Lambdin P. Milligan’s Appeal for State’s Rights and Constitutional Liberty during the Civil War

Edited by Darwin Kelley*

On the night of October 5-6,1864, during the Civil War, Lambdin P. Milligan was arrested at his home in Huntington, Indiana, by military authorities. Approximately two weeks later Milligan and four other Indiana citizens were brought to trial in before a military commission composed of twelve army officers. Charges against the five men included conspiracy against the United States government, affording aid and comfort to rebels against the authority of the United States, and inciting insurrection. In December, 1864, the commission found all five defendants guilty and sentenced three of them-including Milligan-to hang, another to imprisonment at hard labor for the duration of the war. The fifth man was released after he turned states evidence.’ Throughout the trial Major Henry L. Burnett, judge advocate and prosecutor, attempted to prove that Milligan, as a member of a secret, subversive society, had plotted to overthrow the government of the United States and establish a Northwestern Confederacy. Burnett asserted that the Huntington lawyer was a major general in the military branch of the allegedly traitorous Sons of Liberty, had openly sympathized with the southern and condemned the Union, and had advocated armed resistance to the draft. As partial proof of his accusations the judge advocate introduced a copy of a speech-as printed in the Gazette-which Milligan, a Peace Democrat, had made on August 13, 1864, at a Democratic mass meet- ing held in .2 Since the Gazette had published verbatim only parts of Milligan’s speech and had condensed and summarized the rest, counsel for the accused attempted to block use of the abbreviated version on the grounds that it was incompetent evidence. Attorney James L. Cof-

*Dr. Darwin Kelley teaches history at Elmhurst High School in Fort Wayne, Indiana, and is visiting lecturer in political science, Huntington College, Hunting ton, Indiana. Thanks are extended to Professors Bert Anson and Donald F. Car- mony for their suggestions during the preparation of this article. Especial thanks are given to Lorna Lutes Sylvester for her help in the editing process. 1 Kenneth M. Stampp, Indiana Politics during the Civil War (Indiana Histori- cal Collections, Vol. XXXI; Indianapolis, 1949), 249, 253, 262; Gilbert R. Tredway, “Indiana against the Administration, 1861-1865” (Ph.D. dissertation, Department of History, Indiana University, 1962), 292, 301-303. Tredway bases his account of the treason trials on the original longhand copies of the shorthand transcript of the trials located in the National Archives. The only published version of the trials is the highly selective and biased Benn Pitman (ed.), The Trials for Treason at Indhnapolis, Disclosing the Plans for Establishing a North-Western Confederacy . . . (Cincinnati, 1865), 73-77. Tried with Milligan were Stephen Horsey, William Bowles, , and Horace Heffren. 2 Pitman, Trials for Treason, 88-89,120-22, 150-57, and passim. 264 Indiana Magazine of History froth argued that “the omissions might give a different construction to what was said . . . .”:; The military commission, however, dis- allowed Coffroth’s reasoning and permitted Burnett to question the Gazette reporter concerning his remembrance of the speech and the article. According to the newspaperman, Milligan had denied that the war was right or that the President had the power to coerce a state, had asserted “that the war itself was disunion, and that the Union could not be restored by war,” had declared that the war had made the government a despotism, and had called President Abraham Lin- coln a tyrant and an usurper. The reporter admitted, however, that Milligan had stated: “if the war was right, the draft was right, and if they considered the war right, and were good citizens, they would not grumble about the draft.”’ The somewhat questionable legality of introducing the Gazette’s version of Milligan’s speech and the rather flimsy evidence against the lawyer contained therein were but samples of the antics performed by the military commission and the judge advocate during the trials. As one historian has aptly described the proceedings: “The scene which . . . ensued resembled ope’ra bouffe far more than a trial for trea~on.”~ Another scholar has suggested that the treason trials were “intended to grind grist for the political campaign preceding the presidential election of November 7.”fi Undeniably Milligan’s arrest and trial re- sulted from the political situation in Indiana during the Civil War. Both Democrats and Republicans practiced bitterly partisan politics throughout the war period. The Democracy raged against a Repub- lican administration which allowed arbitrary arrests, suspended the writ of , imposed military rule, and passed economic measures which Democrats considered heretical and designed to in- jure the Northwest. The party inveighed furiously against the Presi- dent’s Emancipation Proclamation and called for a peace convention to end a war which many thought could not be won anyway. Repub- licans countered by claiming that all Democrats were members of se- cret treasonable societies, the purpose of which was to overthrow the national and state governments or secede from the Union.’ In Re- publican terminology , butternut, traitor, and Democrat were all synonymous. One writer accurately summarized the situa-

3 Ibid., 150-51. rlbid., 152. j Stampp, Indiana Politics during the Civil War, 248. 6 Frank L. Klement, The Copperheads in the Middle West (Chicago, 1960), 198. 7 For discussions of the political situation in Indiana during the Civil War see Emma Lou Thornbrough, Indiana in the Civil War Era, 1850-1880 (Indianapolis, 1965); Stampp, Indiana Politics during the Civil War; Lorna Lutes Sylvester, “Oliver P. Morton and Hoosier Politics during the Civil War” (Ph.D. dissertation, Department of History, Indiana University, 1968). Milligan’s Appeal for State’s Rights 265 tion when he wrote: “Intellectual tolerance was not the order of the day.”8 Of Milligan himself, another author has commented: “It seems clear that when the time came for a squaring of accounts between Milligan and the administration, his open and brazen espousal of a political philosophy regarded as dangerously subversive counted more heavily against him than his real or imaginary participation in con- spiracies against the g~vernment.”~The Huntington lawyer was a strict agrarian, a western sectionalist, and a Jeffersonian Democrat who wanted to stay the course of the Industrial Revolution in Amer- ica. He was a caustic antagonist of eastern manufacturing interests and constantly referred to the “pecuniary vassalage” to which the cotton nabobs of New England and the iron mongers of Pennsylvania were subjecting the Northwest.lU Milligan combined his antipathy for commerce and business with his disapproval of the war. He had been a “strong advocate of compromise and an opponent of coercion” before the conflict began, and unlike many of his fellow Democrats he did not become a supporter of a war for the Union when fighting became in- evitable.” In August, 1861, at a Huntington County Democratic con- vention he had described the war as “illegally brought on by an usurper, for the furtherance of the ends of a foul, fanatical abolition party.”12 Milligan frequently maintained that the South had been driven to secession and insisted that the war had been started only to further the interests of the New England manufacturers.13 In regard to the Constitution the Huntington lawyer was the “strictest of strict constructionists”“ and was bitterly critical of what he considered the Lincoln administration’s attempts to subvert the law of the land. Mil- ligan’s speeches indicate that he thought the Republican party was at- tempting to retain power by illegal means, and he constantly com- plained of “Federal misrule, usurpation, lawlessness, and crime.”15 Several months after the Civil War began, the Democratic Indianapolis

