Ex Parte Milligan and terrorism in the 21st Century
Ex Parte Milligan Reconsidered: Rage and Civil Liberties from the Lincoln Administration to the War on Terror. Edited by Stewart L. Winger and Johnathon W. White. Photos, notes, index, bibliography, 392 pp., 2020. Lawrence, University Press of Kansas. $45.
Reviewed by Salvatore Cilella
C’mon, admit it. You slept through that history class on ex parte Milligan, or you took off that day, more likely, you were there that day, your teacher glossed over the narrative, and moved on to the next battle. You barely noticed it and if you were lucky or half awake, you vaguely
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remembered it had something to do with Copperheads, Lincoln, and perhaps the Constitution. After all, the title said it was legalistic and dry.
Fear no longer. The editing team of Stewart L. Winger and Jonathon W. White have accomplished the impossible. Through bright, intelligent and comprehensible writing and editing, the two have not only explained Milligan historically but updated it and made it relevant to current events. Not every historical incident lends itself to that kind of treatment. In addition, the duo and their 10 co-essayists explore the impact of Milligan on civil rights/liberties then and the present day. Think military tribunals in Guantanamo for the last two decades.
Ex Parte Milligan deals with the legality of using military tribunals involving civilians during wartime while local civilian courts are in operation and available for the dispensation of justice. Lambdin P. Milligan (farmer/lawyer), Stephen Horsey (private citizen), William A. Bowles (physician and politician), and Andrew Humphreys (U.S. Representative) were all affirmed anti-war, anti-Lincoln, Copperheads entrenched in southern Indiana. At the time, counties below Indianapolis were decidedly pro-Confederate, and indeed were called “Butternut Counties.” Governor Morton viewed the southern half of the state as a nest of Copperhead activity populated by southern sympathizers, Democrats, and secret societies. There was serious concern that southern Indiana would secede and join the Confederacy. A total of nine men were seized, five were released or fled, and the remaining four were tried in Indianapolis during October 1864, charged with inciting rebellion, conspiracy against the federal government, and aiding and abetting the enemy. In December, Milligan and two compatriots were convicted by a military court and sentenced to hang. President Andrew Johnson later commuted their sentences to life. In 1865, Milligan’s lawyers filed a writ of habeas corpus for justification of their initial arrest and further, whether they should have been tried by a military court.
Their case ended up in the Supreme Court whose 1866 ruling became an important milestone in American jurisprudent history. Three questions before the court were: “Was a writ of habeas corpus necessary for Milligan?” Should he be released?,” and most importantly, “Can military courts operate when civilian courts and law and order prevail?” The court ruled against the government in the majority opinion handed down by Justice David Davis. One of the more surprising revelations, particularly to this reviewer, was that Benjamin Franklin “Beast” Butler was the lead attorney for the government. The Supreme Court held that military courts were not legal where the existing civilian law was alive and well and operating. The court reaffirmed the right of the military to continue military tribunals where civilian authority had completely collapsed or been overthrown. It also affirmed the right of Congress to legislate where and when military courts were appropriate.
In this well-researched, well-documented, and well-written treatise, twelve authors including the two editors meticulously lay out their arguments for the reexamination and relevance of Milligan to today’s war on terror. The book is laid out in four sections: The Meaning of Martial Law; The Copperheads of the Middle West; The Milligan Decision; and The Precedential Power of Milligan. When a “civil war” book signals relevance, it behooves all of us to sit up and take notice.
Perhaps the most important points in this book are what the editors call the “startling recent scholarly conclusions about the Civil War period as well as about the Constitution in our current war on terror, conclusions about the actions of Civil War-era Republicans regarding racial resettlement, white racist terrorism, and about the persistent relevance of the Milligan decision.” In the end, the editors wonder aloud about rethinking “the fundamental nature of liberal constitutionalism itself.” (p. 21).
It cannot be overstated, this is an essential read. It is well written, jargon-free, without excessive legalese. It is important to our understanding of America’s long lasting, tragic turmoil between 1861 and 1865 that bedevils us yet today. This book raises serious questions that beg for answers. Once war is declared on terrorism, should captured foreign national terrorists be tried by civilian or military courts?
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What of the designation of home grown, white terrorist groups?
Once you read this book, you will be able to visit your high school history teacher, and intelligently discuss your understanding of ex parte Milligan and its ramifications for today.
