Posted on 11/13/2004 11:12:00 AM PST by LouAvul
No court has ever upheld the UNLAWFUL, UNCONSTITUTIONAL suspension of habeas corpus by any MILITARY authority, nor the UNLAWFUL, UNCONSTITUTIONAL purported delegation of such authority to any MILITARY authority.
No court has ever upheld the UNLAWFUL, UNCONSTITUTIONAL suspension of habeas corpus by General Scott, General Keim, or General Cadwallader.
No court has ever recognized any lawful ability to authorize General Scott to suspend the writ. No court has ever recognized any lawful ability for General Scott to authorize anyone to suspend the writ.
By then the truly INSANE RADICALS had taken over and INSANITY ruled. INSANITY still has its proponents today.
You're avoiding the question. When do you date American nationhood to? July 4, 1776 or some date after that?
If SCG's "diplomatic recognition" was a "very real fact," then you should have no trouble actually posting the document of quoting from it in full. (Please don't repeat your dodge that it is on file in Richmond - that is getting old.
There you go changing the standards of proof again, capitan. IIRC the last time we went down this route I provided you with two separate books citing the document as well as a reference to its location in Richmond. However you know as well as I do that the document itself is a very obscure record that in all probability has never been reproduced in print. Seeing as I am not willing to make a drive down to Richmond on your behalf, the sources I already gave you will do fine.
If not a lie, exactly what do you call repeatedly perpetrating the same "mistake" to the same end of artificially bolstering your argument and then denying it ever happened when caught?
THIS APPEARS TO BE IN WRITING.
http://www.ehistory.com/uscw/library/or/114/0576.cfm
HEADQUARTERS OF THE ARMY,
Washington, May 28, 1861.
Bvt. Major General G. CADWALADER, U. S. Army,
Commanding Department of Annapolis, Baltimore, Md.
GENERAL: Your letter of the 27th instant with inclosures reporting the arrest of John Merryman and the issue by Chief Justice Taney of a writ of habeas corpus in his case has been received.
The general-in-chief directs me to say under authority conferred upon him by the President of the United States and fully transferred to you that you will hold in secure confinement all persons implicated in treasonable practices unless you should become satisfied that the arrest in any particular case was made without sufficient evidence of guilt.
In returns to writs of habeas corpus by whomsoever issued you will most respectfully decline for the time to produce the prisoners but will say that when the present unhappy difficulties are at an end you will duly respond to the writs in question.
I am, sir, very respectfully, your obedient servant,
E. D. TOWNSEND,
Assistant Adjutant-General.
[capitan_refugio] Whether the General would have, or should have, submitted it to the court is pure supposition on your part.
It is a matter of United States law and no Act of Congress nor any Court has ever found for your insane theory that a military officer can lawfully defy the authority of the courts.
When the INDEMNITY ACT OF 1863 was passed giving legal protection from criminal prosecution for preceding criminal acts by the Great Usurper Lincoln, or those act at his ursurping direction, it specifically required military officers to submit to the authority of the courts.
it shall be the duty of the judge of said court forthwith to make an order that any such prisoner desiring a discharge from said imprisonment be brought before him to be discharged; and every officer of the United States having custody of such prisoner is hereby directed immediately to obey and execute said judge's order; and in case he shall delay, or refuse so to do, he shall be subject to indictment for a misdemeanor
In Ex Parte Milligan, commenting upon the prior HABEAS CORPUS CASE of Ex Parte Bollman, and the Indemnity Act of 1863 which protected the Great Usurper from criminal prosecution for prior criminal acts, the Court said:
It was admitted at the bar that the Circuit Court had jurisdiction to entertain the application for the writ of habeas corpus and to hear and determine it; and it could not be denied; for the power is expressly given in the 14th section of the Judiciary Act of 1789, as well as in the later act of 1863. Chief Justice Marshall, in Bollman's case, construed this branch of the Judiciary Act to authorize the courts as well as the judges to issue the writ for the purpose of inquiring into the cause of the commitment; and this construction has never been departed from.
