Lincoln’s 'Great Crime': The Arrest Warrant for the Chief Justice

Lew Rockwell.com ^ | August 19, 2004 | Thomas J. DiLorenzo

[TexConfederate1861]

Imagine that America had a Chief Justice of the United States who actually believed in enforcing the Constitution and, accordingly, issued an opinion that the war in Iraq was unconstitutional because Congress did not fulfill its constitutional duty in declaring war. Imagine also that the neocon media, think tanks, magazines, radio talk shows, and television talking heads then waged a vicious, months-long smear campaign against the chief justice, insinuating that he was guilty of treason and should face the punishment for it. Imagine that he is so demonized that President Bush is emboldened to issue an arrest warrant for the chief justice, effectively destroying the constitutional separation of powers and declaring himself dictator.

An event such as this happened in the first months of the Lincoln administration when Abraham Lincoln issued an arrest warrant for Chief Justice Roger B. Taney after the 84-year-old judge issued an opinion that only Congress, not the president, can suspend the writ of habeas corpus. Lincoln had declared the writ null and void and ordered the military to begin imprisoning thousands of political dissenters. Taney’s opinion, issued as part of his duties as a circuit court judge in Maryland, had to do with the case of Ex Parte Merryman (May 1861). The essence of his opinion was not that habeas corpus could not be suspended, only that the Constitution requires Congress to do it, not the president. In other words, if it was truly in "the public interest" to suspend the writ, the representatives of the people should have no problem doing so and, in fact, it is their constitutional prerogative.

As Charles Adams wrote in his LRC article, "Lincoln’s Presidential Warrant to Arrest Chief Justice Roger B. Taney," there were, at the time of his writing, three corroborating sources for the story that Lincoln actually issued an arrest warrant for the chief justice. It was never served for lack of a federal marshal who would perform the duty of dragging the elderly chief justice out of his chambers and throwing him into the dungeon-like military prison at Fort McHenry. (I present even further evidence below).

All of this infuriates the Lincoln Cult, for such behavior is unquestionably an atrocious act of tyranny and despotism. But it is true. It happened. And it was only one of many similar constitutional atrocities committed by the Lincoln administration in the name of "saving the Constitution."

The first source of the story is a history of the U.S. Marshal’s Service written by Frederick S. Calhoun, chief historian for the Service, entitled The Lawmen: United States Marshals and their Deputies, 1789–1989. Calhoun recounts the words of Lincoln’s former law partner Ward Hill Laman, who also worked in the Lincoln administration.

Upon hearing of Laman’s history of Lincoln’s suspension of habeas corpus and the mass arrest of Northern political opponents, Lincoln cultists immediately sought to discredit Laman by calling him a drunk. (Ulysses S. Grant was also an infamous drunk, but no such discrediting is ever perpetrated on him by the Lincoln "scholars".)

But Adams comes up with two more very reliable accounts of the same story. One is an 1887 book by George W. Brown, the mayor of Baltimore, entitled Baltimore and the Nineteenth of April, 1861: A Study of War (Johns Hopkins University Press, 1887). In it is the transcript of a conversation Mayor Brown had with Taney in which Taney talks of his knowledge that Lincoln had issued an arrest warrant for him.

Yet another source is A Memoir of Benjamin Robbins Curtis, a former U.S. Supreme Court Justice. Judge Curtis represented President Andrew Johnson in his impeachment trial before the U.S. Senate; wrote the dissenting opinion in the Dred Scott case; and resigned from the court over a dispute with Judge Taney over that case. Nevertheless, in his memoirs he praises the propriety of Justice Taney in upholding the Constitution by opposing Lincoln’s suspension of habeas corpus. He refers to Lincoln’s arrest warrant as a "great crime."

I recently discovered yet additional corroboration of Lincoln’s "great crime." Mr. Phil Magness sent me information suggesting that the intimidation of federal judges was a common practice in the early days of the Lincoln administration (and the later days as well). In October of 1861 Lincoln ordered the District of Columbia Provost Marshal to place armed sentries around the home of a Washington, D.C. Circuit Court judge and place him under house arrest. The reason was that the judge had issued a writ of habeas corpus to a young man being detained by the Provost Marshal, allowing the man to have due process. By placing the judge under house arrest Lincoln prevented the judge from attending the hearing of the case. The documentation of this is found in Murphy v. Porter (1861) and in United States ex re John Murphy v. Andrew Porter, Provost Marshal District of Columbia (2 Hay. & Haz. 395; 1861).

The second ruling contained a letter from Judge W.M. Merrick, the judge of the Circuit Court of the District of Columbia, explaining how, after issuing the writ of habeas corpus to the young man, he was placed under house arrest. Here is the final paragraph of the letter:

After dinner I visited my brother Judges in Georgetown, and returning home between half past seven and eight o’clock found an armed sentinel stationed at my door by order of the Provost-Marshal. I learned that this guard had been placed at my door as early as five o’clock. Armed sentries from that time continuously until now have been stationed in front of my house. Thus it appears that a military officer against whom a writ in the appointed form of law has first threatened with and afterwards arrested and imprisoned the attorney who rightfully served the writ upon him. He continued, and still continues, in contempt and disregard of the mandate of the law, and has ignominiously placed an armed guard to insult and intimidate by its presence the Judge who ordered the writ to issue, and still keeps up this armed array at his door, in defiance and contempt of the justice of the land. Under the circumstances I respectfully request the Chief Judge of the Circuit Court to cause this memorandum to be read in open Court, to show the reasons for my absence from my place upon the bench, and that he will cause this paper to be entered at length on the minutes of the Court . . . W.M. Merrick Assistant Judge of the Circuit Court of the District of Columbia

As Adams writes, the Lincoln Cult is terrified that this truth will become public knowledge, for it if does, it means that Lincoln "destroyed the separation of powers; destroyed the place of the Supreme Court in the Constitutional scheme of government. It would have made the executive power supreme, over all others, and put the president, the military, and the executive branch of government, in total control of American society. The Constitution would have been at an end."

Exactly right.

August 19, 2004

Thomas J. DiLorenzo [send him mail] is the author of The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War, (Three Rivers Press/Random House). His latest book is How Capitalism Saved America: The Untold Story of Our Country’s History, from the Pilgrims to the Present (Crown Forum/Random House, August 2004).

Copyright © 2004 LewRockwell.com

[capitan_refugio]

"Blather. It was the Act of March 3, 1863. I quoted and gave you a picture of the Congressional Record of March 2, 1863."

But the final (March 3, 1863), published title was: "An Act relating to Habeas Corpus, and regulating Judicial Proceedings in Certain Cases." The Congressional Record is an informational source and not the legal document itself.

Your argument reminds me of the football team that lamented it had won the first 59 minutes of the game.

[capitan_refugio]

I must say, your #190 was quite a hairball!

CR - "Lincoln's authority to do so were part of his constitutional duties."
NC - "This statement is categorically false. The debate surrounding SR-1 leaves no doubt, as well as the various judicial decisions which had been rendered."

Debate on a proposed joint resolution supporting the President's actions, especially with several pro-southern Senators (such as Breckinridge) remaining in the Senate prior to their ultimate exodus, does not provide any guidance as to Lincoln's constitutional duties.

As Jaffa explains, "Assuming that the letter of the constitution enjoins Lincoln from suspending the writ, it is also true that the letter enjoins him to take care that the laws be faithfully executed. But he cannot execute any of the laws in one-third of the states. And the spread of the rebellion will prevent him from any or all of his efforts to fulfill the Constitutional mandate. To prevent the rebellion from succeeding, the suspension of the writ is an indispensable means. Is it not certain the failure of one law is preferred to the failure of all?"

