men, according to another sensa­tional record, had been smuggled into the city. But Colonel B. J. Sweet, commandant at Camp Douglas, had obtained ample warning of the plot and was watching suspicious characters like a sharp­taloned hawk. Guards at the camp and garrisons elsewhere in the Northwest had been reinforced. As the Sons waited for orders, word reached their leaders that a government agent, Felix G. Stidger, had wormed his way into the central recesses of the Sons of Liberty, obtained full particulars of their designs, and carried them to Union headquarters. They saw at once that the game was up. While the Democratic Convention still continued, they told their followers that the precaution of the military authorities made any attack im­possible.

          The frustrated Sons hastily left Chicago, some for home, some for Canada, and some for the border states, but all uttering threats of vengeance. Colonel Grenfell and a few others remained in the city, totally impotent. The Northwestern Conspiracy, in which Milli­gan was undoubtedly implicated-though nobody knows how far had proved an utter fiasco. But as the press learned a good deal about it, while army officers knew more, it had an influence on the stern action of the military commission which condemned Milligan and two others to death. Fortunately for Milligan, the war ended before the date of his execution. After Lincoln's assassination, President Andrew Johnson first respited him, and then commuted his sentence to life imprisonment.


The issue which came before the Supreme Court in April 1866 in ex parte Milligan was simple. It was the question of whether the government had the power, in an area free from invasion or rebel­lion, and not a theater of military operations-an area where the civil courts were in full discharge of their duties-to suspend the constitutional immunities of a citizen and consign him to a military commission for arrest, trial, and sentence. The guilt or innocence of Milligan was not in question. What was challenged was the right of a military commission, deriving its powers entirely from martial law, to try and punish him. Lincoln had declared in his proclamation of September 24, 1862, that all insurgents, with their aiders and abettors, should be subject to martial law. Was this declaration valid in places where ordinary grand jury presentments and jury trials were still available, or was it valid only where this system of justice was paralyzed?

            Four distinguished men, James A. Garfield, Jeremiah S. Black, Joseph Ewing McDonald, and David Dudley Field, appeared for Milligan. The logical force and eloquence of their pleas, the interest of' the precedents they cited, and the far-reaching import of the Court's decision combined to make the case one of the most memo­rable in our history. Milligan Is personal record, however heinous, could be set aside. The all-important question was the nature of the line to be drawn around the powers of government in internal war, and the limits of the line protecting civil liberties. In the published proceedings, the opening plea of the government attorneys, James Speed, Henry Stanbery, and Benjamin F. Butler, occupies less than eight pages. The plea of Garfield, however, fills twenty-seven pages, that of Black twenty-six, and that of Field sixty pages. Ben Butler then made a reply of fourteen pages.

            The weight as well as the volume of the arguments was heavily against the government. Field showed that when the military trial began, no known enemy in arms could be found in the state of Indiana; none within hundreds of miles. He showed that on the day set for Milligan's execution as an act of military necessity, Confederate resistance had ceased, and all was submission from the Rio Grande to Katahdin. Black recalled that when Washington called out troops to quell the Whiskey Rebellion, he never thought of suspending constitutional guarantees in Pennsylvania. The court was reminded that liberal members of the House of Representa­tives, late in the war, had attached to an appropriation bill an amendment declaring that, except for military personnel or alleged spies, "no person shall be tried by court-martial or military commis­sion in any State or Territory where the courts of the United States are open," and when congressmen objected, these liberals defeated the appropriation rather than recede.

          Particularly telling were the precedents from Anglo-American history which Garfield cited. He showed that in 1745 a Lieutenant Frye serving on the British warship Oxford in the West Indies was ordered by his superior to arrest another officer, but doubting the legality of the action, he demanded a written directive. For this he was himself arrested and tried by a naval court, which sentenced him to fifteen years' imprisonment and debarred him forever from the royal service. He at once brought an action in a civil court in En­gland against the president of the naval tribunal. This court awarded him one thousand pounds for illegal detention and sen­tence, and informed him that he might arrest and sue any member of the naval tribunal. The incensed Frye promptly had two more members arrested.