Salvatore Cilella is the retired CEO of the Atlanta History Center. Between 2001 and 2006 he served as President and CEO of the Indiana Historical Society. He is the author of Upton’s Regulars, A History of the 121st New York Volunteers in the Civil War, University of Kansas Press, 2009; editor of The Selected Correspondence of General Emory Upton, 2017, University of Tennessee Press and Till Death Do us Part, The Letters of Emory and Emily Upton, 1868-–870, University of Oklahoma Press, 2020.
The War For Missouri 1861– 1862. By Joseph W. McCoskrie. Photographs maps, illustrations, appendices, glossaries, index, chapter notes and bibliography. 205 pp. The History Press, www.arcadiapublishing.com,softcover. $21.99
Reviewed by Richard J. Blumberg
Initially considered a Confederate state, Missouri was among the most hotly contested areas of the nation. Several works cover the Civil War’s Western Theater; however, very few cover activities that occurred in Missouri. Joseph McCoskrie remedies this situation with his The War For Missouri 1861–1862.
He asserts that the national Confederate leadership government failed to recognize the importance of the geographic, demographic, and economic advantages Missouri provided in waging a military contest. This is ironic since ten bitterly contested battles occurred in Missouri before the First Battle of Manassas on July 21, 1861.
This work provides concise and insightful topical discussions arranged as chapters. McCoskrie provides a detailed discussion of each engagement’s significance. He includes suggested reading lists, colorful illustrations, and detailed maps that help the reader understand a particular engagement.
This study is an excellent reference tool reminding us that Missouri’s soldiers came in many different forms: state troops, regular soldiers with varying enlistment periods, Home Guards, and guerilla fighters. His work provides scholarly research in a format that is easy to read and understand. McCoskrie does an excellent job describing how Missouri’s geography, demographics, and political situation fit into the beliefs of local citizens. While proving his thesis, he takes the reader on a picture journey of the views shared by various military units, guerrilla fighters, politicians, and ordinary folk. In the end, this somewhat forgotten state saw many battles fought and lives lost; lots of families might say “for what?”
McCoskrie is a Virginia Military Institute graduate who served twenty-eight years in the military. He then completed a twenty-five-year career in banking. He has also shaped the leadership of future military leaders serving as an assistant professor of military science in the Illinois State and Missouri Universities’ ROTC programs.
Richard Blumberg has reviewed books for Civil War News for over eighteen years, and has also contributed a couple of articles for Civil War News.
The Presidents vs. The Press: The Endless Battles Between the White House and the Media-from the founding Fathers to Fake News. By Harold Holzer. Bibliography, Notes and Index, 576 pp., 2020. Dutton. Penguinrandomhouse. com. Cloth. $30.
Reviewed by David Marshall
This new title deals with the relationship between presidents and the press opens with George Washington being concerned that newspapers provided important information to the enemy during the Revolutionary War. Once he became president, he looked for the positives the press can provide the public but was blind to the realities that they are often concerned about selling papers without necessarily always providing honest coverage of his administration.
In The Presidents vs. The Press, distinguished Lincoln historian Harold Holzer examines the challenges presidents have had since the birth of our nation in dealing with the press. Covering many presidents and incorporating subjects either ignored or only lightly touched on in other presidential histories, this is a book of unusual scope and complexity. Holzer has divided this study into five parts from the founding fathers’ “Malignant Industry,”, to 19th Century presidents and “A Government of Newspapers,” early 20th presidents’ “From The Bully Pulpit To The Fireside,” the 1960’s-1970’s a “Far Greater Information,”—and finally to Truth Is the Glue” covering the last fifty years. He provides firstrate insight how presidents from George Washington to Donald Trump have been unhappy with press coverage that today has been called fake or false news.
Holzer allows readers to discover the actions and reactions from the birth of the nation through the twenty first century chief executives. He provides lively examples and analysis of disagreements and respites by Richard Nixon; mutual distrust by Bill Clinton as well as occasional collaboration by Theodore Roosevelt. He moves on to “sanitized news” and fake news put out Lyndon Johnson and efforts by both press and presidency to dominate the other.
In the chapters on George Washington, John Adams, and Thomas Jefferson, Holzer provides a clear understanding that these presidents took offense with their press coverage and at times were outraged and attempted to take measures to silence newspapers and reporters. While Washington remained silent except to his close friends and cabinet members concerning his feelings, it is remarkable that our first president withstood so much criticism from the ‘infamous scribblers’ without responding as have future presidents such as Thomas Jefferson, Abraham Lincoln, Richard Nixon, Bill Clinton, and Donald Trump. Both Washington and John Adams supported laws that eventually passed and became known as the Alien and Sedition Act under Adams.