And, as you well know, there has even to this date, been no authoritative decision by the Supreme Court regarding the President's emergency powers with regard to suspension. Farber summarizes:

"In emergencies - sudden attack or insurrection - the president has the power to suspend the writ of habeas corpus and detain suspects within the general zone of military conflict. Congress has ultimate control over suspension of habeas. The only apparent limitations on congress are the existence of an invasion or insurrection and of the requisite need to protect the public safety. Military trials, as opposed to preventive detentions, are also permissible in time of war, but under narrow circumstances - in the actual theater of war, in occupied hostile territory, or for individuals connected with our own military or the enemy's. Court clearly must show some deference to military judgment. Nevertheless, they are required to evaluate the plausibility of any claim of military necessity, in light of the facts and of the traditional boundaries between civilian and military authority." (pg 169)

[nolu chan]

In using the name "Indemnity Act" to designate the law of March 3, 1863, contemporary usage has been followed. Senator Trumbull and others referred to the measure while under debate as the "Indemnity Bill," and the same designation appeared in the heading of the record, as well as in many other places. Cong. Globe, 37 Cong., 3 sess., pp. 1459, 1479.)

Source: James G. Randall, Constitutional Problems Under Lincoln, Revised Edition, 1951, Chapter 11, "The Indemnity Act of 1863," p. 189, footnote 8.

If you look at HR 591, as recorded on Dec 9, 1862, the working title was "An Act to indemnify the President and other Persons for suspending the privilege of the writ of Habeas Corpus and acts done in pursuance thereof." It also came with a preamble which explained the reasons for the proposed Act:

The Indemnity Bill was passed on March 3, 1863.

In the House:

March 2, 1863.

THE CONGRESSIONAL GLOBE.

INDEMNITY BILL.

The SPEAKER. The hour of one o'clock hav­ing arrived the vote will now be taken, by previ­ous order of the House, on agreeing to the report of the committee of conference on the indemnity bill

Mr. ALLEN, of Ohio, called for the yeas and nays.

The yeas and nays were ordered.

The question, was taken; and it was decided in the affirmative-yeas 99, nays 44; as follows:

* * *

Source: Congressional Globe, 37th Congress, 3rd Session, March 2, 1863. (Page 1479)

IMAGE p. 1479, CG, 2 Mar 1863

In the Senate:

Journal of the Senate of the United States of America, 1789-1873
MONDAY, March 2, 1863.

Monday, March 2, 1863

TEXT

Page 380

IMAGE p380

Mr. President: The House of Representatives has agreed to the report of the committee of conference on the disagreeing votes of the two houses on the bill (H. R. 591) to indemnify the President and other persons for suspending the privilege of the writ of habeas corpus, and acts done in pursuance thereof; and

Page 382

IMAGE p382

Mr. Trumbull, from the committee of conference on the disagreeing votes of the two houses on the bill (H. R. 591) to indemnify the President and other persons for suspending the privilege of the writ of habeas corpus, and acts done in pursuance thereof, submitted the following report:

The committee of conference on the disagreeing votes of the two houses on the bill (H. R. 591) to indemnify the President and other persons for suspending the privilege of the writ of habeas corpus, and acts done in pursuance thereof, and the Senate's amendment thereto, having met, after full and free conference have agreed to recommend, and do recommend, to their respective houses that the Senate recede from their said amendment, and agree to the said House bill, amended to read as follows, to wit:

AN ACT relating to habeas corpus, and regulating judicial proceedings in certain cases.

Page 397

IMAGE p397

The Senate resumed the consideration of the report of the committee of conference on the disagreeing votes of the two houses on the bill (H. R. 591) to indemnify the President and other persons for suspending the privilege of the writ of habeas corpus, and acts done in pursuance thereof; and

Page 399

IMAGE p399

A message from the House of Representatives, by Mr. Etheridge, its Clerk:

Mr. President: The House of Representatives has agreed to the report of the committee of conference on the disagreeing votes of the two houses on the bill (H. R. 591) to indemnify the President and other persons for suspending the privilege of the writ of habeas corpus, and acts done in pursuance thereof; and....

Journal of the Senate of the United States of America, 1789-1873
TUESDAY, March 3, 1863.

TEXT

Page 400

IMAGE p400

Mr. President: The House of Representatives has passed the following bills, in which it requests the concurrence of the Senate:

* * *

The Speaker of the House of Representatives having signed sixteen enrolled bills (S. 435, S. 483, S. 526, S. 534, S. 536, S. 537, S. 540, S. 543, S. 548, S. 557, S. 562, S. 564, S. 565, H. R. 226, H. R. 523, and H. R. 591) and two enrolled resolutions, (S. 129 and S. 133,) I am directed to bring them to the Senate for the signature of its President.

Mr. Howe reported from the committee that they had examined and found duly enrolled the following bills:

-- H. R. 226. An act to amend "An act to establish a court for the investigation of claims against the United States," approved February 24, 1855.

-- H. R. 591. An act relating to habeas corpus, and regulating judicial proceedings in certain cases.

-- H. R. 523. An act to promote the efficiency of the corps of engineers, of the ordnance department, and for other purposes.

The President pro tempore signed the enrolled bills (S. 435, S. 483, S. 526, S. 534, S. 536, S. 537, S. 540, S. 543, S. 548, S. 557, S. 562, S. 564, S. 565) and the enrolled joint resolutions (S. 129 and S. 133) yesterday reported to have been examined, and the enrolled bills (H. R. 226, H. R. 523, and H. R. 591) last reported to have been examined, and they were delivered to the committee to be presented to the President of the United States.

[nolu chan]

[cr] I must say, your #190 was quite a hairball!

Not at all. The Supreme Court and other Federal courts have spoken to the issue. All of the following were in my response.

And Chief Justice Marshall, in delivering the opinion of the supreme court in the case of Ex parte Bollman and Swartwout, uses this decisive language, in 4 Cranch [8 U. S.] 95: 'It may be worthy of remark, that this act (speaking of the one under which I am proceeding) was passed by the first congress of the United States, sitting under a constitution which had declared 'that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.' Acting under the immediate influence of this injunction, they must have felt, with peculiar force, the obligation of providing efficient means, by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give to all the courts the power of awarding writs of habeas corpus.' And again on page 101: '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. That question depends on political considerations, on which the legislature is to decide; until the legislative will be expressed, this court can only see its duty, and must obey the laws.' I can add nothing to these clear and emphatic words of my great predecessor.
-- Chief Justice Roger B. Taney, Ex Parte Merryman,/i>, In Chambers Opinion of the Chief Justice of the Supreme Court.

"Although this provision does not state that suspension must be effected by, or authorized by, a legislative act, it has been so understood, consistent with English practice and the Clause's placement in Article I."
-- Justice Antonin Scalia, Hamdi v. Rumsfeld, No. 03-6696. Argued April 28, 2004 - Decided June 28, 2004

"The decision that the individual shall be imprisoned must always precede the application for a writ of habeas corpus, and this writ must always be for the purpose of revising that decision, and therefore appellate in its nature. But this point also is decided in Hamilton's case and in Burford's case. 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. That question depends on political considerations, on which the legislature is to decide."
-- Chief Justice John Marshall, writing for the majority in Ex Parte Bollman and Swartwout, United States Supreme Court, 1807

"And who could hold for a moment, when the writ of habeas corpus cannot be suspended by the legislature itself, either in the general government or most of the States, without an express constitutional permission, that all other writs and laws could be suspended, and martial law substituted for them over the whole State or country, without any express constitutional license to that effect, in any emergency? Much more is this last improbable when even the mitigated measure, the suspension of the writ of habeas corpus, has never yet been found proper by Congress, and, it is believed, by neither of the States, since the Federal Constitution was adopted."
-- Justice Levi Woodbury, dissent in Luther v. Borden, United States Supreme Court, 1849

And in the ratification documents to the Constitution:

"That every person restrained of his liberty is entitled to an inquiry into the lawfulness of such restraint, and to a removal thereof, if unlawful; and that such inquiry and removal ought not to be denied or delayed, except when, on account of public dan­ger, the Congress shall suspend the privilege of the writ of habeas corpus.
-- Act of Ratification of the Convention of the State of New York

And in the writing of various jurists:

"The Constitution seems to have secured this benefit [habeas corpus] 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"
-- William Rawle, "A View of the Constitution of the United States of America," 1826

"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."
-- Justice Joseph Story, "Commentaries on the Constitution of the United States," Book 3, Chapter XXXII, § 1336, 1833

"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."
-- Tucker's Blackstone, Section 12 - Restraints on Powers of Congress, paragraph 2.

