Illinois State University ISU ReD: Research and eData Theses and Dissertations 3-15-2016 A Law for Rulers and People: David Davis, Ex Parte Milligan, and Constitutional Liberalism During the Civil War Era John Lewis Moreland Illinois State University, [email protected] Follow this and additional works at: https://ir.library.illinoisstate.edu/etd Part of the History Commons, and the Law Commons Recommended Citation Moreland, John Lewis, "A Law for Rulers and People: David Davis, Ex Parte Milligan, and Constitutional Liberalism During the Civil War Era" (2016). Theses and Dissertations. 587. https://ir.library.illinoisstate.edu/etd/587 This Thesis is brought to you for free and open access by ISU ReD: Research and eData. It has been accepted for inclusion in Theses and Dissertations by an authorized administrator of ISU ReD: Research and eData. For more information, please contact [email protected]. A LAW FOR RULERS AND PEOPLE: DAVID DAVIS, EX PARTE MILLIGAN, AND CONSTITUTIONAL LIBERALISM DURING THE CIVIL WAR ERA John L. Moreland 156 Pages This thesis examines the political and judicial life of Judge David Davis, his opposition to partisan politics, his maturation as a civil libertarian, his drafting of Ex parte Milligan (1866), and the opinion’s impact on the partisanship and political instability of Reconstruction. KEYWORDS: David Davis, Ex parte Milligan, Partisanship, Reconstruction A LAW FOR RULERS AND PEOPLE: DAVID DAVIS, EX PARTE MILLIGAN, AND CONSTITUTIONAL LIBERALISM DURING THE CIVIL WAR ERA JOHN L. MORELAND A Thesis Submitted in Partial Fulfillment of the Requirements for the Degree of MASTER OF ARTS Department of History ILLINOIS STATE UNIVERSITY 2016 © 2016 John L. Moreland A LAW FOR RULERS AND PEOPLE: DAVID DAVIS, EX PARTE MILLIGAN, AND CONSTITUTIONAL LIBERALISM DURING THE CIVIL WAR ERA JOHN L. MORELAND COMMITTEE MEMBERS: Stewart Winger, Chair Alan Lessoff Ron Gifford Daniel Stump ACKNOWLEDGMENTS The writer wishes to thank Uncle Randy, who is responsible for my obsession with the Civil War. Thank you. Dave, who believed in me and saw a potential no one else did. Erin, for the life-sustaining, home-cooked dinners, the countless hours you listened to me vent, and for simply being a never-ending source of inspiration, motivation and strength. I love you. Dr. Winger, for stretching my intellectual capabilities into realms unknown. You showed me how to ask the right kind of historical questions and reaffirmed my dream of being a teacher. Dr. Lessoff, for being the “nuts-and-bolts” of my thesis. I could not have done it without your guidance. Dr. Stump, for the sanity walks and always being a pillar of optimism. Things do happen for a reason. Dr. Gifford, for teaching me the art of historical prose and helping me write a thesis worth reading. Dr. Marcia Young, for helping me better understand Judge Davis through your invaluable insight. Pat Schley, for helping me locate those Davis letters that became the most critical aspect of my thesis. Lastly, to Grandma Darsham (1933-2014) for whom this thesis is dedicated. You did not always understand what I was doing with my life, but supported me 100 percent nonetheless. I am thankful you got to see me get into graduate school. I miss you. J. L. M. i CONTENTS Page ACKNOWLEDGMENTS i CONTENTS ii CHAPTER I. “ONE OF THE BULWARKS OF AMERICAN LIBERTY”: THE LEGAL AND HISTORICAL SCHOLARSHIP OF EX PARTE MILLIGAN. 1 II. DAVID DAVIS: JURIST & CIVIL LIBERTARIAN 21 III. GUILTY BY ASSOCIATION: THE INDIANAPOLIS TREASON TRIAL AND EX PARTE MILLIGAN 53 IV. “A LAW FOR RULERS AND PEOPLE”: DAVID DAVIS’S MAJORITY OPINION 92 V. “THE CONSTITUTIONAL TWADDLE OF MR. JUSTICE DAVIS”: EX PARTE MILLIGAN AND RECONSTRUCTION 118 VI. CONCLUSION 140 REFERENCES 145 ii CHAPTER I “ONE OF THE BULWARKS OF AMERICAN LIBERTY” 1: THE LEGAL AND HISTORICAL SCHOLARSHIP OF EX PARTE MILLIGAN. On a clear, crisp December morning in 1862, Judge David Davis of the Illinois 8th Judicial Circuit climbed the steps of the U.S. Capitol building to be sworn in as the next Associate Justice of the United States Supreme Court. His three-hundred pound frame carried a large round head, set upon a short neck. His forehead was high, thinly shaded by gray-brown hair. His full broad, double chinned face was clean shaven, down to a rim of light-gray whiskers, which ran around from ear to ear under his jaw.2 At twelve o’clock noon, he followed Chief Justice Roger B. Taney and his associates in a procession into the chamber of the Supreme Court. Taney unrolled a parchment announcing that they had received the commission of David Davis, and ordered it read by the clerk. The Chief Justice then asked, “Is Mr. Davis ready to take the oath?” Davis bowed his head, took the parchment, read it, and kissed the Bible. He then 1 Charles Warren, The Supreme Court in United States History, Vol. II (Boston: Little, Brown, and Company, 1935), 427. 