New Understanding of the Civil War

woodpusher: "All well and good if you can demonstrate that there was any opportunity to litigate the issue of the Emancipation Proclamation.
It was certainly moot and could not be litigated after the 13th Amendment.
You seem to miss the point that I have been making about the absurdity of such requests for case law where there was no possibility for case law to be developed."

Here's what's totally absurd: our Lost Causers' claims that Congress's 1861 Confiscation Act or Lincoln's 1862 Emancipation Proclamation could have been litigated then, or since, and declared unconstitutional.
Sure, Crazy Roger Taney was eager to so declare, but he was, in effect, an enemy agent and so properly ignored.

Bottom line: Lincoln justified the Emancipation Proclamation on grounds of military necessity, and that is recognized by all laws.

“I didn’t understand the significance of the term “Damn Yankees” until my wife and I retired to the South. It was then I learned that, to a Southerner, a “Yankee comes to visit; a Damn Yankee stays.””

That reminds me of a question that a man back home asked: How are northerners and southerners alike?

“They both want to be southerners.”

Here's what's totally absurd: our Lost Causers' claims that Congress's 1861 Confiscation Act or Lincoln's 1862 Emancipation Proclamation could have been litigated then, or since, and declared unconstitutional. Sure, Crazy Roger Taney was eager to so declare, but he was, in effect, an enemy agent and so properly ignored.

Here's what is even crazier. Condemnation and confiscation of private property without compensation by the United States Government during the Civil War was was utterly slam dunked by the U.S. Supreme Court, in an opinion by Mr. Justice Miller, a Lincoln appointee.

The Northern Virginia estate of Mary Anna Custis was taken by the government in 1863. The law then provided that taxes had to be paid in person by the owner or a person with interest in the property. The Confederate owner's agent appeared and offered to pay the taxes, interest, and costs, and was told that the commissioners could receive payment from no one but the owner of the land in person.

The title relied on by the defendants is a tax-sale certificate made by the commissioners appointed under the act of Congress of June 7, 1862, c. 98, entitled "An Act for the collection of direct taxes in the insurrectionary districts within the United States," as amended by the act of Feb. 6, 1868, c. 21. At this sale the land was bid in for the United States by the commissioners, who gave a certificate of that fact, which was introduced on the trial as evidence by the defendants.

Upon the death of Mary Anna Custis, her will bequeathed the estate to her son, George. Her son George pursued his legal rights to the property with an action of ejectment. On December 4, 1882, George prevailed in the Supreme Court, and won back the title to the estate. Rightful ownership was deemed to have never passed to the United States. The taking and sale of the property, at auction, to the United States government, was condemned as unlawful.

United States v. Lee, 106 U.S. 196, 219-222 (1882)

Conceding that the property in controversy in this case is devoted to a proper public use, and that this has been done by those having authority to establish a cemetery and a fort, the verdict of the jury finds that it is and was the private property of the plaintiff, and was taken without any process of law and without any compensation. Undoubtedly those provisions of the Constitution are of that character which it is intended the courts shall enforce, when cases involving their operation and effect are brought before them. The instances in which the life and liberty of the citizen have been protected by the judicial writ of habeas corpus are too familiar to need citation, and many of these cases, indeed almost all of them, are those in which life or liberty was invaded by persons assuming to act under the authority of the government. Ex parte Milligan, 4 Wall. 2.
If this constitutional provision is a sufficient authority for the court to interfere to rescue a prisoner from the hands of those holding him under the asserted authority of the government, what reason is there that the same courts shall not give remedy to the citizen whose property has been seized without due process of law, and devoted to public use without just compensation?
[...]
In the case supposed, the court has before it a plaintiff capable of suing, a defendant who has no personal exemption from suit, and a cause of action cognizable in the court, — a case within the meaning of that term, as employed in the Constitution and defined by the decisions of this court. It is to be presumed in favor of the jurisdiction of the court that the plaintiff may be able to prove the right which he asserts in his declaration.
What is that right as established by the verdict of the jury in this case? It is the right to the possession of the homestead of plaintiff. A right to recover that which has been taken from him by force and violence, and detained by the strong hand. This right being clearly established, we are told that the court can proceed no further, because it appears that certain military officers, acting under the orders of the President, have seized this estate, and converted one part of it into a military fort and another into a cemetery.
It is not pretended, as the case now stands, that the President had any lawful authority to do this, or that the legislative body could give him any such authority except upon payment of just compensation. The defence stands here solely upon the absolute immunity from judicial inquiry of every one who asserts authority from the executive branch of the government, however clear it may be made that the executive possessed no such power. Not only no such power is given, but it is absolutely prohibited, both to the executive and the legislative, to deprive any one of life, liberty, or property without due process of law, or to take private property without just compensation.
These provisions for the security of the rights of the citizen stand in the Constitution in the same connection and upon the same ground, as they regard his liberty and his property. It cannot be denied that both were intended to be enforced by the judiciary as one of the departments of the government established by that Constitution. As we have already said, the writ of habeas corpus has been often used to defend the liberty of the citizen, and even his life, against the assertion of unlawful authority on the part of the executive and the legislative branches of the government. See Ex parte Milligan, 4 Wall. 2; Kilbourn v. Thompson, 108 U. S. 168.
No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.
It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.
Courts of justice are established, not only to decide upon the controverted rights of the citizens as against each other, but also upon rights in controversy between them and the government; and the docket of this court is crowded with controversies of the latter class.
Shall it be said, in the face of all this, and of the acknowledged right of the judiciary to decide in proper cases, statutes which have been passed by both branches of Congress and approved by the President to be unconstitutional, that the courts cannot give a remedy when the citizen has been deprived of his property by force, his estate seized and converted to the use of the government without lawful authority, without process of law, and without compensation, because the President has ordered it and his officers are in possession ?
If such be the law of this country, it sanctions a tyranny which has no existence in the monarchies of Europe, nor in any other government which has a just claim to well-regulated liberty and the protection of personal rights.
It cannot be, then, that when, in a suit between two citizens for the ownership of real estate, one of them has established his right to the possession of the property according to all the forms of judicial procedure, and by the verdict of a jury and the judgment of the court, the wrongful possessor can say successfully to the court, Stop here, I hold by order of the President, and the progress of justice must be stayed. That, though the nature of the controversy is one peculiarly appropriate to the judicial function, though the United States is no party to the suit, though one of the three great branches of the government to which by the Constitution this duty has been assigned has declared its judgment after a fair trial, the unsuccessful party can interpose an absolute veto upon that judgment by the production of an order of the Secretary of War, which that officer had no more authority to make than the humblest private citizen.
The evils supposed to grow out of the possible interference of judicial action with the exercise of powers of the government essential to some of its most important operations, will be seen to be small indeed compared to this evil, and much diminished, if they do not wholly disappear, upon a recurrence to a few considerations.
One of these, of no little significance, is, that during the existence of the government for now nearly a century under the present Constitution, with this principle and the practice under it well established, no injury from it has come to that government. During this time at least two wars, so serious as to call into exercise all the powers and all the resources of the government, have been conducted to a successful issue. One of these was a great civil war, such as the world has seldom known, which strained the powers of the national government to their utmost tension. In the course of this war persons hostile to the Union did not hesitate to invoke the powers of the courts for their protection as citizens, in order to cripple the exercise of the authority necessary to put down the rebellion; yet no improper interference with the exercise of that authority was permitted or attempted by the courts. State of Mississippi v. Johnson, 4 Wall. 475 ; State of Georgia v. Stanton, 6 id. 50 ; State of Georgia v. Grant, id. 241; Ex parte Tarble, 13 id. 397.
Another consideration is, that since the United States cannot be made a defendant to a suit concerning its property, and no judgment in any suit against an individual who has possession or control of such property can bind or conclude the government, as is decided by this court in the case of Carr v. United States, already referred to, the government is always at liberty, notwithstanding any such judgment, to avail itself of all the remedies which the law allows to every person, natural or artificial, for the vindication and assertion of its rights. Hence, taking the present case as an illustration, the United States may proceed by a bill in chancery to quiet its title, in aid of which, if a proper case is made, a writ of injunction may be obtained. Or it may bring an action of ejectment, in which, on a direct issue between the United States as plaintiff, and the present plaintiff as defendant, the title of the United States could be judicially determined. Or, if satisfied that its title has been shown to be invalid, and it still desires to use the property, or any part of it, for the purposes to which it is now devoted, it may purchase such property by fair negotiation, or condemn it by a judicial proceeding, in which a just compensation shall be ascertained and paid according to the Constitution.

