FOR ALMOST A CENTURY, the laws of war had played a role in heated controversies around the question of slavery. In the months after Appomattox, those same laws occupied center stage in a new debate over how to incorporate 4 million freedpeople into the Union.
Since late May 1865, President Johnson had been appointing provisional governors for the rebel states and authorizing those who had been qualified to vote under prewar law to reorganize their states. Johnson urged that they ratify the Thirteenth Amendment abolishing slavery, but otherwise he allowed them to regulate the conditions of the freedpeople as they saw fit. White southern governments, presided over by the same men who had led their states into open rebellion, ratified the amendment while enacting new laws called Black Codes designed to reinstitute slavery in all but name.
When the Thirty-ninth Congress met for its first session in December 1865, the Republican majorities in the House and the Senate rejected Johnson’s plan, shut out the would-be representatives of the rebel states, and turned immediately to the business of preventing the white South from denying blacks their basic civil rights. Two bills introduced by Senator Lyman Trumbull of Illinois—what Senator Garret Davis of Kentucky called the “Siamese twins” of the Thirty-ninth Congress—quickly came to the fore. The first was an extension and enlargement of the wartime Freedmen’s Bureau Act, which had created a federal agency in the War Department for control of all subjects relating to refugees and freedpeople in the rebel states. The second was a bill to protect the civil rights of the freedpeople, including their right to make contracts, their right to sue, and their right to give evidence.
For all their centrality to the Republican agenda for 1866, the two bills at first shared a fundamental difficulty. The question confronting both bills was whether the federal government had the authority to enact them. The Constitution of 1787 had protected the states against federal power in all but a set of carefully enumerated federal domains. Once the states had ratified the Thirteenth Amendment to the Constitution prohibiting slavery and authorizing Congress to enact appropriate legislation to enforce its terms, the problem of federal authority to enact the civil rights bill seemed less acute. But the Freedman’s Bureau bill still seemed beyond any of the conventional powers of Congress. What license did the government have to try to govern day-to-day life in the states?
AT THE OUTSET of the Thirty-ninth Congress, radical firebrand Thaddeus Stevens of Pennsylvania and Jacob Howard of Michigan offered an answer that drew on the lessons of the past four years and harkened back to the arguments of Alexander Hamilton in the 1790s. The laws of war, they argued, represented a powerful source of authority in a constitutional system that had otherwise hedged and constrained the power of the federal government.
As Senator Howard put it in urging the establishment of a joint committee on Reconstruction in the opening days of the Thirty-ninth Congress, the “status of the rebel States” was simply that of “conquered communities, subjugated by the arms of the United States.” If that were so, the Congress had all the rights of a conquering nation as set out in the international laws of war. In the House, Stevens—who just four years before had berated Lincoln for acceding to the idea that the laws of war had any bearing at all on the conflict between the states—agreed and elaborated on the implications. “Unless the law of nations is a dead letter,” he announced on the floor of the House, the southern states were “in the condition of a foreign nation with whom we were at war.” Indeed, precisely because the Union had extended to the rebel armies the protections of the laws of war in battle, the southern states were now “subject to the absolute disposal of Congress.”
Moderate Republicans in Congress disliked the conquered province theory. It seemed to concede the rebels’ own wartime argument that the seceding states had left the Union and become an independent nation. Representative William Finck of Ohio complained that Stevens’s “views on this point coincide with those of the most rabid secessionists.” Congressman Henry Raymond of New York, the founder of the New York Times and a close ally of the new president, added that Stevens’s theory would preclude prosecuting any rebel, including Jefferson Davis, for treason. Indeed, as Representative William Niblack of Indiana jumped in to observe, the conquered territory theory would characterize the loyal Union men of the South as having been traitors when they sided with the Union against their home states.
