woodpusher: "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."
[BroJoeK] No, I reported it exactly correct: at the time Congress debated Lincoln's actions -- beginning in 1861 -- and eventually authorized him to suspend habeas corpus, the 1863 Habeas Corpus Suspension act.
In 1863, Congress passed the Habeas Corpus suspension Act. Awesome. He finally obtained authorization from Congress, two years late.
Lincoln was not Congress and could not assume the powers of Congress. Lincoln had unlawfully authorized military officers to suspend habeas corpus at their discretion and further delegate their bogus authority.
In 1861, Congress flatly refused to ratify the actions of Lincoln. The bill, SR-1, was offered on the first day of the special session. Last ditch efforts on the last day of the session were met with such protest that it was withdrawn from a vote, lest President Lincoln be humiliated.
SENATE JOINT RESOLUTION SR-1 OF 1861
The proposed resolution stated:
Be it resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That all of the extraordinary acts, proclamations, and orders hereinbefore mentioned, be, and the same are hereby, approved and declared to be in all respects legal and valid, to the same intent, and with the same effect, as if they had been issued and done under the previous express authority and direction of the Congress of the United States.
The items "hereinbefore mentioned" were:
First. He did, on the fifteenth day of April last, issue his proclamation calling upon the several States for seventy-five thousand men to suppress such insurrectionary combinations, and to cause the laws to be faithfully executed. Secondly. He did, on the nineteenth day of April last, issue a proclamation setting on foot a blockade of the ports within the States of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas.
Thirdly. He did, on the twenty-seventh day of April last, issue a proclamation establishing a blockade of the ports within the States of Virginia and North Carolina.
Fourthly. He did, by an order of the twenty-seventh day of April last, addressed to the commanding general of the army of the United States, authorize that officer to suspend the writ of habeas corpus at any point on or in the vicinity of any military line between the city of Philadelphia and the city of Washington.
Fifthly. He did, on the third day of May last, issue a proclamation calling into the service of the United States forty-two thousand and thirty-four volunteers, increasing the regular army by the addition of twenty-two thousand seven hundred and fourteen men, and the navy by an addition of eighteen thousand seamen.
Sixthly. He did, on the tenth day of May last, issue a proclamation authorizing the commander of the forces of the United States on the coast of Florida to suspend the writ of habeas corpus, if necessary.
Section 4 pertained to Lincoln authorizing General Scott to suspend habeas corpus at the discretion of General Scott, and to further delegate authority to suspend the writ. It never even attempted to justify General Scott authorizing other military officers to suspend habeas corpus.
At the beginning of war, in the famous Merryman case, it was not Lincoln who suspended the writ, but General Keim in Pennsylvania, under delegation of suspension authority from General Scott. That was a bridge too far to even attempt to cross.
QUOTES FROM THE SENATE RECORD REGARDING SR-1
Congressional Globe, official record of Congress
Mr. President, in the State of Missouri, there was no "Law of the United States opposed, or the execution thereof obstructed by combinations of men too powerful to be suppressed by the ordinary course of judicial proceedings." Indeed, sir, there was no resistance of any United States law. Yet Missouri, peaceful and law abiding, without cause, against law and in defiance of the Constitution, was invaded by United States troops, by troops from Illinois, by troops from Iowa, and by troops from Kansas. Indeed, sir, it seems that from the very moment in which the administration resolved upon this policy of coercion, the State of Missouri was marked as a victim for sacrifice, for invasion, and subjugation.
— Mr. Polk, July 11, 1861, page 64 ~ The joint resolution would seem, upon the face of it, to admit that the acts of the President were not performed in obedience to the Constitution and the laws. If that be true, I should be glad to hear some reasons assigned by gentlemen showing the power of the Congress of the United States, by joint resolution, to cure a breach of the Constitution or to indemnify the President against violations of the Constitution and the laws. If, in any respect that officer has violated the laws, he has also violated the Constitution; because one clause of that instrument declares that "he shall take care that the laws be faithfully executed." It confers on him the power to see that they are executed; but no power to violate them.
— Mr. Breckinridge, July 16, 1861, page 137
I deny, Mr. President, that one branch of this Government can indemnify any other branch of the Government for a violation of the Constitution or the laws. The powers conferred upon the General Government by the people of the States are the measure of its authority. Those powers have been confided to different departments, and the boundaries of those departments determined with perfect exactitude. The President has his powers and rights conferred on him by the Constitution; the legislative authority its powers and rights; the judicial authority its powers and rights; the judicial authority its powers and rights; and I deny that either can encroach upon the other, or that either can indemnify the other for a usurpation of powers not confided to it by the Constitution. Sir, Congress, by a joint resolution, has no more right, in my opinion, to make valid a violation of the constitution and the laws by the President, than the President would have by an entry upon the executive journal to make valid a usurpation of the executive power by the legislative department. Congress has no more right to make valid an unconstitutional act of the President, than the President would have to make valid an act of the Supreme Court of the United States encroaching upon executive power; or than the Supreme Court would have the right to make valid an act of the executive encroaching upon the judicial power.
