I have Freedman's book which incorporates the material in the internet article and revises some of it. The book is HABEAS CORPUS, Rethinking the Great Writ of Liberty, by Eric M. Freedman, New York University Press, copr. 2001 by New York University. Paperback edition first published 2003.
Notably, in a book about habeas corpus, Freedman avoids the Civil War era entirely. Neither Lincoln, Taney, nor Merryman get a mention.
It does contain the Marshall explanation of the need for legislation to authorize the court to issue the writ. Marshall wrote, "courts which originate in the common law possess a jurisdiction which must be regulated by the common law... but courts which are created by written law, and whose jurisdiction is defined by written law cannot transcent that jurisdiction. It is unnecessary to state the reasoning on which this opinion is founded, because it has been repeatedly given by this court; and with the decisions heretofore rendered on this point, no member of the bench has, even for an instant, been dissatisfied.... The inquiry therefore on this motion will be whether by any statute, compatible with the constitution of the United states, the power to award a writ of habeas corpus, in such a case as that of Erick Bollman and Samuel Swarthout, has been given to this court."
Britain did not have a Constitution and its courts were common law courts. The U.S. Supreme Court was created by written law, the Constitution.
Freedman asserts that "Marshall's suggestion that Congress could suspend the writ by doing nothing at all would certainly have come as a shock to all of the debaters over the Suspension Clause whose positions were described in Chapter 2 above, particularly since suspension of the writ in England or its colonies had required an affirmative Act of Parliament."
What Marshall was saying was that the Supreme Court was not created with the common law power to issue the writ. Not being a common law court, SCOTUS could not claim common law powers. This required the Judiciary Act which created that power. The provision in Section 1 of the Constitution was one of limitation on the powers of the Legislative Branch, not a grant of powers to the Judicial Branch (nor to the Executive Branch). Congress may not suspend the privilege of the writ at its discretion, but only "when in Cases of Rebellion if Invasion the public Safety may require it." Congress may suspend the privilege of the writ only in case of a Rebellion or an Invasion, and then only when the public safety may require it.
Freedman has two chapters entitled "Bollman's Errors -- 1" and "Bollman's Errors -- 2." It takes two chapters to explain all the things Chief Justice Marshall got wrong.
The following is noteworthy. Part 1 of Freedman's book contains 7 chapters.
1. Introduction to Part 1
2. The Origins ofthe suspension Clause
3. The Opinion in Ex Parte Bollman
4. Bollman's Errors - 1
5. Bollman's Errors - 2
6. Some Suggestive Court Decisions
7. Conclusion to Part 1
I now quote Freedman's first sentence from Chapter 7, with the above chapter list making clear the context of what the comment includes.
"One could certainly argue that even if the claims made so far are correct they are of purely academic interest."
-- Eric M. Freedman, HABEAS CORPUS, Rethinking the Great Writ of Liberty, New York University Press, copr. 2001 by New York University. Paperback edition first published 2003, Chapter 7, page 46.
In Bollman, CJ Marshall deals with the matter of jurisdiction. First he must find that the court has been empowered to grant the writ. That is satisfied by the Judiciary Act. Second, he must find that the privilege of the writ has not been lawfully suspended. He finds that is a Legislative power which has not been exercised. He thus finds that the Court has jurisdiction to proceed.
In Texas v. White, the court also dealt with the matter of jurisdiction. It found secession was not lawful. That is not considered dicta. Jurisdiction is a necessity, not just something mentioned in passing.
I believe you are correct. If you do a google search for "Bollman" and "dicta" the first five or ten hits that pop up are stuff by Freedman, most of it angry rants assaulting Marshall's motives as "politically inspired." It is laughably obvious that capitan found the articles this way and, upon seeing the words "dicta" and "marshall" in the same article, he concluded it was the "proof" he needed.
Non-Sequitur did this exact same thing a year ago. The parallel is downright hilarious - they both began arbitrarily labelling Bollman as "dicta" without seeming to know that term. When pressed on it they both then posted a simple definition, claiming it "proved" their claims even though a definition alone does not make the term apply to the passage they both labelled. When pressed on that they both went in search of source material and google led them directly to Freedman as an "authority," who, aside from using their two search terms in the same article, has absolutely nothing to do with the passage in question.
As with non-seq, capitan still does not seem to understand the term obiter dictum and reacts with hostility to any attempt to inform him of its nature. His recent equivalent statement of "gee golly, I keep seeing references to dicta in the bollman case all over the place!" as if it were something out of the ordinary is sufficient proof that he does not understand what he purports to be lecturing about.