While Thomas Jefferson had no issues holding journalists answerable for slander and did not necessarily believe everything written in newspapers, more than most presidents he held that the press was free and should not be interfered with by the Federal government. The implication of the new, broader arguments led to long term tension between the press and citizens for fifty years, with Abraham Lincoln regenerating sedition acts during the Civil War.
In the nineteenth century, Andrew Jackson successfully used former newspapermen in his administration to distort the lines between his presidency and reporters as did Abraham Lincoln by hiring his secretaries who worked in the press. They both used censorship while fighting against secession.
In the early twentieth century, Theodore Roosevelt worked with several progressive muckrakers such as Lincoln Steffens to investigate trusts and became the nation’s first progressive president producing many significant changes including conservation and the establishment of national parks. While Woodrow Wilson surrendered much influence to the press, he also produced the first campaign commercial, demonstrated Lincolnesque qualities by telling witty stories at a 1914 news conference, created messaging through the Federal Committee on Public Information, and curtailed dissent.
Presidents who demonstrated an ability to circumnavigate the changing media scenery included Washington, Jackson, Lincoln, both Roosevelts, and Kennedy. After 1974, the press became skeptical of the U.S. elected chief executives because of Vietnam and Watergate, and tried to keep leaders honest. Ford, Carter, Reagan, both Bushes, Clinton, Bush, Obama, and Trump have all attempted to be transparent with the fourth estate, they often found themselves being questioned concerning their motives, policies, and moral standing.
Holzer makes a strong argument that, while critics of Donald Trump complain that he bypasses the press by utilizing twitter, others have optimized media platforms to persuade American audiences. Thomas Jefferson did this by originating official administration newspapers, Abraham Lincoln in writing newspaper articles and forwarding letters to papers. Franklin Roosevelt used the radio for his fireside chats; Ronald Reagan made his weekly radio broadcasts, and Barak Obama utilizing the internet. Throughout this excellent and fast-moving monograph, readers will find that while Trump is preoccupied with the media reporting of his presidency and has a combative relationship with the press, so did a long list of earlier presidents.
This study weaves a fascinating story on the decisions made by nineteen American presidents and reveals significant changes in presidential press coverage that affected the success of their time in office. This treatment is groundbreaking, balanced, meticulously researched, very readable, provides thoughtful analysis and explanations and is a real page turner.
David Marshall is a high school American history teacher in the Miami-Dade School district for the past thirty-four years. A lifelong Civil War enthusiast, David is president of the Miami Civil War Round Table Book Club. In addition to numerous reviews in Civil War News and other publications, he has given presentations to Civil War Round Tables on Joshua Chamberlain, Ulysses S. Grant, Abraham Lincoln, the Battle of Gettysburg, and the Common Soldier.
Grant’s Victory: How Ulysses S. Grant Won the Civil War, by Bruce L. Brager. Gilford, Conn.: Stackpole Books, 2020. 166 pp. $27.95.
Reviewed by John D. Fowler
Books praising General Ulysses S. Grant have developed into quite a cottage industry over the past forty years. In fact, it is nearly impossible to peruse a Civil
Many people who read Civil War News are like the characters played by Billy Chrystal and Bruno Kirby in City Slickers, while in the broader world most people resemble the character played by Helen Slater. Into Tennessee & Failure: John Bell Hood is written for the Eds and Mitches of the Civil War world. In the second volume of his fine study of General Hood, Steve Davis continues to delve into history and historiography in a way that will grab and hold the attention of readers who (if I may continue the metaphor) already know who played third for the Pirates in 1960. These readers want to learn more about Hoak’s batting average and other stats; about controversies involving him and other players; about questionable plays and disputed calls; about a manager’s decision to put him back into the lineup after an injury; and, of course, they want to know how sportswriters judged the third baseman and his team through his career.
Davis’s two volumes are not a biography. They are rather a detailed analysis of Hood’s performance as a commander while he led a corps in the Army of Tennessee and then after he superseded Joseph Johnston as
War book selection without finding a number of works outlining Grant’s expertise and excellence. Most of these put forth similar claims, but author and ghost writer Bruce L. Brager veers off this path a bit to offer a more nuanced and realistic portrayal of the general. Brager writes better than most authors and far better than most academics.
While the work is entitled Grant’s Victory: How Ulysses S. Grant Won the Civil War, in reality, the book is less a volume on Grant and more a study of the Civil War’s Eastern Theater, primarily from the Union perspective. The bulk of the book (seven of eleven chapters) covers the Union’s many defeats in the East and injects merely a bit of Grant’s commentary.