— Mr. Breckinridge, July 16, 1861, page 137-138
It is proposed, sir, to approve and make valid the act of the President in enlisting men for three and five years. I ask you by what authority of Constitution or law he has done this act? The power is not conferred in the constitution; it has not been granted by the law. It is, therefore an unconstitutional and illegal act of executive power. The President, of his own will — and that is one of the acts enumerated in this joint resolution which is proposed to approve and ratify — has added immensely to the force of the regular Army. The Constitution says that Congress shall raise armies, and a law now upon your statute book limits the number of the regular force, officers and men. Hence, sir, that is an act in derogation both of the Constitution and of the laws.
— Mr. Breckinridge, July 16, 1861, page 138
The President has added immensely to the Navy of the United States. The Constitution says that Congress shall provide and maintain a navy; and there is now a law upon the statute book limited the number of men to be employed in the Navy. That, like the rest, sir, will not bear argument. I doubt if an attempt will be made to defend it upon constitutional or legal grounds. I pronounce it a usurpation.
— Mr. Breckinridge, July 16, 1861, page 138
I need not say to the Senate that in England, whence we derive this right, the legislative power alone can suspend it. We all know, sir, that the monarch of England cannot suspend it. We all know, sir, that the monarch of England cannot suspend that writ; but transatlantic freemen seem to be eager to approve and ratify acts which a European monarch would not dare to perform. Mr. President, it needs no elaborate argument to show that the executive authority of the United States has no right to suspend the writ of habeas corpus.
— Mr. Breckinridge, July 16, 1861, page 138
I enumerate what I regard as usurpations of the Executive to go upon the record as a protest of those of us who are not willing to see the Constitution subverted, and the public liberty trampled under foot, under whatever pretext, of necessity or otherwise.
— Mr. Breckinridge, July 16, 1861, page 139
I remember to have read, not long since, a speech made by the present able Secretary of War, in this city, in which he said that the southern States must be subdued, and that at the end of this contest there would be no more Virginians as such, or Carolinians as such; but only Americans all. Sir, the name of American is a proud one, and I love it; but it is the preservation of the names of Virginians and Pennsylvanians, and the distinctive existence of all these States, which alone can keep the name of American a proud one. I never want to see them blotted out. I said, sir, that in my opinion, the tendency was to change our character of government, and that the purpose, if not avowed, is acted upon to conduct those proceedings without regard to the limitation of the Constitution. these things I have enumerated go to show it. This Joint Resolution goes to show it. I call upon Senators to defend the constitutionality of these acts, or else to admit that we intend to conduct this contest without regard to the Constitution.
— Mr. Breckinridge, July 16, 1861, page 140
In the course of the same speech to which I have referred, that eminent Senator declared that not only must that country be ravaged by armies, but that unless the people of those States paid willing and loyal obedience to the Federal Government, their State form must be changed, and they must be reduced to the condition of Territories; to be governed by Governors sent from Massachusetts and Illinois. This was said seriously; and afterwards, when referred to by my colleague on a subsequent day, reaffirmed by that eminent Senator. If necessary, reduced to the condition of Territories! Is there authority in the Constitution to do it?
— Mr. Breckinridge, July 16, 1861, page 140-141
We can only hope that this flash of frenzy may not assume the form of chronic madness, and that in any event Divine providence may preserve for us and for posterity, out of the wreck of a broken Union, the priceless principles of constitutional liberty and of self-government. [Applause in the galleries.]
— Mr. Breckinridge, July 16, 1861, page 142
The suspension of the privilege of the habeas corpus by executive authority is a violation of the principles of public freedom which have been consecrated for centuries. These principles were dear to our Anglo-Saxon forefathers before the period of Magna Charta. From the days of Magna Charta, which, seeking to restore ancient rights, provided that no freeman should be taken or imprisoned without the lawful judgment of his peers, or the law of the land, down to the declaration of our independence, that principle has been dear to the freemen of England and America.
— Mr. Pearce, July 30, 1861, page 333
If necessity, which is an odious plea, known for hundreds of years as "the tyrant's plea" -- a plea by which you may overthrow all constitutional provisions -- if that plea is efficient here; if that is a justification for a violation of one provision of the Constitution, it is equally a justification for any and all violations of it.
