You, of all people, should realized that a military order need not be in writing to be valid. The supposed "lack of documentation" does not preclude that, in the month since the President, as Commander-in-chief, gave the authorization to General Scott and any subordinate officers, as needed, that the order was propogated to every commander in the theater affected.
The authorization to arrest suspected traitors and subversives is quite apart from suspending the privilege of the writ of habeas corpus. It was known through the chain of command that the privilege of the writ could be suspended. Indeed, General Cadwalader stated his authorization came from the President.
Taney was notified that Merryman was being held (and rightly so) for treasonable activities and that Taney had no habeas corpus jurisdiction. The purpose of the suspension clause, as explained by Farber, and posted here earlier, was to prevent partisan, or treasonable judges from subverting the government and the military from performing their duties.
A military order to suspend habeas corpus could never be valid. There is no record of any oral order. The military tends to document such things.
[capitan_kerryfugio] The supposed "lack of documentation" does not preclude that, in the month since the President, as Commander-in-chief, gave the authorization to General Scott and any subordinate officers, as needed, that the order was propogated to every commander in the theater affected.
The Official Record proves beyond a doubt and to a moral certainty that GENERAL CADWALLADER had not been authorized to suspend habeas corpus prior to May 28, 1861.
The Official Record proves beyond a doubt that the authorization was signed by an assistant adjutant-general, and there is not one hope in hell that said assistant adjutant-general had the authority to either suspend habeas corpus or delegate the authority he did not have pursuant to the terms of Lincoln's authorization to General Scott.
The Official Record proves beyond a doubt that General Keim in Pennsylvania could not possibly have held even apparent authority to suspend habeas corpus in Maryland.
Lincolns (unconstitutional) authorization to General Scott was,
"You are engaged in repressing an insurrection against the laws of the United States. If at any point on or in the vicinity of the military line which is now used between the city of Philadelphia, via Perryville, Annapolis City, and Annapolis Junction, you find resistance which renders it necessary to suspend the writ of habeas corpus for the public safety, you personally, or through the officer in command at the point where resistance occurs, are authorized to suspend that writ.
[capitan_kerryfugio] The authorization to arrest suspected traitors and subversives is quite apart from suspending the privilege of the writ of habeas corpus.
As Chief Justice Taney patiently explained to the Great Usurper:
A military officer has no right to arrest and detain a person not subject to the rules and articles of war, for an offence against the laws of the United States, except in aid of the judicial authority, and subject to its control; and if the party be arrested by the military, it is the duty of the officer to deliver him over immediately to the civil authority, to be dealt with according to law.
[capitan_kerryfugio] It was known through the chain of command that the privilege of the writ could be suspended. Indeed, General Cadwalader stated his authorization came from the President.
Then by now you should know that such authority could only be delegated to "the officer in command at the point where resisistance occurs."
WHO was the OFFICER IN COMMAND of the AREA where resistance was purportedly occurring??? Wasn't GENERAL PATTERSON in command of the Department of Pennsylvania, Delaware and Maryland???
As already quoted to you once, on May 27, 1861, General Cadwallader explained to HQ that he had been ordered to appear in court and did not know why the hell the prisoner was being held.
I directed the officers named who brought the prisoner here to have more specific charges and specifications furnished against the accused with the names of witnesses by which it was expected to prove them and the nature of their testimony, which then it was my intention to forward to you for the instruction of the general-in-chief.I regret to say that I have not as yet been furnished with this information. I was yesterday evening served with a writ of habeas corpus issued by the Honorable Roger B. Taney, Chief Justice of the Supreme Court of the United States, commanding me to be and appear at the U. S. court-room in the city of Baltimore on Monday (this day), the 27th day of May, 1861, at 11 o'clock in the morning, and that I have with me the body of John Merryman of Baltimore County now in my custody, and that I certify and make known the day and cause of the capture and detention of the said John Merryman and that I do submit to and receive whatsoever the said court shall determine upon concerning me in this behalf.
[capitan_kerryfugio] Taney was notified that Merryman was being held (and rightly so) for treasonable activities and that Taney had no habeas corpus jurisdiction.
Link and quote the Official Record where anybody told Chief Justice Taney that he had no habeas corpus jurisdiction. It never happened. As usual, you INVENT your NON-FACTS. What General Cadwallader had his aide read to Chief Justice Taney is a matter of official record and is not in dispute, except by the capitan_kerryfugio attempt to revise it.
He has further inform you that he is duly authorized by the President of the United States in such cases to suspend the writ of habeas corpus for the public safety. This is a high and delicate trust and it has been enjoined upon him that it should be executed with judgment and discretion but he is neverthelesss also instructed that in times of civil strife errors if any should be on the side of safety to the country. He most respectfully submits for your consideration that those who should co-operate in the present trying and painful position in which our country is placed should not by reason of any unnecessary want of confidence in each other increase our embarrassments. He therefore respectfully requests that you will postpone further action upon this case until he can receive instructions from the President of the United States when you shall hear further from him.
