Posted on 06/12/2003 5:58:28 AM PDT by Aurelius
Over the years I've heard many rail at the South for seceding from the 'glorious Union.' They claim that Jeff Davis and all Southerners were really nothing but traitors - and some of these people were born and raised in the South and should know better, but don't, thanks to their government school 'education.'
Frank Conner, in his excellent book The South Under Siege 1830-2000 deals in some detail with the question of Davis' alleged 'treason.' In referring to the Northern leaders he noted: "They believed the most logical means of justifying the North's war would be to have the federal government convict Davis of treason against the United States. Such a conviction must presuppose that the Confederate States could not have seceded from the Union; so convicting Davis would validate the war and make it morally legitimate."
Although this was the way the federal government planned to proceed, that prolific South-hater, Thaddeus Stevens, couldn't keep his mouth shut and he let the cat out of the bag. Stevens said: "The Southerners should be treated as a conquered alien enemy...This can be done without violence to the established principles only on the theory that the Southern states were severed from the Union and were an independent government de facto and an alien enemy to be dealt with according to the laws of war...No reform can be effected in the Southern States if they have never left the Union..." And, although he did not plainly say it, what Stevens really desired was that the Christian culture of the Old South be 'reformed' into something more compatible with his beliefs. No matter how you look at it, the feds tried to have it both ways - they claimed the South was in rebellion and had never been out of the Union, but then it had to do certain things to 'get back' into the Union it had never been out of. Strange, is it not, that the 'history' books never seem to pick up on this?
At any rate, the Northern government prepared to try President Davis for treason while it had him in prison. Mr. Conner has observed that: "The War Department presented its evidence for a treason trial against Davis to a famed jurist, Francis Lieber, for his analysis. Lieber pronounced 'Davis will not be found guilty and we shall stand there completely beaten'." According to Mr. Conner, U.S. Attorney General James Speed appointed a renowned attorney, John J. Clifford, as his chief prosecutor. Clifford, after studying the government's evidence against Davis, withdrew from the case. He said he had 'grave doubts' about it. Not to be undone, Speed then appointed Richard Henry Dana, a prominent maritime lawyer, to the case. Mr. Dana also withdrew. He said basically, that as long as the North had won a military victory over the South, they should just be satisfied with that. In other words - "you won the war, boys, so don't push your luck beyond that."
Mr. Conner tells us that: "In 1866 President Johnson appointed a new U.S. attorney general, Henry Stanburg. But Stanburg wouldn't touch the case either. Thus had spoken the North's best and brightest jurists re the legitimacy of the War of Northern Aggression - even though the Jefferson Davis case offered blinding fame to the prosecutor who could prove that the South had seceded unconstitutionally." None of these bright lights from the North would touch this case with a ten-foot pole. It's not that they were dumb, in fact the reverse is true. These men knew a dead horse when they saw it and were not about to climb aboard and attempt to ride it across the treacherous stream of illegal secession. They knew better. In fact, a Northerner from New York, Charles O'Connor, became the legal counsel for Jeff Davis - without charge. That, plus the celebrity jurists from the North that refused to touch the case, told the federal government that they really had no case against Davis or secession and that Davis was merely being held as a political prisoner.
Author Richard Street, writing in The Civil War back in the 1950s said exactly the same thing. Referring to Jeff Davis, Street wrote: "He was imprisoned after the war, was never brought to trial. The North didn't dare give him a trial, knowing that a trial would establish that secession was not unconstitutional, that there had been no 'rebellion' and that the South had got a raw deal." At one point the government intimated that it would be willing to offer Davis a pardon, should he ask for one. Davis refused that and he demanded that the government either give him a pardon or give him a trial, or admit that they had dealt unjustly with him. Mr. Street said: "He died 'unpardoned' by a government that was leery of giving him a public hearing." If Davis was as guilty as they claimed, why no trial???
Had the federal government had any possible chance to convict Davis and therefore declare secession unconstitutional they would have done so in a New York minute. The fact that they diddled around and finally released him without benefit of the trial he wanted proves that the North had no real case against secession. Over 600,000 boys, both North and South, were killed or maimed so the North could fight a war of conquest over something that the South did that was neither illegal or wrong. Yet they claim the moral high ground because the 'freed' the slaves, a farce at best.
I'm confused about the exact sequence of events. Perhaps you can clarify it for me.