"There has been much discussion concerning the question whether the power to suspend the "privilege of the writ of habeas corpus" is conferred by the Constitution on Congress, or on the President. The only judicial decisions which have been made upon this question have been adverse to the power of the President.Still, very able lawyers have endeavored to maintain -- perhaps to the satisfaction of others -- have maintained, that the power to deprive a particular person of the "privilege of the writ," is an executive power. For while it has been generally, and, so far as I know, universally admitted, that Congress alone can suspend a law, or render it inoperative, and consequently that Congress alone can prohibit the courts from issuing the writ, yet that the executive might, in particular cases, suspend or deny the privilege which the writ was designed to secure. I am not aware that any one has attempted to show that under this grant of power to suspend "the privilege of the writ of habeas corpus," the President may annul the laws of States, create new offences unknown to the laws of the United States, erect military commissions to try and punish them, and then, by a sweeping decree, suspend the writ of habeas corpus as to all persons who shall be "arrested by any military authority." I think he would make a more bold than wise experiment on the credulity of the people, who should attempt to convince them that this power is found in the habeas corpus clause of the Constitution. No such attempt has been, and I think none such will be made. And therefore I repeat, that no other source of this power has ever been suggested save that described by the President himself, as belonging to him as commander-in-chief."
-- Justice Benjamin R. Curtis, "Executive Power," 1862

"The safest and best restriction, therefore, arises from the nature of the cases in which Congress are authorized to exercise that power [of suspending habeas corpus] at all, namely, in those of rebellion or invasion. These are clear and certain terms, facts of public notoriety, and whenever these shall cease to exist, the suspension of the writ must necessarily cease also."
-- Judge Francis Dana, presenting the Constitution to the Massachusetts Ratification Convention

[cr] As Jaffa explains, "Assuming that the letter of the constitution enjoins Lincoln from suspending the writ, it is also true that the letter enjoins him to take care that the laws be faithfully executed. But he cannot execute any of the laws in one-third of the states. And the spread of the rebellion will prevent him from any or all of his efforts to fulfill the Constitutional mandate. To prevent the rebellion from succeeding, the suspension of the writ is an indispensable means. Is it not certain the failure of one law is preferred to the failure of all?"

Assuming that the letter of the constitution enjoins Lincoln from suspending the writ terminates the discussion. Assuming that the letter of the Constitution enjoins him to take care that the laws be faithfully executed, the Constitution provided a lawful means to suspend habeas corpus. Lincoln wilfully and deliberately kept the Congress out of session for four (4) months during the greatest crisis in the nation's history. He wanted the Congress out of session. While they were out of session he acted unlawfully. He could have convened Congress at any time.

[cr] And, as you well know, there has even to this date, been no authoritative decision by the Supreme Court regarding the President's emergency powers with regard to suspension. Farber summarizes:

As you well know, there is no authoritative decision by the Supreme Court holding that the Chief Justice of the Supreme Court cannot assume the powers of the President. From your assinine logic, this would empower the Chief Justice to assume the powers of the Executive Branch.

As you well know, the Constitution gives the power to authorize suspension of the privilege of the writ of habeas corpus to the Legislative Branch and not to the President. There is no emergency clause which gives the power to the President. The powers of the President are limited to those given to him by the Constitution and he cannot usurp every power the Supreme Court has not specifically told him he cannot usurp. Moreover, in an in chambers opinion of the Chief Justice of the Supreme Court, Lincoln was specifically provided with the prior rulings of the Court, and the history of the writ, and he knew full well that he was violating the law.

[cr/farber] "In emergencies - sudden attack or insurrection - the president has the power to suspend the writ of habeas corpus and detain suspects within the general zone of military conflict."

Farber's assertion is without visible means of support.

Lincoln did not suspend habeas corpus in any area of sudden attack or insurrection. He authorized military officers to suspend the privilege of the writ in the states that were -NOT- in insurrection. Among the first places he authorized suspension was Pennsylvania. Shortly after that he authorized suspension in Maine. This lame argument is a specious fraud. And no matter how many times it is ignored in specious argument, it was not Lincoln who was suspending the privilege of the writ, but military officers who claimed they had the power to do so at their discretion.

[cr/farber] Congress has ultimate control over suspension of habeas.

Congress is the only branch of government with the power to authorize the suspension of the privilege of the writ of habeas corpus. Without Congressional prior authorization, the President has no authority to suspend the privilege of the writ. There is no emergency clause which gives such power to the President in time of emergency. By his own choice and desire, Lincoln willfully and deliberately kept the Congress out of session for four months.

[cr/farber] The only apparent limitations on congress are the existence of an invasion or insurrection and of the requisite need to protect the public safety.

There was no invasion. There was no insurrection where Lincoln authorized suspension of the privilege of the writ. Was there an April 1861 insurrection in Pennsylvania??? Was there an 1861 insurrection in Maine?? Lincoln empowered military officers to suspend the privilege of the writ at the discretion of said officers. It was military officers who were suspending the privilege of the writ of habeas corpus at their discretion. Such despotic power has never been upheld by any court.

In any case, the limitations on CONGRESS do not provide any authority to a despotic President.

Lincoln claimed he did not exceed the powers of CONGRESS. Lincoln was not CONGRESS. Could the Speaker of the House or the Chief Justice assume the powers reserved for the Executive Branch and excuse themselves by saying they had not exceeded the powers of the President?

[nolu chan]

In cr#200 you whine: "Ad hominem, as usual. Can't refute the arguments!"

As demonstrated, your arguments were answered and destroyed. The only "argument" so-called in your cr#183 was that Farber was a Professor of Law and author of a book, Lincoln's Constitution. I showed an absurdity in said book. It is not an isolated absurdity.

--------------------------------

Your argument in cr#162 was:

In Milligan the Court ruled martial law did not apply in Indiana. They left open the question as to where and when it did apply. Notably, the Court also upheld the terms and validity of the Habeas Corpus Act.

---------------------------------

I squashed it with nc#169

Ex Parte Milligan:

Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. Because, during the late Rebellion it could have been enforced in Virginia, where the national authority was overturned and the courts driven out, it does not follow that it should obtain in Indiana, where that authority was never disputed, and justice was always administered. And so in the case of a foreign invasion, martial rule may become a necessity in one state, when, in another, it would be "mere lawless violence."

-----------------------------------

GOPcap responded to cr#162 with GOPcap#164

[cr] Preposterous! As Farber notes (pg 165)

Since when did Farber become the grand supreme arbiter of all things constitutional in war time?

----------------------------------

I responded to cr#162 with nc#170

[cr] Preposterous! As Farber notes (pg 165),....

As usual, your reply is irrelevant. Farber is only discussing the Constitutional question, not the statutory one.

Once again, you completely misunderstand and misstate Milligan. In Milligan, the Supreme Court held 5-4 that the Congress did not have the power to authorize the military commission and it was therefore unconstitutional. However, the Court held 9-zip that the provisions of the Act of Congress of March 3, 1863 had been violated. There is no dissenting opinion. Chief Justice Chase wrote the concurring opinion which held, with the majority, that the provisions of the Act had been violated, stated that Congress had not authorized said military commission, but argued that Congress had the power to do so.