Quite clearly, it does NOT say that General Cadwallader HAD suspended habeas corpus. An aide to the General was sent to the court to tell the Chief Justice that the General had been authorized to suspend the writ. He then asked for time to receive instructions on what the heck he should do because he obviously did not know what to do. Nobody told the Chief Justice that he had no habeas corpus jurisdiction.
Even in cases where the privilege of the writ is lawfully suspended, the Court retains jurisdiction and the writ issues as a matter of course. The agent of the Government is still required to make a return of the writ. A return of the writ with proper evidence that the privilege of the writ has been suspended will cause the Court to take no further action. It is the privilege of the writ which is suspended, and not the writ itself.
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.
Ex Parte Milligan
LINKPage 337 Chapter LXIII. CORRESPONDENCE, ETC. - UNION.
HEADQUARTERS OF THE ARMY,
Washington, April 27, 1861.The undersigned, General-in-Chief, of the Army, has received from the President of the United States the following communication:
COMMANDING GENERAL ARMY OF THE UNITED STATES:
You are engaged in repressing an insurrection against the laws of the United States. If at any point on or in the vicinity of the military line which is now used between the city of Philadelphia, via Perryville, Annapolis City, and Annapolis Junction, you find resistance which renders it necessary to suspend the writ of habeas corpus for the public safety, you personally, or through the officer in command at the point where resistance occurs, are authorized to suspend that writ.
ABRAHAM LINCOLN.
And, as one can readily observe, after the megalomaniacal fuhrer had delegated the authority to suspend habeas to his chief storm trooper, that officer delegated the authority to Brigadier-General Beast Butler, Major-General Patterson, and Colonel Mansfield. Major-General Patterson is identified as commanding the Department of Pennsylvania, Delaware, and Maryland, not General Keim and not General Cadwalader.
In accordance with the foregoing warrant, the undersigned devolves on Major-General Patterson, commanding the Department of Pennsylvania, Delaware, and Maryland; Brigadier-General Butler, commanding the Department of Annapolis, and Colonel Mansfield, commanding the Washington Department, a like authority, each within the limits of his command to execute in all proper cases the instructions of the President.WINFIELD SCOTT.
As clearly and calmly explained by the Honorable Chief Justice, Roger B. Taney, to the evil dictator:
'I ordered this attachment yesterday, because, upon the face of the return, the detention of the prisoner was unlawful, upon the grounds:1. That the president, under the constitution of the United States, cannot suspend the privilege of the writ of habeas corpus, nor authorize a military officer to do it.
2. A military officer has no right to arrest and detain a person not subject to the rules and articles of war, for an offence against the laws of the United States, except in aid of the judicial authority, and subject to its control; and if the party be arrested by the military, it is the duty of the officer to deliver him over immediately to the civil authority, to be dealt with according to law. It is, therefore, very clear that John Merryman, the petitioner, is entitled to be set at liberty and discharged immediately from imprisonment.
And the Honorable Chief Justice Roger B. Taney clearly and calmly explained the issue of the case to the evil dictator:
The case, then, is simply this: a military officer, residing in Pennsylvania, issues an order to arrest a citizen of Maryland, upon vague and indefinite charges, without any proof, so far as appears; under this order, his house is entered in the night, he is seized as a prisoner, and conveyed to Fort McHenry, and there kept in close confinement; and when a habeas corpus is served on the commanding officer, requiring him to produce the prisoner before a justice of the supreme court, in order that he may examine into the legality of the imprisonment, the answer of the officer, is that he is authorized by the president to suspend the writ of habeas corpus at his discretion, and in the exercise of that discretion, suspends it in this case, and on that ground refuses obedience to the writ.As the case comes before me, therefore, I understand that the president not only claims the right to suspend the writ of habeas corpus himself, at his discretion, but to delegate that discretionary power to a military officer, and to leave it to him to determine whether he will or will not obey judicial process that may be served upon him. No official notice has been given to the courts of justice, or to the public, by proclamation or otherwise, that the president claimed this power, and had exercised it in the manner stated in the return. And I certainly listened to it with some surprise, for I had supposed it to be one of those points of constitutional law upon which there was no difference of opinion, and that it was admitted on all hands, that the privilege of the writ could not be suspended, except by act of congress.
The Great Usurper proceeded to usurp. Indeed, the Great Usurper did not personally suspend habeas until September 24, 1861.
There is no indication prior to May 28, 1861, that General Scott delegated authority to General Cadwalader to suspend habeas. There is no indication that General Cadwalader was then commanding the Department of Pennsylvania, Delaware, and Maryland, or that he was eligible to be delegated such authority pursuant to the Lincoln authorization of April 27, 1861.