Replies

[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.