Bottom line: Lincoln justified the Emancipation Proclamation on grounds of military necessity, and that is recognized by all laws.

Bottom line, Ex Parte Milligan, 71 U.S. 2, 109, 120-21 (1866)

During the late wicked Rebellion, the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question. Then, considerations of safety were mingled with the exercise of power; and feelings and interests prevailed which are happily terminated. Now that the public safety is assured, this question, as well as all others, can bc discussed and decided without passion or the admixture of any element not required to form a legal judgment. We approach the investigation of this case, fully sensible of the magnitude of the inquiry and the necessity of full and cautions deliberation.
[...]
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. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of 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; as has been happily proved by the result of the great effirt to throw off its just authority.

Opinion for unanimous court by Justice Davis, Lincoln appointee.

Article I. All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness. 1790 Constitution of the State of Massachusetts.

The quote is correct, but that is the 1780 Constitution of Massachusetts, framed at a convention which met at Boston, September 1, 1779.

Did the Citizens of Massachusetts try to amend their constitution to make slavery legal.

A series of slave cases in Massachusetts prior to the constiutional era resulted in a 1790 census report of zero slaves. There was no formal change of law until the 13th Amendment, but it appears no formal change of law was needed, and the people of Massachusetts ended slavery in that state.

Elizabeth Freeman won a freedom suit when the "Massachusetts Supreme Judicial Court ruling, in Freeman's favor, found slavery to be inconsistent with the 1780 Massachusetts State Constitution. Her suit, Brom and Bett v. Ashley (1781), was cited in the Massachusetts Supreme Judicial Court appellate review of Quock Walker's freedom suit. When the court upheld Walker's freedom under the state's constitution, the ruling was considered to have implicitly ended slavery in Massachusetts."

In a 1783 case Quock Walker v. Nathaniel Jennison, the following was in a jury instruction.

…As to the doctrine of slavery and the right of Christians to hold Africans in Perpetual servitude, and sell and treat them as we do our horses and cattle, that (it is true) has been heretofore countenanced by the Province Laws formerly, but nowhere is it expressly enacted or established. It has been a usage—a usage which took its origin from the practice of some of the European nations, and the regulations of British government respecting the then Colonies, for the benefit of trade and wealth. But whatever sentiments have formerly prevailed in this particular or slid in upon us by the example of others, a different idea has taken place with the people of America, more favorable to the natural rights of mankind, and to that natural, innate desire of Liberty, which with Heaven (without regard to color, complexion, or shape of noses-features) has inspired all the human race. And upon this ground our Constitution of Government, by which the People of this Commonwealth have solemnly bound themselves, sets out with declaring that all men are born free and equal—and that every subject is entitled to liberty, and to have it guarded by the laws, as well as life and property—and in short is totally repugnant to the idea of being born slaves. This being the case, I think the idea of slavery is inconsistent with our own conduct and Constitution; and there can be no such thing as perpetual servitude of a rational creature, unless his liberty is forfeited by some criminal conduct or given up by personal consent or contract…

“They both want to be southerners.”

LOL! Not hardly. Any more than you would want to be Yankees.

woodpusher on ex parte Milligan: "Opinion for unanimous court by Justice Davis, Lincoln appointee."