*Kenneth M. Stampp, “The Impact of the Civil War upon Hoosier Society,” Indiana Magazine of History, XXXVIII (March, 1942), 13. 9 Tredway, “Indiana against the Administration,” 232. There are few com- plete accounts of Milligan’s life and career. Tredway bases his conclusions about the Huntington lawyer on numerous speeches which the Peace Democrat made, obituaries, newspaper accounts, letters, and such published works as John A. Marshall, An American Bastile (Philadelphia, 1879), and Florence L. Grayston, “Lambdin P. Milligan-A Knight of the Golden Circle,” Indiana Magazine of His- tory, XLIII (December, 1947), 379-91. 10 Tredway, “Indiana against the Administration,” 226-30 ; Klement, Copper- heads in the Middle West, 108, 116; Thornbrough, Indiana in the Civil War Era, 216. 11 Tredway, “Indiana against the Administration,” 227. 15 Huntington Democrat, August 15, 1861, quoted ibid. la Tredway, “Indiana against the Administration,” 228 ; Klement, Copperheads in the Middle West, 108; Indianapolis Daily State Sentinel, July 8, 1864. l4 Tredway, “Indiana against the Administration,” 232. 1.7 Indianapolis Daily State Sentinel, July 8, 1864, quoted ibid., 227. 266 Indiana Magazine of History

Daily State Sentinel reported that, in one speech, “Milligan thoroughly dissected and exposed the corruptions, incompetency and utter imbe- cility of King Lincoln’s Administration, concluding with an eloquent appeal in favor of maintaining the Union by peaceable and amicable adj ustment.”16 The Huntington Democrat’s vociferous expression of such views and his participation in Democratic party politics brought him to the attention of Indiana Republicans early in the war. Milligan served as chairman of the Huntington County Democratic Central Committee during 1861 and 1862 and was apparently one of the most popular speakers in his area.17 In August, 1861, William R. Holloway, Governor Oliver P. Morton’s secretary, wrote to District Attorney John Hanna : “Enclosed please find some extracts from the Huntington Herald. He [Milligan] should be arrested at once. Please give this your personal and immediate attention.” Included with the letter were articles about speeches which Milligan had delivered earlier in the year.18 Al- though Milligan evidently hoped to be chosen as the congressional nominee from his district in 1862 and was a candidate for the guber- natorial nomination in 1864, his extreme peace views and often in- expedient statements were unacceptable to the majority of Indiana democrat^.*^ It has been said that some Republicans considered the Huntington lawyer more help to them than to his own party “on ac- count of his constant habit of declaring his most ultra sentiments in the most obnoxious form.”’O In June, 1864, General Henry B. Car- rington, commander of the District of Indiana, named Milligan as one of four major generals in the Sons of Liberty and in August labeled him as one of the “leading men of the secret order, who are urging resistance to the Government. . . .”?l About three months later came Milligan’s arrest. The lawyer’s actual connection with the secret societies in Indiana was at least completely misunderstood. In 1862 he denounced all se- cret organizations as contrary to the principles of the Democratic party and detrimental to its success. Yet he attended meetings of the Huntington lodge of the Order of American Knights “off and on”

16 Indianapolis Daily State Sentinel. September 21, 1861. 1: Tredway, “Indiana against the Administration,” 226. lk William R. Holloway to John Hanna, August 15, 1862, John Hanna Papers (Lilly Library, Indiana University, Bloomington ) . 15 Tredway, “Indiana against the Administration,” 226. ”0 Quoted ibad.. 225. 21 Henry B. Carrington to Captain C. H. Potter, assistant adjutant general, June 6, 1864, U. S.. War Department, The War of the Rebellion: A Compilation of the Official Reconis of the Union and Confederate Armies (128 vols., Washington, 1880-1901), Ser. 2, Vol. VII, p. 341; Carrington to Potter, August 16, 1864, ibid., Ser. 1. Vol. XXXIX, Part 2, pp. 259-60. In August, 1864, Carrington was replaced as district commander by General Alvin P. Hovey. Stampp, Indiana Politics during the Civil War. 247. Milligan’s Appeal for State’s Rights 267 throughout 1863 and 1864, and fairly substantial testimony indicates that he was influential in the local lodge although professedly not a member in 1864. Milligan did not help to extend the secret order, however, since he reputedly wanted the Huntington chapter kept small and membership limited to men of prominence and responsibility in order to control the Democratic nominations in the county.” Ap- parently Milligan attended only one state meeting of the OAK, that held in Indianapolis in November, 1863. Despite this fact he was supposedly appointed a major general in the state Organization of American Knights in September, 1863, and was carried over in that office when the order merged with or became the Sons of Liberty. During the treason trials Judge Advocate Burnett failed to prove con- clusively that Milligan was at the time a member of the Sons of Lib- erty, that he knew of the so-called military wing of that organization and his major generalship therein, or even that the secret society was a traitorous body per se.23 Nevertheless, the military commission pro- nounced the Huntington Democrat guilty of treason. Although Coffroth attempted to refute all charges against his client, his major contention-and that of Milligan-centered around the illegality of the military commission itself. At the time of the treason trials, the civil courts in Indiana were open and functioning properly; and Milligan was a civilian, in no way connected with the military. Lawyers for the accused thus argued that the federal mili- tary commission had no jurisdiction and that Milligan and his col- leagues had the “right to be tried by one of the constitutional courts of their country, and by a jury there~f.”?~Their arguments at the time were unavailing. Later, due to the cooling of wartime passions and to the interven- tion of several influential men, Milligan’s execution was delayed ; stilI later his sentence was commuted to life imprisonment. Eventually his case was brought before the United States Supreme Court, and its decision-delivered April 3, 1866-is a landmark in American judicial history.2s In Ex parte Milligan, the justices held that the treason trials had been illegal because the civil courts had been open and un- obstructed in their function.26 One author has written of Milligan’s release from prison and re- turn to his home town: “According to accounts too numerous to dis- believe entirely” the lawyer received “a ‘greater ovation that has ever been accorded to any other man’ in his native Huntington.” There

