The Anti-War Tradition -- the Health of Liberty by Gregory Bresiger

If war, as one American radical once warned, is the health of the state, then the health of liberty is the logic of peace.

No one can be a true friend of liberty who is not an enemy of war, nationalism and huge, permanent military establishments. That's because all of them are inimical to liberty and free markets, which come out of an anti-militarist tradition older than our nation. Lenin argued that imperialism was the essence of capitalism. Actually, it is the opposite. War is the opposite of free markets. It is bad for business.

"Wherever capitalism penetrated," wrote the economist Joseph Schumpeter, "peace parties of such strength arose that virtually every war meant a political struggle on the domestic scene."

This short paper will examine the thoughts of a few of the Anglo-American critics of war and of military establishments. The inspired opposition of these libertarian critics in their day is relevant to our time, a time in which the traditional American principles of limited government are being eroded and forgotten. War, a great philosopher once warned, is never just about victory and defeat. Americans should remember, in this time of supposed victory, that the evils of war, like a plague, inevitably hurt everyone from the victor to the vanquished.

"A long war," Alexis de Tocqueville wrote in Democracy in America, "almost always reduces nations to the wretched alternative of being abandoned to ruin by defeat or to despotism by success." De Tocqueville was influenced by the Anglo-American classical liberal tradition, a tradition that always has been ardently anti-war.

Some of our guides through this tradition will include Richard Cobden, an English radical and critic of the British Empire, Senator Robert Taft, who believed America's commitments abroad could threaten liberty at home, and Lambdin Milligan, a lawyer who risked his life in Civil War America to protect endangered civil liberties.

America, with its frequent wars, war preparations and imperial presidencies, is on the road to empire and has been for sometime. Thankfully, there have been philosophers of liberty who opposed war and spoke for an embattled tradition of liberty.

Nevertheless, in waging war in Iraq, and threatening to do so in many places around the globe, America's leaders are betraying a Anglo-American tradition that is older than the United States. It is a classical liberal tradition that dates back to at least 16^th century Britain, a nation that grappled with two tyrants, King Charles I and the so-called Lord Protector, Oliver Cromwell. Both tried to use their armies to impose their will on the nation. England suffered through two civil wars because of these enemies of liberty. Charles I illegally levied taxes and forced loans on his subjects. He sent troops into parliament to arrest his critics.

Cromwell, "the savior" of the nation with his New Model Army, was said to have made England "great," a power to be feared in Europe. But at what cost? He eventually became as bad as the tyrant he had destroyed.

Cromwell and his generals closed down parliament, carved up England into military districts and rampaged through Ireland, creating hatreds between England and Ireland that persist to this day. Britain's experience with tyrants, of living under them, was seared into her historical consciousness. After the second civil war, the Glorious Revolution, the parliamentary settlement called for tight controls on the monarchs and the military.

The army was to be kept at rather modest levels compared with other European nations. What could a large army be used for other than to intimidate domestic opponents or launch foreign adventures, thought free Englishmen in this island nation.

This suspicion of standing armies, this legacy of liberty, was a prejudice inherited by colonial Americans. Once the threat of France was removed after the British victory in the French and Indian War in the 1760s, the logic of a large British military presence in North America began to be questioned. Even before the tensions of the 1770s that led to the American Revolution, colonists made many of the same objections to the costs and the dangers to liberty of a large standing army headquartered in the colonies.

"Maintaining troops in the Colonies now in this time of profound peace would be an unnecessary expense," wrote the governor of Connecticut in 1768, "and have an unhappy tendency to produce uneasiness among the people, hurt their morals and hinder industry." Again, free Englishman had not forgotten the lessons of two civil wars in the previous century.

"As to the Standing Army kept among us in time of Peace without the consent of our Assemblies, I am clearly of the Opinion that it is not agreeable to the Constitution," declared Benjamin Franklin. Franklin wrote in the tradition of Cato's Letters, which sought to justify the Glorious Revolution, which had topped James II and his illegal use of the army.