Well... not quite unanimous, the 1866 ruling was five to four, with Lincoln supporter Davis joining four of the remaining Democrats.
Why Davis flipped is not clear, but in a few years Davis left the Republicans to become a Liberal opposed to President Grant, and in time an Independent.
The remaining four -- Chase, Wayne, Swayne & Miller -- dissented on at least one point.

Regardless, the ruling was simple common sense: military tribunals could not operate on civilians in regions where normal courts were still in operation.
Davis' ruling confined martial law to areas of "military operations, where war really prevails", and when it was a necessity to provide a substitute for a civil authority that had been overthrown.

Further, any judicial opinions that the US Constitution's protections apply equally to citizens loyal to it, and to those in declared war against it, is simple insanity, or Democrat propaganda… but I repeat myself.

woodpusher "Upon the death of Mary Anna Custis, her will bequeathed the estate to her son, George.
Her son George pursued his legal rights to the property with an action of ejectment. "

The US courts have a long history of restoring property and making reparations to individuals & groups it deems to have been mistreated by the US government -- Indian tribes come to mind first.
After the Civil War Congress paid $ millions in reparations to thousands of Southerners it deemed mistreated.
But there were strict criteria and not everyone who applied was granted payments.

my mistake, thanks

“They both want to be southerners.”

"Every culture has its southerners -- people who work as little as they can, preferring to dance, drink, sing brawl, kill their unfaithful spouses; who have livelier gestures, more lustrous eyes, more colorful garments, more fancifully decorated vehicles, a wonderful sense of rhythm, and charm, charm, charm; unambitious, no, lazy, ignorant, superstitious, uninhibited people, never on time, conspicuously poorer (how could it be otherwise, say the northerners); who for all their poverty and squalor lead enviable lives -- envied, that is, by work-driven, sensually inhibited, less corruptly governed northerners. We are superior to them, say the northerners, clearly superior. We do not shirk our duties or tell lies as a matter of course, we work hard, we are punctual, we keep reliable accounts. But they have more fun than we do ... They caution[ed] themselves as people do who know they are part of a superior culture: we mustn't let ourselves go, mustn't descend to the level of the ... jungle, street, bush, bog, hills, outback (take your pick). For if you start dancing on tables, fanning yourself, feeling sleepy when you pick up a book, developing a sense of rhythm, making love whenever you feel like it -- then you know. The south has got you.” ― Susan Sontag, The Volcano Lover: A Romance

[woodpusher on ex parte Milligan:] "Opinion for unanimous court by Justice Davis, Lincoln appointee."
[BroJoeK] Well... not quite unanimous, the 1866 ruling was five to four, with Lincoln supporter Davis joining four of the remaining Democrats.

Yes, quite unanimous, 9-0. There is no dissenting opinion. Chase CJ, joined by Wayne, Swayne, and Miller JJ filed a concurring opinion, concurring with the Opinion of the Court. A five justice majority, with four justices concurring, is 9-0.

A concurring opinion is one filed by one or more judges or justices, in which he agrees with the conclusions or the result of another opinion filed in the case (which may be either the opinion of the court or a dissenting opinion) though he states separately his views of the case or his reasons for so concurring.

Why Davis flipped is not clear, but in a few years Davis left the Republicans to become a Liberal opposed to President Grant, and in time an Independent.
The remaining four -- Chase, Wayne, Swayne & Miller -- dissented on at least one point.

The Grant administration is generally considered the most corrupt in history.

Chase et al did not dissent. They concurred.

Regardless, the ruling was simple common sense: military tribunals could not operate on civilians in regions where normal courts were still in operation. Davis' ruling confined martial law to areas of "military operations, where war really prevails", and when it was a necessity to provide a substitute for a civil authority that had been overthrown.

And military courts could never be applied to civilians. Military courts apply military law (now the UCMJ) to military personnel. Military commissions or tribunals are another thing altogether.

Louis Fisher, in Military Commissions: Problems of Authority and Practice provides,

INTRODUCTION
In deciding to authorize military commissions on November 13, 2001, President Bush relied primarily on the Supreme Court’s decision in Ex parte Quirin (1942), which involved the trial of eight German saboteurs. A close look at Quirin reveals a process and a decision with so many deficiencies that it should be remembered as a precedent not worth repeating. The same conclusion applies to the record of other U.S. military commissions over the past two centuries. In addition to issues surrounding precedents of dubious and disturbing quality, a second fundamental question arises: are these commissions created on the basis of constitutional authority conferred upon Congress, or may they be established by drawing on “inherent” authority available to the President? If the latter, there should be concern about a President concentrating all three powers––executive, legislative, and judicial––in a single branch and opening the door to undefined, and probably indefinable, emergency powers.
Allowing military commissions to operate on the exclusive authority of the President poses a challenge to basic principles of the U.S. Constitution, including the war prerogatives of Congress, separation of powers,and checks and balances. The framers believed that the rights and liberties of individuals can be best protected by structuring government insuch a manner that power is not concentrated––and abused––in a single branch. In any war, including actions against terrorism, power must be vested in the federal government and executive agencies, but a democratic society requires Congress and the courts to closely monitor the exercise of authority.

At no time is there permitted a refusal to file a return of the writ. There is no provision whatever to suspend the writ of habeas corpus. There is a constitutional provision to suspend the privilege of the writ. The writ must always be returned, and if a proper suspension of the privilege is argued and demonstrated, that serves as a satisfactory response to the writ. Ignoring the writ is not a legal option.

[woodpusher] "Upon the death of Mary Anna Custis, her will bequeathed the estate to her son, George.
Her son George pursued his legal rights to the property with an action of ejectment."
[BroJoeK] The US courts have a long history of restoring property and making reparations to individuals & groups it deems to have been mistreated by the US government -- Indian tribes come to mind first.
After the Civil War Congress paid $ millions in reparations to thousands of Southerners it deemed mistreated.
But there were strict criteria and not everyone who applied was granted payments.

