"I'll keep them in prison awhile ...": Abraham Lincoln and David Davis on Civil Liberties in Wartime

The recent location of three letters written by David Davis [1] to Abraham Lincoln during the period July 1 to July 5, 1864,[2] provides documentation of Davis's communications to the president about the preservation of civil liberties in times of war.[3] The letters address the case of fifteen Coles County prisoners arrested following the Charleston, Illinois, riot of March 28, 1864. In them Davis conveys strong opposition to the suspension of civil liberties. The letters, thus, testify to Lincoln's firsthand awareness of Davis's views, foreshadow subsequent court proceedings, and provide an early glimpse of how Davis's views carried through to his drafting in 1866 of the decision in the landmark U.S. Supreme Court case Ex Parte Milligan.[4]

Davis's actions in mid-1864 and his related communications to Lincoln were fueled by several violations of civil liberties arising from the Charleston Riot. The riot was the culmination of numerous incidents of conflict, violence, and personal animosities between Union soldiers home on leave and local antiwar Democrats (mostly farmers). Nine were killed (six soldiers and three citizens) and twelve wounded on the Coles County courthouse square in what was one of the bloodiest Civil War riots in the North. President Lincoln knew Coles County well. His father and stepmother resided there, he owned property in the county, he tried numerous cases in the courthouse (as did Davis), he met Stephen A. Douglas at the Coles County fairgrounds for one of their famous debates, and he was distantly related to several of the riot participants.[5]

Following the shooting, most of the Democratic participants returned to their homes several miles north and east of Charleston, and then scattered on the run from possible arrest. The reinforced soldiers scoured the countryside over the next several days, taking about fifty prisoners and recording depositions and statements from more than one hundred citizens. Eventually, sixteen prisoners were detained at Camp Yates in Springfield, one of whom died in custody. In mid-June, a grand jury in Coles County returned fourteen indictments for murder and riot, although only four of the fifteen prisoners were among the indicted—two for murder and two for riot. The alleged leaders of the uprising escaped capture and left the area. [6]

The legal processes then followed two paths. The military, following the recommendation of Judge Advocate General Henry Burnett, appointed a commission of officers to try the prisoners in Cincinnati, Ohio, on June 21, 1864. Concurrently, the prisoners' attorneys (Orlando B. Ficklin and Milton Hay) were mounting several initiatives to have the unindicted prisoners discharged and the indicted ones turned over to the civil authorities in Coles County. On June 22, 1864, the attorneys delivered to the Fourth Circuit Court a request for a writ of habeas corpus for the prisoners' release. The writ was granted by the court under a ruling by Judges Samuel H. Treat and David Davis, and the prisoners were ordered to be delivered to the court. The commanding officer, Colonel James Oakes then sought and was granted a brief delay to receive instructions from his superiors. [7]

Oakes was in a quandary—he had just received orders to deliver the prisoners to Cincinnati, Ohio, for trial by a military commission and was concurrently under order to deliver the prisoners to the circuit court in Springfield. The next day Oakes received word that the president had suspended habeas corpus for the prisoners and that they should be sent immediately to Fort Delaware in Delaware State. Davis was in St. Louis that afternoon while court was not in session. When Oakes informed Judge Treat of the president's decision and that the men were no longer in his custody, Treat had no choice but to dismiss the case. [8]

Davis was not pleased when he learned about the handling of the Coles County prisoners, as his brief letter ( Exhibit 1) of July 1, 1864, reveals. The letter, sent by mail, could not have reached Lincoln by the next day, but the Coles County case was on the president's mind, too. By telegram on July 2, 1864, he requested that Davis and Treat "Please give me a summary of the evidence, with your impressions, on the Coles County Riot cases. I send the same request to Judge Davis (Treat)." [9]

Judge Treat responded by telegram on July 4: "The record in the case of the Coles Co. prisoners was ordered to be certified to the President it contains the whole case in my opinion the prisoners should have been surrendered to the civil authorities under the act of March third (3) eighteen sixty three (1863) Judge Davis was of the same opinion."

Justice Davis responded by telegram on July 5, indicating "Dispatch received and have replied by letter." [10]

The day before, Davis had written a four-page letter to Lincoln. In it (Exhibit 2) he cites the statutory basis for the discharge of the unindicted prisoners, summarizes the evidence, and as Lincoln requested, provides his "impressions of the case."[11]

Davis wrote a third, brief letter ( Exhibit 3) to Lincoln on the next day (July 5, 1864), transmitting a summary of the case received from the prisoners' co-counsel, Milton Hay, and reiterating his opinion that the prisoners should have been turned over to civil authorities. [12]