Unanimously, the Court found that the Lincoln administration had unlawfully violated the provisions of the Act of Congress of March 3, 1863. Unanimously, the Court held that the writ should have issued and that Milligan was entitled to the discharge prayed for.

Again, unanimously, 9-zip, all nine justices found that the Lincoln administration had unlawful violated the provisions of the Act of Congress of March 3, 1863.

From the concurring opinion of four justices.

The CHIEF JUSTICE delivered the following opinion.

Four members of the court, concurring with their brethren in the order heretofore made in this cause, but unable to concur in some important particulars with the opinion which has just been read, think it their duty to make a separate statement of their views of the whole case.

We do not doubt that the Circuit Court for the District of Indiana had jurisdiction of the petition of Milligan for the writ of habeas corpus.

Whether this court has jurisdiction upon the certificate of division admits of more question. The construction of the act authorizing such certificates, which has hitherto prevailed here, denies jurisdiction in cases where the certificate brings up the whole cause before the court. But none of the adjudicated cases are exactly in point, and we are willing to resolve whatever doubt may exist in favor of the earliest possible answers to questions involving life and liberty. We agree, therefore, that this court may properly answer questions certified in such a case as that before us.

The crimes with which Milligan was charged were of the gravest character, and the petition and exhibits in the record, which must here be taken as true, admit his guilt. But whatever his desert of punishment may be, it is more important to the country and to every citizen that he should not be punished under an illegal sentence, sanctioned by this court of last resort, than that he should be punished at all. The laws which protect the liberties of the whole people must not be violated or set aside in order to inflict, even upon the guilty, unauthorized though merited justice.

The trial and sentence of Milligan were by military commission convened in Indiana during the fall of 1864. The action of the commission had been under consideration by President Lincoln for some time, when he himself became the victim of an abhorred conspiracy. It was approved by his successor in May, 1865, and the sentence was ordered to be carried into execution. The proceedings, therefore, had the fullest sanction of the executive department of the government. Page 133

This sanction requires the most respectful and the most careful consideration of this court. The sentence which it supports must not be set aside except upon the clearest conviction that it cannot be reconciled with the Constitution and the constitutional legislation of Congress.

We must inquire, then, what constitutional or statutory provisions have relation to this military proceeding.

The act of Congress of March 3d 1863, comprises all the legislation which seems to require consideration in this connection. The constitutionality of this act has not been questioned and is not doubted.

The first section authorized the suspension, during the Rebellion, of the writ of habeas corpus throughout the United States by the President. The two next sections limited this authority in important respects.

The second section required that lists of all persons, being citizens of states in which the administration of the laws had continued unimpaired in the Federal courts, who were then held or might thereafter be held as prisoners of the United States, under the authority of the President, otherwise than as prisoners of war, should be furnished to the judges of the Circuit and District Courts. The lists transmitted to the judges were to contain the names of all persons, residing within their respective jurisdictions, charged with violation of national law. And it was required, in cases where the grand jury in attendance upon any of these courts should terminate its session without proceeding by indictment or otherwise against any prisoner named in the list, that the judge of the court should forthwith make an order that such prisoner desiring a discharge, should be brought before him or the court to be discharged, on entering into recognizance, if required, to keep the peace and for good behavior, or to appear, as the court might direct, to be further dealt with according to law. Every officer of the United States having custody of such prisoners was required to obey and execute the judge's order, under penalty, for refusal or delay, of fine and imprisonment.

The third section provided, in case lists of persons other than prisoners of war then held in confinement, or thereafter arrested, should not be furnished within twenty days after the passage of the act, or, in cases of subsequent arrest, within twenty days after the time of arrest, that any citizen, after the termination of a session of the grand jury without indictment or presentment, might, by petition alleging the facts and verified by oath, obtain the judge's order of discharge in favor of any person so imprisoned, on the terms and conditions prescribed in the second section.

It was made the duty of the District Attorney of the United States to attend examinations on petitions for discharge.

It was under this act that Milligan petitioned the Circuit Court for the District of Indiana for discharge from imprisonment.

The holding of the Circuit and District Courts of the United States in Indiana had been uninterrupted. The administration of the laws in the Federal courts had remained unimpaired. Milligan was imprisoned under the authority of the President, and was not a prisoner of war. No list of prisoners had been furnished to the judges, either of the District or Circuit Courts, as required by the law. A grand jury had attended the Circuit Courts of the Indiana district, while Milligan was there imprisoned, and had closed its session without finding any indictment or presentment or otherwise proceeding against the prisoner.

His case was thus brought within the precise letter and intent of the act of Congress, unless it can be said that Milligan was not imprisoned by authority of the President; and nothing of this sort was claimed in argument on the part of the government.

It is clear upon this statement that the Circuit Court was bound to hear Milligan's petition for the writ of habeas corpus, called in the act an order to bring the prisoner before the judge or the court, and to issue the writ, or, in the language of the act, to make the order.

The first question, therefore - Ought the writ to issue? - must be answered in the affirmative. Page 135

And it is equally clear that he was entitled to the discharge prayed for.

* * *

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.

The majority opinion also held that the Lincoln administration violated the provisions of the Act of Congress of March 3, 1863 and only then proceeded to address the Constitutional issue.

From the majority opinion written by Justice Davis:

The prayer of the petition was, that under the act of Congress, approved March 3d 1863, entitled, "An act relating to habeas corpus and regulating judicial proceedings in certain cases," he may be brought before the court, and either turned over to the proper civil tribunal to be proceeded against according to the law of the land or discharged from custody altogether.

* * *

The second and third sections of the law are explicit on these points. The language used is plain and direct, and the meaning of the Congress cannot be mistaken. The public safety demanded, if the President thought proper to arrest a suspected person, that he should not be required to give the cause of his detention on return to a writ of habeas corpus. But it was not contemplated that such person should be detained in custody beyond a certain fixed period, unless certain judicial proceedings, known to the common law, were commenced against him. The Secretaries of State and War were directed to furnish to the judges of the courts of the United States, a list of the names of all parties, not prisoners of war, resident in their respective jurisdictions, who then were or afterwards should be held in custody by the authority of the President, and who were citizens of states in which the administration of the laws in the Federal tribunals was unimpaired. After the list was furnished, if a grand jury of the district convened and adjourned, and did not indict or present one of the persons thus named, he was entitled to his discharge; and it was the duty of the judge of the court to order him brought before him to be discharged, if he desired it. The refusal or omission to furnish the list could not operate to the injury of any one who was not indicted or presented by the grand jury; for, if twenty days had elapsed from the time of his arrest and the termination of the session of the grand jury, he was equally entitled to his discharge as if the list were furnished; and any credible person, on petition verified by affidavit, could obtain the judge's order for that purpose.

Milligan, in his application to be released from imprisonment, averred the existence of every fact necessary under the terms of this law to give the Circuit Court of Indiana jurisdiction. If he was detained in custody by the order of the President, otherwise than as a prisoner of war; if he was a citizen of Indiana and had never been in the military or naval service, and the grand jury of the district had met, after he had been arrested, for a period of twenty days, and adjourned without taking any proceedings against him, then the court had the right to entertain his petition and determine the lawfulness of his imprisonment.

* * *

Why was he not delivered to the Circuit Court of Indiana to be proceeded against according to law? No reason of necessity could be urged against it; because Congress had declared penalties against the offences charged, provided for their punishment, and directed that court to hear and determine them. And soon after this military tribunal was ended, the Circuit Court met, peacefully transacted its business, and adjourned. It needed no bayonets to protect it, and required no military aid to execute its judgments. It was held in a state, eminently distinguished for patriotism, by judges commissioned during the Rebellion, who were provided with juries, upright, intelligent, and selected by a marshal appointed by the President. The government had no right to conclude that Milligan, if guilty, would not receive in that court merited punishment; for its records disclose that it was constantly engaged in the trial of similar offences, and was never interrupted in its administration of criminal justice. If it was dangerous, in the distracted condition of affairs, to leave Milligan unrestrained of his liberty, because he "conspired against the government, afforded aid and comfort to rebels, and incited the people to insurrection," the law said arrest him, confine him closely, render him powerless to do further mischief; and then present his case to the grand jury of the district, with proofs of his guilt, and, if indicted, try him according to the course of the common law. If this had been done, the Constitution would have been vindicated, the law of 1863 enforced, and the securities for personal liberty preserved and defended.

