Fateful Lightning: A New History of the Civil War & Reconstruction by Allen Guelzo (self help books to read TXT) 📕

series of legal challenges (based on both constitutional and international law) generated by the war, any one of which might have interposed obstacles to the war effort that Lincoln could not ignore as easily as he had Ex parte Merryman. Two of the most famous of these challenges were the Prize Cases of 1863 and Ex parte Milligan. Prize Cases was actually a collection of suits brought against the federal government by the owners of four cargo-carrying ships stopped by the federal blockade of Southern ports in May, June, and July of 1861 and turned over to federal prize courts. Blockades were, in legal terms, something like laying a port or even an entire nation’s coastline under siege from the sea. An effort at regulating the operation of blockades had been attempted at the end of the Crimean War in 1856, when the participants in the peace negotiations in Paris drafted a four-point protocol that specified what constituted a blockade and what ships and cargoes could be seized by it. Although the United States was not a signatory to what became known as the Declaration of Paris, most of the other European nations were, and they would expect their ships to be treated under its terms by any U.S. blockade.

Prize Cases questioned the legality of the stoppage of the ships in question on two grounds. The Declaration of Paris assumed that blockades were imposed by one sovereign nation upon the ports and coasts of another sovereign nation. If (as Lincoln claimed) the southern states were not in fact a belligerent nation but only an insurrection, then a blockade of international commerce had no legal standing, and ships seized by such a blockade could not be turned over to prize courts. If the blockade was indeed legal, it would be considered an act of war, but no declaration of war had been made by Congress, the only branch of the U.S. government empowered by the Constitution to do so. Only when Congress convened in its special July 1861 session and confirmed Lincoln’s unilateral actions against the Confederacy could a blockade come into legal effect. Hence the four ships seized by the Federal navy before that time had been taken illegally.

The case was decided by the Supreme Court on March 20, 1863, with a bare 5–4 majority declaring that although the Confederacy could not be recognized as a belligerent nation on its own, the federal government could still claim belligerent rights for itself in attempting to suppress the Confederacy. Writing for the majority, Justice Robert C. Grier agreed with Lincoln that “it is not necessary that the independence of the revolted province or State be acknowledged in order to constitute it a party belligerent in a war according to the law of nations.” Justice Samuel Nelson (speaking for Taney) wrote a blistering dissent for the minority arguing that “the President does not possess the power under the Constitution to declare war… within the meaning of the law of nations… and thus change the country and all its citizens from a state of peace to a state of war.” Nothing would have pleased Taney more, or more quickly have struck a major strategic weapon from Lincoln’s hand, than if the Court had agreed with Nelson’s passionate contention that the blockade’s “capture of the vessel and cargo in this case, and in all cases before us… are illegal and void. …”67

The Republicans were shocked by how easily the change of one vote on the high court could have undercut the operation of the blockade, and calls began to go up in Congress for either a new court or the replacement of the current justices. Most of this criticism was aimed at Roger Taney, who despite his poor health insisted on holding on to his seat on the Court in an undisguised search to find more ways of checking Lincoln’s “excesses.” Taney especially yearned to hear an appeal that would give him the opportunity to issue an opinion on emancipation, which he denounced as an unconstitutional interference with property rights. But death came to Taney before an appeal did, and when Taney died in Washington on October 12, 1864, Lincoln quickly replaced him with Salmon Chase.68

The High Court gave Chase’s old Democratic inclinations freer rein than his cabinet post had, and his opinions did not actually greatly differ in substance from Taney’s, especially in the case of Ex parte Milligan. Lambdin Milligan was an Indiana Democrat who had gone beyond mere criticism of Lincoln’s policies; he had actually joined a clandestine organization, the Sons of Liberty, which smuggled supplies to the Confederacy and planned raids on Federal arsenals to obtain weapons, and in 1864 he had been the Sons’ candidate for governor of Indiana. Milligan was arrested by the military commander of the District of Indiana in October 1864 and then tried and condemned to death for treason by a military tribunal, not by the civil courts. Milligan petitioned for a writ of habeas corpus, and since the war was effectively over by the time of his filing in May 1865, the federal circuit court for Indiana agreed to certify the presentation of three inquiries to the U.S. Supreme Court: Should a writ be issued? Should Milligan be released from military custody? And could he be tried by a military tribunal when the civil courts in Indiana were open and operating?

When the Chase court handed down its ruling in April 1866, it unanimously held that the writ should be issued, Milligan should be released, and military tribunals had no business trying civilians. “The guarantee of trial by jury, contained in the Constitution, was intended for a state of war as well as a state of peace,” announced the Court, “and is equally binding upon rulers and people, at all times and under all circumstances.”69 As Ex parte Milligan was not finally decided until long after the close of the war, however, it had no impact on the course of the wartime policy.

However, the Milligan case