— Mr. Pearce, July 30, 1861, page 333
So too, sir, these domiciliary visits, which are equally in violation of a provision of the Constitution, are sought to be justified by necessity. Now, let us see where these things are done. Nowhere, so far as I am informed, except in the State of Maryland, unless there be some exceptions in the State of Missouri.
— Mr. Pearce, July 30, 1861, page 334
My objection to taking up this resolution I will state in a word. I believe it is in order to state briefly the objection. This resolution which the Senator from Massachusetts seeks to take up is germane to the bill which is the unfinished business. The resolution proposed to declare legal the acts which have been done by the President in the recess of Congress. Will our declaration make them legal if they are not legal? Will it make them so if they were unconstitutional and void?
— Mr. TRUMBULL, August 2, 1861, page 392
The Senator from Maine evidently entertains a very sincere conviction that the action of the President has not been in violation of the constitution or the laws; because he has asserted it six or seven times in the course of the brief speech he has made to the Senate. His convictions are evidently deep and sincere. All I have to say in reply to that is, that it will be a very great comfort to the President to be assured of that fact; for he himself has been under the impression that he has been transcending both; and, indeed, he admits it in his message, and puts it expressly on the ground of a popular demand and what he deemed to be a public necessity. It has also been admitted by many Senators on the other side of the chamber. I have not believed, all along, that the resolution was going to be voted by the Senate. I do not believe it now. It may be; but I think not. My deliberate judgment is, that in some mode the Senate will avoid putting itself on record in favor of the principles contained in this resolution. It is indifferent to me whether it does or not. Of course, every Senator will vote his own convictions if brought to a vote; but I do not think there are many Senators who want their names to go upon history in favor of this resolution.
— Mr. Breckinridge, August 2, 1861, page 392
The President issued a proclamation calling into the service of the United States forty-two thousand and thirty-four volunteers. It was clearly illegal; I am not satisfied it was necessary. I am inclined to think it was not.
— Mr. Howe, August 2, 1861, page 395
I cannot consent to give my approval to the fourth and sixth acts enumerated in the resolution, by which the President authorized the commanding General to suspend the writ of habeas corpus. I do not rise to make a speech; but to give the reason why I cannot vote for the resolution.
— Mr. Thomson, August 2, 1861, page 395
MR. WILSON. Let us have a vote.
MR. TRUMBULL. Now, my friend is clamorous. He cannot keep still. He says "let us have a vote." I am not disposed to vote upon the resolution. I will tell the Senator from Kentucky I am not prepared to vote for the resolution, and it is not going to pass without consideration. It is not going to pass in the shape it is by my approbation.
—Messrs. Wilson and Trumbull, August 5, 1861, page 453.
Trumbull, a supporter of Lincoln, stepped in to save Lincoln from a most embarrassing vote.
Mr. Trumbull stated, "The resolution proposed to declare legal the acts which have been done by the President in the recess of Congress. And Mr. Trumbull asked, Will our declaration make them legal if they are not legal? Will it make them so if they were unconstitutional and void?
Or, as Wikipedia fudges it, "Senator Lyman Trumbull, the Republican chairman of the Senate Committee on the Judiciary, had reservations about its imprecise wording, so the resolution, also opposed by anti-war Democrats, was never brought to a vote." Uh huh.
[woodpusher]: Chase et al did not dissent. They concurred. quoting BJK: Like I said, they dissented on at least one point.
[BroJoeK]: So, my use of "dissented" is the wrong word here, I should have said, "disagreed".
They wrote concurring opinions, meaning agreed on the conclusions but disagreed on at least one point.
As was quoted clearly from Georgia State University, the Court was 9-0 unanimous in favor of Milligan on all three issues raised during the case.
Georgia State University wrote:
The Supreme Court ruled 9-0 in favor of Milligan in all three issues raised during the case.
So, what point, not an issue raised during the case, do you consider relevant to this discussion?
At 71 U.S. 134, the concurring opinion states:
The first question, therefore—Ought the writ to issue?—must be answered in the affirmative.
At 71 U.S. 135, the concurring opinion states:
The first section of the act authorized the suspension of the writ of habeas corpus generally throughout the United States. The second and third sections limited this suspension, in certain cases, within states where the administration of justice by the Federal courts remained unimpaired. In these cases the writ was still to issue, and under it the prisoner was entitled to his discharge by a circuit or district judge or court, unless held to bail for appearance to answer charges. No other judge or court could make an order of discharge under the writ. Except under the circumstances pointed out by the act, neither circuit nor district judge or court could make such an order. But under those circumstances the writ must be issued, and the relief from imprisonment directed by the act must be afforded. The commands of the act were positive, and left no discretion to court or judge. An affirmative answer must, therefore, be given to the second question, namely: Ought Milligan to be discharged according to the prayer of the petition?