Another guarantee of freedom was broken when Milligan was denied a trial by jury.

[Here the majority proceeded to find the trial my military tribunal was also unconstitutional, as well as unlawful.]

--------------------------------

cr#183 responds to GOPcap#164

[GOPcap#164] "Since when did Farber become the grand supreme arbiter of all things constitutional in war time?"

Simply additional documentation, for those who might be lurking and enjoying the discussion. That was Professor of Law, Daniel Farber, in his book Lincoln's Constitution, (2003).

--------------------------------

In cr#183 your only argument is "That was Professor of Law, Daniel Farber, in his book Lincoln's Constitution, (2003)."

In nc#194 I demonstrate one of the farces which appears in Professor of Law, Dr. Daniel Farber's book.

--------------------------------

[capitan_refugio]

"As demonstrated, your arguments were answered and destroyed. The only "argument" so-called in your cr#183 was that Farber was a Professor of Law and author of a book, Lincoln's Constitution. I showed an absurdity in said book. It is not an isolated absurdity."

Classic case of mental masturbation. First editions often have trivial errors. They will be corrected in subsequent editions. You destroyed nothing, except in your own mind.

"Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war ..."

I have several times posted the same text. Milligan was fairly narrowly focused, as you were forced to admit.

"Since when did Farber become the grand supreme arbiter of all things constitutional in war time?"

You repeat yourself. You evidently lost the ability to debate. Farber provides a perspective contrary to the mind-numbing pro-southern arguments you like to barf up from time to time.

The rest of your post is a meaningless and repetitious hairball, not worthy of discussion.

[capitan_refugio]

Another hairball, much like the first two.

I'm watching the Olympics. I'll get back to you shortly.

[capitan_refugio]

"Chief Justice Roger B. Taney, Ex Parte Merryman"

As Professor Paludan noted: "Taney looked into books and precedents written in times of peace to proclaim limits on a president in times of war - the judge even denied that the conditions in Maryland were disruptive enough to require military involvement. And he insisted that unless Congress suspended the writ the President had to await a call to action from the courts before he could perform any act suppressing the rebellion. [According to Taney,] the chief executive could only act when a court told him someone had disobeyed a court order .... Lincoln's position gave the national government a mandate to act: it showed the Constitution to be an instrument for action, not paralysis."

In the early days of the war, in the spring and summer of 1861, Lincoln made the correct choices to preserve the constitutional Union. Congress never condemned or overruled his war powers, and in fact, ratified his actions. Only in the case of the habeas corpus suspensions did the Congress seek to provide addition guidance and a framework.

The Scottish historian Peter Parish, in The American Civil War, gives an insightful view of congressional politics at the time. "The Supreme Court was never required to give a ruling on the habeas corpus issue during the war and Congress, too, proved curiously indecisive or evasive on the matter. It was difficult to find a formula which asserted the rights of congress without challenging what the President had already done, and, even in the Habeas Corpus Act of 1863, the draftees resorted to a form of word which could be interpreted either as a recognition of Presidential power or a delegation of a Congressional power to the executive."

[capitan_refugio]

"Lincoln did not suspend habeas corpus in any area of sudden attack or insurrection. He authorized military officers to suspend the privilege of the writ in the states that were -NOT- in insurrection. Among the first places he authorized suspension was Pennsylvania ..."

Paludan: "Action was imperative, however, as Baltimore had demonstrated. Throughout the nation the possibility for similar disloyalty was woven into the demography and politics."

[capitan_refugio]

"Assuming that the letter of the constitution enjoins Lincoln from suspending the writ terminates the discussion."

Not at all! You need to read the entire quotation. Lincoln was faced with an unprecedented situation. Lincoln had called Congress back into session by his proclamation in April 1861, to assemble on July 4, 1861. But events were escalating rapidly. His actions to protect the constitutional union, the enforce the laws, and to suppress the rebellion were both prudent and lawful.

I realize that is unpleasant for the Lincoln-hating cabal to here, but it is a fact.

[nolu chan]

[cr] Paludan: "Action was imperative, however, as Baltimore had demonstrated. Throughout the nation the possibility for similar disloyalty was woven into the demography and politics."

Paludan is a professor of history. The pronouncements of professors of history do not overrule holdings of the United States Supreme Court or other Federal Courts, nor do they carry the weight of legal scholars.

And Chief Justice Marshall, in delivering the opinion of the supreme court in the case of Ex parte Bollman and Swartwout, uses this decisive language, in 4 Cranch [8 U. S.] 95: 'It may be worthy of remark, that this act (speaking of the one under which I am proceeding) was passed by the first congress of the United States, sitting under a constitution which had declared 'that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.' Acting under the immediate influence of this injunction, they must have felt, with peculiar force, the obligation of providing efficient means, by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give to all the courts the power of awarding writs of habeas corpus.' And again on page 101: '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. That question depends on political considerations, on which the legislature is to decide; until the legislative will be expressed, this court can only see its duty, and must obey the laws.' I can add nothing to these clear and emphatic words of my great predecessor.
-- Chief Justice Roger B. Taney, Ex Parte Merryman,/i>, In Chambers Opinion of the Chief Justice of the Supreme Court.

"Although this provision does not state that suspension must be effected by, or authorized by, a legislative act, it has been so understood, consistent with English practice and the Clause's placement in Article I."
-- Justice Antonin Scalia, Hamdi v. Rumsfeld, No. 03-6696. Argued April 28, 2004 - Decided June 28, 2004

"The decision that the individual shall be imprisoned must always precede the application for a writ of habeas corpus, and this writ must always be for the purpose of revising that decision, and therefore appellate in its nature. But this point also is decided in Hamilton's case and in Burford's case. 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. That question depends on political considerations, on which the legislature is to decide."
-- Chief Justice John Marshall, writing for the majority in Ex Parte Bollman and Swartwout, United States Supreme Court, 1807

"And who could hold for a moment, when the writ of habeas corpus cannot be suspended by the legislature itself, either in the general government or most of the States, without an express constitutional permission, that all other writs and laws could be suspended, and martial law substituted for them over the whole State or country, without any express constitutional license to that effect, in any emergency? Much more is this last improbable when even the mitigated measure, the suspension of the writ of habeas corpus, has never yet been found proper by Congress, and, it is believed, by neither of the States, since the Federal Constitution was adopted."
-- Justice Levi Woodbury, dissent in Luther v. Borden, United States Supreme Court, 1849

--------------------

"That every person restrained of his liberty is entitled to an inquiry into the lawfulness of such restraint, and to a removal thereof, if unlawful; and that such inquiry and removal ought not to be denied or delayed, except when, on account of public dan­ger, the Congress shall suspend the privilege of the writ of habeas corpus.
-- Act of Ratification of the Convention of the State of New York

-------------

"The Constitution seems to have secured this benefit [habeas corpus] 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"
-- William Rawle, "A View of the Constitution of the United States of America," 1826

"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."
-- Justice Joseph Story, "Commentaries on the Constitution of the United States," Book 3, Chapter XXXII, § 1336, 1833

"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."
-- Tucker's Blackstone, Section 12 - Restraints on Powers of Congress, paragraph 2.