          After this, fifteen naval officers headed by a rear admiral met and formally declared it a gross insult to the British navy that any civil officer, however highly placed, should cause the arrest of a naval officer for any of his official acts. Thereupon Lord Chief Justice Willes had all fifteen men arrested and brought before him. Despite their efforts to enlist the king, this courageous judge persevered so energetically in his determination to maintain the supremacy of the civil authority that after two months' examination the fifteen signed a humble letter of apology. This letter the Lord Chief Justice placed in the Remembrance Office "as a memorial to the present, and future ages, that whoever set themselves up in opposition to the laws, or think themselves above the law, will in the end find them­selves mistaken."

          Still more impressive, as cited by Garfield, was the case of Gover­norJoseph Wall of the African colony of Goree. In 1782 the brutal Wall, suspecting that the garrison was about to mutiny, assembled five hundred British soldiers on parade, held a hasty consultation with some officers, and ordered Private Benjamin Armstrong, a supposed ringleader, seized, stripped, tied to an artillery wheel, and given eight hundred lashes with a one-inch rope. Armstrong died. Some years later Governor Wall was brought before the most au­gust civil tribunal in England to answer for the murder of the poor private. Three eminent jurists listened to the pleas. Wall's counsel argued that as governor and military commander at Goree he held the power of life and death in time of mutiny, and was the sole judge of the necessities of the case. After a patient hearing, the jurists decisively vindicated the supremacy of the civil system of justice. They found Wall guilty of murder, sentenced him to death, and saw that he was executed.

            The decision of the majority of the Supreme Court in ex parte Milligan, as read by Chief Justice Chase on April 3, 1866, was deci­sive. It declared that since the civil courts had been open in Indiana, and the state far removed from the battlefront, the military commis­sion had possessed no legal jurisdiction for trying and sentencing Lambdin P. Milligan. Of course, no judicious person had any sym­pathy with the zealot who had apparently wished to see the Confed­eracy triumph, the Union riven asunder, and the institution of slav­ery preserved. He (like many others) had been severely penalized, by his long illegal imprisonment while the Supreme Court was wait­ing to rule on the constitutionality of military arrests and trials, but in view of the impediments he had offered the prosecution of the war, he got off rather lightly. He had a certain compensation, too, in the immortality he received in the lawbooks and constitutional histories; in the fact that, as Chief Justice Warren declared in 1962, his case was a landmark which firmly established the principle that when civil courts are open and operating, resort to military tribu­nals for the prosecution of civilians is impermissible."

            Many observers then and later believed with John W. Burgess of Columbia University that the decision drew too rigid a line around  the powers of the government in dealing with disloyalty in time of war or civil commotion. Radical leaders in Reconstruction days hotly denounced it. "That decision," said Thaddeus Stevens on January 3, 1867, "although in terms not as infamous as the Dred Scott decision, is yet far more dangerous in its operation upon the lives and liberties of the loyal men of this country." His view was that only military tribunals could protect carpetbaggers and blacks against seditious enemies of the national government in some parts of the South. In the First Reconstruction Act of 1867, Congress provided for military jurisdiction and for trial by military commis­sions of the precise kind that the Milligan decision had stigmatized as illegal. Although such trials were clearly unconstitutional, efforts to prevent the enforcement of the military provisions by injunction suits broke down when the Supreme Court, intimidated by Con­gress, dismissed the suits as outside its competence.

            But the Milligan decision nevertheless represented a great tri­umph for the civil liberties of Americans in time of war or internal dissension. The cautious Supreme Court might temporarily side­step its implications, but it stood. No less respected a historian than William A. Dunning declared that Lincoln's proclamation of Sep­tember 12, 1862, upon martial law and military arrests had offered "a perfect platform for a military despotism." So it had, and al­though Lincoln was the last man in the world to make himself such a despot, he might conceivably have a successor some day who, unless a clear line were drawn, would permit the erection of a martial autocracy. The line was now emphatically delineated. The Supreme Court established the rule that, no matter how grave the emergency, and no matter how high the public excitement, the civil authority is supreme over military authority; that wherever such civil authority is established and its ordinary judicial procedures are operating, its protections of the citizen shall remain absolute and unquestionable. The heart of this decision is the heart of the differ­ence between the United States of America and Nazi Germany or the Soviet Union.