I've read that the mayor of Baltimore and the Baltimore police commissioners sent pleas to Lincoln to route the troop trains around Baltimore to prevent more bloodshed. Lincoln didn't respond. Hearing nothing back from Lincoln, they took matters into their own hands and decided that the railroad bridges had to be destroyed to prevent another riot. The mayor himself had had to shoot a man to help get the troops through the city earlier. The police had stood between the troops and the citizens to try to keep things under control.
The mayor and police got the concurrence of the governor in the plan to block rail access to the city. The governor later tried to claim otherwise, but there were supposedly a number of witnesses to his earlier action. The mayor then issued the order to destroy the bridges.
My question is: Was Merryman acting on this order when he destroyed the bridge or bridges for which he was arrested or was it for some later offense not connected with the mayor's order? I've never been able to find an answer.
As I remember, the mayor and others in the next day or so went to Washington to negotiate with Lincoln and succeeded in getting the troop trains routed around Baltimore. Their actions appear to have averted further violence in their city.
A number of people, including at least some of the police commissioners, were arrested a month or so later. I'm not sure whether their arrest was in response to the initial bridge burning or some later unauthorized action. The Maryland Legislature formally asked Lincon why these people were arrested. In a letter back to them, he would not provide a reason or list any charges against them, although some time had passed.
Can you kindly identify such a law?
[wp] Such as?
March 28, 1861 the Senate adjourned.
THE NEXT DAY LINCOLN GOT BUSY INITIATING WAR. Lincoln did not fail to obtain Congressional approval because Congress was not in session, he waited until Congress adjourned and commenced to initiate a war.
March 29, 1861
To the Secretary of the Navy
I desire that an expedition, to move by sea be go ready to sail as early as the 6th of April next, the whole according to memorandum attached: and that you co-operate with the Secretary of War for that object.
Signed: Abraham Lincoln
The memorandum attached called for:
From the Navy, three ships of war, the Pocahontas, the Pawnee and the Harriet Lane; and 300 seamen, and one month's stores.
From the War Department, 200 men, ready to leave garrison; and one year's stores.
April 1, 1861 by General Scott
April 2, 1861 approved by Abraham Lincoln
To: Brevet Colonel Harvey Brown, U.S. Army
You have been designated to take command of an expedition to reinforce and hold Fort Pickens in the harbor of Pensacola. You will proceed to New York where steam transportation for four companies will be engaged; -- and putting on board such supplies as you can ship without delay proceed at once to your destination. The object and destination of this expedition will be communicated to no one to whom it is not already known. Signed: Winfield Scott
Signed approved: Abraham Lincoln
April 4, 1861
To: Lieut. Col. H.L. Scott, Aide de Camp
This will be handed to you by Captain G.V. Fox, an ex-officer of the Navy. He is charged by authority here, with the command of an expedition (under cover of certain ships of war) whose object is, to reinforce Fort Sumter.
To embark with Captain Fox, you will cause a detachment of recruits, say about 200, to be immediately organized at fort Columbus, with competent number of officers, arms, ammunition, and subsistence, with other necessaries needed for the augmented garrison at Fort Sumter.
Signed: Winfield Scott
April 1, 1861
To Captain H.A. Adams
Commanding Naval Forces off Pensacola
Herewith I send you a copy of an order received by me last night. You will see by it that I am directed to land my command at the earliest opportunity. I have therefore to request that you will place at my disposal such boats and other means as will enable me to carry into effect the enclosed order.
Signed: I. Vogdes, Capt. 1st Artly. Comdg.
Captain Adams REFUSED TO OBEY THE ORDER and reported to the Secretary of the Navy as follows:
It would be considered not only a declaration but an act of war; and would be resisted to the utmost.
Both sides are faithfully observing the agreement (armistice) entered into by the United States Government and Mr. Mallory and Colonel Chase, which binds us not to reinforce Fort Pickens unless it shall be attacked or threatened. It binds them not to attack it unless we should attempt to reinforce it.
The Secretary of the Navy issued a CLASSIFIED response to Capt. Adams:
April 6, 1861
Your dispatch of April 1st is received. The Department regrets that you did not comply with the request of Capt. Vogdes. You will immediately on the first favorable opportunity after receipt of this order, afford every facility to Capt. Vogdes to enable him to land the troops under his command, it being the wish and intention of the Navy Department to co-operate with the War Department, in that object.