22 Tredway, “Indiana against the Administration,” 230-32, 322, 344, and passim. 23 Ibid., 230-32, 322-28; see also Pitman, Trials for Treason, passim. 24Pitman, Trials for Treason, 199. 25 Stampp, Zndiana Politics during the Civil War, 264. 26 Ex parte Milligan, 4 Wallace, 2 (1866). 268 Indiana Magazine of History was a parade, bands, firing of cannon, and a speech by the lawyer himself deying that he had ever injured his country or his fellow citizens.“ Two years after his release from prison Milligan filed suit for false arrest and imprisonment against Morton, members of the commission, and others associated with the treason trials. In this instance a federal court found for Milligan, awarded him damages of $5.00, and ordered the defendants to pay court costs. The Huntington lawyer, however, was never tried in the civil courts on charges of treason or conspiracy.’” When Milligan died in December, 1899, the Republican Huntington Herald-often a bitter critic of the lawyer and his party-stated: “he was a good citizen, a kind neighbor, and an honorable and upright business man. He was an able and con- scientious lawyer, and his record at the Huntington bar was of great credit. He did much for Huntington and Huntington County, and the community sorrows at the death of a man whose heart was devoted to its interest^."'^ On September 1, 1864, the Huntington Democrat printed a com- plete text of the speech which Milligan had delivered at Fort Wayne on August 13, 1864. This speech is reproduced in its entirety below. According to the Democrat’s editor, the Cincinnati Gazette had pub- lished only a synopsis of the address and had made “unfair” comments about it. A correct version of the speech, said the Democrat, would prove it “sound throughout, and a powerful effort in behalf of the maintenance of the Union as the men of the Revolution framed it . . . .” In the introduction and conclusion to his address Milligan was vitriolically denunciatory of the Republican administration and of the war, which he described as a “great disease of the blood” and a “cardinal wrong.” In most of the speech, however, the lawyer out- lined his constitutional objections to the conflict, and his arguments proved him an adroit legalist. But however logical Milligan’s reason- ing, his contentions that secession was an accepted right of a sov- ereign people, that the federal government had no constitutional authority to force a state to remain in the Union, and that the war should be ended immediately by any means whatever-including recognition of the Confederacy-could only anger the majority of mid- Westerners, whose nationalism at least equaled their sectional prej- udices. On the subject of resisting the draft the lawyer stated that he had “no advice to give,” but his description of the poverty, want, debasement of race, and loss of liberties consequent to participation in the war was perhaps a tacit admission that he himself would resist conscription. Milligan also exhorted his listeners to defy the usurpa-

27 Tredway, “Indiana against the Administration,” 372. 28 Ibid., 379-87. 29 Huntington Herald, December 22, 1899. Milligan’s Appeal for State’s Rights tions of the federal and state governments, “not by secret organiza- tion, but conscious of a rectitude of purpose . . . boldly and in open daylight . . . .” His concluding admonitions were: “Organize and arm yourselves with pikes and scythes; with long guns, with short guns, arm yourselves as best you can. Some must need perish in the conflict, but I for one would rather be snuffed out in a blaze of glorious struggle for right, than flicker a little longer with the scintil- lations of expiring liberty.” The lawyer’s words-even within the context of his speech-sounded to Republicans and War Democrats like revolution against the national government. Although the lawyer’s Fort Wayne speech contained much which Republicans and many Democrats found objectionable, the reporter from the Cincinnati Gazette admitted that there was “nothing more offensive in Mr. Milligan’s speech than . . . in the average of Demo- cratic speeches delivered during the . . . campaign.”3o The address was typical of Milligan’s invective and inflammatory language and of most of the other speeches he presented during the war years. But when considering whether or not it helped to prove the Huntington lawyer a traitor, readers must remember that the Gazette reporter also stated : “He [Milligan] said nothing denunciatory of the Constitution, but the whole tenor of his speech was in favor of the Constitution as he construed it.”31 Citizens of the United States have never satisfactorily resolved the question of what constitutes legitimate opposition during war- time. Nor have scholars finally settlkd Milligan’s place in Civil War history: he remains variously a traitor and an apostle of constitu- tional liberty.