Yet the most commonly cited alternative to the conquered territories theory was barely more appealing. A number of Republicans cited a clause in Article IV of the Constitution guaranteeing each state a republican form of government. The difficulty was explaining how the southern states as they existed in the winter of 1865–66 were somehow not republican governments under the Constitution. For more than seventy years, since at least the ratification of the Constitution in 1788, the federal government had proceeded as if slavery was perfectly compatible with republican government. Could it really be that in order to have a republican form of government a state now not only had to abolish slavery, but also had to adopt legal protections for the civil rights of those who had once been slaves? Many doubted the republican government guarantee could be read so liberally. (President Johnson had relied on the clause in endorsing his own far less ambitious restoration of white state governments.) Moreover, if the republican government clause could be construed so broadly, it threatened to make Article IV an ongoing warrant for open-ended federal government intervention into the affairs of the states. At least the conquered territory theory was limited to the South and to the context of the war. The republican guarantee approach threatened to undo entirely the allocation of powers between states and the federal government.
What a theoretical basis for Reconstruction needed to accomplish was to adopt the limitations of the conquered territories idea without seeming to concede that theory’s capitulation to the rebel idea that the states had indeed possessed a right to secede and had been independent nations of their own during the war.
The solution the Republican Congress soon hit upon was the very same idea that Lincoln had pursued in 1861 when he set up a blockade while refusing to concede that the South was an independent nation. The idea was that Congress could have it both ways. Sumner had developed the notion in the Congress as the “double” theory of the war. Lieber had followed it, too, by expressly reserving in General Orders No. 100 the right to prosecute rebels for treason. The Supreme Court had embraced it in The Prize Cases in 1863.
Richard Henry Dana, who had argued The Prize Cases for Lincoln, was among the first to apply the idea to the Reconstruction conundrum when he told a black suffrage meeting at Faneuil Hall in Boston in June 1865 that Congress could insist on black voting rights in the rebel states as a condition of representation in the Congress. Under the laws of war, Dana explained, the U.S. was a “conquering party” and could thus “hold the other in the grasp of war until it has secured whatever it has a right to acquire.” As inThe Prize Cases, Dana contended that the law of war argument for congressional power did not require the Congress to see the rebel states as having been a foreign enemy. In civil wars, as Dana had put it in 1863, “the sovereign may exercise belligerent powers, as well as the powers of municipal sovereignty,” without contradiction.
Congress soon took up Dana’s “grasp of war” idea to sustain its postwar Reconstruction program. Charles Sumner, who had proposed a grab bag of theories for Congress’s authority to reconstruct the South, eulogized Abraham Lincoln in June 1865 by insisting that “the same national authority that destroyed Slavery must see that this other pretension is not permitted to survive.” There was, he thought, no doubt that “the authority which destroyed Slavery” was now “competent to the kindred duty” of guaranteeing the rights of the freedmen. In December, his fellow senator from Massachusetts, Henry Wilson, cited the same theory in proposing a civil rights bill that would make “null and void” any law of the rebel states establishing “any inequality of civil rights and immunities among the inhabitants” thereof. “The men who went into rebellion have been defeated in battle,” Wilson explained; “they have been conquered and subjugated; they are at the mercy of the Government of the United States to-day.” In late April 1866, when the Joint Committee on Reconstruction issued a plan for restoring the rebel states and ratifying the Fourteenth Amendment to the Constitution, the committee based its authority on principles crafted by Dana and carried forward by Sumner, Wilson, and others. “Conquered rebels,” stated the committee report, were “at the mercy of the conquerors.”
ANDREW JOHNSON HAD exercised war powers as the Union’s military governor in wartime Tennessee. In 1860, as a member of the Senate, he had been an early champion of the argument that would later be known as Thaddeus Stevens’s conquered territories theory of Reconstruction. Yet as president in 1865 and 1866, he turned into a sharp critic of bringing the law of war to the postwar South.