Signed: Gideon Welles, Secty. of the Navy
April 11, 1861 (USS Brooklyn, official ship's log)
"April 11th at 9 P.M. the Brooklyn got under way and stood in toward the harbor; and during the night landed troops and marines on board, to reinforce Fort Pickens."
April 1, 1861 To: Lt. D.D. Porter, USN
You will proceed to New York and with least possible delay assume command of any steamer available.
Proceed to Pensacola Harbor, and, at any cost or risk, prevent any expedition from the main land reaching Fort Pickens, or Santa Rosa.
You will exhibit this order to any Naval Officer at Pensacola, if you deem it necessary, after you have established yourself within the harbor.
This order, its object, and your destination will be communicated to no person whatever, until you reach the harbor of Pensacola.
Signed: Abraham Lincoln
Recommended signed: Wm. H. Seward
April 1, 1861
Telegram
To: Commandant, Brooklyn Navy Yard
Fit out Powhatan to go to sea at the earliest possible moment, under sealed orders. Orders by confidential messenger go forward tomorrow.
Signed: Abraham Lincoln
April 1, 1861
To: Commandant, Brooklyn Navy Yard
You will fit out the Powhatan without delay. Lieutenant Porter will relieve Captain Mercer in command of her. She is bound on secret service; and you will under no circumstances communicate to the Navy Department the fact that she is fitting out.
Signed: Abraham Lincoln
The Secretary of the Navy was unaware that President Lincoln had relieved Captain Mercer and was "borrowing" the Powhatan. It was a real secret mission.
April 1, 1861
Telegram
To: Commandant, Brooklyn Navy Yard
Fit out Powhatan to go to sea at earliest possible moment.
April 5, 1861
To: Captain Mercer, Commanding Officer, USS Powhatan
The U.S. Steamers, Powhatan, Pawnee, Pocahontas, and Harriet Lane, will compose a naval force under your command, to be sent to the vicinity of Charleston, S.C., for the purpose of aiding in carrying out the object of an expedition of which the war Department has charge. The expedition has been intrusted to Captain G.V. Fox.
You will leave New York with the Powhatan in time to be off Charleston bar, 10 miles distant from and due east of the light house on the morning of the 11th instant, there to await the arrival of the transports with troops and stores. The Pawnee and Pocahontas will be ordered to join you there, at the time mentioned, and also the Harriet Lane, etc.
Signed: Gideon Welles, Secretary of the Navy
April 6, 1861
Lt. Porter took the Powhatan and sailed.
Seward sent a telegram to Porter: "Give the Powhatan up to Captain Mercer."
A dispatch boat caught up with Powhatan and delivered Seward's message.
Lt. Porter responded to Seward: "I received my orders from the President, and shall proceed and execute them.
Before leaving, Lt. Porter instructed the Navy Yard officials, "Detain all letters for five days."
Storms and boiler problems delayed Powhatan, but she arrived disguised and flying English colors.
Porter filed this report:
I had disguised the ship, so that she deceived those who had known her, and was standing in (unnoticed), when the Wyandotte commenced making signals, which I did not answer, but stood on.
The steamer then put herself in my way and Captain Meigs, who was aboard, hailed me and I stopped.
In twenty minutes more I should have been inside (Pensacola harbor) or sunk.
Signed: D.D. Porter
Lincoln had in his orders of April 1861, suspended the writ of habeas corpus. Taney issued his writ in May 1861. Lincoln rightly ignored Taney aberrant order. Had the order come from the full Supreme Court, a Constitutional crisis may have ensued. As it was, Congress was not in session and Taney could not even get a marshal to form a posse comitatus to enforce his "ruling."
"Congress had not acted at the time of the case and cannot retroactively absolve Lincoln of his guilt due to the Constitution's prohibition of ex post facto laws."
The legal question of the day was, did Lincoln have the Executive authority to enforce the laws of the land, including those listed in the Constitution? Article I, Section 9, Part 2 states, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion the public Safety may require it." (It doesn't say "... unless in cases of Rebellion or Invasion, Congress may require it. Taney ruled, that because this Section is listed under Article I, it is a prerogative of the Congress. But Congress was not in session and a crisis of epic proportion existed. Lincoln reasoned that an exigency existed and that he had the authority to "execute" this law. (Taney, you might note, heard no arguments prior to issuing his "ruling.")