30 Pitman, Trials for Treason, 156. 31 Ibid.. 155. LAMBDINP. MILLIGAR

Reprodtired from John A. Marshall, American Baarile: A History o/ the llle#al Arreru mnd Imprisonment of American Citizens during the Late Civil War (Philadelphia. 1884). 71. Milligan’s Appeal for State’s Rights 271

Speech of Col. L. P. Milligan, At the Ft. Wayne Mass Meeting on the 13th of August, 1864.l

[Through the kindness of Col. Milligan we are enabled to lay be- fore the public a correct report of his able speech delivered at the Ft. Wayne Mass Meeting, August 13, 1864. A few days after its de- livery the Cincinnati Gazette published a synopsis of the address, omitting entirely the argument. This was unfair, in view of its state- ment that the speaker drew ‘logical conclusions from false premises.’ The ‘premises’ are contained in the annexed report. Now if it shall appear that the ‘premises’ are sound, and he who is conversant with the history of this government will find them to be so, then upon Re- publican testimony, the address is sound throughout, and a powerful effort in behalf of the maintenance of the Union as the men of the Revolution framed it, convicting those who wage the present war, of perfidy to the government and the people. No one will fail to peruse it with the closest attention.-ED Democrat.] You, perhaps, expect me to arraign the Administration for its frauds, its corruption, usurpations, suppression of the great writ of liberty; the suppression of the liberty of speech and the press-these and a thousand other wrongs with which the land is filled and with which a million of hearts have been made to bleed,-wrongs, oppres- sions, cruelties with which the pages of history will ever blush, and the thousands of wrongs that no book will ever record, but must for- ever sleep with the bosom overcome with their pangs. But I will not. I will leave their recital to those who delight to dwell upon the surface. They are but mere incidents to the great cardinal wrong, “The war.” They are the legitimate attendants, and inseparably connected with war, as an institution. War is the disease. These are but mere blotches and pimples, eruptions upon the skin resulting from the great disease in the blood, the war, and can never be cured by mere titila- tion.-As well might you undertake to heal by scratching alone that loathsome disease to which common schools are so much exposed, as

1 The following document has been transcribed from a photostatic copy of the Huntington Democrat. September 1, 1864. Every effort has been made to repro- duce the speech exactly as the newspaper published it; therefore, inconsistencies and mistakes in punctuation, capitalization, and spelling have been maintained and have not been indicated by a [sic]. In cases where it has been impossible to ascertain which mark of punctuation has been used, whether or not there are spaces between words, and whether or not the newspaper editor meant to hy- phenate words, modern usage has prevailed. First names of individuals and let- ters apparently omitted by the printer have been added in brackets. The intro- ductory comments by the editor of the Democrat, however, were bracketed in the original. Obvious repetitions have been omitted. Acknowledgment is made to Ned M. Simons, Huntington County recorder, for cooperation in securing this speech. 272 Indiana Magazine of History undertake to remedy our present evils by irritating the wounds they have produced. The evil itself must be met with proper remedies land peace is the only antidote. Peace is this day the aspiration of every Christian heart in the land. But you inquire how are we to get peace? The answer is cease warring and you have it. But again you inquire upon what conditions will we stop? What will be the terms of peace? I answer the best we can make with a people who are now and always have been anxious for peace. But if you can do no better, give the country peace if it be on the only terms ever proposed by the Confederate Government : recognize their independence. Staunch the blood and stay the murderous hand of War, and let our gallant sons and brothers come home to their families and friends; to their work shops and fields, and let peace, order and civilization bless your whole land instead of hecatombs and priests of Moloch.‘ Let us in humble reverence for the Author follow the councel of Him at whose birth a multitude of the heavenly host appeared praising God, and saying on earth peace and good will toward men. Let us my fellow Democrats from this day forward so work, so pray, that we may ever merit the most exalted title ever promised to man by the blessed Saviour of the world. Let us so conduct ourselves that God will recognize us as his children. Then conscious of the favor and smiles of Heaven, the epi- thets of Butternut and Copperhead will be associated with the cher- ished memory of deeds approved of God, guaranteeing us a home in his blessed family, when, as peace makers, we will be called the chil- dren of God. I seldom theorize, but when I have, it has not been at mass meetings when the bustle incident to a great gathering, con- flicts with that close attention and reflection necessary to enable an audience to comprehend the logical connection of system. But this is a peculiar time, and to my mind seems to justify the course, and more especially so because your people have been so copiously treated to false theories, and because if we are right we should be able to give a reason for the faith within. Never was there a truer saying uttered, than “thrice armed is he who hath his quarrel just.” Not only must his cause be right, but he must know and feel it to be so, and should realize its truth with convictions ever present, and strong as the instinct of life itself. It will be expected that I will say something on the subject of the draft; and I intend to do it. But that others shall not be required to furnish motives for my saying what I am about to say, you will allow me to offer my own reasons therefore [sic]. I take it as a premise that if this war is right, or necessary, that the draft is proper; that

2 Moloch waa a Semitic deity whose worship was accompanied by human sacri- f ice. Milligan’s Appeal for State’s Rights 273 the burthens of the Government should be borne by all, and not left to the volition of the citizen whether he will bear those burthens or not ; as well might you raise the revenues of the country by voluntary subscription and leave the matter to men’s generosity liberality, and convictions of public duty, instead of resorting to compulsory systems of taxation. Then the main question in this point of view as well as all others is: Is the war right? But Mr. [Stephen A.] Douglas has said, “He who, when his country is at war, stops to inquire whether she is right or wrong, is a traitor.”“ And others have said so before him; but I spurn it as the language of a courtier, and only fit to be made by hire- ling flatterers of power and is the vulgar acceptation of the phrase that “the King can do no wrong.” The uniform American doctrine, both in theory and practice, has been that all aggressive wars are wrong; but without stopping to consider any particular theory, the abstract question of whether the war is right or wrong is before us, and as Christians and men we are bound to decide for ourselves, be- cause the people are the Government who are responsible for the deci- sion and should make our agents respect and carry out our will. Three years ago, when I was denouncing this war as wrong in theory and unholy in purpose, even democrats said I was radical and an extremist. I then said the purpose of the Administration was to destroy the Democratic element in the country ; revolutionize our Government ; rub out State lines and establish one grand consolidated despotism- grand in extent of territory-grand in the powers of government, and equally grand in the poverty and misery of its subjects, for they would no longer be citizens. For this declaration see the Bluffton papers for May or June, 1861. Many democrats denounced me and done all they could to further the war cause, but where is the demo- crat that now denies the truth of these remarks I then made? And the Niagara development4 has at last satisfied many who never before had their eyes open to the purpose of the Administration in the con- tinuance of this war. Let us recur to the question in all seriousness