This was not a case of making reparations, compensating the owner for a loss. The rightful owner of the land prevailed in a action of ejectment, an action to restore possession of property to the person entitled to it. Not only must the plaintiff establish a right to possession in himself, but he must also show that the the other party is in wrongful possession. The owner succeeded in a judicial proceeding taken up to the Supreme Court by the United States government after the owner had prevailed in the Circuit Court. The rightful owner won back title to the l,100 acre estate, not reparations for any loss.

As the Court stated, the government, "if satisfied that its title has been shown to be invalid, and it still desires to use the property, or any part of it, for the purposes to which it is now devoted, it may purchase such property by fair negotiation, or condemn it by a judicial proceeding, in which a just compensation shall be ascertained and paid according to the Constitution."

For the owner, it was a Southern honor thing. A few months after obtaining clear title, sale of the property was made to the United States government. Mary Anna Custis' father, George Washington Parke Custis grew up with his grandparents, George and Martha Washington, as an adopted son.

Today, the estate mansion is maintained by your tax dollars via the National Park Service and is best known as the Robert E. Lee memorial. Anna Mary Custis may be more recognizable by her married name, Mrs. Robert E. Lee.

The U.S. government had no long history of returning such property to the family of the leading general of the opposing forces. They fought this one all the way to the Supreme Court and lost.

Further, any judicial opinions that the US Constitution's protections apply equally to citizens loyal to it, and to those in declared war against it, is simple insanity, or Democrat propaganda… but I repeat myself.

Laws believed to be dumb as a box or rocks are still laws, offhand opinions notwithstanding.

The Lieber Code, General Orders No. 100 : The Lieber Code INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD

Prepared by Francis Lieber, promulgated as General Orders No. 100 by President Lincoln, 24 April 1863.

Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, LL.D., Originally Issued as General Orders No. 100, Adjutant General's Office, 1863, Washington 1898: Government Printing Office.

The Lieber Code was the government policy on the law of armed conflict at the time. Articles 37 and 38 seem most applicable to slave seizure as property.

Art. 37.
The United States acknowledge and protect, in hostile countries occupied by them, religion and morality; strictly private property; the persons of the inhabitants, especially those of women: and the sacredness of domestic relations. Offenses to the contrary shall be rigorously punished. This rule does not interfere with the right of the victorious invader to tax the people or their property, to levy forced loans, to billet soldiers, or to appropriate property, especially houses, lands, boats or ships, and churches, for temporary and military uses.
Art. 38.
Private property, unless forfeited by crimes or by offenses of the owner, can be seized only by way of military necessity, for the support or other benefit of the army or of the United States. If the owner has not fled, the commanding officer will cause receipts to be given, which may serve the spoliated owner to obtain indemnity.

Article 14 addressed military necessity.

Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensible for securing the ends of the war, and which are lawful according to the modern law and usages of war.

Dept. of the Army, Field Manual 27-10, The Law of Land Warfare (Washington: GPO, 1956) para. 3.a., at 4, defined military necessity. [underline added]

Gary D. Solis, in The Law of Armed Conflict, (2010) at p. 258 related,

Napolean reportedly said, "My great maxim has always been, in politics and war alike, that every injury done to the enemy, even though permitted by the rules, is excusable only so far as it is absolutely necessary; everything beyond that is criminal." His words articulate military necessity.

Gary Solis is a retired Professor of Law of the United States Military Academy, where he directed West Point's Law of War program for six years. He is a retired U.S. Marine Corps Lieutenant Colonel, having served twice in Vietnam as company commander. He has a doctorate in the law of war.

3. Basic Principles
a. Prohibitory Efect. The law of war places limits on the exercise of a belligerent's power in the interests mentioned in paragraph 2 and requires that belligerents refrain from employing any kind or degree of violence which is not actually necessary for military purposes and that they conduct hostilities with regard for the principles of humanity and chivalry.
The prohibitory effect of the law of war is not minimized by "military necessity" which has been defined as that principle which justifies those measures not forbidden by international law which are indispensable for securing the complete submission of the enemy as soon as possible. Military necessity has been generally rejected as a defense for acts forbidden by the customary and conventional laws of war inasmuch as the latter have been developed and framed with consideration for the concept of military necessity.
b. Binding on States and Individuals. The law of war is binding not only upon States as such but also upon individuals and, in particular, the members of their armed forces.

In an Annex to the Hague Convention, Article 46 also addresses private property. This is post-civil war, but generally in accord with the Lieber Code.

Family honor and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private Property canot be confiscated.

In modern usage pertaining to the laws of armed conflict (LOAC), civilian members of enemy or occupied territory are considered "protected persons." Civilians are defined negatively as anyone not a member of the armed forces. Persons whose status is unclear are to be treated as civilians.

After Jan 1 1863. There were no legal slaves in those areas in rebellion against the United States. Since their status had been changed from that of slave to freeman, they are not property.

The is a misapprehension of the presidential power to proclaim, and the law. The mere Proclamation by Lincoln could not have, and did not, affect the legal status status of anyone.

James G. Randall, Constitutional Problems Under Lincoln, (1951), pp. 382-85. After reviewing the practical effect of the Emancipation Proclamation, Randall addressed the legal effect, i.e., nothing.