The issue of Presidential authority is still being debated to this day. In the event of national emergency, Congress passed (over a presidential veto), the "War Powers Act," which temporarily authorizes the President execute miltary action without a declaration of war. Some see this as Congress giving up (unconstitutionally) some of their specific Constitutional authority. Even today, in Congress the issue is being debated on how the government would function in the event the Congress got wiped out by a terrorist attack. Would the President have to wait for up to two years for the House to be reassembled and form a quorum, before national business could be performed?
Today, when an "inferior court" issues a controversial ruling (such as the 9th Circuits' ruling that the Pledge of Allegiance is unconstitutional), they usually suspend enforcement of the ruling until a higher court can hear the case. Neither Merryman nor Taney bothered to continue the legal battle to the next logical step. That's why Taney's Ex parte Merryman rests in the junkheap of legal garbage.
That is a good question, and it does have bearing on the issue. I will have to research it further. My recollection was that the troops entered Baltimore and clashed with the locals. A deal was worked out and the troops left, some going back to Pennsylvania. This was when I believe the bridge was destroyed. However, the truth may be something lost to history.
Interestingly enough, Merryman was later turned over to civil authorities for trial. The charges were dismissed because some of the witnesses could no longer be brought to testify, because they had either fled Maryland, been sent to fight as part of an army (Maryland provided soldiers for botrh North and South), or were dead. I don't know the eventual fate of Lt. Merryman.
Are you saying that the Congress simply overlooked these thnigs when it came time to issue a blanket certification of the president's actions while it was out of secession?
Walt
Of course they can be arrested. But not at will, without specific charges being levied.
Well, Merryman was charged with treason.
He was engaged in clearly treasonous acts. And he was a citzen of Maryland, which did not pass secession documents. How did he avoid the noose?
The issue of whether or not the president may or may not suspend the writ has never been conclusively answered at all.
"Lincoln, with his usual incisiveness, put his finger on the debate that inevitably surrounds issues of civil liberties in wartime. If the country itself is in mortal danger, must we enforce every provision safeguarding individual liberties even though to do so will endanger the very government which is created by the Constitution? The question of whether only Congress may suspend it has never been authoritatively answered to this day, but the Lincoln administration proceeded to arrest and detain persons suspected of disloyal activities, including the mayor of Baltimore and the chief of police."
--Chief Justice William Rehnquist, November 1999.
"In a third pre-civil war instance of martial law, the issue ultimately reached the Supreme Court. In Luther v. Borden, the Supreme Court resoundingly upheld the use of martial law, in an opinion by none other than Chief Justice Taney. The case involved a dispute over the legitimacy of the state government in Rhode Island, a dispute that had been resolved in favor of the existing government. In putting down an effort to displace the government by a rival group, the governor had declared martial law. “[U]nquestionably,” Taney pronounced, “a State may use its military power to put down an armed insurrection, too strong to be controlled by the civil authority.” The power to do so “is essential to the existence of every government, essential to the preservation of order and free institutions, and is necessary to the State of this Union as to any other government.”
"LIncoln's Constitution" pp. 148-49, by Daniel Farber
This issue of President Lincoln having the authority to suspend the writ is resolved.
Walt
===========
First Blood In Baltimore
"The circumstances that surround the arrest of John Merryman are of significant note. Immediately after declaring their secession from the Union, Southern forces forced the Federal troops at Fort Sumter to evacuate after a brief engagement that resulted in no fatalities or injuries. The first blood to be shed in this contest that would last the next four years would occur in Baltimore.
"Upon hearing of the secession of the southern states, Lincoln put out a call for volunteer troops to be sent immediately to Washington for fear of an attack by Southern forces located in Virginia. Loosely organized and armed abolitionists from Massachusetts formed a regiment and made their way by train from Boston through New York and Philadelphia, where they received a heroes welcome. This regiment then moved through the Maryland countryside on their way to Baltimore, the only major train connection to Washington. However, they were to soon find out that the welcome from the citizens of Baltimore would be less than warm. Secessionist mobs had controlled the city streets for days, and the news concerning the arrival of troops destined for Washington sparked an excitement in Baltimore. Officials had tried to plan for the arrival of the regiment and their safe passage through the one and a half miles that separated the train lines. They were going to try to slip through unnoticed, but they were to fail.