"There has been much discussion concerning the question whether the power to suspend the "privilege of the writ of habeas corpus" is conferred by the Constitution on Congress, or on the President. The only judicial decisions which have been made upon this question have been adverse to the power of the President.Still, very able lawyers have endeavored to maintain -- perhaps to the satisfaction of others -- have maintained, that the power to deprive a particular person of the "privilege of the writ," is an executive power. For while it has been generally, and, so far as I know, universally admitted, that Congress alone can suspend a law, or render it inoperative, and consequently that Congress alone can prohibit the courts from issuing the writ, yet that the executive might, in particular cases, suspend or deny the privilege which the writ was designed to secure. I am not aware that any one has attempted to show that under this grant of power to suspend "the privilege of the writ of habeas corpus," the President may annul the laws of States, create new offences unknown to the laws of the United States, erect military commissions to try and punish them, and then, by a sweeping decree, suspend the writ of habeas corpus as to all persons who shall be "arrested by any military authority." I think he would make a more bold than wise experiment on the credulity of the people, who should attempt to convince them that this power is found in the habeas corpus clause of the Constitution. No such attempt has been, and I think none such will be made. And therefore I repeat, that no other source of this power has ever been suggested save that described by the President himself, as belonging to him as commander-in-chief."
-- Justice Benjamin R. Curtis, "Executive Power," 1862

"The safest and best restriction, therefore, arises from the nature of the cases in which Congress are authorized to exercise that power [of suspending habeas corpus] at all, namely, in those of rebellion or invasion. These are clear and certain terms, facts of public notoriety, and whenever these shall cease to exist, the suspension of the writ must necessarily cease also."
-- Judge Francis Dana, presenting the Constitution to the Massachusetts Ratification Convention

[nolu chan]

[cr] Lincoln had called Congress back into session by his proclamation in April 1861, to assemble on July 4, 1861. But events were escalating rapidly. His actions to protect the constitutional union, the enforce the laws, and to suppress the rebellion were both prudent and lawful. I realize that is unpleasant for the Lincoln-hating cabal to here, but it is a fact.

The Constitution reserves the power of authorizing suspension of the privilege of the writ of habeas corpus to the Legislative Branch. I realize this is unpleasant, but it is a fact and quoting history professors, philosophers, and specialists in metaphysics will not change that fact. Unless you can cite a LAW, rather than a Lincoln apologist, Lincoln's actions will remain UNLAWFUL. The Constitution contains no Paludan/Jaffa/Farber clause granting Lincoln the power to suspend habeas corpus. Further, nobody even pretends that a president has the power to authorize military officers to suspend the privilege of the writ at their discretion. That is what Lincoln actually caused to happen -- you might not like it, but it is a fact.

Lincoln could have convened Congress at any time. He kept them OUT of session as long as he could without losing the militia.

And Chief Justice Marshall, in delivering the opinion of the supreme court in the case of Ex parte Bollman and Swartwout, uses this decisive language, in 4 Cranch [8 U. S.] 95: 'It may be worthy of remark, that this act (speaking of the one under which I am proceeding) was passed by the first congress of the United States, sitting under a constitution which had declared 'that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.' Acting under the immediate influence of this injunction, they must have felt, with peculiar force, the obligation of providing efficient means, by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give to all the courts the power of awarding writs of habeas corpus.' And again on page 101: '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. That question depends on political considerations, on which the legislature is to decide; until the legislative will be expressed, this court can only see its duty, and must obey the laws.' I can add nothing to these clear and emphatic words of my great predecessor.
-- Chief Justice Roger B. Taney, Ex Parte Merryman,/i>, In Chambers Opinion of the Chief Justice of the Supreme Court.

"Although this provision does not state that suspension must be effected by, or authorized by, a legislative act, it has been so understood, consistent with English practice and the Clause's placement in Article I."
-- Justice Antonin Scalia, Hamdi v. Rumsfeld, No. 03-6696. Argued April 28, 2004 - Decided June 28, 2004

"The decision that the individual shall be imprisoned must always precede the application for a writ of habeas corpus, and this writ must always be for the purpose of revising that decision, and therefore appellate in its nature. But this point also is decided in Hamilton's case and in Burford's case. 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. That question depends on political considerations, on which the legislature is to decide."
-- Chief Justice John Marshall, writing for the majority in Ex Parte Bollman and Swartwout, United States Supreme Court, 1807

"And who could hold for a moment, when the writ of habeas corpus cannot be suspended by the legislature itself, either in the general government or most of the States, without an express constitutional permission, that all other writs and laws could be suspended, and martial law substituted for them over the whole State or country, without any express constitutional license to that effect, in any emergency? Much more is this last improbable when even the mitigated measure, the suspension of the writ of habeas corpus, has never yet been found proper by Congress, and, it is believed, by neither of the States, since the Federal Constitution was adopted."
-- Justice Levi Woodbury, dissent in Luther v. Borden, United States Supreme Court, 1849

--------------------

"That every person restrained of his liberty is entitled to an inquiry into the lawfulness of such restraint, and to a removal thereof, if unlawful; and that such inquiry and removal ought not to be denied or delayed, except when, on account of public dan­ger, the Congress shall suspend the privilege of the writ of habeas corpus.
-- Act of Ratification of the Convention of the State of New York

-------------

"The Constitution seems to have secured this benefit [habeas corpus] 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"
-- William Rawle, "A View of the Constitution of the United States of America," 1826

"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."
-- Justice Joseph Story, "Commentaries on the Constitution of the United States," Book 3, Chapter XXXII, § 1336, 1833

"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."
-- Tucker's Blackstone, Section 12 - Restraints on Powers of Congress, paragraph 2.

"There has been much discussion concerning the question whether the power to suspend the "privilege of the writ of habeas corpus" is conferred by the Constitution on Congress, or on the President. The only judicial decisions which have been made upon this question have been adverse to the power of the President.Still, very able lawyers have endeavored to maintain -- perhaps to the satisfaction of others -- have maintained, that the power to deprive a particular person of the "privilege of the writ," is an executive power. For while it has been generally, and, so far as I know, universally admitted, that Congress alone can suspend a law, or render it inoperative, and consequently that Congress alone can prohibit the courts from issuing the writ, yet that the executive might, in particular cases, suspend or deny the privilege which the writ was designed to secure. I am not aware that any one has attempted to show that under this grant of power to suspend "the privilege of the writ of habeas corpus," the President may annul the laws of States, create new offences unknown to the laws of the United States, erect military commissions to try and punish them, and then, by a sweeping decree, suspend the writ of habeas corpus as to all persons who shall be "arrested by any military authority." I think he would make a more bold than wise experiment on the credulity of the people, who should attempt to convince them that this power is found in the habeas corpus clause of the Constitution. No such attempt has been, and I think none such will be made. And therefore I repeat, that no other source of this power has ever been suggested save that described by the President himself, as belonging to him as commander-in-chief."
-- Justice Benjamin R. Curtis, "Executive Power," 1862

"The safest and best restriction, therefore, arises from the nature of the cases in which Congress are authorized to exercise that power [of suspending habeas corpus] at all, namely, in those of rebellion or invasion. These are clear and certain terms, facts of public notoriety, and whenever these shall cease to exist, the suspension of the writ must necessarily cease also."
-- Judge Francis Dana, presenting the Constitution to the Massachusetts Ratification Convention

[nolu chan]

[cr] As [history] Professor Paludan noted: ... The Scottish historian Peter Parish, in The American Civil War, gives an insightful view of congressional politics ...

The Supreme Court and other Federal courts, and legal scholars give an insightful view of the state of the LAW. Nothing a history professor complains about in a court decision changes what the court said. The President is bound by the Constitution as it is interpreted by the Courts, not history professors.

The Constitution reserves the power of authorizing suspension of the privilege of the writ of habeas corpus to the Legislative Branch. I realize this is unpleasant, but it is a fact and quoting history professors, philosophers, and specialists in metaphysics will not change that fact. Unless you can cite a LAW, rather than a Lincoln apologist, Lincoln's actions will remain UNLAWFUL. The Constitution contains no Paludan/Jaffa/Farber/Scottish historian clause granting Lincoln the power to suspend habeas corpus. Further, nobody even pretends that a president has the power to authorize military officers to suspend the privilege of the writ at their discretion. That is what Lincoln actually caused to happen -- you might not like it, but it is a fact.