In Ex Parte Milligan, the Court also said:
Chief Justice Taney held, that, 'if a party is unlawfully imprisoned, the writ of habeas corpus is his appropriate legal remedy. It is his suit in court to recover his liberty.' There was much diversity of opinion on another ground of jurisdiction; but that, in the sense of the 25th section of the Judiciary Act, the proceeding by habeas corpus was a suit, was not controverted by any except Baldwin, Justice, and he thought that 'suit' and 'cause' as used in the section, mean the same thing.The court do not say, that a return must be made, and the parties appear and begin to try the case before it is a suit. When the petition is filed and the writ prayed for, it is a suit,-the suit of the party making the application. If it is a suit under the 25th section of the Judiciary Act when the proceedings are begun, it is, by all the analogies of the law, equally a suit under the 6th section of the act of 1802.
But it is argued, that there must be two parties to the suit, because the point is to be stated upon the request of 'either party or their counsel.'
Such a literal and technical construction would defeat the very purpose the legislature had in view, which was to enable [71 U.S. 2, 114] any party to bring the case here, when the point in controversy was a matter of right and not of discretion; and the words 'either party,' in order to prevent a failure of justice, must be construed as words of enlargement, and not of restriction. Although this case is here ex parte, it was not considered by the court below without notice having been given to the party supposed to have an interest in the detention of the prisoner. The statements of the record show that this is not only a fair, but conclusive inference.
In demonstrating the DESPERATION of the Government attorneys, they argued that Milligan had been sentenced to be hanged, and as there was nothing in the record to the contrary, the court must presume that Milligan had actually been hanged and was now dead, and the case was therefore moot. The Court took note of this DESPERATE ploy.
But it is said that this case is ended, as the presumption is, that Milligan was hanged in pursuance of the order of the President. Although we have no judicial information on the subject, yet the inference is that he is alive; for otherwise learned counsel would not appear for him and urge this court to decide his case. It can never be in this country of written constitution and laws, with a judicial department to interpret them, that any chief magistrate would be so far forgetful of his duty, as to order the execution of a man who denied the jurisdiction that tried and convicted him; after his case was before Federal judges with power to decide it, who, being unable to agree on the grave questions involved, had, according to known law, sent it to the Supreme Court of the United States for decision. But even the suggestion is injurious to the Executive, and we dismiss it from further consideration.
The Court went on to state:
Martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration.It is difficult to see how the safety for the country required martial law in Indiana. If any of her citizens were plotting treason, the power of arrest could secure them, until the government was prepared for their trial, when the courts were open and ready to try them. It was as easy to protect witnesses before a civil as a military tribunal; and as there could be no wish to convict, except on sufficient legal evidence, surely an ordained and establish court was better able to judge of this than a military tribunal composed of gentlemen not trained to the profession of the law.
It follows, from what has been said on this subject, that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. 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.'
The RETURN of the writ, justifiying the imprisonment, is REQUIRED in ALL cases. Provision of evidence of a proper, lawful suspension of the privilege of the writ may keep the proceedings from proceeding and further, but a response to the writ is REQUIRED. It is NOT supposition,
The Court also wrote:
The suspension of the privilege of the writ of habeas corpus does not suspend the writ itself. The writ issues as a matter of course; and on the return made to it the court decides whether the party applying is denied the right of proceeding any further with it. If the military trial of Milligan was contrary to law, then he was entitled, on the facts stated in his petition, to be discharged from custody by the terms of the act of Congress of March 3d, 1863.
...the main problem, of course, being the two years of intervening time between the suspension and Congress' act during which five separate federal court orders were disobeyed.
I suppose that you could make the case that Congress indemnified Lincoln from those previous five cases over the previous few years, but indemnification by its very definition would function by removing the legal penalties he would otherwise face in its absence. That would constitute a law that "renders an act punishable in a manner, in which it was not punishable, when it was committed," which of course is the Supreme Court's landmark definition of an unconstitutional Ex Post Facto law from Fletcher v. Peck (1810).
The ONLY attempt at prosecution was to bring Merryman before the CIVILIAN COURTS.