31t is unknown whether or not these were Douglas’ exact words. For indica- tions that Milligan did accurately summarize Douglas’ position see Frank E. Ste- vens, Life of Steven A. Douglas (Springfield, 1928), 628-33. 4 In 1864 Horace Greeley of the New York Tribune urged Lincoln to meet with Confederate commissioners at Niagara Falls, Canada, to discuss peace proposals. The President made it clear to Greeley and the American people that peace would be considered only on the basis of “the integrity of the whole Union, and the aban- donment of slavery . . . .” No meeting was held, and Copperheads and Peace Demo- crats considered this ample evidence that the Republican administration did not intend to end the war. It was later learned that the Confederate agents were not authorized to discuss peace but to create trouble for the northern government. Roy P. Basler (ed.), The Collected Works of (9 vols., New Brunswick, N. J., 1953), VII, 451. For a discussion of the Niagara Conference see James G. Randall and Richard N. Current, Lincoln the President: Last Full Meas- ure (New York, 1955), 158-65. 274 Indiana Magazine of History what are we fighting for? To restore the Union? He who believes it is incapable of inferring motives from conduct; and if such were the motives and purposes of the administration still they are fruitless and unjust. Fruitless because no disinterested man familiar with the history of our race ever supposed the Union could be restored by war measures; Now let us inquire into the justice of the proposition: And this leads us to examine that suicidal doctrine that States- men have ever treated as a folly, mad with absurdity, and now sought to be engrafted upon the Democratic creed by that portion of the party who were schooled in the ritual of Federalism, but who, by the various convulsions in their party, developing fraud and ruin, have been driven to us without a conversion to our principles or an under- standing of our theory. They are mostly honest men and sufficiently drilled in the dogmas of Federalism. Dogmas, I may say, upon which no permanent government can ever be administered, because they run directly into centralization and consequent despotism. And while, I say, we are willing to accept them as allies against this corrupt and revolutionary administration, we are unwilling that they shall be per- mitted to interpolate our creed, corrupt our traditions, and desecrate our liturgy. I mean by this suicidal doctrine “a Constitutional war for the restoration of the Union.” This idea of a constitutional war for the restoration of the Union, can alone be indulged in upon the theory that our Government is a National one and not a of Sovereign States-in other words, a consolidated Government, with- out limitation to the powers possessed, which, call it what you may, is an arbitrary Government, in which all laws, however sanctified by the memories of the sacred names and gallant deeds by which their acknowledgement has been, in the history of our progressive race, wrung from unwilling tyrants, The modern advocate of this doctrine, with a stubbornness and impudence of assumption scarcely to be found elsewhere, insist that the constitution of the United States is a reflex of the will of the aggregate mass of the people of all the States, acting as one people instead of the people of several distinct sovereign- ties, each acting for itself as a people, and one of the treaty making parties, and all the others, so far as the first is concerned, as the other treaty-making party to the compact or constitution. Neither the constitution, nor the history of the convention that proposed it, offered any evidence in support of such a position, much less do the antecedents of these States, from their first Provincial proprietary or chartered existence, warrant any such assumption. What were their relations? Were the people of the several colonies one people before the Declaration of Independence; or, did they by that act be- come one people ; or, did they by the articles of Confederation become one people; or, finally, did they by the adoption of the Constitution Milligan’s Appeal for State’s Rights 275 become one people? Now, the answer to these, in their turn, must settle the vexed question. What relation was there between Lord Baltimore and William Penn, or the citizens of their respective pro- prietary governments? They differed in their religion and manners, and each sought a home in the new world that they might be free from the contact and customs of the others in the old world. What unity of feeling, religion, or civilization between followers of Penn, and the Puritans of the Plymouth Rock Settlement? The only relation I can now recollect was, that the Puritans claimed the right, and exercised it, of hanging people who professed the religion of Pennsylvania. What relations existed between the charter government of Rhode Island, her people, and the people of ? This, and only this; Roger Williams had fled from the tyranny of Massachusetts, abjured its jurisdiction and procured a charter from the crown of England to secure him against the power of Massachusetts, that he and his followers might be a free, independent and different people, in manners and religion, from those whose oppression had driven him into the wilderness. It is useless to pursue this further. The only legal relation existing between the people of the several colonies, was that they were all dependencies of Great Britain, and neither the contiguity of territory, similarity of language, religion or civilization made them one people any more than are the people of Canada or Australia one people. Then I say, the only relation existing, or recog- nized by law was one growing out of their dependence upon the British Crown, and when that was dissolved, the relation ceased. For the proof of this let us consult history. The status of nations, in some measure at least is, moulded by the consideration and recognition of their surrounding c~temporaries.~ Then let us consult those cotemporaries as to the light in which the several States were received by other nations-whether as one people composing one nation ; or as several nations united against one com- mon enemy. History furnishes not one instance in which any con- temporary recognized, or in any manner treated them, or with them as one nation. But with nations as with individuals, common polite- ness requires that we should respect their claims to title in matters of perfect indifference to us. Well, what was the claim set up by the colonies at the time of the Declaration of Independence. How did they style themselves? Was the thirteen used as numerals to denote the number of States which were assembled in the convention which made the Declaration or was it used as a mere praenomen to designate a particular nation? To answer that query examine the style of the