President Johnson’s program of speedy amnesty and state restoration was deeply at odds with the continuing military commissions of Joseph Holt and James Speed. Like the president, Holt and Speed were southerners by birth, with prewar connections to the Democratic Party. The war had changed the two men. Holt and Speed found themselves advocating for the freedpeople and for using the authority of military commissions to uphold their rights. But the war had not changed Andrew Johnson, at least not in the same way. Johnson chafed at the continuing war powers of the federal government. In February 1866, he ordered that no steps be taken toward the prosecution of Confederate naval officer Raphael Semmes for violations of a truce flag that occurred when the Union vesselKearsarge sank his ship, the Alabama, off the coast of France in 1864. Holt had arrested Semmes for escaping from the sinking Alabama after flying a white flag of surrender. Semmes’s conduct undoubtedly violated the customs of truce flags, which forbade the use of white flags to enable escape. But Johnson thought that in arresting Semmes, Holt had taken his vindictiveness a step too far. Johnson told Secretary of the Navy Welles that he “wished to put no more in Holt’s control than was absolutely necessary,” and called Holt a “cruel and remorseless” man whose “tendencies and conclusions were very bloody.” Welles, for his part, thought Holt a “dupe of his own imaginings.”
Later in the same month, Johnson’s veto of the Freedmen’s Bureau bill set forth publicly the president’s fierce hostility to the persistence of military commissions. They were, he insisted, “arbitrary tribunals” inconsistent with the Constitution. On April 2, 1866, when the president declared the war over, he elaborated further. Martial law and military tribunals, he maintained, “are in time of peace dangerous to public liberty, incompatible with the individual rights of the citizens, contrary to the genius and spirit of our free institutions, and exhaustive of the national resources.”
Holt continued to press forward, but his efforts were increasingly clumsy. The prosecution of rebel captain Richard B. Winder (John Winder’s cousin) for crimes at Andersonville collapsed when Holt’s best witnesses failed to appear. In late March 1866, Holt confidently insisted that he was prepared to move forward with a prosecution by military commission of Jefferson Davis and Clement Clay for their complicity in the Lincoln assassination. But the hurdles to Holt’s military commission program were about to get much higher.
THE SUPREME COURT had lent its support to wartime military commissions in 1864 in the case of Clement Vallandigham; Justice Wayne had intimated the Court’s approval for the military trial of offenses “under the common law of war.” A year later, however, when a citizen of Indiana named Lambdin Milligan challenged his conviction by a military commission, circumstances had changed.
Milligan belonged to a quasi-military organization known as the Sons of Liberty, in which he held the position of supreme commander. In July and August 1864, the Sons of Liberty worked with Confederate agents to organize an uprising in the northwestern states of Indiana, Illinois, Ohio, Missouri, and Kentucky. They aimed to detach the Northwest from the Union and to free the tens of thousands of Confederate soldiers held in the Union prison camps at Chicago and on Johnson’s Island in Lake Erie. With suitcases of cash supplied by the Confederate agents, the plotters purchased shipments of firearms to make good on their plans. But Union men had infiltrated the Sons of Liberty for months. And when Indiana officials discovered the arms, the plot unraveled quickly. Along with six other men, Milligan was arrested in October by forces under Alvin P. Hovey, commander of the military district of Indiana. When one of the plotters agreed to testify for the government, Judge Advocate Henry Burnett (who would soon assist Holt in the Lincoln assassination trial) tried and convicted Milligan in a military tribunal for conspiring against the United States, aiding and comforting the rebels, inciting insurrection, and violating the laws of war by introducing Confederate agents behind Union lines and running an organization of unlawful combatants. The tribunal sentenced Milligan to death.
Milligan petitioned for a writ of habeas corpus in May 1865. When his case got to the Supreme Court in February of the following year, his lawyers rehearsed all the arguments that had been made by the critics of military commissions since 1862. Milligan’s position was that, as “an inhabitant, resident, and citizen of Indiana,” he could not be accused of violating the laws of war. Only a soldier could violate the laws of war, he insisted, though Union practice on this point had been otherwise for most of the war. The Civil War hero and future president James Garfield argued for Milligan in the Supreme Court alongside Jeremiah Black, former attorney general of the United States under James Buchanan, and the prominent New York lawyer David Dudley Field, brother of Supreme Court Justice Stephen Field.