All charges against Merryman were dropped.
The stated Government purpose of the Government troops was to retake all U.S. Government facilities in the South, not to protect Washington, D.C. from a non-existent attack. If those troops were to protect Washington, D.C., then what troops were going to invade the South and provoke the attack on Washington, D.C.?
The truth is painfully clear. Those troops were for, and were used for, the purpose of subjugating the state of Maryland to prevent the possibility of its secession.
But none of this diversion changes the Merryman case.
Merryman was NOT, as you so ineptly argued, subject to the Laws of War.
As the Court said in Ex Parte Milligan,
It follows, from what has been said on this subject, that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. 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.'
And so it is that you must defend the "lawless violence" of the Great Usurper with the same mindset as those who argued to the Court that the Milligan case should be dismissed because, in the absence of evidence having been provided to the contrary, the Court should assume that Milligan had been hanged pursuant to the sentence of the lower court. The Supreme Court did not buy that insane argument, and nobody will buy your insane argument.
But it is said that this case is ended, as the presumption is, that Milligan was hanged in pursuance of the order of the President. Although we have no judicial information on the subject, yet the inference is that he is alive; for otherwise learned counsel would not appear for him and urge this court to decide his case. It can never be in this country of written constitution and laws, with a judicial department to interpret them, that any chief magistrate would be so far forgetful of his duty, as to order the execution of a man who denied the jurisdiction that tried and convicted him; after his case was before Federal judges with power to decide it, who, being unable to agree on the grave questions involved, had, according to known law, sent it to the Supreme Court of the United States for decision. But even the suggestion is injurious to the Executive, and we dismiss it from further consideration.
As may be readily observed, desperation does not add substance to an insane argument.
Please provide the source of your expert opinion on Criminal Procedure.
Are you saying Cadwallader was required to merely "notify" Chief Justice Taney, or provide evidence of a lawful suspension of the privilege of the writ?
Are you saying Cadwallader was required to "notify" Taney upon his receipt of Merryman, or upon the authorization to suspend the privilege of the writ?
Was the Great Usurper required to notify anyone when he usurped Legislative authority?
Was the Great Usurper required to notify anyone when he raped the Constitution and authorized military officers to suspend the privilege at THEIR discretion, and to delegate the unconstitutional authorization further?
What is the process of transfer of criminal custody? How does it work when the receiving officer does not know why the person is being held?
The invokation to the contrary is lacking any quote of the Supreme Court doing any such thing.
If legislative authority was "usurped," I expect the legislature to make that claim.
"Are you saying Cadwallader was required to merely "notify" Chief Justice Taney, or provide evidence of a lawful suspension of the privilege of the writ?
"Are you saying Cadwallader was required to "notify" Taney upon his receipt of Merryman, or upon the authorization to suspend the privilege of the writ?"
I am saying that when Taney issued the writ, whatever military commander had custody of and was holding the traitor Merryman, was obligated to inform Taney that the privilege of the writ had been suspended in that area. Once Taney was apprised of the suspension, Rehnquist suggests that Taney, if he intended to proceed, had the obligation to inquire further regarding the matter.
"[T]he issue of the President's authority under the Constitution to suspend the privilege of the writ of habeas corpus was a tremendously important question of public law. Before the question was decided against the President, government counsel surely should have been heard from. Taney's hasty decision is all the more remarkable because he had only learned at the Monday session of the Court of the existence of the Presidential proclamation.... Taney's refusal to countenance any delay at all for the purpose of allowing the government to present its case does not speak well for either his judgment or his impartiality." (All the Laws But One, pg 41)
Chief Justice Rehnquist hit the nail on the head when he questions Taney's judgment and impartiality. Taney's actions and attitude are perfectly consistent with a partisan judge trying to spring a friend, rather one who is interested investigating the validity of a claim that cripples his authority. One need only reflect on Taney's typical bluster in Merryman ("Having, therefore, regarded the question as too plain and too well settled to be open to dispute ...") to realize he wasn't interested in impartiality.
He was charged with treason. If he was held as a prisoner of war, I don't believe he would have been tried at all.