Its legal status is a different matter. Slavery existed on the basis of law; and if it were to be permanently abolished, this would have to be done by some process of law. Just what would have been the status of slavery if there had been no anti-slavery amendment, is a difficult question. While insisting the freedoom delcared in his proclamation was irrevocable, Lincoln had doubts as to the manner in which the courts would treat his edict. He thought that it was a war measure and would be inoperative at the close of the war, but he was not sure. His attitude toward the Thirteenth Amendment showed how conscious he was of legal deficiencies in the proclamation, and these doubts were reflected in Congress where proposals to incorporate the proclamation into Federal law were presented by supporters of the administration.
One of the ablest lawyers of that day [Richard A. Dana, Jr. at providence, R.I., New York Tribune, April 13, 1865] put the matter thus: “That an army may free the slaves of an enemy is a settled right of law. . . . But if any man fears or hopes that the proclamation did as a matter of law by its own force, alter the legal status of one slave in America ... he builds his fears or hopes on the sand.
It is a military act and not a decree of a legislator. It has no legal effect by its own force on the status of the slave. ... If you sustain the war you must expect to see the war work out emancipation.” And Secretary Welles of the Navy wrote in 1863: “What is to be the ultimate effect of the Proclamation, and what will be the exact status of the slaves . . . were the States now to resume their position, I am not prepared to say. The courts would adjudicate the questions; there would be legislative action in Congress and in the States also.” He added, however, that no slave who had left a “rebel” master and come within the Union lines, or who had served under the flag, could ever again be forced into involuntary servitude.
Hare, a reliable authority on constitutional law, is somewhat more positive as to the permanent effect of the proclamation. It was, he said, a mere command which could effect no change till executed by the hand of war; “but if carried into execution it might, like other acts jure belli, work a change that would survive on the return of peace.” Admitting the right of emancipation as coming within the jus belli, one could say that the liberated slave would be as secure in his altered status as contraband property, if seized, would be in its new ownership. This would apply only to those slaves actually liberated by the incidents of war.
Taken at its best, however, the proclamation, with its partial application, was not a comprehensive solution of the slavery problem; and, in spite of this striking use of national authority, the slavery question, from 1863 to 1865, still remained, in large part, a State matter.

Speech of Richard H. Dana, Jr., at a meeting of citizens held in Faneuil Hall., June 21, 1865, to consider the subject to re-organization of the rebel states

[excerpt]

In the progress of this war, we found it necessary to proclaim the emancipation of every slave. [Applause.] On the first day of January, 1863, Abraham Lincoln, of blessed memory, declared the emancipation of every slave. It was a military act, not a civil act. Military acts depend upon military power, and the measure of military power is the length of the military arm. That proclamation of the first of January did not emancipate the slaves, but the military arm emancipated them, as it was stretched forth and made bare.
[...]
There must, therefore, not merely be an emancipation of the actual, living slaves, but there must be an abolition of the slave system. [Applause.] Every State must have the abolition of slavery in its constitution, or else we must have the amendment of the Constitution, ratified by three-fourths of the States. Yes, that little railroad-ridden republic, New Jersey, must be shamed into adopting the amendment to the Constitution. [Applause.] New Jersey, whose vote, seventy years ago; alone prevented the adoption of Jefferson's great ordinance, making subsequently acquired territories free, and which now stands alone among the free States against this proposition of amendment—must be shamed into its adoption.

For the record, New Jersey ratified the Thirteenth Amendment on 23 Jan 1866.

Delaware ratified in 1901; Kentucky in 1976.

“Yes, quite unanimous, 9-0. There is no dissenting opinion. Chase CJ, joined by Wayne, Swayne, and Miller JJ filed a concurring opinion, concurring with the Opinion of the Court. A five justice majority, with four justices concurring, is 9-0.”

This is the way to settle disputes - facts!

Lead on.

I am enjoying watching him hand out the spankings. :)

quoting bjk: "The remaining four -- Chase, Wayne, Swayne & Miller -- dissented on at least one point."

woodpusher: "Chase et al did not dissent. They concurred."

Like I said, they dissented on at least one point, and, "...Regardless, the ruling was simple common sense: military tribunals could not operate on civilians in regions where normal courts were still in operation"

woodpusher: "The Grant administration is generally considered the most corrupt in history. "

Until the Trump administration, and both criticisms are equally valid & unbiased... not!
The truth is that Grant himself was not corrupt and there is no available metric (besides media hysteria) to measure objectively which administrations were more or less corrupt.
The further truth is that after 60 years of almost continuous Democrat party rule in Washington, DC, Americans elected Republicans in 1860 at least in part to "drain the swamp" in Democrat DC, demonstrating that corruption was not something invented by Republicans generally, or Grant in specific.

woodpusher: "At no time is there permitted a refusal to file a return of the writ.
There is no provision whatever to suspend the writ of habeas corpus.
There is a constitutional provision to suspend the privilege of the writ. "

Those are legal definitions in effect today.
In 1860 none of that existed.
What did exist back then was a constitutional provision allowing suspension of habeas corpus "in Cases of Rebellion or Invasion the public Safety may require it.".

At the time Congress debated Lincoln's actions at length and eventually authorized him to suspend habeas corpus.

woodpusher on Mary Anna Custis: "This was not a case of making reparations, compensating the owner for a loss...
A few months after obtaining clear title, sale of the property was made to the United States government."

Sounds like reparations to me.

woodpusher "Laws believed to be dumb as a box or rocks are still laws, offhand opinions notwithstanding.
The Lieber Code, General Orders No. 100 : The Lieber Code INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD..."

Again, modern rules you wish to apply to the Civil War actions.
Seizures of enemy properties were not new in the Civil War and both sides did it.
Some of that as adjudicated and compensated by Congress or courts after the war.

quoting: "Napolean reportedly said, "My great maxim has always been, in politics and war alike, that every injury done to the enemy, even though permitted by the rules, is excusable only so far as it is absolutely necessary; everything beyond that is criminal." His words articulate military necessity"

The US Civil War made graveyards for fallen soldiers a military necessity.

For later

DiogenesLamp: "I am enjoying watching him hand out the spankings. :)"

What you fantasize as "spankings" are in fact nothing more than wild flailing's at phantasms.
Our brand new poster, woodpusher (since 2-19-20), is good at posting quotes, but like others here, not so good at using them to make coherent arguments.