That the third question, namely: Had the military commission in Indiana, under the facts stated, jurisdiction to try and sentence Milligan? must be answered negatively is an unavoidable inference from affirmative answers to the other two.
That is all three questions decided by the Court. What is the pointless you do not identify or cite, but allude to as if it holds some significance to this discussion?
At 71 U.S. 135-137, the concurring opinion states:
We agree, therefore, that the first two questions certified must receive affirmative answers, and the last a negative. We do not doubt that the positive provisions of the act of Congress require such answers. We do not think it necessary to look beyond these provisions. In them we find sufficient and controlling reasons for our conclusions. But the opinion which has just been read goes further; and as we understand it, asserts not only that the military commission held in Indiana was not authorized by Congress, but that it was not in the power of Congress to authorize it; from which it may be thought to follow, that Congress has no power to indemnify the officers who composed the commission against liability in civil courts for acting as members of it.
We cannot agree to this.
We agree in the proposition that no department of the government of the United States—neither President, nor Congress, nor the Courts—possesses any power not given by the Constitution.
We assent, fully, to all that is said, in the opinion, of the inestimable value of the trial by jury, and of the other constitutional safeguards of civil liberty. And we concur, also, in what is said of the writ of habeas corpus, and of its suspension, with two reservations: (1.) That, in our judgment, when the writ is suspended, the Executive is authorized to arrest as well as to detain; and (2) that there are cases in which, the privilege of the writ being suspended, trial and punishment by military commission, in states where civil courts are open, may be authorized by Congress, as well as arrest and detention.
We think that Congress had power, though not exercised, to authorize the military commission which was held in Indiana.
We do not think it necessary to discuss at large the grounds of our conclusions.
The concurring justices felt Congress had the power to authorize the military commissions held in Indiana, while acknowledging that the Congress, in fact, did not authorize any such commissions. It is a theoretical discussion about something that never happened.
While you may feel that reading Wikipedia gives you all the information you need to speak sensibly about Ex parte Milligan,, that just isn't so. While you remaining uninformed about the nature of their disagreement, a concurring opinion could not disagree about any point decided by the court. At best, that would be an opinion concurring in part, dissenting in part. The disagreement is about a dictum of a hypothetical point that was not before the court to decide.
[woodpusher on suspension of habeas corpus]: 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. [BroJoeK]: First, you are here drawing a lawyer's fine line distinction between a writ itself and the privilege of a writ.
Second, Lincoln often disagreed with this Missourian slaveholder Attorney General Edward Bates, notably on the Emancipation Proclamation and on recruitment of blacks into the Union army.
It is not a fine line. The Framers, the words of the Constitution, and the courts explicitly make the same important distinction. The privilege of the writ, for the body to be brought before the court, may be suspended. The writ continues to issue, and a return of the writ must be made. If the return of the writ satisfies the court that the privilege has been properly suspended, the court will not require the body to be produced. The Executive may not usurp the function of the Judicial branch and usurp the important part of habeas corpus. The Executive must assert a claim of a proper suspension and justify it before the Judiciary.
Permitting the Executive to be the judge of its own actions is not a fine line, especially when an unconstitutional court with no legal jurisdiction seeks to enforce an unlawfully obtained death sentence.
Lincoln not only disagreed with Bates at times, he also disagreed with the Constitution and other laws at times. This did not create exceptions to the Constitution or the laws.
[BroJoeK] On the question of habeas corpus, your own quote from Bates says:
"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." Bates himself was in charge of Lincoln's "arbitrary" arrests of "copperhead" Northerners, so presumably he kept all such legal niceties firmly in mind.
quoting BJK: "At the time Congress debated Lincoln's actions at length and eventually authorized him to suspend habeas corpus."
What is your point? Before and after, the Supreme Court stated the President had no such authority, that the powers of Congress did not inhere to the Executive. "If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so." 8 U.S. 101 (1807).
Finally, you go on to quote, "Congress ... authorized him to suspend habeas corpus." Congress held the authority. Until 1863, Congress had not delegated that authority to Lincoln. That Congress authorized Lincoln in 1863 states that Lincoln did not have the power or authorization to suspend the privilege of the writ in 1861.
