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.
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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.
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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."
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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?
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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.]
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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).
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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.
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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.
Since the courts were open during the duration of the Civil War, with the exception discussed above, it would seem that Farber has at least a little competition on the subject from ruling judges.
Including Roger Taney.