"It is as certain, that James II, wanted no Army to help him preserve the Constitution, nor to reconcile the People to their own Interest: But, as he intended to invade and destroy both, nothing but Corruption and a Standing Army could enable him to do it…"

In the first decades of our early republic, there were frequent battles over military establishments. The peacetime military of the United States was usually quite modest until the buildup before American entry into World War I, when Woodrow Wilson set out to build an American navy second to none. Wilson, who earlier in his first administration had proclaimed himself against a buildup, was not only reversing himself, he was a reversing an American anti-militarist tradition that had been strong throughout most of the 19^th century.

This anti-war tradition spanned the Atlantic. It inspired a group of radicals in the British parliament in 1850s and 60s. Richard Cobden was the leader of this group. Cobden (1804–1865) admired the United States because its military expenditures and taxes were a fraction of Britain's. It also had no far-flung empire. Britain's empire, he noted, inevitably drew it into various wars around the globe.

As early as 1836, a young Cobden was writing that, "Our history during the last century, may be called the tragedy of British intervention in the politics of Europe; in which princes, diplomatists, peers and generals, have been the authors and the actors – the people the victims; and the moral will be exhibited to the latest posterity in 800 millions of debt."

The United States, he pointed out, had no empire to draw it into wars. It had little debt and insignificant armed forces. This gave it a tremendous advantage. The talents of its people and its resources were not thrown away. He warned that, although Britain was the number one industrial nation in the world in the 1840s and 50s, its debts and imperial responsibilities would so burden it that it would lose ground to the Americans in the race for industrial supremacy.

Empire and huge military establishments were ill-moral burdens that would eventually bankrupt the nations that pursued them. Aristocratic ruling classes, Cobden held, gained from empire – from the huge government expenditures generated by them as well as the military appointments. But the vast majority of people – both those who paid for the empire and those who suffered under the abuses of the empire – were the victims of empire. One of Cobden's associates in parliament called the British Empire a vast "system of outdoor relief" for the aristocracy.

Cobden, a middle-class businessman who had raised himself up from poverty, was suspicious of the welfare efforts of the British ruling classes. He wrote that "The middle and industrious classes can have no interest apart from the preservation of the peace. The honours, the fame, the emoluments of war belong not to them; the battle plain is the harvest field of the aristocracy…"

How different is the Manchester School analysis from the expensive military-industrial complex that Americans have lived under for generations?

To Cobden, who was not a pacifist, but opposed every war in his lifetime, war and a huge peacetime military were not only wrong, they were a matter of bad economics that would pull down every nation that pursued these bellicose policies.

"War is a monster," wrote Cobden, "whose appetite grows so fast by what it feeds on that it is quite impossible beforehand to measure its capacity for consumption, and the only safe way is to be provided with far more than at any given time seems likely for its support." Americans might take that comment into consideration as we estimate the potential costs of the war in Iraq. America is already stuck in a deep recession. This war and its expanding costs could extend this recession into something even worst.

Cobden had gained fame in the 1830s and 1840s as the leader of the free trade movement. He, and most of the members of his small group, which was also known as the Little Englanders, were driven from parliament in the 1850s. That's because they insisted their nation should never have fought the Crimean War (1854–55), an attempt on the part of the British to prop up the Ottoman Empire as a counterweight to the Russian.

The war took longer than expected. This messy war, in which many Englishmen died because of bad medical services and various military disasters that included the famous Charge of the Light Brigade, brought down the Aberdeen government. Cobden, who had become a popular leader for his successful efforts to establish free trade, eventually became an unpopular public figure because of his opposition to the war. At the height of the war, in a comment that many Americans today would understand, he complained that Britain was "suffering under the war madness."

For his opposition to the Crimean War and the Opium War, Cobden was turned out of parliament. But a few years later he returned to parliament. His withering criticism of war and military establishments also resulted in several victories for the Little Englanders. After he returned to parliament, he helped prevent war with France in 1860 through the negotiation of a free trade treaty, a treaty that Chancellor of the Exchequer Gladstone encouraged him to hammer out with Napoleon III as a way of diffusing tensions between the two nations.