[BroJoeK] In considering this bill Congress took testimony from, among others:
"Senator Thomas Holliday Hicks, who had been governor of Maryland during the crisis, told the Senate, 'I believe that arrests and arrests alone saved the State of Maryland not only from greater degradation than she suffered, but from everlasting destruction.' He also said, 'I approved them [the arrests] then, and I approve them now; and the only thing for which I condemn the Administration in regard to that matter is that they let some of these men out.'[25] "
Irrelevant nonsense from Wikipedia. The Constitution and other laws are not repealed, or set aside, by commentary from Holliday Hicks. Not even an affirmation from Barack Obama. Eric Holder and Loretta Lynch would do it.
[BroJoeK] The numbers we have suggest that roughly 1/3 of Marylanders favored secession and war against the United States.
Who is we? Supposed source, if there is one, not cited or linked.
Lincoln sent an army into the state of Maryland and arrested the members of the State congress to prevent them from voting. Perhaps he had different polling data to justify his act.
[BroJoeK] Regardless, the fact is that Democrats in Congress used every trick in the book to prevent passage of the Habeas Corpus Suspension Act, until they ran out of tricks in March 1863.>
In 1863, Congress authorized Lincoln to suspend the privilege of the writ. That is after two years of doing it without authorization from the Congress, and after Congress had refused to ratify his actions of 1861.
[woodpusher]: 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."
Is your non-response an admission that you have discovered no such congressional act from 1861?
[BroJoeK] History has no problem identifying Lincoln as the author of that suspension of habeas corpus:
"Seven months later, faced with opposition to his calling up of the militia, Lincoln again suspended habeas corpus, this time through the entire country, and made anyone charged with interfering with the draft, discouraging enlistments, or aiding the Confederacy subject to martial law.[23]
In the interim, the controversy continued with several calls made for prosecution of those who acted under Lincoln's suspension of habeas corpus; former Secretary of War Simon Cameron had even been arrested in connection with a suit for trespass vi et armis, assault and battery, and false imprisonment.[24] "
Quoted Wikipedia source is non-responsive. While Wikipedia internet "history" has no problems with identifying myth as fact, actual historical records overrule Wikipedia nonsense.
Wikipedia website history falls to the Official Records of the War of the Rebellion, official court filings, and Lincoln's documented writings.
Seven months later than when? The unprovided preceding sentence provides the context:
May's [irrelevant] bill passed the House in summer 1862, and it would later be included in the Habeas Corpus Suspension Act, which would require actual indictments for suspected traitors.[22] Seven months later, faced with opposition to his calling up of the militia, Lincoln again suspended habeas corpus,
Seven months later than the summer of 1862 was 1863.
Lincoln purported to delegate authority to suspend the writ in April 1861, along with authority for the delegated official to further delegate the authority. That is less than two months after Lincoln was inaugurated in March 1861. Neither Congress, nor the Courts, had even been consulted.
Nationwide suspension by Stanton occurred in August 1862. The Habeas Corpus Act was in March 1863.
Collected Works of Abraham Lincoln, CW 4:347
To Winfield Scott April 27, 1861
To the Commanding General of the Army of the United States:
You are engaged in repressing an insurrection against the laws of the United States. If at any point on or in the vicinity of the military line, which is now used between the City of Philadelphia and the City of Washington, via Perryville, Annapolis City, and Annapolis Junction, you find resistence which renders it necessary to suspend the writ of Habeas Corpus for the public safety, you, personally or through the officer in command at the point where the resistenace occurs, are authorized to suspend that writ.
Abraham Lincoln
April 27, 1861
Ex parte Merryman, 17 Fed. Cas. 144, 146 (1861)
Handwritten opinion of Taney, CJ.
Colonel Lee, a military officer, appeared with General Cadwalader's return to the writ, which is as follows: "Headquarters, Department of Annapolis, Fort McHenry, May 26 1861.
To the Hon. Roger B. Taney, Chief Justice of the Supleme Court of the United States, Baltimore, Md.
Sir: The undersigned, to whom the annexed writ, of this date, signed by Thomas Spicer, clerk of the supreme court of the United States, is directed, most respectfully states, that the arrest of Mr. John Merryman, in the said writ named, was not made with his knowledge, or by his order or direction, but was made by Col. Samuel Yohe, acting under the orders of Major-General William H. Keim, both of said officers being in the military service of the United States, but not within the limits of his command. The prisoner was brought to this post on the 20th inst., by Adjutant James Wittimore and Lieut. Wm. H. Abel, by order of Col. Yohe, and is charged with various acts of treason, and with being publicly associated with and holding a commission as lieutenant in a company having in their possession arms belonging to the United States, and avowing his purpose of armed hostility against the government He is also informed that it can be clearly established, that the prisoner has made often and unreserved declarations of his association with this organized force, as being in avowed hostility to the government, and in readiness to co-operate with those engaged in the present rebellion against the government of the United States. He has further to inform you, that he is duly authorized by the president of the United States, in such cases, to suspend the writ of habeas corpus, for the public safety.