Garfield led off, and Field spoke longest, but Black’s argument won the day. As attorney general, Black had maintained that the federal government lacked the authority to use force against the seceding states. Now he contended that U.S. military commissions could not exercise a law of war authority to try citizens accused of offenses committed outside a war zone when the civil courts were open for business and the civil authorities were “in full exercise of their functions.” The Constitution, he said, forbade such military commissions. Arguing for the government, his opponents contended that “the laws of war must be treated as paramount.” But in Black’s view the Constitution was supreme. It was the sovereign prerogative of the people of the United States to deny their government powers regardless of whether the laws of war allowed those powers to other nations. As to Attorney General Speed’s defense of the military commission in the Lincoln assassination case, Black could hardly contain his contempt. Could the armed forces really “take and kill” or “try and execute . . . persons who had no sort of connection with the Army or Navy”? Black condemned the entire apparatus of Holt’s Bureau of Military Justice as a “dark and bloody machinery” of death.
Arguing for the United States, Ohio lawyer Henry Stanberry (a close confidant of the president) entered a brief objection to the Court’s jurisdiction. But Stanberry, whom Johnson would soon make attorney general after pushing Speed out of office, quickly made way for the sitting attorney general and Benjamin Butler, who took breathtakingly broad positions in defense of military commissions. Once war was declared, they contended, “all peace provisions of the Constitution” and “all other conventional and legislative laws and enactments” fell “silent amidst arms.” The president in wartime had at his disposal “all the means and appliances by which war is carried on by civilized nations.” In short, they argued, the only limit on the president’s power in wartime was set out by the laws of war.
Speed left it to Butler, who had received the first contraband slaves at Fort Monroe in May 1861, to defend the argument. Butler urged the Court to heed the lessons of the war’s great turning point. What, after all, had been the basis for Emancipation other than the president’s awesome law of war authority? Had not John Quincy Adams argued that the federal government could seize slaves in wartime on the ground that the law of nations replaced “all municipal institutions” in time of war? Contesting the gag rule against antislavery petitions in the Congress, Adams had argued that “all the powers incident to war are by necessary implication conferred upon the government of the United States” in wartime, not from “any internal, municipal source, but from the laws and usages of nations.” The law of war, Adams had contended in the 1830s and 1840s, “breaks down every barrier so anxiously erected for the protection of liberty, property, and life.” As Butler could not resist observing, Adams was the son of a founding father, the son of the second president of the United States, and himself the sixth president. And it was his arguments on slavery and the laws of war that Lincoln, the sixteenth president, had taken up to emancipate the slaves on January 1, 1863. If Adams’s arguments would sustain Emancipation, Butler contended, surely they would support military commissions as well.
Observers of the Milligan case have been mystified ever since by Speed’s and Butler’s arguments. The case had made available to them a much more modest position. During the course of the conflict there had been nearly 1,000 military commission prosecutions for violating the laws of war. Justice Wayne had approved such a commission in the Vallandigham case just two years before. Lambdin Milligan had been tried and convicted of (among other things) violating the laws of war. Nonetheless, Butler and Speed defended the Milligan commission not as a device for punishing violations of the laws of war, but as a legitimate exercise of martial law generally. They contended that the laws of war afforded the president and the Army the power to declare martial law even outside active war zones and to prosecute U.S. citizens and others before military tribunals so long as the “quality of the acts” charged made them the “proper subject of restraint by martial law.” They had made a broad argument where a narrow one would have sufficed to sustain Milligan’s conviction.