"All charges against Merryman were dropped."
Taney stymied any trials for in excess of a year. By that time, the immediate disloyalty crisis in Maryland had passed. Eventually Merryman was released on bail, and if I am not mistaken, he defected south.
With respect to your lengthly passage from Ex parte Milligan, the Court apparently had "second thoughts" in Ex parte Quirin:
"Petitioners, and especially petitioner Haupt, stressed the pronouncement of this Court in the Milligan case ... that the law of war 'can never be applied to citizens and states which have upheld the authority of the government, and where the courts are open and their process unobstructed.' ... We construe the Court's statement as to the inapplicability of the law of war to Milligan's case as having particular reference to the facts before it. From them the Court concluded that Milligan, not being a part of or associated with armed forces of the enemy, was a non-belligerent, not subject to the law of war save as ... martial law might be constitutionally established. The Court's opinion is inapplicable to the case presented presented by the present record. We have no occasion to define with meticulous care the ultimate boundaries of the jurisdiction of military tribunals to try persons according to the law of war. It is enough that petitioners here, upon the conceded facts, were plainly within those boundaries...." (Rehnquist, Pg 137).
Merryman's situation, as a member and officer of the disloyal Maryland militia engaged in sabotage, is much more like that of Quirin than than Milligan.
I find it interesting, though, that you make the same case for Merryman (not being subject to the laws of war) that the American-born nazi saboteur Haupt made for himself. John Merryman most certainly could have been tried by a military tribunal, if that is what the government had wished to do.
You once tried to make the case that the President's actions were impeachable. That didn't go very far either.
It is the duty of any citizen to disobey a rogue court acting outside of its jurisdiction and authority. The legal system works best when the judges understand their limitations.
"When the INDEMNITY ACT OF 1863 was passed ..."
I find no reference for that legislation in the codes. It must be a misnomer.
Actually, he disobeyed five federal court orders and was found by one federal court to have illegally arrested the judicial process. So, as usual, you are simply wrong or fibbing.
What was the law that criminalized his actions? There wasn't one.
The Judiciary Act of 1789 for starters criminalizes them, and shows once again that you are simply wrong or fibbing.
Sec. 17. And be it further enacted, That all the courts of the United States shall have power to grant new trials, in cases where there has been a trial by jury for reasons for which new trials have usually been granted in the courts of law; and shall have power to impose and administer all necessary oaths or affirmations, and to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same;
You once tried to make the case that the President's actions were impeachable.
They were.
Um, lets see how many times we can show that a backward culture survives its encounter with a rising, powerful forward moving one. Seems like the number is ZERO.
Is it justified? No merely a fact of life.
Such population movements and changes are beyond the control of mortals it appears.
In addition, such quibbles are beside the point.
Is this before or after his inaugural address in which he said that supporters of secession should be left alone as monuments to folly?
Unfortunately for the Neo-CSA you have proven nothing in your arguments all being based on a complete lack of understanding on the meaning of a "constitution."
The latter never thought of themselves as out of the Union.
In fact R.I.'s governor wrote a letter to Washington essentially begging him to help make sure that the state was NOT treated as another country.
With both states there was no belief they would stay out of the new government just as soon as the impediments to joining were removed.
It is not like there was a real government functioning before the CC was called anyway.
You make an allegation. What were the penalties?
"Sec. 17. And be it further enacted, That all the courts of the United States shall have power to grant new trials, in cases where there has been a trial by jury for reasons for which new trials have usually been granted in the courts of law; and shall have power to impose and administer all necessary oaths or affirmations, and to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same;"
But none of the judges went so far as to hold the President in contempt of court. If they did, please show the citation.
"They were [impeachable actions]."
List for me the felonies (high crimes) Lincoln committed. Where are the criminal charges?
American warships seized traders when flying the American flag. And punishment ensued. Our flag did not protect slavers and more than they protected any other illicit cargoes from foreign warships.
Sovereignty covers many ills unintentionally.
It is a lie to claim that the US flag was intended to be used to protect slavery.
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