Replies

rusty: "I thought it might be instructive to compare the actions of the two presidents with respect to their suspensions of the privilege of the writ of habeas corpus."

Thanks for a nice piece of work!.

I would again point out some salient facts your post doesn't mention.

At the time of Lincoln's first three suspensions (April 27, May 10, July 2, 1861), Congress was not in session.
When Congress reconvened July 1861, the Senate took up a bill to authorize Lincoln's habeas corpus suspensions.
But the bill's language did not suit even some supporters -- i.e., Illinois Senator Lyman Thrumbul -- so neither it nor Thrumbull's alternative bill were voted on.
Note that no bill to censure or revoke the President's actions was ever introduced.
Illinois Senator Lyman Thrumbul:
"On February 14, 1862, Lincoln ordered most prisoners released,[13] putting an end to court challenges for the time being.
He again suspended habeas corpus on his own authority in September that same year, however, in response to resistance to his calling up of the militia.[14]"
Congress again debated the question in December 1862, and again the question was authorizing and indemnifying President Lincoln's suspensions of habeas corpus -- not censuring or revoking them -- and this time the result was the Habeas Corpus Suspension Act of 1863.
In the case of Copperhead Ohio Congressman Clement Vallandigam who was denied habeas corpus and sentenced to the most severe, cruel and inhuman punishment possible to imagine -- banishment to the Confederacy! ;-) -- the US Supreme Court wisely ruled that it could not address the matter without Congressional approval.
After the war was safely won, then the Supreme Court reasserted itself, in a different case (Ex Parte Milligan- 1866) by ruling that military courts could not be used when civil courts were operational.
Copperhead Ohio Congressman Clement Vallandigham:

rusty: "February 22, 1862. Davis inaugurated as president a second time.
In his inaugural address he excoriates the North for having suspended habeas corpus by executive mandate (rather than with Congressional approval). "

It might be worth noting exactly what Davis said:

"Whatever of hope some may have entertained that a returning sense of justice would remove the danger with which our rights were threatened, and render it possible to preserve the Union of the Constitution, must have been dispelled by the malignity and barbarity of the Northern States in the prosecution of the existing war.
The confidence of the most hopeful among us must have been destroyed by the disregard they have recently exhibited for all the time-honored bulwarks of civil and religious liberty.
Bastiles filled with prisoners, arrested without civil process, or indictment duly found; the writ of habeas corpus suspended by Executive mandate, a State Legislature controlled by the imprisonment of members whose avowed principles suggested to the Federal Executive that there might be another added to the list of seceded States; elections held under threats of a military power; civil officers, peaceful citizens, and gentle women incarcerated for opinion's sake, proclaimed the incapacity of our late associates to administer a government as free, liberal, and humane as that established for our common use."

All these allegations, however true or not, were in response to the Confederacy's numerous acts and formal declaration of war on the United States, which naturally, Davis didn't mention.

I would again point out some salient facts your post doesn't mention.

1. At the time of Lincoln's first three suspensions (April 27, May 10, July 2, 1861), Congress was not in session.

As my post pointed out, none of Lincoln's many pronouncements of the suspension of the writ were made when Congress was in session, with the possible exception, as I pointed out, of the December 2, 1861 suspension of the writ in Missouri on the same day that Congress reconvened. In case you missed my words, here is what I said:

Lincoln suspended the privilege of the writ multiple times when Congress was not in session. The one possible exception to this was when Lincoln suspended it for Missouri on the same day that Congress reconvened. Perhaps he sent his proclamation out before Congress formally opened its session that day.

None of Lincoln's suspension proclamations, other than the December 2 one I pointed out, were issued when Congress was in session.

When Congress reconvened July 1861, the Senate took up a bill to authorize Lincoln's habeas corpus suspensions. But the bill's language did not suit even some supporters -- i.e., Illinois Senator Lyman Thrumbul -- so neither it nor Thrumbull's alternative bill were voted on. Note that no bill to censure or revoke the President's actions was ever introduced.