Cobden also worked to keep his country out of the American Civil War – a war whose slaughters revolted Cobden. He also, suffering from the illness that would eventually kill him, led a movement in parliament in 1864 that would stop a British government that had intended to intervene in the Schleswig-Holstein War.

Cobden's accomplishments were many. His commentaries on the nature of war and militarism are as relevant today as when Cobden thundered against the Crimean War, the Opium Wars or the frequent wars of the British Empire.

"The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances."

The Patriot Act I and II have re-opened a debate that happened several times in American history. One such instance occurred some 140 years ago.

Lambdin Milligan was an Indiana lawyer who opposed the U.S. Civil War. Milligan feared that the constitution was being destroyed by a president who ignored the U.S. Supreme Court. Lincoln was trampling on the constitution, his critics in the North charged. He was allowing military rule in parts of the country that were not in a war zone. If this were allowed to continue, critics such as Milligan asked, what freedoms would remain?

The argument over trying alleged terrorists in special military tribunals that would be created by the executive branch – of hauling civilians into military courts when civil courts are open and in areas that are not under martial law – is an old debate. Charles I, for example, had set up special courts, Star Chamber courts, to try his opponents. In these courts, as in military courts, the rules were weighted in favor of the prosecution.

During the American Civil War there would frequent debates over civil liberties, including the use of arbitrary arrests and the suspension of the writ of habeas corpus by President Lincoln. On September 24, 1862, he issued a proclamation aimed at those who were giving comfort to the enemy.

"Now, therefore, be it ordered," Lincoln wrote, "first, that during the existing insurrection, and as a necessary measure for suppressing the same, all rebels and insurgents, their aiders, and abettors, within the United States, and all persons discouraging the volunteer enlistments, resisting military drafts, or guilty of any disloyal practices affording aid and comfort to the rebels against the authority of the United States, shall be subject to martial law and liable to trial and punishment by courts martials and military commissions; second, that the writ of habeas corpus is suspended in respect to all persons arrested, or who are now or hereafter during the rebellion shall be imprisoned in any fort, camp, arsenal, military prison, or other place of confinement by military authority or by the sentence of any court-martial or military commission."

This remarkable proclamation raised questions about the effectiveness in wartime of the fourth, fifth and sixth amendments to the U.S. Constitution. It also led to the Ex parte Merryman decision, a decision rendered by U.S. Supreme Court Chief Justice Roger Taney, the author of the famous Dred Scott decision. Merryman, a secessionist arrested by military authorities, asked for intervention by civil courts, which were still operating in Maryland. He requested a writ of habeas corpus.

Taney held that the president didn't have the right to suspend the writ. He called Lincoln's position unconstitutional. In this case, Lincoln simply defied the Chief Justice of the U.S. Supreme Court, who said the Lincoln government didn't have that power to try civilians in military courts.

But Lincoln simply invoked the American president's prerogative. The use of the prerogative had been invoked many times by Charles I and had been one of the causes of the first English Civil War. Lincoln's act is a hallmark of an imperial wartime presidency. Lincoln, in a special message to Congress, agreed that he was sworn "to take care that the laws be faithfully executed." However, he argued, with the support of his attorney general, that the president, along with Congress, had the right to suspend the writ of habeas corpus.

The use or abuse of these extraordinary presidential powers led to the prosecution of dissenters in military courts. A courageous American, Milligan was convinced of the rightness of his cause, risked his life in opposition to the war policies of a popular president. Milligan, after the Civil War, was vindicated by the U.S. Supreme Court. The story is one with many parallels to today's America, also in the midst of another, seemingly popular, war.