"Secession feelings were high in Baltimore and throughout Maryland. The feelings came from their reluctance to open fire on citizens of their sister state, Virginia, as well as the disapproval of many in Maryland of the election of Lincoln, who had lost that state during the election. In some rural counties Lincoln did not even receive one vote. Tensions were high as the troops rolled into Baltimore. They soon began to make their way through the streets of Baltimore, but were confronted by the secessionist mob half-way to the Washington depot. The forces were quickly cut in two. A small contingent tried to force their way by foot, and were surrounded by the mob. Two soldiers fell and were set upon by the mob, but were rescued by the contingent of Baltimore police that had accompanied them. The troops now began to run, and in the commotion, the soldiers wheeled around and fired into the crowd. The citizens then returned fire and six people-two soldiers and four citizens-lay dead. Upon reaching the train depot, a prominent businessman was shot by the troops, furthering the hostilities. These were the first casualties of the Civil War.
"Mayor Brown and Governor Hicks would vow that no more troops would be sent through Baltimore, and $500,000 was appropriated for the defense of the city. News of an immanent attack upon the Federals at Fort McHenry circulated all night, but proved to be false. The next day troops from Pennsylvania disembarked about 12 miles north of Baltimore, under the command of General Wynkoop. They wisely did not proceed against the city. An action by Northern troops against Maryland would have solidified the state as secessionist, and would have brought troops from Virginia in defense. Governor Hicks and Mayor Brown would meet with Lincoln on the 21st, where Lincoln agreed to remove the troops.
"Upon word of the troops retreat reached Baltimore, the city fell calm. As the troops made their way back into Pennsylvania, they were kept under surveillance by Lt. John Merryman and the detail of calvary under his command. As the troops moved by train back north, Merryman and his troops burned a bridge in Parkton, ten miles south of Pennsylvania, to prevent more troops from being moved through Baltimore. This action would cause his eventual arrest by military authorities and establish his name in American legal history.
============
Ex Parte Merryman is not just a case of Lincoln suspending the writ of habeas corpus. It was NOT President Lincoln who suspended the writ in the case of Merryman. It was an Army officer who asserted, "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."
It was not only claimed that the President could suspend the writ of habeas corpus himself, at his discretion, but that he could delegate that discretionary power to a military officer, and to leave it to said military officer to determine whether he will or will not obey judicial process that may be served upon him.
On April 27 Lincoln wrote General-In-Chief Winfield Scott "authorizing" the suspension of the writ by Scott and his subordinates. Scott immediately sent word to his commanders in the field in Pennsylvania, Delaware, Maryland, and Washington. But no public proclamation was made, nor were the judicial authorities in those respective areas informed of the suspension. The order was never even printed as a general order for those military commanders for whom it may apply.
Lincoln's order read as follows:
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 being used between the City of Philadelphia and the City of Washington, 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 an officer in command at the point where the resistance occurs, are authorized to suspend the writ.
On May 30th, Lincoln consulted with the district prosecutor, who obtained an indictment against John Merryman for treason. On July 13th, he was remanded to the custody of the civilian authorities, who allowed him to post bail at $40,000, with the trial scheduled for November. A postponement was issued until the following May, but the district attorney dropped the charges.
'To the Hon. Roger B. Taney, Chief Justice of the Supreme Court of the United States: The petition of John Merryman, of Baltimore county and state of Maryland, respectfully shows, that being at home, in his own domicile, he was, about the hour of two o'clock a. m., on the 25th day of May, A. D. 1861, aroused from his bed by an armed force pretending to act under military orders from some person to your petitioner unknown. That he was by said armed force, deprived of his liberty, by being taken into custody, and removed from his said home to Fort McHenry, near to the city of Baltimore, and in the district aforesaid, and where your petitioner now is in close custody. That he has been so imprisoned without any process or color of law whatsoever, and that none such is pretended by those who are thus detaining him; and that no warrant from any court, magistrate or other person having legal authority to issue the same exists to justify such arrest; but to the contrary, the same, as above stated, hath been done without color of law and in violation of of constitution and laws of the United States, of which he is a citizen. That since his arrest, he has been informed, that some order, purporting to come from one General Keim, of Pennsylvania, to this petitioner unknown, directing the arrest of the captain of some company in Baltimore county, of which company the petitioner never was and is not captain, was the pretended ground of his arrest, and is the sole ground, as he believes, on which he is now detained. That the person now so detaining him at said fort is Brigadier General George Cadwalader, the military commander of said post, professing to act in the premises under or by color of the authority of the United States. Your petitioner, therefore, prays that the writ of habeas corpus may issue, to be directed to the said George Cadwalader, commanding him to produce your petitioner before you, judge as aforesaid, with the cause, if any, for his arrest and detention, to the end that your petitioner be discharged and restored to liberty, and as in duty, & c. John Merryman. Fort McKenry, 25th May 1861.