,-, This is a form, not often used, of contemporary. Cotemporary has the con- notation of those with united or conjoint interests. Whether Milligan’s use of the word was deliberate or a typographical error is unknown. 276 Zndiana Ma,gazine of History resolves of that Congress. Prior to the representation of Georgia in that Congress, all their resolves are entitled the twelve united colonies or States ; but after Georgia was represented they always styled them- selves the thirteen united colonies. But not only so, but their dele- gates were appointed in d[i]fferent modes, and with various powers to act. Then in the final resolve what did they say? That the several colonies were, and of right ought to be, one free and independent State? No! they declared that they are, and of right ought to be, free and independent States, &c., and as free and independent States they, using the plural pronoun, clearly conveying the idea that each State, in its individual Statehood maintained its individuality. As we have said, the status of a nation is usually understood by its cotemporaries. Let us look to the evidence of this fact; The first and truly memo- rable instance to which we invite the attention of the Democracy is the treaty between France and the United States, Nor can we for a mo- ment suppose that France would treat with us in any other character than the true one, save only the claim of Great Britain, which was then in dispute. But except the claim of Great Britain, there was no dispute about the status of the several States composing the United States, Now this was only two years after the thirteen States had assumed among the powers of the earth, the seperate and equal sta- tion to which the laws of nature and nature’s God entitle them. France treats with them by their separate names, each as one of the contract- ing parties, and recognizing them each as a free and independent State. Four years after this treaty, the Netherlands do the same thing naming and treating with each State as a free and independent State, according to each all the attributes of sovereignty. And seven years after this great declaration of Liberty and human rights, Great Britain herself acknoweledged their several independence-not as a unit-not as one people ; but as New Hampshire, Massachusetts Bay, Rhode Island, Providence Plantations, Connecticut, New York, New Jersey, , Maryland, Virginia, North Carolina, South Caro- lina and Georgia to be free and independent States, and not that the whole constituted one free and independent State. But if there were still doubts about the character of the parties to the constitution, and its obligation upon those parties, the history of the times, the great American Mugna Charta, the Declaration of Independence, the Articles of Confederation, the correspondence of eminent Statesmen upon the circumstances that in their judgment demanded a constitution, the various calls for a convention, the instructions of the delegates ap- pointed to said convention, the debates in the convention that framed the constitution, the several acts of accession, by which it was ac- cepted and adopted by the several States with the conditions and limi- tations therein set forth and insisted upon, and the construction given Milliyan’s Appeal for State’s Rights 277 to the constitution by the people of the American States in the memo- rable contest of 1800, which has been respected and adhered to by every Federal Administration during sixty years of prosperity, hap- piness and good government, are sufficient to overcome the most stubborn of the adherents of a doctrine so anti-American. The very theory from which our government envolved, as expressed in the Declaration of Independence, concludes the question of the constitu- tionality of the Federal Government making war upon a sovereign State for not continuing to be a member of the Union and Government which had ceased to secure the ends for which it was framed, ‘to se- cure the inalienable rights of man governments are instituted, deriv- ing their just powers from the consent of the governed, and that whenever any form of government becomes destructive of these ends it is the right of the people to alter or abolish it, and to institute a new government, laying its foundations on such principles, and organ- izing its powers in such form as to them shall seem most likely to affect their safety and happiness,’ This common sense idea, of gov- ernments deriving their just powers from the consent of the governed, was by no means original with Mr. [Thomas] Jefferson, but was the theory of an intelligent and virtuous ancestry for a thousand years before, both in England and France, and was the growing sentiment of the English people when the ornate pen of Sir William Blackstone, which has served to captivate so many young minds on both sides of the Atlantic, was retained by the British Crown to inculcate another theory more palatable to the regal appetite,-the Court doctrine that Kings rule by Divine right, and that whatever liberties the people have they derive solely from the King not by right, but by grace ; and to assert and maintain the opposite of this doctrine was the policy of the Declaration of Independence ; not merely absolving the colonies from their allegiance to the King; but saying to the world that any other people may of right do the same when their government, irre- spective of the form, has ceased to secure the ends for which it was formed-they of necessity being the judge of the facts, In this con- sists the idea of ‘popular sovereignty’ as distinguished from sov- ereignty in the machinery of governments ; because if the govern- ment is sovereign (and I mean in this instance by the government, the agent, be he monarch or be they elective representatives who are called upon by any of the forms recognized by the civilized world to ex- press, and enforce the sovreign will in any form is sovereign, it alone can judge of its own necessity because the very idea of sovereignty pre- cludes dictation. Where sovereignty resides there is absolute power uncontrolled save by its own will. Then if it be true that sovereignty is an attribute of the Federal or State government-and where one ends the other begins-as contradistinguished from the people of the 278 Indiana Mayaxine of History

States each, they alone can judge of the necessities of such govern- ment ; they are the arbiters of there own destinies-then indeed is the doctrine that we have celebrated with eloquence, song, bonfires and jubilation for more than eighty years, a glittering deception, having no meaning in it, But on the contrary, if the doctrines of that hal- lowed rescript be true, and in which I have ever felt the very instinct of verity, then is sovereignty and government an attribute of the people as people, to be exercised by themselves, or by agents at the option of the people, and no one else ; and when our mode of expressing or enforcing that sovereign will becomes inconvenient, ineffectual, or destructive of any of the ends of the good government, it is their right, in whatever manner they see fit, to adopt a different mode of expressing and enforcing such sovereign will Call this revolution, call it what you may, it always has been the American doctrine, Federal adjudications to the country6 notwith- standing. But revolution in the common acceptation of the term never was American. I mean to overthrow a government by force, making the right so to do depend upon the power to do it, or where there is power to do it, there is justice in the act “that might makes right.” The American doctrine is that government should be founded upon essential truths as to the rights of man and that those truths and rights of man, may exist in a weak and oppressed people who have not the power to assert them. Others may be asserted and enforced by a powerful government having no foundation in ethics. I say it is a slander upon the sages of ’76 to say that might makes right. If such was the American doctrine why the useless and absurd rigmarole merely set forth to tickle the ear of the lookers on, or what they more politely term declarations made out of a decent respect for the opinions of mankind; now if the opinions of mankind, for whom our fathers had so much respect was, that “miyht made right.” why did they not show their right by glowing pictures of their martial resources? Why not speak of the courage, endurance, and determination of our people; the geographical advantages, and all those elements that could con- tribute to their success? No! But on the contrary they chose to go before the world basing their claims o[f] freedom and independence upon the abstract question of their natural rights ; and such has ever been the American doctrine as expressed in our theory and shown by our sympathies for the oppressed in every struggle between right and power in whatever quarter. The people, and they alone, have the right to terminate any and all agencies by them erected to express and enforce their sovereign