Consider, for example, the 1863 Lieber Code, which woodpusher uses to supposedly nullify Lincoln's Emancipation Proclamation:

"Art. 38.
Private property, unless forfeited by crimes or by offenses of the owner, can be seized only by way of military necessity, for the support or other benefit of the army or of the United States."

In fact, Lincoln himself acknowledged his Emancipation Proclamation was a matter of military necessity, and was seen then and today as essential to Union victory.
As for crimes, waging declared war against the United States more than qualifies.

So woodpusher is flailing, his arguments failing, our own concurrence or dissent on ex parte Milligan notwithstanding.

[woodpusher]

At no time is there permitted a refusal to file a return of the writ.
There is no provision whatever to suspend the writ of habeas corpus. There is a constitutional provision to suspend the privilege of the writ.

[BroJoeK]

Those are legal definitions in effect today. In 1860 none of that existed. What did exist back then was a constitutional provision allowing suspension of habeas corpus "in Cases of Rebellion or Invasion the public Safety may require it.".

The baseless assertion, citing no source of legal authority, is directly contrary to the words of the Constitution, and a unanimous opinion of the Supreme Court.

Habeas Corpus dates to the Magna Charta of June 15, 1215. Specific procedures, including the return of the writ, date to the Habeas Corpus Act of 1679.

Habeas Corpus Act of 1679, (31 Cha. 2 c. 2), excerpt:

IV. Officer neglecting, &c. to make the said Returns, &c.
or upon Demand to deliver a Copy of Warrant of Commitment; First Offence, Penalty £100 Second Offence, £ 200 and Incapacity.; Judgment at Suit of Party sufficient Conviction.
And bee it further enacted by the Authoritie aforesaid That if any Officer or Officers his or their Under-Officer or Under-Officers Under-Keeper or Under-Keepers or Deputy shall neglect or refuse, to make the Returnes aforesaid or to bring the Body or Bodies of the Prisoner or Prisoners according to the Command of the said Writt within the respective times aforesaid or upon Demand made by the Prisoner or Person in his behalfe shall refuse to deliver or within the space of Six houres after demand shall not deliver to the person soe demanding a true Copy of the Warrant or Warrants of Committment and Detayner of such Prisoner, which he and they are hereby required to deliver accordingly all and every the Head Goalers and Keepers of such Prisons and such other person in whose Custodie the Prisoner shall be detained shall for the first Offence forfeite to the Prisoner or Partie grieved the summe of One hundred pounds and for the second Offence the summe of Two hundred pounds and shall and is hereby made incapeable to hold or execute his said Office, the said Penalties to be recovered by the Prisoner or Partie grieved his Executors or Administrators against such Offender his Executors or Administrators by any Action of Debt Suite Bill Plaint or Information in any of the Kings Courts at Westminster wherein noe Essoigne Protection Priviledge Injunction Wager of Law or stay of Prosecution by Non vult ulterius prosequi or otherwise, shall bee admitted or allowed or any more then one Imparlance, and any Recovery or Judgement at the Suite of any Partie grieved shall be a sufficient Conviction for the first Offence and any after Recovery or Judgement at the Suite of a Partie grieved for any Offence after the first Judgement shall bee a-sufficient Conviction to bring the Officers or Person within the said Penaltie for the second Offence.

American habeas corpus came from the British common law habeas corpus in effect in the colonies. All original states officially adopted so much of the British common law as was not inconsistent with the Constitution.

Ex parte Milligan, 71 U.S. 2, 130-31 (1866)

The suspension of the privilege of the writ of habeas corpus does not suspend the writ itself. The writ issues as a matter of course; and on the return made to it the court decides whether the party applying is denied the right of proceeding any further with it.

This is merely recognizing what the Constitution states, in language too clear to be misunderstood, Article 1, Section 9, Clause 2:

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

It is, was, and always has been that the privilege of the writ is what may be suspended. The writ continues to issue as a matter of course. The return of the writ is not optional. The court is to decide whether a claimed suspension of the privilege of the writ is valid.

At the Convention, on August 20, 1787, Charles Pinckney made a motion:

The privileges and benefit of the writ of habeas corpus shall be enjoyed in this government in the most expeditious and ample manner: and shall not be suspended by the legislature except upon the most urgent and pressing occasions, and for a limited time not exceeding _______ months.

2 Farrand's Records, 334

These propositions were referred to the Committee of detail without debate or consideration of them, by the House.

Id. at 342, August 20, 1787.

Mr. Pinkney, urging the propriety of securing the benefit of the Habeas corpus in the most ample manner, moved "that it should not be suspended but on the most urgent occasions, & then only for a limited time not exceeding twelve months"[11]

[Note 11: 11 Upon this question, see Appendix A, CLVIII (65–66), CXCII.]

Mr. Rutlidge was for declaring the Habeas Corpus inviolable — He did {not} conceive that a suspension could ever be necessary at the same time through all the States—
Mr. Govr Morris moved that "The privilege of the writ of Habeas Corpus shall not be suspended, unless where in cases of Rebellion or invasion the public safety may require it".
Mr. Wilson doubted whether in any case {a suspension} could be necessary, as the discretion now exists with Judges, in most important cases to keep in Gaol or admit to Bail.
The first part of Mr. Govr. Morris' {motion,} to the word "unless" was agreed to nem: con:—on the remaining part;
N.H. ay. Mas. ay. Ct. ay. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. no. S. C. no. Geo. no. [Ayes—7; noes—3.]

Id. at 438, August 28, 1787

That phrasing went to the Committee on Style and Arrangement which changed where to when:

lang;(a)rang; The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

Id. at 596, Madison's copy of committee's report of September 12, 1787.

And, of course, Lincoln sought out the advice of his Attorney General, Edward Bates, and said opinion also directly contradicts your contention that the writ, itself, can be suspended.