Generals Keim and Cadwalader were supposedly authorized to suspend the privilege of the writ of habeas corpus, and did purport to suspend the privilege of the writ in 1861.
Ex parte Merryman, 17 Fed. Cas 144, 147 (1861); In chambers opinion of U.S. Supreme Court Justice Taney, May 27, 1861
The petition presents. the following case: The petitioner resides in Maryland, in Baltimore county; while peaceably In his own house, with his family, it was at two o'clock on the morning of the 25th of May 1861, entered by an armed force, professing to act under military orders; he was then compelled to rise from his bed, taken into custody, and conveyed to Fort McHenry, where he is imprisoned by the commanding officer, without warrant from any lawful authority. The commander of the fort, General George Cadwalader, by whom he is detained in confinement, in his return to the writ, does not deny any of the facts alleged in the petition. He states that the prisoner was arrested by order of General Keirn, of Pennsylvania, and conducted as aforesaid to Fort McHenry, by his order, and placed in his (General Cadwalader's custody, to be there detained by him as a prisoner.
A copy of the warrant or order under which the prisoner was arrested was demanded by his counsel, and refused: and it is not alleged in the return, that any specific act, constituting any offence against the laws of the United States, has been charged against him upon oath, but he appears to have been arrested upon general charges of treason and rebellion, without proof, and without giving the names of the witnesses, or specifying the acts which, in the judgment of the military officer, constituted these crimes. Having the prisoner thus in custody upon these vague and unsupported accusations, he refuses to obey the writ of habeas corpus, upon the ground that he is duly authorized by the president to suspend it.
The case, then, is Simply this: a military officer, residing in Pennsylvania, issues an order to arrest a citizen of Maryland, upon vague and indefinite charges, without any proof, so far as appears; under this order, his house is entered in the night, he is seized as a prisoner, and conveyed to Fort McHenry, and there kept in close confinement; and when a habeas corpus is served on the commanding officer, requiring him to produce the prisoner before a justice of the supreme court, in order that he may examine into the legality of the imprisonment, the answer of the officer, is that he is authorized by the president to suspend the writ of habeas corpus at his discretion, and in the exercise of that discretion, suspends it in this case, and on that ground refuses obedience to the writ.
As the case comes before me, therefore, I understand that the president not only claims the right to suspend the writ of habeas corpus himself, at his discretion, but to delegate that discretionary power to a military officer, and to leave it to him to determine whether he will or will not obey judicial process that may be served upon him. No official notice has been given to the courts of justice, or to the public, by proclamation or otherwise, that the president claimed this power, and had exercised it in the manner stated in the return. And I certainly listened to it with some surprise, for I had supposed it to be one of those points of constitutional law upon which there was no difference of opinion, and that it was admitted on all hands, that the privilege of the writ could not be suspended, except by act of congress.
Merryman was unlawfully held in custody for some months. He was never charged with any specific crime, nor was he ever indicted for any crime. He was eventually released for failure to prosecute, non prosequitur.
OFFICIAL RECORDS: Series 3, vol 2, Part 1 (Union Letters, Orders, Reports)
Page 321 UNION AUTHORITIES.
Washington City, D. C., August 8, 1862. ORDER AUTHORIZING ARRESTS OF PERSONS DISCOURAGING ENLISTMENTS.
Ordered:
1. That all U. S. marshals and superintendents or chiefs of police of any town, city, or district be, and they are hereby, authorized and directed to arrest and imprison any person or persons who may be engaged, by act, speech, or writing, in discouraging volunteer enlistments, or in any way giving aid and comfort to the enemy, or in any other disloyal practice against the United States.
2. That immediate report be made to Major L. C. Turner, judge-advocate, in order that such may be tried before a military commission.
Page 322 CORRESPONDENCE, ETC.
3. The expenses of such arrest and imprisonment will be certified to the chief clerk of the War Department for settlement and payment.
EDWIN M. STANTON,
Secretary of War.
OFFICIAL RECORDS: Series 3, vol 2, Part 1 (Union Letters, Orders, Reports)
Page 370 CORRESPONDENCE, ETC.
Numbers 104.
Washington, August 13, 1862. The following orders are published for the information and guidance of all concerned:
I. WAR DEPARTMENT,
Washington City, D. C., August 8, 1862.