“illigan may have used the word “country” to mean an independent state, or he or the printer may have meant to write “contrary.” Milligan’s Appeal for State’s Rights 279 will, and that too without consulting those agencies upon the subject. But we are told the Constitution is supreme and therefore the people of a State have parted with a portion of their sovereignty. Was it not the free will of the States that made the Constitution, and is it not still their free will? They were not obliged to enter into the contract, but was their wish and interest to do so, and did for their benefit pre- cisely as an individual enters a contract, to do or not to do a particular thing. Is a man, because he makes a contract less a man than the one who never made one ; and yet, with both in point of good morals and law, that contract is supreme and must be obeyed.-Does it therefore lessen his manhood when it is made for his benefit and its perform- ance increases his happiness? If such was the case some of our mer- chants whose daily business is to make and promptly perform con- tracts would have but little manhood left. Does it lessen Statehood or sovereignty of a State or Nation to enter into a treaty with other Na- tions? And yet all treaties are supreme so far as law can be supreme over Nations. Nor does the treaty called the Constitution change the character of the parties any more than the joint employment by dif- ferent parties or Nations of one agent to transact a business of com- mon interest. This we hold to be the theory of our government. This is the plain language of the declaration of 76, and I would inquire when, by that declaration, the united colonies became free and inde- pendent States and absolved from allegiance to the British Crown, whether they transferred that allegiance, once acknowledged to be due the British Crown, to any other corporation, person or body of men whatever; or whether they did not on the contrary assume and assert that those attributes of sovereignty and government which they had acknowledged to reside in the King belongs to the people of each of these free and independent States, by the people of each State to be exercised in whatever manner to them seemed right and proper.- Having shown this to be the true character of the parties that entered upon the negotiation which resulted in the adoption of the Constitu- tion of the United States, it affords us some light by which we can the better distinguish the true character of that instrument, and the proper mode of construction. The representatives of the parties who met in convention to propose a Constitution, or rather as generally expressed at the time, to amend the article[s] of Confedation, were endowed with very different powers, as the acts of their appointment will show, but none of them had any power to adopt or give force to any such instrument. But when a plan was proposed it was to be sub- mitted to the contracting parties in their sovereign capacity or per- son for adaption or ratificatioii. As such it stood an open proposition to be accepted as it was, or be modified and accepted or rejected by the contracting parties whom we have seen were the several sovereign 280 Indiana Magazine of History

States. It then, in its legal obligation did not differ from any other treaty proposition between nations before ratification, subject to the mutual explanations and constructions of the parties about to ratify, which explanations and constructions, thus put upon it by the parties about to ratify the same, became and are to all intents as much a part of the Constitution as though they were embraced in the body of the instrument. But while in this condition not only did the parties place a construction upon said instrument but others of the parties pro- posed conditions upon which they would accept and ratify such Con- stitution, which conditions were accepted by all the other parties by accepting the States thus proposing the conditions to form the Union and ratify the Constitution with the conditions announced. And these conditions are not only binding as well on the parties proposing, as the parties accepting, but the immunities therein reserved inure to the benefit of those accepting as well as those proposing the condition. Now one of these immunities, and I shall only take occasion to refer to one, was the privilege reserved by New York and other States to re- sume the powers delegated to the Federal Government whenever necessary for the happiness and good government of her people; and by Virginia, the right to resume the power delegated to the Federal Government whenever they became perverted. These conditions be- came a part of the Constitution by every rational rule of interpreta- tion of treaties or contracts, and their obligations were alike binding upon all, and their privilege inured to the benefit of all. This view of our bond of Union, I am well aware, is not received by all. Power is a beguiling thing, and he who tastes its sweets is tempted to drink deep of the cup, until like the village postmaster of Pennsylvania who in a row exclaimed “he who jostles me shakes the common wealth,” which feeling we see exemplified in almost any one who has had a taste of Federal power. They are almost invariably for the broadest construction of the Constitution in order to increase the powers of the Federal Government to make it more efficient when that efficiency is the very thing our fathers were so jealous of, knowing the tendencies of all Governments to arrogate to themselves constantly increasing powers. But having tested this view of our government by the recognized rules of construction, and being satisfied that this is the only correct view of our obligations to, and privilege under, the Constitution I, as one democrat, never did accept or indorse this war, even for the restor- ation of the Union, the most desirable of all things except civil liberty, which I do prize above all Unions.‘ Nor is this the only reason why I