OFFICIAL RECORDS, War of the Rebellion: Serial 115 Series II, Volume 2, page 20 et seq
0020
ATTORNEY-GENERAL'S OFFICE, July 5, 1861.
The PRESIDENT.
SIR: You are required my opinion in writing upon the following questions:
First. In the present time of a great and dangerous insurrection has the President the discretionary power to cause to be arrested and held in custody persons known to have criminal intercourse with the insurgents or persons against whom there is probable cause for suspicion of such criminal complicity?
Second. In such cases of arrest is the President justified in refusing to obey a writ of habeas corpus issued by a court or judge requiring him or his agent to produce the body of the prisoner and show the cause of his capture and detention to be adjudged and disposed of by such court or judge?
[...]
0027
Such is the writ of habeas corpus of which the Constitution declares that the privilege thereof shall not be suspended except when in cases
[0028]
of rebellion or invasion the public safety may require it. But the Constitution is silent as to who may suspend it when the contingency happens. I am aware that it has been declared by the Supreme Court that—

If at any time the public safety should require the suspension of the powers vested by this act [meaning the judiciary act of 1789, section 14] in the courts of the United States, it is for the legislature to say so. That question depends upon political considerations, on which the legislature is to decide.

Upon this I remark only that the Constitution is older than the judiciary act, and yet it speaks of the privilege of the writ of habeas corpus as a thing in existence; it is in general terms, and does not speak with particular reference to powers which might or might not be granted by a future act of Congress. Besides I take it for certain that in the common course of legislation Congress has power at any time to repeal the judiciary act of 1789 and the act of 1833 (which grants to the courts and to the judges the power to issue writs) without waiting for a rebellion or invasion and a consequent public necessity to justify under the Constitution the suspension of the privilege of the writ of habeas corpus. The court does not speak of suspending the privilege of the writ, but of suspending the powers vested in the court by the act. The power to issue a writ can hardly be called a privilege, yet the right of an individual to invoke the protection of his government in that form may well be designated by that name. And I should infer with a good deal of confidence that the court meant to speak only of its own powers and not of the privilege of individuals but for the fact that the court ascribes the powers to suspend to the legislature upon political grounds. It says, "that question depends upon political considerations, on which the legislature is to decide." Now I had supposed that questions did not belong exclusively to the legislature because they depend upon political considerations, inasmuch as the President in his consitutional and official duties is quite as political as is the Congress, and has daily occasion in the common routine of affairs to determine questions upon political consi
If by the phrase "the suspension of the privilege of the writ of habeas corpus" we must understand a repeal of all power to issue the writ, then I freely admit that none but Congress can do it. But if we are at liberty to understand the phrase to mean that in case of a great and dangerous rebellion like the present the public safety requires the arrest and confinement of persons implicated in that rebellion, I as freely declare the opinion that the President has lawful power to suspend the privilege of person arrested under such circumstances; for he is especially charged by the Constitution with the "public safety," and he is the sole judge of the emergency which requires his prompt action.
[...]
0030
EDWARD BATES,
Attorney-General.

As Lincoln was advised by his Attorney General in 1861, if talking of suspending the power to issue the writ, the President cannot do it.

Ex parte Milligan, 8 U.S. 75, 125-26 (1807) opinion of the Court

Unquestionably, there is then an exigency which demands that the government, if it should see fit in the exercise of a proper discretion to make arrests, should not be required to produce the persons arrested in answer to a writ of habeas corpus. The Constitution goes no further. It does not say after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by the course of the common law; if it had intended this result, it was easy by the use of direct words to have accomplished it. The illustrious men who framed that instrument were guarding the foundations of civil liberty against the abuses of unlimited power; they were full of wisdom, and the lessons of history informed them that a trial by an established court, assisted by an impartial jury, was the only sure way of protecting the citizen against oppression and wrong. Knowing this, they limited the suspension to one great right, and left the rest to remain forever inviolable. But, it is insisted that the safety of the country in time of war demands that this broad claim for martial law shall be sustained. If this were true, it could be well said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation. Happily, it is not so.

[woodpusher] Chase et al did not dissent. They concurred.
[BroJoeK] Like I said, they dissented on at least one point

As for Ex parte Milligan, Oyez reports it as "Unanimous decision for Milligan"

About Oyez

Oyez (pronounced OH-yay)—a free law project from Cornell’s Legal Information Institute (LII), Justia, and Chicago-Kent College of Law—is a multimedia archive devoted to making the Supreme Court of the United States accessible to everyone. It is the most complete and authoritative source for all of the Court’s audio since the installation of a recording system in October 1955. Oyez offers transcript-synchronized and searchable audio, plain-English case summaries, illustrated decision information, and full-text Supreme Court opinions (through Justia). Oyez also provides detailed information on every justice throughout the Court’s history and offers a panoramic tour of the Supreme Court building, including the chambers of several justices.

Georgia State University wrote:

The Supreme Court ruled 9-0 in favor of Milligan in all three issues raised during the case.

Should Milligan be released from custody?

Yes, he should be released from custody.

Was it constitutional for the military tribunal to arrest and charge Milligan?

The military tribunal arrest and conviction was unconstitutional.

Should Milligan be granted the right for a writ of habeas corpus?

Yes he should be granted the right for a writ of habeas corpus.

[BroJoeK] At the time Congress debated Lincoln's actions at length and eventually authorized him to suspend habeas corpus.

No source of documentation or legal authority is cited or claimed for this. In context, at the time was circa 1861.

In 1861, Congress debated Lincoln's habeas corpus actions and refused to approve or ratify those actions.

The first suspension regarding habeas corpus was not issued by Lincoln, but by General Keim, purporting to exercise legal authority delegated to him by Lincoln.

The first nation-wide suspension regarding habeas corpus was not issued by Lincoln, but by Secretary Stanton, purporting to exericse legal authority delegated to him by Lincoln.