Milligan was part of a movement sneeringly called Copperheads, a broad, diverse group of mostly Democrats who favored a negotiated settlement of the war with the South. They were outspoken in their opposition to the methods and goals of Lincoln's government, fearing the constitution would not survive it. The unprecedented amounts of death and destruction sickened many of them. Many classical liberals feared that government under law would be destroyed by the war. Copperheads generally believed the South should be allowed to go its own way and that the constitution was a pact of equals in which a state should be allowed to opt out.

Some of the targets of Copperhead criticism were the draft – which caused riots in many Northern cities – Greenbacks, the debased paper currency that the federal government used to finance the war, and the extra-constitutional policies imposed by military governors in the North. War policy critics thought that General U.S Grant was "a butcher" because, despite his victories, his casualty numbers were shocking. Besides many supporters of the war viewed all criticism as ad hominem attacks on the government. They thought their opposition as tantamount to treason.

However, these critics of the war believed they were patriots who wanted to save constitutional government. At the State Democratic Party Convention of Illinois of 1863, delegates adopted a resolution warning, "That the further offensive prosecution of this war tends to subvert the Constitution..."

Many military governors were angered by these persistent criticisms. Some were ready to subject citizens to harsh measures that even President Lincoln often regretted, but felt compelled to support. For instance, in Ohio, General Ambrose Burnside, the general whose egregious leadership had led to a disastrous Union defeat at Fredericksburg in 1862, issued orders that brought civilians into military courts even though the civil courts were open, functioning and capable of trying alleged traitors.

"Incensed by strictures of Copperhead leaders against the administration of the war, the general (on April 13, 1863) on his own responsibility ordered the arrest of anyone guilty of seditious utterances likely to obstruct recruiting. This was followed by the arrest, trial before a military court, conviction and sentence to imprisonment until the end of the war of former Congressman Vallandigham." Lincoln wrote Burnside that, "All the cabinet regretted the necessity of arresting…Vallandigham, some perhaps, doubted that there was a real necessity for it – but, being done, all were seeing you through with it."

Clement Laird Vallandigham was probably the most notorious Copperhead. A former Congressman and an unsuccessful candidate for governor of Ohio, he was tried before a military court, not on whether he had committed treason or some other high crime, but merely on the basis on whether he had violated Ambrose Burnside's order.

Vallandigham challenged the right of the court to try him. At his trial before a military court, the judge conceded that he had no power to decide the jurisdiction issue. Vallandigham was quickly convicted and ordered jailed for the duration of the war. Vallandigham petitioned to the U.S. Supreme Court. But, on a technicality, it decided not to hear the case. Federal courts, given the circumstances of Ex parte Merryman and the controversy with Chief Justice Taney, were becoming docile. They were not going to challenge the president during the war, even if he was engaging in unconstitutional actions.

Similar arrests of civilians by military commissions were also put in effect in Indiana. Edward Bates, attorney general in Lincoln's administration, would write in the fall of 1863 that there was, "a general tendency of the military, wherever stationed, to engross all power."

Lambdin Milligan was not nearly as famous in his time as Vallandigham, but his case would become more important.

Milligan was a lawyer who had lived in Ohio and had been an officer in its National Guard. He later moved to Huntingdon County, Indiana. A minor Democratic Party official and failed gubernatorial candidate, he had been a counsel to some of those prosecuted for alleged disloyalty. Milligan could be described as a Jeffersonian and a strict constructionist.

Milligan was also a fierce critic of the war. He argued that the South could not be subjugated. The loyalty and sympathies of Southerners, Milligan held, could never be won by a campaign of total war that would be waged by Northern generals who burned and sacked the South. He argued for negotiation and charged the, "President and the Cabinet with doing more to prolong the war than the rebels themselves, and consequently were worse than the rebels."

These are the kind of comments, once a war was underway, that could subject an American to public scorn in Civil War America or today. Milligan believed that government under law was not possible when rulers ignored the intent of those who drafted the constitution.