The reason was that Speed and Butler were not really arguing about Lambdin Milligan at all. Their arguments were calculated not to sustain his conviction but to defend the authority of military commissions and martial law during postwar Reconstruction. That was why Butler made Emancipation so central to his argument. The Milligan case would be a referendum on the future of the project that Lincoln had begun in the fall of 1862, the project that had produced Lieber’s General Orders No. 100 and that underlay the Union’s uncompromising approach to the laws of war. It would have been no great victory to win a slender ruling upholding Milligan’s confinement. The federal courts sustained precisely such a narrow defense of military commissions two years later when a judge in Florida ruled that Dr. Samuel Mudd’s conviction in the trial of the Lincoln conspirators had been a lawful one. (One hundred and fifty years later, a federal judge in Washington, D.C., would rule the same way when he rejected Dr. Mudd’s grandson’s challenge to the accuracy of the military records in his grandfather’s case.) What was unclear in early 1866, and what Speed and Butler hoped to vindicate, was the availability of the laws of war as a basis for federal authority moving forward into Reconstruction.17
The justices of the Supreme Court understood exactly what was at stake. One day after the president’s April 2, 1866, peace proclamation, the Court signaled its rejection of Speed’s arguments, ruling without explanation that the military tribunal lacked authority to try Milligan and that he ought therefore to be discharged from custody. In December, when the Court resumed session, Justice David Davis issued an opinion explaining the Court’s April ruling. Davis had once claimed (wrongly) that Lincoln never supported the use of military tribunals against anyone other than soldiers. But Davis must have confused his own resistance to the tribunals for his friend’s, for he now soundly rejected the tribunals that Lincoln had helped to set in motion in September 1862 and whose decisions Lincoln had reviewed for the rest of the war. The Constitution, Davis wrote, was the law “equally in war and in peace . . . at all times, and under all circumstances.” To the contention that the laws and usages of war allowed military courts, Davis replied that such laws could have no application to citizens in loyal states where the courts were open. And to the argument that the writ of habeas corpus had been suspended by Congress for prisoners like Milligan in March 1863, Davis replied that the interpretation Holt and Stanton had given to the 1863 habeas legislation for more than three years was wrong. The War Department had contended that the habeas legislation had no application to men charged with violations of the laws of war. That was why the wartime military commissions had relied so heavily on the laws of war to circumvent the Congress and the courts. But Davis countered that Milligan—a citizen of Indiana never in the Confederate service—could not possibly be counted as a prisoner of war. Adopting Milligan’s argument that he could not be charged with violating the laws of war unless he was a lawful combatant, Davis charged the government with wanting to have its cake and eat it too: “If he cannot enjoy the immunities attaching to the character of war, how can he be subject to their pains and penalties?”
Indeed, Davis went further. Just weeks before he issued the opinion of the Court, the elections of 1866 had produced a landslide in favor of the Republicans in Congress, a victory that was certain to strengthen the hand of the Republican program of Reconstruction. Knowing this, and knowing full well that the Congress would very likely rely on its war powers to extend military tribunals, Davis held not only that the president could not employ a military tribunal in Milligan’s case, but that the Congress could not do so either. Chief Justice Chase, who had been one of the strongest antislavery voices in the Lincoln cabinet, dissented from this last point along with three other justices. Looking forward to the Reconstruction efforts on the horizon, Chase insisted that Congress might do what the president alone could not. But Chase’s opinion captured only a minority of the Court’s votes.
Justice Davis left open a slim chance that military commissions in the former rebel states might be treated differently. He would have allowed commissions in states that were “the locality of actual war.” But few at the time doubted that the Milligan decision signaled the Court’s intent to put tight limits on the law of war powers of the Congress in the era of Reconstruction. Many Republicans likened the ruling to the Dred Scott decision of 1857. (Thaddeus Stevens insisted that Milligan was worse.) Other critics, including the usually restrained New York Times, accused the Court of taking the side of those who had so recently “assailed the Union.” White southerners rejoiced when President Johnson cited the decision as grounds for releasing whites convicted by military commissions of crimes against freedpeople. At last, the editors of the Richmond Enquirer wrote, “the revolutionary proceedings of the Congress are promised a check.”