You forgot to mention this bill [Congressional Globe, May 12, 1862, page 2070, remarks by Mr. Shellabarger, a Lincoln supporter, my emphasis below]:

Mr. Chairman, in England and America, in this House and in the Senate, by the British minister residing at this Government, and by the London Times, by Jefferson Davis and my colleague [Mr. Vallandigham,] the President of the United States has been denounced as a tyrant and despot, because he ordered certain conspirators engaged in attempts to overthrow the Government to be arrested and detained in military custody. And my colleague proposes, by a bill now pending in this House, to imprison the President of the United States for not exceeding two years if he shall repeat the conduct of which he has been guilty in the imprisonment of Merryman and his confederates. And sir, within a few days of the time I speak, in this House, this conduct has been declared to be, in the opinion of most distinguished members, illegal and arbitrary.

It might be worth noting exactly what Davis said:

Since our subject was habeas corpus, I didn't mention Lincoln's other transgressions that were enumerated by Davis. Thank you for adding them to our conversation.

One that has always struck me as particularly onerous was the arrest of elected officials of a state legislature for action that they might take in the future. Were they guilty of a thought "crime"? Where does the Constitution allow arrests for thought "crimes" or the possible future "crime" of doing what authors of the Federalist papers agreed the Constitution allowed them to do?

Congress again debated the question in December 1862, and again the question was authorizing and indemnifying President Lincoln's suspensions of habeas corpus -- not censuring or revoking them -- and this time the result was the Habeas Corpus Suspension Act of 1863.

I included the Habeas Corpus Act of 1863 in my post, but I didn't talk about the almost two years that Congress took to pass it.

I think you are mixed up about Vallandigham's actual sentence. Here was the sentence pronounced by the military court:

And the Commission do therefore sentence him, the said CLEMENT L. VALLANDIGHAM, a citizen of the State of Ohio, to be placed in close confinement in some fortress of the United States, to be designated by the Commanding Office, of this Department, there to be kept during the continuance of the war.

II. The proceedings, finding and sentence in the foregoing case are approved and confirmed, and it is directed that the place of confinement of the prisoner, CLEMENT L. VALLANDIGHAM, in accordance with said sentence, be Fort Warren, Boston Harbor.

The sentence was set aside by Lincoln who imposed exile. Where does the Constitution give Lincoln the power to exile people? I suspect both sides exiled a few prisoners to the other side during the war.

... the US Supreme Court wisely ruled that it could not address the matter without Congressional approval. After the war was safely won, then the Supreme Court reasserted itself, in a different case (Ex Parte Milligan- 1866) by ruling that military courts could not be used when civil courts were operational.

Why did the Supreme Court flip-flop? In the Vallandigham situation, the Supreme Court knew that Lincoln was in power. His administration had arrested a Maryland judge for ruling against Lincoln's position on habeas corpus and had threatened to arrest Taney for his Ex Parte Merryman order. Taney's possible arrest had been mentioned by Taney and another Supreme Court Justice as well as Lincoln's marshal Lamon. Once Lincoln was dead, the Supreme Court perhaps felt freer to rule, as they did unanimously, that military courts like the one that convicted Vallandigham could not be used against civilians where civil courts were functioning.

During the war, the South had a court system that did help protect civilians against the military. Did the North? From the Nov 24, 1864 Daily Picayune of New Orleans:

Can Civilians be Tried by Military Courts?

There is no longer a question among us; the military courts of the Federal army having exercised the power to do so without rebuke or effective resistance from the civil tribunals. Not so in the Confederacy. Below we give an article from the Houston, Texas Telegraph, reviewing the decision of Judge Moise, of the C. S. District Court of Louisiana, who discharged from custody a W. McKee, charged with cotton frauds on Red River, last spring. Judge Moise seems quite independent of the military power.

Our readers have seen the announcement of the sentence of A. W. McKee by a court martial in Louisiana to be shot, and of the decision by Judge Moise, of the Confederate States District Court in Louisiana, that the court martial had no jurisdiction over McKee, and releasing him from their bonds, to answer any civil offense for which he might be prosecuted.

...the military jurisdiction was denied, on the ground that the constitution only gives to Congress the power "to make rules for the Government and regulation of the land and naval forces," and every other citizen being, by the constitution, entitled to trial by due course of the law of the land.