In those letters, Davis focused on the suspension of the writ of habeas corpus for the Coles County prisoners and their relocation to Fort Delaware. He was not immediately aware that a trial by military commission had been scheduled. His second letter roughly parallels the structure of the opinion he later wrote in Ex Parte Milligan. He considers applicable statutes, then reviews the case, and finally gives his views and impressions of the case, namely that the indicted prisoners should be delivered to Coles County for adjudication and the others discharged under conditions imposed by law. His brief mention of oppression and the spirit of the law receives extensive development in Ex Parte Milligan, where the precedent established would contribute significantly to the understanding of American liberty. Davis wrote the July 4, 1864, letter in a day (albeit Independence Day), while he composed the Ex Parte Milligan opinion over a six-month period. Nonetheless, Davis' experience in putting his views to paper in the July 4 letter to the president helped solidify his thinking for the subsequent Supreme Court assignment.[13]

Initially, Lincoln was persuaded by the advice from Davis and Treat regarding the Coles County prisoners. He wrote a release order for the prisoners on July 19, 1864. However, he suspended it later on the same day in part because of the voluminous evidence, and he requested the Judge Advocate General to prepare a report on the case. The prisoners' supporters and attorney Ficklin in Charleston gathered and forwarded to the president numerous additional testimonies, letters, and petitions for the prisoners' release from Fort Delaware. Finally, after a mercy visit from Dennis Hanks—Lincoln's cousin and a Charleston resident—the president wrote the final release order on November 4, 1864, leading to the prisoners' actual release ten days later. This time span included Lincoln's re-election as president on November 8, 1864, perhaps indicating that political ramifications were also on his mind.[14]

Lincoln, thus, let the Coles County cases ride for a while, as he had done in other situations, and in the spirit of his 1865 comment about the Milligan case: "I'll keep them in prison for awhile to keep them from killing the Government." He eventually played his trump card as commander-in-chief by releasing the prisoners prior to any further military proceedings. Upon their return to Illinois, and true to the spirit of the law, two of the prisoners indicted for murder were held for trial, gained two changes in venue, and were exonerated by jury trial on December 5, 1864. [15]

Did the Ex Parte Milligan decision repudiate Lincoln's earlier war actions regarding civil liberties? If Lincoln had survived, would he have been surprised or felt rebuked by the U.S. Supreme Court's decision and by Davis's opinion? At the least, he likely anticipated that such a case and issues would eventually come before the U.S. Supreme Court, and that Justice Davis would be deeply involved. At the same time, however, a goal of preserving the Union for continuation under freedom and democracy for all predominated, by whatever means possible. The consequences of success could be dealt with later. Davis had likely recognized this goal as well as the differing judicial and executive responsibilities of the two men. His reference in Ex Parte Milligan to "the place occupied by Washington and Lincoln" speaks to the high esteem with which he held his old friend.

David Davis had clearly expressed his opposing views to Lincoln, as shown by his 1864 letters. Moreover, Lincoln took those views under serious consideration and likely charted the best course possible. He recognized, however, that civil courts might be overwhelmed by the trauma and intensity of the rebellion.[16]

A 1866 letter from John Jay, grandson of Chief Justice John Jay, to Chief Justice Salmon Chase, questioned whether Lincoln's appointees to the Supreme Court had repudiated his position by actions in Ex Parte Milligan that could have benefited the rebels if enacted earlier. Circumstances had changed, however. General Jacob Cox observed that a post-assassination public response against President Andrew Johnson had "the tide running strongly in favor of Congressional rather than Executive initiative in public affairs." The Court, thus, had responded to the popular drift.[17]

The Ex Parte Milligan decision was unanimous in opposing a military commission's jurisdiction over Milligan, although four of the nine justices wrote a concurring opinion limiting the decision to the Milligan case rather than broadly addressing the validity of congressional powers in instituting military commissions. The minority justices criticized the majority for saying that Congress lacked the constitutional power to authorize military trials of civilians. [18]

Of the five majority justices, Davis's views were known by Lincoln. So were the concerns of Justice David Field (a Lincoln appointee), whose brother was a lead defense attorney for Milligan. The remaining three majority justices were appointed prior to Lincoln's presidency, while his other three appointees (including Chief Justice Chase) were in the minority. [19]

In the end, the case of the Coles County prisoners achieved several aims for Lincoln. The prisoners were held for seven months as a signal to deter future insurrections, to prevent their further interference with the war, and to provide the president with continued flexibility in responding to other alleged acts of disloyalty in the North. The prisoners then were released and those indicted turned over to local civil authorities for adjudication according to the advice in the July 4, 1864, letter from David Davis. The prisoners, most of whom were not materially involved in the Charleston Riot, paid a high price for their confinement, but their experiences contributed importantly to defining the nation's values for civil liberties in a free society.

Ex Parte Milligan has stood for nearly 140 years as a landmark court decision and as a compelling statement about law versus oppression in a free society. The goals of adhering to constitutional principles and civil liberties are unquestionable in a democracy, although the desperation of full-scale war clouds the issue. In speaking recently on the lessons of civil liberty experiences in the Civil War and World War II, the late Chief Justice William Rehnquist observed that "perhaps we can accept the proposition that laws are not silent in war-time, they speak with a muted voice." Lincoln and Davis likely would have agreed.[20]