A month after he issued his opinion, Davis commissioned former justice Benjamin Curtis to write a defense of the Court’s Milligan decision. It was Curtis who in 1862 had written a stinging critique of Lincoln’s Emancipation decision. It was Curtis who had lent his voice to warn of the “scenes of bloodshed, and worse than bloodshed” in the servile insurrections he was sure would follow on Emancipation’s heels. It was Curtis who had denied that civilized peoples could free their slaves in wartime. Now it was Curtis to whom Justice Davis turned to help bring an end to the awesome powers that the laws of war and Emancipation had created.
AS THE SUPREME COURT checked and constrained the law of war powers of the legislative branch, members of the Thirty-ninth Congress had been working hard to establish a new source of federal authority in the formerly rebel states, one that would no longer rest on the authority offered by the international laws of war. At the end of April 1866, the Joint Committee on Reconstruction reported a draft of what would become the Fourteenth Amendment to the Constitution. After weeks of debate and compromise, the House and the Senate proposed a final version on June 16, 1866. If ratified by three quarters of the states, Section 1 of the amendment promised to prohibit states from abridging the privileges or immunities of citizens of the United States, depriving “any person of life, liberty, or property, without due process of law,” or denying any person “the equal protection of the laws.” Section 5 would provide the Congress the “power to enforce, by appropriate legislation,” the amendment’s substantive provisions. Here at last was a durable basis for the federal government’s authority in the South.
But Congress’s effort to move away from the “grasp of war” theory quickly ran into obstacles of its own. Encouraged by the president, all but one of the white southern state governments refused to ratify the Fourteenth Amendment proposed by Congress. Race riots in which whites assaulted blacks in Memphis and New Orleans, as well as a spate of violence against freedpeople and Union men across the South, recalled the bitter skirmishes of the war itself. Emboldened by the election results of the fall of 1866, a frustrated Thirty-ninth Congress temporarily returned to the laws of war for one last time in the Reconstruction saga.
ON MARCH 2, 1867, Congress passed the Military Reconstruction Act over Johnson’s veto. The act, which became law on the very last day of the Thirty-ninth Congress, divided the ten rebel states (all but Tennessee, which had already been restored to the Congress) into five military districts and set out the conditions under which their representatives would be readmitted to the Congress, conditions that included ratification of the Fourteenth Amendment and adoption of new state constitutions with universal male suffrage. The legislation ran directly contrary not only to Johnson’s efforts to restore the southern states but also (as its opponents noted) to the Supreme Court’s Milligan decision. For it aimed to put the relations between the federal government and the rebel states back on a war footing, where the laws of war would supply Congress with wide-ranging authority. Indeed, the legislation’s central justification was precisely the “grasp of war” theory that had sustained the Freedmen’s Bureau Extension Act the year before.
Thaddeus Stevens introduced the military reconstruction bill in the House by rehearsing his theory of the power of conquerors under the law of nations. Most Republicans, however, followed Congressman John Bingham of Ohio, Holt’s old colleague in the Judge Advocate General’s office and veteran of the Lincoln assassination trial, by citing the “unlimited power for the common defense” that the “law of nations” conferred on all countries. Zachariah Chandler, a Republican senator from Michigan, argued that the “laws of war” had given Lincoln the power to appoint military governors and concluded that the same laws of war authorized the Congress to order the reorganization of the former rebel states. William D. Kelley, the founder of a family dynasty in Philadelphia politics and a stalwart Republican, argued that the bill did only what the “law of nations and his oath of office justified Abraham Lincoln in doing.”
Notwithstanding that the Supreme Court majority in the Milligan case had seemed to put military commissions beyond Congress’s control, the act expressly authorized military commissions whenever military district commanders believed they were necessary. The act’s critics thus contended—with good reason—that it could not possibly survive constitutional scrutiny in the courts. Writing for the president, Attorney General Henry Stanberry revealed why he had left the argument on the merits of the Milligan case at the Supreme Court to Speed and Butler. In a blistering opinion, he condemned the use of military commissions.