Lincoln could have convened Congress at any time. He kept them OUT of session as long as he could without losing the militia.

And Chief Justice Marshall, in delivering the opinion of the supreme court in the case of Ex parte Bollman and Swartwout, uses this decisive language, in 4 Cranch [8 U. S.] 95: 'It may be worthy of remark, that this act (speaking of the one under which I am proceeding) was passed by the first congress of the United States, sitting under a constitution which had declared 'that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.' Acting under the immediate influence of this injunction, they must have felt, with peculiar force, the obligation of providing efficient means, by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give to all the courts the power of awarding writs of habeas corpus.' And again on page 101: '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. That question depends on political considerations, on which the legislature is to decide; until the legislative will be expressed, this court can only see its duty, and must obey the laws.' I can add nothing to these clear and emphatic words of my great predecessor.
-- Chief Justice Roger B. Taney, Ex Parte Merryman,/i>, In Chambers Opinion of the Chief Justice of the Supreme Court.

"Although this provision does not state that suspension must be effected by, or authorized by, a legislative act, it has been so understood, consistent with English practice and the Clause's placement in Article I."
-- Justice Antonin Scalia, Hamdi v. Rumsfeld, No. 03-6696. Argued April 28, 2004 - Decided June 28, 2004

"The decision that the individual shall be imprisoned must always precede the application for a writ of habeas corpus, and this writ must always be for the purpose of revising that decision, and therefore appellate in its nature. But this point also is decided in Hamilton's case and in Burford's case. 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. That question depends on political considerations, on which the legislature is to decide."
-- Chief Justice John Marshall, writing for the majority in Ex Parte Bollman and Swartwout, United States Supreme Court, 1807

"And who could hold for a moment, when the writ of habeas corpus cannot be suspended by the legislature itself, either in the general government or most of the States, without an express constitutional permission, that all other writs and laws could be suspended, and martial law substituted for them over the whole State or country, without any express constitutional license to that effect, in any emergency? Much more is this last improbable when even the mitigated measure, the suspension of the writ of habeas corpus, has never yet been found proper by Congress, and, it is believed, by neither of the States, since the Federal Constitution was adopted."
-- Justice Levi Woodbury, dissent in Luther v. Borden, United States Supreme Court, 1849

--------------------

"That every person restrained of his liberty is entitled to an inquiry into the lawfulness of such restraint, and to a removal thereof, if unlawful; and that such inquiry and removal ought not to be denied or delayed, except when, on account of public dan­ger, the Congress shall suspend the privilege of the writ of habeas corpus.
-- Act of Ratification of the Convention of the State of New York

-------------

"The Constitution seems to have secured this benefit [habeas corpus] 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"
-- William Rawle, "A View of the Constitution of the United States of America," 1826

"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."
-- Justice Joseph Story, "Commentaries on the Constitution of the United States," Book 3, Chapter XXXII, § 1336, 1833

"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."
-- Tucker's Blackstone, Section 12 - Restraints on Powers of Congress, paragraph 2.

"There has been much discussion concerning the question whether the power to suspend the "privilege of the writ of habeas corpus" is conferred by the Constitution on Congress, or on the President. The only judicial decisions which have been made upon this question have been adverse to the power of the President.Still, very able lawyers have endeavored to maintain -- perhaps to the satisfaction of others -- have maintained, that the power to deprive a particular person of the "privilege of the writ," is an executive power. For while it has been generally, and, so far as I know, universally admitted, that Congress alone can suspend a law, or render it inoperative, and consequently that Congress alone can prohibit the courts from issuing the writ, yet that the executive might, in particular cases, suspend or deny the privilege which the writ was designed to secure. I am not aware that any one has attempted to show that under this grant of power to suspend "the privilege of the writ of habeas corpus," the President may annul the laws of States, create new offences unknown to the laws of the United States, erect military commissions to try and punish them, and then, by a sweeping decree, suspend the writ of habeas corpus as to all persons who shall be "arrested by any military authority." I think he would make a more bold than wise experiment on the credulity of the people, who should attempt to convince them that this power is found in the habeas corpus clause of the Constitution. No such attempt has been, and I think none such will be made. And therefore I repeat, that no other source of this power has ever been suggested save that described by the President himself, as belonging to him as commander-in-chief."
-- Justice Benjamin R. Curtis, "Executive Power," 1862

"The safest and best restriction, therefore, arises from the nature of the cases in which Congress are authorized to exercise that power [of suspending habeas corpus] at all, namely, in those of rebellion or invasion. These are clear and certain terms, facts of public notoriety, and whenever these shall cease to exist, the suspension of the writ must necessarily cease also."
-- Judge Francis Dana, presenting the Constitution to the Massachusetts Ratification Convention

[nolu chan]

LIBERAL HISTORY

Neither later historians nor Lincoln's contemporaries seem to have questioned the urgent need to expand the military. Moreover, Congress did ultimately endorse these actions. On August 5, [1861], it almost unanimously passed a bill declaring that "all the acts, proclamations and orders of the President" (taken after Lincoln took office "respecting the army and navy of the United States, and calling out or relating to the militia or volunteers from the States, are hereby approved and in all respect legalized and made valid ... as if they had been issued and done under the previous express authority and direction of the congress of the United states." (The only negative votes came from five Democrats.)

Lincoln's Constitution, Daniel Farber, 2003, p. 138

CONVENTIONAL HISTORY

In the Senate, on August 5, 1861 a bill, S-72 was introduced and an amendment was approved by a vote of 37-5 by the Committee of the Whole. The bill was then reported to the Senate and the amendments concurred in. The bill was ordered to be engrossed for a third reading; and was read the third time, and passed. The bill had not yet gone to the House of Representatives. Congress did not pass the bill on August 5, 1861 with only 5 nays. Forty-two Senators voted in the Senate with only 5 nays. Congress did not pass the bill at all on August 5, 1861.

---

Congressional Globe; 37th Cong, 1st sess.; March 5, 1861; page 443.

PAY OF THE TROOPS

Mr. WILSON moved to reconsider the vote by which the Senate concurred in the amendment of the House of Representatives to the bill (S. No. 69) to increase the pay of the non-commissioned officers, musicians, and privates of the regular Army, volunteers, marines, and seamen and ordinary seamen in the service of the United States, and for other purposes; and the motion was agreed to.

Mr. WILSON. I now move that the House amendment and the bill be ordered to lie on the table.

The motion was agreed to.

Mr. WILSON. I now ask leave to introduce a new bill on the same subject, which is more restricted and guarded.

Leave was granted to introduce the bill (S. No. 72) to increase the pay of the privates in the regular Army, and of the volunteers in the service of the United States, and for other purposes; which was read twice, and considered as in committee of the Whole. The bill proposes to increase the pay of the privates to thirteen dollars a month; and also extends the provisions of the act "for the relief of the Ohio and other volunteers" to all volunteers, no matter for what term of service they may have been accepted.

Mr. WILSON. I move to amend the bill by adding the following as an additional section:

Sec. 3. And be it further enacted, That all the acts, proclamations, and orders of the President of the United States, after the 4th of March, 1861, respecting the Army and Navy of the United States, and calling out or relating to the militia or volunteers from the States, are hereby approved, and in all respects legalized and made 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.

Mr. BRECKINRIDGE called for the yeas and nays, and they were ordered; and being taken, resulted -- yeas 37, nays 5; as follows:

[Yeas and Nays are listed here in the record]

So the amendment was agreed to.

The bill was reported to the Senate as amended, and the amendments were concurred in. The bill was ordered to be engrossed for a third reading; and was read the third time, and passed.

[nc note: This is passage by the Senate; it still needed to go to the House.]

