That would be true if it were a written authorization. Whether the General would have, or should have, submitted it to the court is pure supposition on your part.
"As usual, you have your head firmly planted in your butt. Merryman was not subject to the articles of war. Did you have a war in Baltimore at that time?
"An officer of the Maryland Militia acting under orders is not guilty of committing sabotage.
"An officer of the Maryland Militia acting on his own, in his home state, not in uniform, is not subject to the laws of war.
The only attempt at litigation was in the CIVILIAN courts."
A most stirring defense of Merryman's treason. I don't know if the record reflects whether Merryman was in uniform when he burned the railroad bridges. The act, however, was clearly directed against the Union forces assembling to protect Washington, D.C. Merryman's action were essentially military and were carried out by a military, or paramilitary, unit.
Taney thought not to inquire into Merryman's military status - it would have just ruined the second part of his diatribe.
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 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.