Yet if the Reconstruction Act had returned once more to the law of war power that Lincoln developed, it also set in motion the return of constitutional normalcy and the end of the era in which the federal government could invoke the laws of war to exercise extraordinary powers. John Bingham had come out of the Lincoln assassination trial with a chastened sense of the law of war powers he had exercised as a judge advocate. Now, on the floor of the House, Bingham emphasized that the bill instituted military rule“only until the people by a solemn vote at the polls, under the authority of the national law and the protection of the national Army, shall have assented to the constitutional amendment and set up a just and republican government.” Once the Fourteenth Amendment was in place, the Congress would have a basis for legislating protections for the freedpeople and Unionists of the South without invoking the laws of war. Radicals like Thaddeus Stevens had taken to the war powers argument with fierce enthusiasm, in part because they believed that only the war power and the full authority of the U.S. Army could protect the freedpeople. In many respects, Stevens turned out to be right. But Bingham and the moderate wing of the Republican Party in Congress had come to see those same powers as a temporary and dangerous aberration in American law. The Reconstruction Act mobilized the laws of war precisely for the purpose of bringing the Civil War chapter of their history to a close.
OVER THE NEXT two years, the Congress, President Johnson, and the Supreme Court staged an elaborate dance around the authority asserted by the Military Reconstruction Act and its successors.
Two pieces of legislation enacted the same day as the Military Reconstruction Act aimed to insulate the War Department’s military commissions from the president’s control. The Tenure of Office Act limited Johnson’s authority to remove cabinet officials like Stanton without Congress’s consent. A rider to the annual appropriations act passed the same day required that all military orders pass through Stanton. Together, the measures sought to allow the War Department to function without Johnson’s interference. Within a year, Johnson’s attempt to circumvent the congressional limitations would lead the House to impeach him.
Congress also had to fend off the courts. More than 1,000 defendants were tried in military commissions during Reconstruction in the former rebel states. But the tribunals proceeded in the shadow of Lambdin Milligan. In November 1867, Mississippi newspaperman William McCardle was convicted in a military court of inciting insurrection and impeding Reconstruction by threatening to publish the names of anyone voting in elections held by the state’s Reconstruction government. When McCardle sought to challenge his conviction in the Supreme Court, Congress pulled the rug out from under his suit by repealing the statute McCardle had relied on to get his case to the Court (a statute the Congress had enacted only a year before to provide access to the federal courts for freedpeople). The Court reluctantly upheld the repealer act and refused to review McCardle’s conviction, but noted pointedly that an alternative path remained open to challenge military convictions in the courts via the Judiciary Act of 1789. A year later, another white southerner tested the alternative route. Edward Yerger, a Mississippi white man accused of killing a Union soldier, challenged his military commission conviction on the same grounds that McCardle, Milligan, and Vallandigham had raised before him. The Supreme Court seemed ready to entertain a challenge to the military commissions of Reconstruction. To avoid an adverse ruling, a new attorney general appointed by recently elected President Ulysses S. Grant arranged to have Yerger transferred to civil authorities and released.
BY THE TIME of the Yerger case, the international law of war had largely run its course as a source of authority for the federal government in the postwar South. The customs and usages of war had offered Lincoln, the Congress, and the Bureau of Military Justice a way to direct the war effort, move forward with Emancipation, and organize Reconstruction in a constitutional system that was stingy with the powers it extended to the federal government. But precisely because of the broad authority it offered, many saw the law of war (not unreasonably) as a threat to the ordinary constitutional processes of peacetime, to the separation of powers, and to the guarantees of the Bill of Rights. Men like John Bingham had pressed the theory of the law of war’s scope to extraordinary lengths when arguing before the Lincoln assassination commission. But as a congressman he had crafted the Fourteenth Amendment as a substitute and as a safer source of lawful authority.
For four long years following Lincoln’s assassination, the laws of war had remained at the center of events. They had been the basis for the government’s postwar prosecutions of war criminals and assassins. They had underwritten the Congress’s Reconstruction efforts. But they had not punished Jefferson Davis.