2 Harry E. Pratt, “David Davis” (PhD diss., University of Illinois, 1930), 118. 1 adjourned into the corridor where he was robed in fourteen yards of black silk. The Court rose as the U.S. Marshal escorted Davis to his seat on the extreme left of the Chief Justice. The justices all bowed, he bowed in response, then took his seat.3 For the next fifteen years David Davis helped interpret and frame the supreme law of the land. Over the course of the American Civil War he had evolved into an eminent jurist, devoted to defending the civil liberties of Northern citizens. After directly intervening on behalf of several Northern Peace Democrats who faced trial by military commission, Davis struck down the use of these tribunals in the landmark case ex parte Milligan. This thesis will attempt to place the 1866 Supreme Court case ex parte Milligan and its author, David Davis, in the historical context of the American Civil War and Reconstruction. It is a story of vital importance to both legal historians and Civil War-era historians. Davis’s letters and papers have been reexamined with particular attention to his political views and his development as a judge and civil libertarian. Radical Republican reaction to Milligan in both newspapers and the Congressional Globe have also been reevaluated to better understand the Radicals’ interpretation of Davis’s majority opinion. While Radical Republicans viewed ex parte Milligan as both a condemnation of the Lincoln administration’s use of military commissions during the Civil War and as an attack on Congressional Reconstruction, ironically Davis did not intend for his ruling to apply to the Reconstruction South where he thought the use of military commissions might remain constitutional. As a common law, circuit court judge, Davis became increasingly concerned with civil liberties issues during the Civil War and directly 3 Pratt, “David Davis,”119. 2 intervened on behalf of Peace Democrats who faced many of these violations. This did not mean he opposed a vigorous pursuit of military reconstruction in the post-war South. Simultaneously, this study will follow Davis’s growing anti-Partyism over the course of his life and career, thus explaining, in part, his opposition to both Radical Republicans and Peace Democrats. This anti-Partyism also explains why he was able to rise above the political fray and stand up for the civil liberties of Peace Democrats and why, in Milligan, he did not go so far as to prohibit Radical-backed military commissions in the South. He consistently maintained a judicial middle-ground. The problem with the existing literature of David Davis, ex parte Milligan, and the judicial politics of Reconstruction, is that historians have failed to place Davis and his majority opinion in the historical framework of civil liberties during the Civil War and Reconstruction. This work intends to fill that scholarly void. On December 17, 1866, the United States Supreme Court handed down its landmark decision in ex parte Milligan, declaring that the military trial of civilians was unconstitutional when the civilian courts were open and functioning.4 Sixty-nine years later, in 1935, legal historian Charles Warren hailed the decision as “one of the bulwarks of American civil liberties” and paid equal homage to its author, Justice David Davis.5 Despite being issued a year after the American Civil War, Ex parte Milligan has been often cited in subsequent legal cases in order to check presidential actions during wartime in the interest of protecting civil liberties. It can be said that the decision in Ex 4 Ex parte Milligan, 71 U.S. 2, 6 (1866). 5 Warren, The Supreme Court in United States History, 427. 3 parte Milligan was not settled in 1866 and, in recent Supreme Court decisions regarding military commissions, remains unsettled. As legal scholar Curtis Bradley has noted, “The extent to which Milligan restricted military jurisdiction was unclear even at the time of the decision…[a]pplying the decision a century and a half later…in the wake of significant intervening precedent and substantial changes in the nature of the country and of the world, leaves substantial room for judicial discretion.”6 This judicial discretion, as we will see, has led to broadly different interpretations and applications of Milligan. In addition to legal precedent, there are two other sources for the case’s interpretation: constitutional scholarship and legal history. Since the case was handed down in 1866, there has been a long and complicated history of attorneys and judges interpreting Milligan where it has been cited in subsequent legal cases relating to presidential war powers, the role of courts during wartime, and even the classification of non-traditional combatants.7 Shadowing this battle in the courts, legal scholars and historians continued to write about Milligan from widely diverging points of view and for a variety of reasons.