At a Democratic Party convention in Indiana in 1861, Milligan helped write a resolution that said the party had sympathy for neither the cause of secession nor for Lincoln or abolitionists. But the resolution warned, "That neither written Constitutions, nor official oaths afford any guarantee against the licentiousness of the administration, and that in the wanton and palpable violations of the Constitution of the United States, in the suspension of the writ of habeas corpus, in depriving citizens of liberty and property without due process of law…"

Clearly, Milligan was becoming more than a lawyer and an obscure Democratic party official. He was about to enter into a controversy that remains a vital part in the history of liberty. On October 5, 1864, General Alvin Hovey, the commander of one of the military districts of Indiana, ordered the arrest of Milligan for his August 1864 public speech in which he had opposed Lincoln's conduct of the war. He was tried in Indianapolis along with a group of others for supposedly conspiring to commit disloyal activities.

Milligan was judged by a group of officers from the Indiana Volunteers. The proceedings took on a Star Chamber quality. The Judge Advocate, Major H.L. Burnett, stated at the trial that, "The civil rights of the citizen become dead for the time being, if necessary to preserve the life of the nation." This is an echo of the comments made by so many other wartime patriots; zealots who brooked no opposition and who viewed every critical comment as tantamount to treason.

Milligan, who was sick during much of the trial, refused to compromise. He invited the harshest penalty because he believed that he would be vindicated once the case was taken to a civil court.

The military commission judged him to be part of a conspiracy to destroy the nation. He was ordered to be hanged. Others were pardoned by Lincoln. But soon after the Milligan military trial, Lincoln was assassinated. His successor, Andrew Johnson, a war Democrat, signed the documents to have Milligan executed. But Milligan's execution was delayed by friends in both the Republican and Democratic parties.

Secretary of War Edwin Stanton, an acquaintance, was able to delay the execution of the sentence until Milligan had a chance to appeal it and seek a writ of habeas corpus. Finally, with the end of the war in the spring of 1865, and the expiration of the suspension of the writ of habeas corpus, Milligan would have one more chance to escape the hangman.

The Indiana Circuit Court, asking the U.S. Supreme Court for an opinion, received a unanimous decision in what was to be a landmark case. The decision was written by Justice David Davis. He had been appointed to the high court by President Lincoln and had been his friend. However, Davis ruled that Lincoln and his government had clearly acted illegally. First, Davis held that, even if the writ of habeas corpus is rightfully suspended, civilians committing crimes must still be handed over to civilian courts, with the exception of invasions or other exceptions provided for in the constitution.

Martial law, unjustly used by governments, Davis held, "destroys every guaranty of the Constitution, and effectively renders the military independent of and superior to the civil power – the attempt to do which by the King of Great Britain was deemed by our fathers such an offense, that they assigned it to the world as one of the causes which impelled them to declare their independence."

Finally, Davis laid down a standard for how and when military law can operate. "Martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war."

Milligan was released from prison on April 10, 1866. Many Radical Republicans, who wanted a military administration of the reconstruction, were angered by the decision. However, after nearly hanging him for his belief in the principles of trial by a jury of peers, the right of free speech and the idea of a government under law, even in wartime, there are still many who would grant our imperial president absolute power in time of war or even near war.

But for those advocates of an imperial presidency, there are the words of Justice Davis, speaking of the guarantees of the Bill of Rights in wartime: "No doctrine, involving more pernicious consequences was ever invented by the wit of man than that its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution has all the powers granted to it which are necessary to preserve its existence…"

Milligan is relevant today to the Anglo-American anti-militarist tradition, or what is left of it. Americans for the past several generations have been discussing a difficult question. Can the president legally take on the powers of a Caesar, claiming more and more power because of the demands of war? In general, the answer of the courts and the lawmakers – including those who passed the National Security Act of 1947, which created the CIA and gave the government tremendous powers to act secretly – is yes.

One American leader of the mid 20^th century who would have had trouble answering yes to the metamorphosis of American presidents into Caesars was Robert Taft, a Republican senator from Ohio in the 1930s to the 1950s. He was an unusual figure. A critic of the New Deal in the 1930s. He said it was based on the premise that "American money and charity shall solve every problem." He questioned the legitimacy of the Nuremberg war crimes trials; of the victors – who included Stalin and his thugs who at the outset of the World War II were Hitler's allies – trying the losers. Taft was on the right, but it was a right very different from today's right. The latter has allied itself with huge military budgets and interventionist foreign policies.