By direction of the President of the United States, it is hereby ordered that until further order no citizen liable to be drafted into the militia shall be allowed to go to a foreign country. And all marshals, deputy marshals, and military officers of the United States are directed, and all police authorities, especially at the ports of the United States, on the sea-board, and on the frontier, are requested to see that this order is faithfully carried into effect. And they are hereby authorized and directed to arrest and detain any person or persons about to depart from the United States in violation of this order, and report to Major L. C. Turner, judge-advocate, at Washington City, for further instructions respecting the person or persons so arrested or detained.
2. Any person liable to draft who shall absent himself from his county or State before such draft is made will be arrested by any provost-marshal or other United States or State officer wherever he may be found within the jurisdiction of the United States, and be conveyed to the nearest military post or depot and placed on military duty for the term of the draft; and the expenses of his own arrest and conveyance to such post or depot and also the sum of $ 5 as a reward to the officer who shall make such arrest shall be deducted from his pay.
3. The writ of habeas corpus is hereby suspended in respect to all persons so arrested and detained and in respect to all persons arrested for disloyal practices.
EDWIN M. STANTON,
Secretary of War.
St. George Tucker, Tucker's Blackstone (1803), Appendix Note D, On the Constitution of the United States, page 290-292:
The writ of habeas corpus, is the great and efficacious remedy provided for all cases of illegal confinement; and is directed to the person detaining another, commanding him to produce the body of the prisoner, with the day and cause of his caption and detention, to do, submit to, and receive whatsoever the judge or court awarding such writ shall consider in that behalf. In England this is a high prerogative writ, and issues out of the court of king's-bench, not only in term time, but during the vacation, by a fiat from the chief justice, or any other of the judges, and running into all parts of the king's dominions. In Virginia it may issue out of the high court of chancery, the general court, or the court of the district in which the person is confined, and may be awarded by any judge of either of those courts in vacation: and if any judge in vacation, upon view of the copy of the warrant of commitment or detainer, or upon affidavit made, that such copy was denied, shall refuse any writ of habeas corpus, required to be granted by law, such judge shall be liable to the action of the party aggrieved. And by the laws of the United States, all the courts of the United States, and either of the justices of the supreme court, as well as judges of the district courts, have power to grant writs of habeas corpus for the purpose of an enquiry into the cause of commitment. . . . Provided that writs of habeas corpus shall in no case extend to prisoners in gaol, unless they are in custody under, or by colour of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify. Here a question naturally occurs: if a person be illegally committed to prison in any state, under, or by colour of the authority of the United States, can any judge, or court of the state in which he is confined, award a writ of habeas corpus, for the purpose of an enquiry into the cause of his commitment? To which, I answer, that if he be committed or detained for any crime, unless it be for treason or felony, plainly expressed in the warrant of commitment, and be neither convicted thereof, nor in execution by legal process, the writ (due requisites being observed) can not be refused him: for the act is imperative, as to awarding the writ. The court or judge, before whom the prisoner is brought, must judge from the return made to the writ, what course he ought to pursue: whether, to discharge him from his imprisonment, or bail him, or remand him again to the custody of the person from whom he may be brought.
In England the benefit of this important writ can only be suspended by authority of parliament. It has been done several times of late years, both in England and in Ireland, to the great oppression of the subject, as hath been said. In the United States, it can be suspended, only, by the authority of congress; but not whenever congress may think proper; for it cannot be suspended, unless in cases of actual rebellion, or invasion. A suspension under any other circumstances, whatever might be the pretext, would be unconstitutional, and consequently must be disregarded by those whose duty it is to grant the writ. The legislatures of the respective states are left, I presume, to judge of the causes which may induce a suspension within any particular state. This is the case, at least, in Virginia.
St. George Tucker
Tucker's Blackstone sold well from the beginning, and it quickly became the major treatise on American law in the early 19th century. Law reporter Daniel Call described it as "necessary to every student and practitioner of law in Virginia". Lawyers arguing before the Supreme Court of the United States would frequently cite to Tucker's Blackstone - more often than any other commentator until 1827. The United States Supreme Court itself cited Tucker's Blackstone frequently, referring to it in over forty cases, many of them significant. Modern lawyers, legal scholars, and judges still refer to this work as an important tool for determining how Americans understood both English and American law in the early days after the United States's independence.
William Rawle, A View of the Constitution, Second Edition, (1829), p. 117-19.