Nobody can lawfully delegate the suspension authority to military officers or secretaries.

Identify the purported congressional Act pertaining to the 1861 suspension of habeas corpus.

[woodpusher] This was not a case of making reparations, compensating the owner for a loss... A few months after obtaining clear title, sale of the property was made to the United States government.
[BroJoeK] Sounds like reparations to me.

In the Circuit Court, the case was captioned, "George W. P. C. Lee v. Frederick Kaufman, R.P. Strong, and Others, In ejectment."

"GEORGE W. P. C. LEE
v.
FREDERICK KAUFMAN, R. P. STRONG, AND OTHERS.
"And now comes the Attorney-General of the United States and suggests to the court and gives it to understand and be informed (appearing only for the purpose of this motion) that the property in controversy in this suit has been for more than ten years and now is held, occupied, and possessed by the United States, through its officers and agents, charged in behalf of the government of the United States with the control of the property, and who are in the actual possession thereof, as public property of the United States, for public uses, in the exercise of their sovereign and constitutional powers, as a military station, and as a national cemetery established for the burial of deceased soldiers and sailors, and known and designated as the 'Arlington Cemetery,' and for the uses and purposes set forth in the certificate of sale, a copy of which as stated and prepared by the plaintiff, and which is a true copy thereof, is annexed hereto and filed herewith, under claim of title as appears by the said certificate of sale, and which was executed, delivered, and recorded as therein appears.
"Wherefore, without submitting the rights of the government of the United States to the jurisdiction of the court, but respectfully insisting that the court has no jurisdiction of the subject in controversy, he moves that the declaration in said suit be set aside, and all the proceedings be stayed and dismissed, and for such other order as may be proper in the premises.
"CHAS. DEVENS,
"Att'y-Gen'l U S,."

Had you availed yourself of the opportunity to read the Supreme Court opinion in United States v. George Washington Custis Lee, you would know that you are arguing that the United States Government, in the interest of making war restitution, surrendered to the son of Robert E. Lee, the title to what was then, and is now, Arlington National Cemetery.

United States v. Lee, 106 U.S. 196, 198 (1882)

The action was originally commenced in the Circuit Court for the county of Alexandria, in the State of Virginia, by George W. P. C. Lee, against Kaufman and Strong and a great number of others, to recover possession of a parcel of land of about eleven hundred acres, known as the Arlington estate. It was in the form prescribed by the statutes of Virginia, under which the pleadings are in the names of the real parties, plaintiff and defendant.
As soon as the declaration was filed the case was, by writ of certiorari, removed into the Circuit Court of the United States, where all the subsequent proceedings took place. It was tried by a jury, and during its progress an order was made at the request of the plaintiff dismissing the suit as to all of the defendants except Kaufman and Strong. Against each of these a judgment was rendered for separate parcels of the land in controversy; namely, against Kaufman for about two hundred acres of it, constituting the National Cemetery and included within its walls, and against Strong for the remainder of the tract, except seventeen acres in the possession of Maria Syphax.

[BroJoeK] Sounds like reparations to me.

Sounds like you had not a clue what you were talking about. The alternative is only worse. Arlington National Cemetary was, and remains, the final resting place of our nation's bravest and most heroic. It is not something to be given up as a war reparation.

[BroJoeK] The US Civil War made graveyards for fallen soldiers a military necessity.

https://www.history.com/news/arlington-national-cemetery-8-surprising-facts

1. Arlington National Cemetery is located on Confederate General Robert E. Lee’s confiscated estate. ...
To ensure the house would forever be uninhabitable for the Lees, Meigs directed graves to be placed as close to the mansion as possible, and in 1866 he ordered the remains of 2,111 unknown Civil War soldiers killed on battlefields near Washington, D.C., to be placed inside a vault in the Lees’ rose garden.
2. A Supreme Court ruling in 1882 could have resulted in the exhumation of 17,000 graves.
More than a decade after Lee’s death, the Supreme Court ruled that the U.S. government had seized his estate without due process and ordered it returned to his family in the same condition as when it was illegally confiscated. If followed, the ruling could have required the exhumation of all of Arlington’s dead, but instead Lee’s son officially sold the property to Congress for $150,000 in 1883.

https://www.smithsonianmag.com/history/how-arlington-national-cemetery-came-to-be-145147007/

Touring the new national cemetery on the day that Stanton signed his order, Meigs was incensed to see where the graves were being dug. "It was my intention to have begun the interments nearer the mansion," he fumed, "but opposition on the part of officers stationed at Arlington, some of whom...did not like to have the dead buried near them, caused the interments to be begun" in the Lower Cemetery, where Christman and others were buried.
To enforce his orders—and to make Arlington uninhabitable for the Lees—Meigs evicted officers from the mansion, installed a military chaplain and a loyal lieutenant to oversee cemetery operations, and proceeded with new burials, encircling Mrs. Lee's garden with the tombstones of prominent Union officers. The first of these was Capt. Albert H. Packard of the 31st Maine Infantry. Shot in the head during the Battle of the Second Wilderness, Packard had miraculously survived his journey from the Virginia front to Washington's Columbian College Hospital, only to die there. On May 17, 1864, he was laid to rest where Mary Lee had enjoyed reading in warm weather, surrounded by the scent of honeysuckle and jasmine. By the end of 1864, some 40 officers' graves had joined his.
Meigs added others as soon as conditions allowed. He dispatched crews to scour battlefields for unknown soldiers near Washington. Then he excavated a huge pit at the end of Mrs. Lee's garden, filled it with the remains of 2,111 nameless soldiers and raised a sarcophagus in their honor. He understood that by seeding the garden with prominent Union officers and unknown patriots, he would make it politically difficult to disinter these heroes of the Republic at a later date.

For such purpose, the burials were not performed as a military necessity, but rather constituted a war crime. That the acts regarding the Lee estate were held to be unlawful by the U.S. Supreme Court is documented fact.