"The prevailing trend of the "Old Right," wrote Murray Rothbard, was "a principled and trenchant opposition to war and its concomitant destruction of life and liberty and all human values." Taft was a Republican maverick who believed there could "be no greater tragedy than war." He warned that, "We could destroy our liberty by a military and foreign expenditure in time of peace so great that a free economic system cannot survive."

Although he supported U.S. intervention in the Korean war, he later argued that President Truman had acted illegally because he had never sought the approval of Congress for making war, a presidential war policy that has been repeated many times since Korea.

Taft, the same as a generation of Americans later reviewing the record of their country in Vietnam, became embittered by the waging of a distant war without a national consensus. He wrote of the Korean War, "we have spent billions of dollars of taxpayer money. Altogether, no directors of foreign policy have ever made such stupid mistakes in judgment which have been made by those who still control our foreign policy." But Taft's critique extended beyond the mistakes and the waste of the Korean War. Taft also warned of the damage that war would do to constitutional government.

"Furthermore, the President and his advisers claim the right to take the United States into war without approval by Congress, which makes their continuation in power exceedingly dangerous." Indeed, most subsequent presidents have claimed the same almost unlimited power to wage war, making a mockery of the constitutional limitation requiring that Congress declare war.

Taft was an opponent of Nato. This alliance was the centerpiece of the so-called internationalism of Dewey/Eisenhower wing of the Republican party. I say so-called because internationalism called for America to turn away from its non-interventionist traditions and enter into peacetime alliances as well as huge, permanent military establishments. The latter policies, since the 1940s, have been wrongly branded "isolationism." That's even though proponents of this view call for trade and good relations with most nations.

Internationalism triumphed at the 1952 GOP presidential convention. The defeated Taft, who had battled with Ike for the presidential nomination, was to die shortly thereafter in July 1953.

Nevertheless, even after playing the role of good Republican and endorsing the presidential nominee of his party, Taft warned that internationalism would fail. He said that it could lead the United States to become the British Empire of the 20^th century. That would mean that America would take on endless commitments and fight endless wars, he argued

"Our fingers will be in every pie. Our military forces will work with our commercial forces to obtain as much of world trade as we can lay our hands on," he warned during a World War II address in which he attacked those who wanted the US to enter into a permanent military alliance after the war.

Once these permanent alliances were entered, Taft argued several years later in the debate over Nato, it could easily lead the US into another war because "it is almost impossible for Congress to have much effect on it (foreign policy). The power is all in the president's hands."

Taft voted against Nato, which originally was a pact of about a dozen Western European nations as well as the US and Canada. Taft said the Nato treaty ultimately went too far.

"It obligates us to go to war if at any time during the next twenty years anyone makes an armed attack on any of the twelve nations," Taft said. He said that such an alliance would be more likely "to produce war rather than peace."

Taft's comments should be taken into consideration at a time when nations such as Poland and the Baltic republics were recently admitted to the Nato. Traditionally these nations have been the enemies of Russia, whether under Czarist or Communist rule. Russia today, once again, has hostile nations on her doorstep, despite promises made by American leaders to the dying Soviet Union in the 1980s.

In the event of another potential war between one of these former Soviet satellite nations – perhaps by its membership in this alliance – and Russia, what would be the position of the United States, the lead member of Nato? This is a difficult question that has neither had widespread examination or debate.

It is a question that Robert Taft, as well as others in the Anglo-American tradition of anti-militarism, would no doubt be asking today.

April 22, 2003

Gregory Bresiger, [send him mail] assistant managing editor of Traders Magazine, is a business writer and editor living in Kew Gardens, New York. He recently presented this paper to a meeting of the Libertarian Party of Queens County.

The Anti-War Tradition – the Health of Liberty