Reasons will be given hereafter for considering many of the restrictions, contained in the amendments to the Constitution, as extending to the states as well as to the United States, but the nature of the writ of habeas corpus seems peculiarly to call for this construction. It is the great remedy of the citizen or subject against arbitrary or illegal imprisonment; it is the mode by which the judicial power speedily and effectually protects the personal liberty of every individual, and repels the injustice of unconstitutional laws or despotic governors. After erecting the distinct government which we are considering, and after declaring what should constitute the supreme law in every state in the Union, fearful minds might entertain jealousies of this great and all-controlling power, if some protection against its energies when misdirected, was not provided by itself. The national code in which the writ of habeas corpus was originally found, is not expressly or directly incorporated into the Constitution.
If this provision had been omitted, the existing powers under the state governments, none of whom are without it, might be questioned, and a person imprisoned on a mandate of the president or other officer, under colour of lawful authority derived from the United States, might be denied relief. But the judicial authority, whether vested in a state judge, or a judge of the United States, is an integral and identified capacity; and if congress never made any provision for issuing writs of habeas corpus, either the state judges must issue them, or the individual be without redress. The Constitution seems to have secured this benefit to the citizen by the description of the writ, and in an unqualified manner admitting its efficacy, while it declares that it shall not he suspended unless when, in case of rebellion or invasion, the public safety shall require it. This writ is believed to be known only in countries governed by the common law, as it is established in England; but in that country the benefit of it may at any time be withheld by the authority of parliament, whereas we see that in this country it cannot be suspended even in cases of rebellion or invasion, unless the public safety shall require it. Of this necessity the Constitution probably intends, that the legislature of the United States shall be the judges. Charged as they are with the preservation of the United States from both those evils, and superseding the powers of the several states in the prosecution of the measures they may find it expedient to adopt, it seems not unreasonable that this control over the writ of habeas corpus, which ought only to be exercised on extraordinary occasions, should rest with them. It is at any rate certain, that congress, which has authorized the courts and judges of the United States to issue writs of habeas corpus in cases within their jurisdiction, can alone suspend their power, and that no state can prevent those courts and judges from exercising their regular functions, which are, however, confined to cases of imprisonment professed to be under the authority of the United States. But the state courts and judges possess the right of determining on the legality of imprisonment under either authority.
Joseph Story, Commentaries on the Constitution of the United States, (1833)
§ 1336. It is obvious, that cases of a peculiar emergency may arise, which may justify, nay even require, the temporary suspension of any right to the writ. But as it has frequently happened in foreign countries, and even in England, that the writ has, upon various pretexts and occasions, been suspended, whereby persons apprehended upon suspicion have suffered a long imprisonment, sometimes from design, and sometimes, because they were forgotten, [20] the right to suspend it is expressly confined to cases of rebellion or invasion, where the public safety may require it. A very just and wholesome restraint, which cuts down at a blow a fruitful means of oppression, capable of being abused in bad times to the worst of purposes. Hitherto no suspension of the writ has ever been authorized by congress since the establishment of the constitution. [21] It would seem, as the power is given to congress to suspend the writ of habeas corpus in cases of rebellion or invasion, that the right to judge, whether exigency had arisen, must exclusively belong to that body. [22] - - - - - - - - - -
20. 3 Black. Comm. 137, 138; 1 Tuck. Black. Comm. App. 291, 292.
21. Mr. Jefferson expressed a decided objection against the power to suspend the writ of habeas corpus in any case whatever, declaring himself in favour of "the eternal and unremitting force of the habeas corpus laws." 2 Jefferson's Corresp. 274, 291. — "Why," said he on another occasion, "suspend the writ of habeas corpus in insurrections and rebellions?" — "If the public safety requires, that the government should have a man imprisoned on less probable testimony in those, than in other emergencies, let him be taken and tried, retaken and retried, while the necessity continues, only giving him redress against the government for damages." 2 Jefferson's Corresp. 344. — Yet the only attempt ever made in congress to suspend the writ of habeas corpus was during his administration on occasion of the supposed treasonable conspiracy of Col. Aaron Burr. Mr. Jefferson sent a message to congress on the subject of that conspiracy on 22d January, 1807. On the next day, Mr. Giles of the senate moved a committee to consider the expediency of suspending the writ of habeas corpus be appointed, and the motion prevailed. The committee (Mr. Giles, chairman) reported a bill for this purpose. The bill passed the senate, and was rejected in the house of representatives by a vote of 113 for the rejection, against 19 in its favour. See 3 Senate Journal, 22d January, 1807, p. 127; Id. 130, 131. 5 Journ. of House of Representatives, 26th January, 1807, p. 550, 551, 552.
22. Martin v. Mott, 12 Wheat. R. 19. See also 1 Tuck. Black. Comm. App. 292; 1 Kent's Comm. Lect. 12, (2d edit. p. 262 to 265.)
And, of course, a unanimous Supreme Court stated, 71 U.S. 121 (1866),
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.