You will have to sell that on a different street corner.
Mark E. Neely, Jr., is Director of the Lincoln Museum.
His best-known book is The Fate of Liberty. The cover commentary asserts, "Neely depicts Lincoln's suspension of habeas corpus as a well-intentioned attempt to deal with a floodtide of unforeseen events..."
Neely himself states:
Lincoln fashioned an able defense of the April suspension of the writ of ahbeas corpus but left the more recent expansion of the suspension unexplained. (p. 13)
On page 27, Neely buries the affair of Judge Merrick in a paragraph. All Neely can find is "Merrick was never arrested, but Seward's order violated the Constitution's stipulation that judges' compensation 'shall not be diminished during their continuance in office.'" Black's law dictionary says, "All that is required for an 'arrest' is some act by officer indicating his intention to detain or take person into custody and thereby subject that person to the actual control and will of the officer; no formal declaration of arrest is required."
In these early months of the Civil War, the Lincoln administration overcame its fears of public reaction to restrictions on civil liberties, instituted a novel internal security system, and came to believe that it worked. Not every historian today would credit it with saving Maryland for the Union, but that conclusion became almost a truism in Lincoln's day. (p. 29)
As usual, the Lincoln administration's internal security system betrayed no signs of corruption in the water-torture affair. (p. 112)
Of course, there is one whole chapter entitled The Irrelevance of the Milligan Decision. (pp. 160-184) You remember that one, it is the one that was mangled by Gordon Kwok. The U.S. Supreme Court held that the use of a military tribunal to try a civilian when the civilian courts were open and functioning was UNCONSTITUTIONAL. In the states where the civilian courts were open and operating, ALL such military tribunals were UNCONSTITUTIONAL. The trial of Clement Vallandigham was UNCONSTITUTIONAL. During the war, the Court did not hear his case. The Milligan case was decided along that same argument made by Vallandigham.
Here is some high-class bovine scatology: "No one has described courtroom procedures or precedents that dictated the conduct of these commissions." Earth to Neely -- such procedures and procedents do not exist, they must be prescribed for the specific commission. So, for example, all may recall Donald Rumsfeld prescribing procedures for military tribunals for unlawful combatants fairly recently. A military tribunal is NOT a court-martial. Neither is an Article III court, i.e., a creature of the Judicial Branch of government. Each is a creature of the EXECUTIVE Branch of government, which is why the procedures were recently being prescribed by the Secretary of Defense.
Perhaps the most famous of American military tribunals was eight persons accused of complicity in the assassination of Lincoln. Blatant perjury was introduced. The defendants were prohibited from testifying in their own defense. Exhibit #1, entered as "portrait of Booth," was identified as the assassin but later revealed to be a picture of Edwin Booth. In the jury room, prosecuting attorneys "assisted" the jury in their deliberations.
"The Dred Scott decision was meant to deprive slaves taken into a Territory of the chances of liberty under the United States Constitution." (p. 176). The decision was "designed" to answer the case presented to the Court. It was decided 7-2.
On pp. 179-80, Neely expends two pages on John W. Clampitt and his 1881 defense of military tribunals directly contrary to the United States Supreme Court in Ex Parte Milligan. On page 180, Neely asserts, "Clampitt's defense of trials by military commission was significant, for when he spoke of their use in capital cases, he definitely knew what he was talking about." I note that the condemnation of such tribunals by the U.S. Supreme Court was more significant than an article written by John W. Clampitt.
The Supreme Court, in Milligan said, quite clearly,
The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority.
Neely, at page 184 states, "Historians, not realizing how muddled the law was before 1866, have repeatedly misinterpreted the constitutional history of the Civil War mainly by making the choices seem clearer than they appeared to the protagonists as the time. Such distinctions were clearer to the justices in 1866 than to the hard-pressed Lincoln administration between 1861 and 1865." Acting as Chief Justice of the U.S. Supreme Court, Roger B. Taney seemed to have phrased himself quite clearly in the Merryman case.
In reaching Lincolnian heights of rhetorical bovine scatology, Neely at page 224 defends Lincoln with this Award-winning performance:
Although the privilege of the writ of habeas corpus is surely helpful in maintaining free speech, a free press, and trial by jury, it is not identical with them, and its relation to maintaining the laws of evidence seems downright obscure. Lincoln was not speaking of the actual writ, something that could be issued by Democratic judges or Republican judges, something that could aid the freedom of fugitive slaves or help slave-catchers. He was speaking of a mythical writ that is ever liberating and that is always and everywhere a cornerstone of freedom.
Earth to Neely: Lincoln did not suspend some mythical writ, he suspended the actual writ.
If this is how one is "critical" of Lincoln, one can only wonder what a Lincoln apologist might write.
It seems to me that Neely, in his usual slothfulness, only looked at the documents about Merrick in the Official Records series. If that is the case it is very possible that he did not even know about Merrick's house arrest, which is detailed in a letter by Merrick himself that appears in the court records for the DC Circuit but not the Official Records series. If that is the case then his neglectful treatment of the incident is more out of incompetence than anything else.
Neely, despite his fame in the world of court historians, is a very sloppy researcher. He's a major proponent of the claim that Ben Butler didn't meet with Lincoln to discuss colonization in 1865 - a claim he makes in his book the Lincoln Encyclopedia. His "evidence" of this is that Butler's Book suggests the meeting was held right before Lincoln left for City Point at which time Butler was not in Washington. Therefore, concludes Neely, they never met and accordingly never talked about colonization.
That is, of course, false as newspaper reports demonstrate Butler was in town the day that Lincoln returned from City Point and the surviving Hay memorandum in the Library of Congress proves conclusively that Butler and Lincoln met at least once during those crucial days - the morning of April 11th. All of this seems to have completely escaped Neely's attention. Nor does it seem to have occurred to him that Butler, who ADMITTEDLY states in the colonization passage that the juxtaposition of events is based on incomplete recollections, simply mistook the date of his known meeting upon Lincoln's return from City Point with Lincoln's departure to City Point.