Only with Grant’s 1864 arrival in the Eastern Theater does the book actually begin to focus on the title subject. In the four remaining chapters, Brager chronicles the general’s struggle to defeat Lee’s Army of Northern Virginia and thus destroy the army commander. The work is also an exhaustive bibliographic essay. Volume 1, over 500 pages in length, covers the story up to the fall of Atlanta. The present volume, somewhat shorter, begins as Hood retreats south, then marches his army into Tennessee and disaster, before concluding with Hood’s and the Confederacy’s fall.
The appraisal of Hood’s generalship and the historiographic survey in this volume are skillfully woven into a narrative of the army’s movements from September 1864 to war’s end, a narrative that would be comprehensible to Mitch and Ed but which would challenge Bonnie. Davis offers the reader thorough and insightful discussions of the various controversies that are well-known to students of the Civil War, such as the Spring Hill affair, Hood’s decisions at Franklin and Nashville, and the general’s wartime and post-war disputes with other Confederate leaders.
These discussions always entail reviews of the primary sources and decades of secondary literature. His contemporaries had a great deal to say about John Bell Hood. So have many historians in the 20th and 21st centuries. Numerous writers have assessed
Confederacy’s only successful commander and army. In the end, Brager concludes that Grant was, indeed, the right general to put an end to the Civil War.
It is hard to argue with Brager’s assessment. Grant did defeat Lee and end the war. While the basic premise is true, it does not present an adequate and comprehensive view of the situation. The 1864 Army of the Potomac should have beaten the Army of Northern Virginia. Lee’s army was half the size of the Union force and woefully undersupplied. The fact that Lee kept Grant at bay for more than a year is a testimony to his skill as a general, not Grant’s. Moreover, the book’s dustcover states that “two of the greatest themes of the Civil War are how Lincoln found his war-winning general in Ulysses S. Grant and how Grant finally defeated Robert E. Lee.” The author argues that while Union generals in the Eastern Theater had faced defeat after defeat, “In the West, Grant had been refining his art of war at places like Fort Donelson, Shiloh, Hood over the years, and a list of just the works cited fills 22 pages. Davis reviews their work and sometimes assesses the assessors.
The book’s concluding chapter provides a concise recap of Hood’s entire military career. The volume is enhanced by five excellent maps by Hal Jespersen.
Davis gives credit where credit is due and is candid about Hood’s shortcomings and failures.
He points to the young general’s ambitious nature and his back-channel “angling” for promotion. He calls attention to Hood’s carelessness about logistics and other duties of an army commander. Also troubling are his disingenuous reports covering up the scope of the defeat his army suffered in Tennessee and the army’s wretched condition after the retreat. Worse perhaps was his tendency to blame other officers and even his ill-shod, ill-clothed, ill-fed, outnumbered,
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Vicksburg, and Chattanooga.” Yet, we never see this development of Grant in the West, and there is no analysis or explanation of his many failures in the West. The author should have examined Grant in the context of his rout at Belmont, his surprises due to overconfidence at Fort Donelson and Shiloh, his many failed attempts at Vicksburg, and his accidental victory at Chattanooga that owed more to the Army of the Cumberland’s men’s valor than anything planned or executed by the general. The Grant we see emerging late in Brager’s story in Virginia is a formidable commander, and yet, is it not just his willingness to take casualties in a war of attrition that eventually wears down the Confederates? Here, Brager unapologetically departs from many academic historians to argue that the answer to that question is “yes.” That is exactly how Grant won the war. This honesty is refreshing considering that over the past decades a forest of trees has been turned into paper with the purpose of recording and outgunned men. After Gettysburg, Lee said “It’s all my fault;” Hood could never say that.
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how brilliant Grant’s generalship was when in reality it was based on the simplest of facts…he had more men and equipment.
This is a popular history written for a general audience of Civil War buffs. The footnotes are thin as is the norm with books of this type, although the bibliography is larger than those generally found in popular press works. I wish I could say that the volume offers nothing new to the scholarly community. However, given that military aspects of the war are being neglected in the training of new professors, this volume could be useful to a wide audience. In sum, while it is another in a long line of hagiographical tributes to Grant, it is written better than most, and its conclusions are sounder than most.
John D. Fowler, Ph.D, holds the B.J. and Dicksie Bandy Chair of American History at Dalton State College. He is co-editor, with David B. Parker, of Breaking the Heartland: The Civil War in Georgia (2011).