7This sentence is reminiscent of the famous toast of John C. Calhoun at th: Jefferson Day dinner of 1830: “The Union-next to our liberty most dear . . . . Charles M. Wiltse, John C. Calhoun (3 vols., Indianapolis, 1944-1951), 11, 71. Milliyan’s Appeal for State’s Rights 281 have from the beginning denounced this unhallowed and ruinous war. A reference to the above historical fact would, it seems, to me, be suf- ficient to satisfy any honest mind that it never was the intention of our fathers that the Federal Government should have the right to co- erce, by force of arms, any State or States to remain in the Union. And such has been the accepted notion of the statesmen of all parties up to 1861. But by examination of the debates of the convention which proposed the Constitution, there is no room left for doubt. The best evidence in the world that the convention did not intend to confer any such power on the Federal Government is to be found in the fact that the direct proposition to confer such power on the Government was made by Mr. B. Randolph,s a delegate from Virginia, and opposed by [James] Madison [Alexander] Hamilton, [John] Jay and others, friends of the Constitution, with the argument that such a proposition was inconsistent with the soverign existence and character of the States, and if embodied in the Constitution would insure its defeat before the States: whereupon it was unanimously voted down. The same proposition was again renewed and again met the same fate In view of these patent facts, I again repeat that I cannot conceive of any warrant in the Constitution for making war upon the Confederate States for doing what they by conditions attached to the Constitu- tion, had expressly reserved the right to do, I say for doing the very thing that by the theory of our Government, and the great American Bill of Rights they had a perfect right to do without its being ex- pressed in any conditions to the Constitution ; for doing what they re- served the right to do by affirmatively withholding the power from the Federal Government to compel them to do the contrary, when asked for in Convention. And lastly for doing that which our fathers and theirs had done before, and taught us to celebrate with exalta- tion, as the proudest act in the history of a noble ancestry. These are among the reasons why I, as a democrat, never accepted the war for the restoration of the Union; and these are some of the reasons why I never could see any sense in classifying Abolition and Secession as “twin heresies.” But such a classification may do for those incapable of comprehending a Constitutional proposition not couched in the language and logic of a [John] Marshall, a [James] Kent, or a [Jo- seph] Story.-But there are other grounds why I have ever, both pub- licly and privately, opposed this war. Place it even upon the grounds of Mr. [Thaddeus] Stevens of Pennsylvania, the only man on that side of the house in Congress who seemed to have any conception of the question, viz: that the only relation existing between the Federal and Confederate Governments is the relation of war.-And still I am

8 B. Randolph should read Edmund Randolph. 282 Indiana Magazine of History opposed to the war, for I am opposed to any aggressive war, as un- warranted in morals and in its consequence endangering our liberties. This brings me directly to the question of the draft. This is a ques- tion that addresses itself to your own convictions of right and duty. If we are to judge the future by the past, what inducements are held out to the soldier? If it is glory, you will look in vain. What victories will you win; what trophies will you boast? Will it be another Bull’s Run, a Shiloe, a Fair Oaks, a Fredericksburgh, a Chicamauga, or a Spottsylvania? And are your trophies the treasures of conquered provinces; or will they not rather be poverty, want, debasement of your race and loss of your liberties ? And your aspirations that grate- ful generations will honor your names in song as the heroes whose blood was the ransom for their liberties; or will not generations yet unborn, writhing under the galling yoke of oppression, repeat your names with bitter curses and imprecations for aiding a grim, hungry, relentless tyrant to overthrow the best Government in the world, and enslaved your own race? Upon the question whether you will resist the draft I have no advice to give. You young men who have no families whose homes you are bound to defend, think of the frauds and villainies practiced upon the soldiers by jealous, corrupt and in- competent commanders, and become familiar with it, and be reconciled to offer up your life in such a manner and for such a cause. And you married men who have wives you have sworn to protect, and children you delight to love, think of the want and suffering under wkich hun- dreds of thousands of desolate widows, and millions of helpless chil- dren, are this day pining. Call your children around; take the little ones on your knees; look your wife in the face; think when that eye becomes dimmed with grief; that cheek blanched and furrowed with want; and that heart grows sad from neglect, look at your little ones when in hunger and want they are spurned from the presence of those who have grown fat upon the bloody altars of this war, and ask your own manly bosom to whom do you owe your life and energy-to that wife and children whom you have sworn upon the altar, to shield against the cold embrace of an uncharitable world, or does your life belong to the grim tyrant who laughs at your calamities and makes jests of your fears? Then consult the emotions that throb in that bosom, then take council of your own broad and manly instincts, and not ask me what to do. ORGANIZATION. All I have to say on the subject of organizations to resist usurpa- tion can be said in but few words. If there is any one who doubts the purpose of Lincoln and Morton to perpetuate that power their abuse of which so richly merits the execrations of mankind, let him only Milligan’s Appeal for State’s Rights 283 read their purpose in the preparations they are making to subjugate the whole people to their ambition.-What are the 30,000 armed Loyal Leag~es,~organized and off icered by unscrupulous partizans for ? The proposed object is to counteract the efforts of the Sons of Liberty as they style the democrats. Now, what are the objects of the organi- zations of the Sons of Liberty? According to Morton’s own showing, to restore and protect our old Government and Constitution from overthrow by usurpers. Then these thirty thousand armed partizans are organized to overthrow and revolutionize our State by violently continuing him in power against the known consent of a majority of the people. Now I adjure you as you love liberty, order and peace do not permit this. Your liberties once gone, they are gone forever. No nation that had once been free, and surrendered her liberties ever was known to regain them again. Then I exhort you to prepare for the crisis, not by secret organization, but conscious of a rectitude of purpose, go at it boldy and in open daylight, and emblazon it on your banners. Let liberty be your watchword let it resound from every stump in Indiana. “A free election or a free fight.” Organize and arm yourselves with pikes and scythes; with long guns, with short guns, arm yourselves as best you can. Some must needs perish in the conflict, but I for one would rather be snuffed out in the blaze of a glorious struggle for right, than flicker a little longer with the scintil- lations of expiring liberty.

QLoyal, or Union, Leagues were secret societies formed by the Republicans during the Civil War allegedly to counter the activities of similar Democratic organizations, such as the Sons of Liberty and to defend the country against dis- loyal northern rebels. Actually they did little more than disseminate Republican propaganda. Kenneth M. Stampp, Indiana Politics during the Civil War (Indiana Historical Collections, vo1. XXXI; Indianapolis, 1949), 192.