Of course they can be arrested. But not at will, without specific charges being levied. A writ of habeas corpus protects citizens from a dictator/tyrant.
From Bouvier's Law Dictionary, 1856 Rev. 6th ed.:
'HABEAS CORPUS, remedies A writ of habeas corpus is an order in writing, signed by the judge who grants the same ... directed to any one having a person in his custody ... commanding him to produce, such person at a certain time and place, and to state the reasons why he is held in custody, or under restraint.'But what is most important is section 16:'The judge or court before whom the prisoner is brought on a habeas corpus, examines the return and Papers, if any, referred to in it, and if no legal cause be shown for the imprisonment or restraint; or if it appear, although legally committed, he has not been prosecuted or tried within the periods required by law, or that, for any other cause, the imprisonment cannot be legally continued, the prisoner is discharged from custody.'
The habeas corpus can be suspended only by authority of the legislature. The constitution of the United States provides, that the privilege of the writ of habeas corpus shall not be suspended unless when, in cases of invasion and rebellion, the public safety may require it. Whether this writ ought to be suspended depends on political considerations, of which the legislature, is to decide. 4 Cranch, 101. The proclamation of a military chief, declaring martial law, cannot, therefore, suspend the operation of the law. 1 Harr. Cond. Rep. Lo. 157, 159 3 Mart. Lo. R. 531.'
Of course they can be arrested. But not at will, without specific charges being levied.
Well, Merryman was charged with treason.
He was engaged in clearly treasonous acts. And he was a citzen of Maryland, which did not pass secession documents. How did he avoid the noose?
The issue of whether or not the president may or may not suspend the writ has never been conclusively answered at all.
"Lincoln, with his usual incisiveness, put his finger on the debate that inevitably surrounds issues of civil liberties in wartime. If the country itself is in mortal danger, must we enforce every provision safeguarding individual liberties even though to do so will endanger the very government which is created by the Constitution? The question of whether only Congress may suspend it has never been authoritatively answered to this day, but the Lincoln administration proceeded to arrest and detain persons suspected of disloyal activities, including the mayor of Baltimore and the chief of police."
--Chief Justice William Rehnquist, November 1999.
"In a third pre-civil war instance of martial law, the issue ultimately reached the Supreme Court. In Luther v. Borden, the Supreme Court resoundingly upheld the use of martial law, in an opinion by none other than Chief Justice Taney. The case involved a dispute over the legitimacy of the state government in Rhode Island, a dispute that had been resolved in favor of the existing government. In putting down an effort to displace the government by a rival group, the governor had declared martial law. “[U]nquestionably,” Taney pronounced, “a State may use its military power to put down an armed insurrection, too strong to be controlled by the civil authority.” The power to do so “is essential to the existence of every government, essential to the preservation of order and free institutions, and is necessary to the State of this Union as to any other government.”
"LIncoln's Constitution" pp. 148-49, by Daniel Farber
This issue of President Lincoln having the authority to suspend the writ is resolved.
Walt
The record shows that their is plenty of support for the president having the power to suspend the Writ in times of emergency.
Walt
Wrong.
It beggars credibility to suggest that the president can kill insurrectionists, but cannot have them arrested and detained.
In any case, a blanket amnesty was issued early in 1862. Even Merryman, who was clearly guilty of treasonous acts, was released.
Walt
Dear Walt,
Thanks for your note. Let me see if I can help clear up some of the confusion.
As in many cases of the period, the opinion in ex parte Field has a lot of language setting out opposing arguments, which the judge later rejects. Here's the ultimate conclusion drawn by the Judge in Field:
"The principle established by these cases determines, I think, that the president has the power, in the present military exigencies of the country, to proclaim martial law, and, as a necessary consequence thereof, the suspension of the writ of habeas corpus in the case of military arrests. It must be evident to all, that martial law and the privilege of that writ are wholly incompatible with each other."
I'm e-mailing you the full opinion, however, so you can judge for yourself.
In terms of the statutory authorization, the specific authorization for habeas suspension didn't pass until 1863 (see p. 159) But that authorization was retroactive in the sense that Congress gave immunity to the president and his subordinates for all previous arrests: The fourth section is as follows: 'That any order of the president, or under his authority, made at any time during the existence of the present rebellion, shall be a defense in all courts to any action or prosecution, civil or criminal, pending or to be commenced, for any such seizure, arrest, or imprisonment made, done, or committed, or acts omitted to be done, under and by virtue of such order, or under color of any law of congress, and such defense may be made by the special plea or under the general issue.' I'm also e-mailing you a Supreme Court opinion that deals with this statute.
More generally, the president's past military orders were ratified by Congress in the summer of 1861. The Prize Cases, for example, refer to the statute ratifying the blockade of the South (and thereby creating a state of war): "Since the capture [of the ships involved in the case], Congress has recognized the validity of these acts of the President. The Act Aug. 6, 1861, ch. 63, sec. 3, legalizes, among other things, the proclamations, acts and orders of the President respecting the navy. This includes the blockades, and the orders respecting captures." (The statute is quoted on p. 138 of the book.) The dissent in the Prize Cases also states that Congress had recognized a state of war with the South: "no civil war existed between this Government and the States in insurrection till recognized by the Act of Congress 13th of July, 1861" (my italics). As I say in the book, it is arguable that the language used by Congress in these laws had the effect of ratifying past military orders dealing with habeas, though Congress may not have intended this result. In any event, these various congressional actions make it clear that Congress approved of the war and authorized Lincoln to fight it."
[end]
President Lincoln has a very good record on fidelity to the laws and the Constitution, as Dr. Farber's book shows. Ya'll should read it.
Walt