Indiana Law Journal Volume 72 | Issue 4 Article 1 Fall 1997 Civil Liberty and the Civil War: The ndiI anapolis Treason Trials William Rehnquist United States Supreme Court Follow this and additional works at: http://www.repository.law.indiana.edu/ilj Part of the Courts Commons, Legal History Commons, and the Military, War, and Peace Commons Recommended Citation Rehnquist, William (1997) "Civil Liberty and the Civil War: The ndI ianapolis Treason Trials," Indiana Law Journal: Vol. 72 : Iss. 4 , Article 1. Available at: http://www.repository.law.indiana.edu/ilj/vol72/iss4/1 This Article is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Law Journal by an authorized editor of Digital Repository @ Maurer Law. For more information, please contact [email protected]. Civil Liberty and the Civil War: The Indianapolis Treason Trialst REMARKS OF THE CHIEF JUSTICE OF THE UNITED STATES, WILLIAM REHNQUIST* To those of you who may be asking yourselves, "Why, on the verge of the twenty-first century, should we look back at events that happened during the Civil War nearly a century and a half ago?" I would offer several replies. In the first place, the political events of the Civil War are of considerable interest in their own right. The cast of characters on the stage at that time-Abraham Lincoln; William H. Seward, Lincoln's rival for the Presidential nomination in 1860 whom Lincoln later appointed Secretary of State; Edwin M. Stanton, a remarkably able Secretary of War, and others-make it a lively story. But the subject of the Civil War is of more than just historical interest. The Civil War was the first time that the United States government mobilized for a major war effort, and a major war effort necessarily results in the curtailment of some civil liberties. The Civil War era produced the first important civil liberties decision from the Supreme Court of the United States-the case of Ex parte Milligan,' decided in 1866. The ramifications of the Milligan case are with us to this day. And, the case is of particular interest here in Indiana, because it arose out of what historians call the Indianapolis treason trials, which took place in your state capital in the fall of 1864. Finally, it probably is easier to discuss the limits of civil liberties during war time when there is no war, rather than when conflict is raging. There is an oft- quoted Latin maxim: silent leges inter arma,which has been loosely translated to mean that in time of war the laws are silent and the guns speak. Peacetime offers an opportunity for detached reflection on these important governmental questions which are not so calmly discussed in the midst of a war. Even those of you who didn't major in American history will recall that Abraham Lincoln was inaugurated as President on March 4, 1861. At this time the seven states of what was called the "Lower South"-South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas-had seceded from the Union. But the four states of the "Upper South"-Virginia, North Carolina, Tennessee, and Arkansas-had not yet joined the original seven. The next tier of states-both working northward geographically, and considering their likelihood of secession-were the three so-called "border states"-Missouri, Kentucky, and Maryland. Lincoln thought it essential to keep the border states in the Union. For six weeks after Lincoln's inauguration, the situation remained precariously balanced while the Administration tried to make up its mind whether to attempt to reprovision Fort Sumter, a Union fort located in the harbor of Charleston, South Carolina. When the federal government did finally make the attempt, it was turned back, and the batteries in Charleston Harbor began firing on Fort t © 1997 by William H. Rehnquist. * These remarks were delivered at the Indiana University School of Law-Bloomington on Monday, October 28, 1996. 1. 71 U.S. (4 Wall.) 2 (1866). INDIANA LA W JOURNAL [Vol. 72:927 Sumter. On April 14, the Union garrison in the fort surrendered. The next day, Abraham Lincoln issued a proclamation calling for 75,000 volunteers to put down the rebellion. Soon after Lincoln issued his proclamation, the four states of the "Upper South" seceded and joined the Confederacy. They had been playing a waiting game, but each was determined that if the Union attempted to "coerce" the Confederacy, they would secede. Their secession dramatically changed the military status of the nation's capital in Washington. When only the states of the "Lower South" had seceded, the border between the Confederate states and the United States was the southern border of North Carolina. But after Fort Sumter, that border was the Potomac River which separates Maryland from Virginia. Washington