---

[capitan_refugio]

"As you well know, there is no authoritative decision by the Supreme Court holding that the Chief Justice of the Supreme Court cannot assume the powers of the President. From your assinine logic, this would empower the Chief Justice to assume the powers of the Executive Branch."
As you well know, the Constitution gives the power to authorize suspension of the privilege of the writ of habeas corpus to the Legislative Branch and not to the President. There is no emergency clause which gives the power to the President. The powers of the President are limited to those given to him by the Constitution and he cannot usurp every power the Supreme Court has not specifically told him he cannot usurp. Moreover, in an in chambers opinion of the Chief Justice of the Supreme Court, Lincoln was specifically provided with the prior rulings of the Court, and the history of the writ, and he knew full well that he was violating the law.

There are very few express powers of the President in Article II, but a myriad of implied powers, especially with regard to wartime situations. Some of these implied powers were discussed in the Prize Cases. As Farger notes, "The first argument for extensive crisis authority posits the existence of extraconstitutional powers, vested in the president not by the Constitution, but by the very nature of his position as chief executive of a nation. If there are essential powers that go with nationhood and cannot be effectively exercised by other organs of government, then the mere act of creating a nation might be thought to convey these powers, without the need for any specific constitutional language."

Farber continues, "In the end, the concept of inherent executive power - whether extraconstitutional or via the vesting clause or the oath clause - is largely irrelevant to the question of what specific actions are legally authorized. If the president does have inherent powers, we are still left with the very difficult task of determining scope. Presumably we must understand that scope within the overall scheme of democratic government."

You should realize, too, that the argument that the constitution gives the power to suspend the writ to Congress is purely textural. It says no such thing. It only provides the circumstances regarding when it may be properly suspended.

Gee, you even quoted Scalia's dicta in your reply. I should say this has been one of your more "assinine" hairballs.

[nolu chan]

[cr] Milligan was fairly narrowly focused, as you were forced to admit.

Ex Parte Milligan:

Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. Because, during the late Rebellion it could have been enforced in Virginia, where the national authority was overturned and the courts driven out, it does not follow that it should obtain in Indiana, where that authority was never disputed, and justice was always administered. And so in the case of a foreign invasion, martial rule may become a necessity in one state, when, in another, it would be "mere lawless violence."

(With apologies to Willie Nelson)

Full of crap again
Just can't wait to spew your crap again
You just love spewing nonsense with your friends
And I just can't wait to see you spew again

Full of crap again
Goin' places reality's never been
Dreamin' things you may never dream again,
And I just can't wait to see you spew again.

[nolu chan]

[cr] You repeat yourself. You evidently lost the ability to debate.

Obviously, I did not repeat myself at all. I quoted, with attribution, the post of GOPcap which was in the conversation.

[GOPcap#164] "Since when did Farber become the grand supreme arbiter of all things constitutional in war time?"

For the capitan of Farberitaville.

FARBERITAVILLE

My beanie is stellar
It has a propeller
It fits right in with my role
I lit up a doobie
It made a whole new me
Now I'm a freepin' liberal troll

Wastin' away again in Farberitaville
Searchin' for my lost cranial vault
Some people claim there's a substance to blame
But I know, it's society's fault

I don't know the reason
I stayed high all season
Nothin' to show but this Zig Zag tattoo
But it's a real pleasure
A liberal treasure
How it got here I haven't a clue

Wastin' away again in Farberitaville
Searchin' for my lost cranial vault
Some people claim there's a substance to blame
But I know, it's society's fault

I stepped on my roach clip
Threw out my left hip
Had to crawl all the way home
My brain's in a blender
It signalled surrender
To that concoction that helps me hang on

The brownies are baking
And soon they'll be taking
All of my mind and my soul
My brain's in a blender
It signalled surrender
And now I'm a freepin' liberal troll

Wastin' away again in Farberitaville
Searchin' for my lost cranial vault
Some people claim there's a substance to blame
But I know, it's society's fault
Yes, some people claim there's a substance to blame
But I know, it's society's fault.

[capitan_refugio]

"Moreover, in an in chambers opinion of the Chief Justice of the Supreme Court, Lincoln was specifically provided with the prior rulings of the Court, and the history of the writ, and he knew full well that he was violating the law."

Taney's motivation was well-known. Merryman reperesents his second greatest failure as a justice. It was a flawed ruling, based on a flawed premise, on flawed jurisdiction, which was widely dismissed outside of insurrectionist circles. As you are undoubtedly aware, Taney had the habit of drafting his opinions on issues in hopes of finding a case in which to apply them. He didn't need to hear arguments! "Taney's obvious tilt toward the Confederacy showed that he had travelled far from the days when he advised Andrew Jackson on how to suppress nullificationists. Indeed, he had become one himself in all but name."

[capitan_refugio]

I see you have at least some talent, if that's what you want to call it.

[nolu chan]

[cr] Farber provides a perspective contrary to the mind-numbing pro-southern arguments you like to barf up from time to time.

With his insight into sovereignty as "an al­most metaphysical concept -- some secret essence of legal potency that cannot be detected directly, but only as a kind of normative aura," Farber provides comic relief. He is not yet as good as Gabor Boritt, one of your other Lincoln apologists, but Farber is working on it.

FARBER'S WISDOM

In the American context, sovereignty often seems to function as an al­most metaphysical concept -- some secret essence of legal potency that cannot be detected directly, but only as a kind of normative aura. One hotly debated question, for example, is whether the populations of the various states existed (or still exist) as separate entities acting together as a con­glomeration, or rather as a single entity acting through the agency of multi­ple subgroups. This is reminiscent of medieval disputes about the nature of the Trinity. It is not in any real sense a question of fact or even one of law.

SOURCE: Lincoln's Constitution, Daniel Farber, 2003, p. 29

-----------------------------------------

Ideas about sovereignty may also color the understanding of particular constitutional issues. Thus, while it may not be useful to ask who really had sovereignty in 1776 or 1789, it is potentially useful to ask who was believed to have sovereignty then.

SOURCE: Lincoln's Constitution, Daniel Farber, 2003, p. 30

------------------------------------------

A contract between the peoples of the separate states might well be termed a compact. The critical question was whether a national social compact arose at some point, bind­ing all Americans together into one people, or whether the only real social compacts were at the state level, with those political societies then forming a second-level compact. The "compact theory" of sovereignty refers to this second-level compact, which is considered to have a less fundamental status than the social compacts establishing each state. If this all seems rather aridly metaphysical, that's because it is.

SOURCE: Lincoln's Constitution, Daniel Farber, 2003, p. 32

---------------------------

Because of its virtually metaphysical nature, it is hard to answer the the­oretical question of whether the state peoples wholly retained their sepa­rate identity, or whether adoption of the Constitution signified the existence of unified "People of the United States." To the extent that the Framers had any shared understanding on this point, which is itself some­what dubious, they probably leaned toward the view that ratification signified the emergence of a national People. On the whole, however, the best conclusion seems to be Madison's -- that the United States was unique and could not be considered either a consolidated nation or a compact of sovereign states.

SOURCE: Lincoln's Constitution, Daniel Farber, 2003, pp. 82-83

------------------------------

Still, it would be a mistake to view the Framers as purely nationalistic. During ratification, the most direct discussion of the source of the Consti­tution's legitimacy was in Federalist 39. Inquiring into the formation of the new Constitution, Madison explained that ratification takes place by the authority of the people -- "not as individuals composing one entire nation, but as composing the distinct and independent States to which they re­spectively belong." Madison went on to call ratification a "federal and not a national act," that is, "the act of the people, as forming so many independent States, not as forming one aggregate nation." This passage seems at odds with Lincoln's theory, but leaves open the possibility that ratification resulted in the creation of a unified American people.

SOURCE: Lincoln's Constitution, Daniel Farber, 2003, p. 38

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