went from being an interior capital to a capital on the very frontier of the Union, raising the definite possibility of raids and even investment and capture by the Confederate forces. Lincoln, fully aware of this danger, was most anxious that the 75,000 volunteers for whom he had called would arrive in Washington and defend the city against a possible Confederate attack. The North, as a whole, had rallied to Lincoln's call to arms, and new volunteer regiments and brigades were oversubscribed. But the only rail connections from the North into Washington ran through the city of Baltimore, forty miles to the northeast. Herein lay a problem: there were numerous Confederate sympathizers in Baltimore, and the city itself, at that time, had a reputation for unruliness-it was known as "Mob City." Three rail lines--one from Philadelphia and the northeast, another from Harrisburg and the northwest, and the B&O from the west, converged in the city or close to it. To complicate matters further, it was necessary for passengers en route from Philadelphia to Washington to change depots. Shortly after troops from the northeast arrived in Baltimore, a riot broke out while troops were in transit from one depot to another. Some of the troops were riding in railroad cars drawn by horses through the downtown streets of the city, while others were marching in military formation through those same streets. A hostile crowd pelted the troops with stones, who in turn fired shots into the crowd. Several soldiers and several bystanders were killed. That night, the chief of police in Baltimore, who was a Confederate sympathizer, and the Mayor of Baltimore, who was a less open one, spearheaded a group of Confederate sympathizers who blew up the railroad bridges leading into Baltimore from the north. Troop movements through Baltimore were temporarily suspended, so troops bound for Washington were sent by ship from a point on Chesapeake Bay above Baltimore to Annapolis, from which point they traveled to Washington over land. But this alternative route was not a satisfactory substitute for the main lines of the railroads, and Lincoln believed that the loss of the rail connection through Baltimore seriously threatened the safety of Washington. Urged on by Secretary Seward, he took the first step to curtail a civil liberty. He authorized General Winfield Scott, commander-in-chief of the Army, to suspend the writ of habeas corpus at any point he deemed necessary along the rail line from Philadelphia to Washington. Several weeks later, federal troops arrested a man named Merryman, whom authorities suspected of being a major actor in the dynamiting of the railroad 1997] CIVIL LIBERTY & CIVIL WAR bridges. No sooner was he confined in Fort McHenry than he sued out a writ of habeas corpus. The following day, Chief Justice Roger Taney, sitting as a circuit judge in Baltimore, ordered the government to show cause why Merryman should not be released. A representative of the commandant appeared in court for the government to advise Taney that the writ of habeas corpus had been suspended, and asked for time to consult with the government in Washington. Taney refused, and issued an attachment-a form of arrest-for the commandant of Fort McHenry. The next day, the marshal reported that in his effort to serve the writ he had been denied admission to the fort. Taney then issued an opinion in the case declaring that the President alone did not have the authority to suspend the writ of habeas corpus-only Congress could do that-and holding that Merryman's confinement was illegal. The Chief Justice, knowing that he could not enforce his order, sent a copy of it to Lincoln. Lincoln ignored the order, but in his address to the special session of Congress which he had called to meet on July 4, 1861, he adverted to it in these words: Must [the laws] be allowed to finally fail of execution even had it been perfectly clear that by the use of the means necessary to their execution some single law, made in such extreme tenderness of the citizens' liberty that practically it relieves more of the guilty than of the innocent, should to a very limited extent be violated? To state the question more directly, are all the laws but one to go unexecuted, and the government itself go to pieces less that one be violated?2 Lincoln, with his usual incisiveness, put his finger on the debate that inevitably surrounds issues of civil liberties in war time. The provision of the Constitution dealing with habeas corpus is found in Article I, dealing with the legislative power vested in Congress, and provides that the writ of habeas corpus shall not be suspended unless in time of war or rebellion the public safety shall require it.