'United States of America, District of Maryland, to wit: Before the subscriber, a commissioner appointed by the circuit court of the United States, in and for the Fourth circuit and district of Maryland, to take affidavits, & c., personally appeared the 25th day of May, A. D. 1861, Geo. H. Williams, of the city of Baltimore and district aforesaid, and made oath on the Holy Evangely of Almighty God, that the matters and facts stated in the foregoing petition are true, to the best of his knowledge, information and belief; and that the said petition was signed in his presence by the petitioner, and would have been sworn to by him, said petitioner, but that he was, at the time, and still is, in close custody, and all access to him denied, except to his counsel and his brother in law this deponent being one of said counsel. Sworn to before me, the 25th day of May, A. D. 1861. John Hanan, U. S. Commissioner.
'United States of America, District of Maryland, to wit: Before the subscriber, a commissioner appointed by the circuit court of the United States, in and for the Fourth circuit and district of Maryland, to take affidavits, & c., personally appeared this 26th day of May, 1861, George H. Williams, of the city of Baltimore and district aforesaid, and made oath on the Holy Evangely of Almighty God, that on the 26th day of May, he went to Fort McHenry, in the preceding affidavit mentioned, and obtained an interview with Gen. Geo. Cadwalader, then and there in command, and deponent, one of the counsel of said John Merryman, in the foregoing petition named, and at his request, and declaring himself to be such counsel, requested and demanded that he might be permitted to see the written papers, and to be permitted to make copies thereof, under and by which he, the said general, detained the said Merryman in custody, and that to said demand the said Gen. Cadwalader replied, that he would neither permit the deponent, though officially requesting and demanding, as such counsel, to read the said papers, nor to have or make copies thereof. Sworn to this 26th day of May, A. D. 1861, before me
John Hanan, U. S. Commissioner for Maryland.'
Upon this petition the chief justice passed the following order:
Ex Parte Merryman
by Chief Justice Roger B. Taney
Maryland Circuit Court (1861)
The application in this case for a writ of habeas corpus is made to me under the 14th Section of the Judiciary Act of 1789, which renders effectual for the citizen the constitutional privilege of the habeas corpus. That Act gives to the Courts of the United States, as well as to each Justice of the Supreme Court, and to every District Judge, power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment. The petition was presented to me in Washington, under the impression that I would order the prisoner to be brought before me there, but as he was confined in Fort McHenry, in the City of Baltimore, which is in my circuit I resolved to hear it at the latter City, as obedience to the writ, under such circumstances, would not withdraw Gen. Cadwalader, who had him in charge, from the limits of his military command.
The petition presents the following case: The petitioner resides in Maryland, in Baltimore County. While peaceably in his own house, with his family, he was, at two o'clock on the morning of the 25th of May, 1861, arrested by an armed force, professing to act under military orders. He was then compelled to rise from his bed, taken into custody and conveyed to Fort McHenry, where he is imprisoned by the commanding officer, without warrant from any lawful authority.
The commander of the Fort, Gen. George Cadwalader, by whom he is detained in confinement, in his return to the writ, does not deny any of the facts alleged in the petition. He states that the prisoner was arrested by order of Gen. Keim, of Pennsylvania, and conducted as a prisoner to Fort McHenry by his order, and placed in his (Gen. Cadwalader's) custody, to be there detained by him as a prisoner.
A copy of the warrant, or order, under which the prisoner was arrested, was demanded by his counsel and refused. And it is not alleged in the return that any specific act, constituting an offense against the laws of the United States, has been charged against him, upon oath; but he appears to have been arrested upon general charges of treason and rebellion, without proof, and without giving the names of the witnesses, or specifying the acts which, in the judgment of the military officer, constituted these crimes. And having the prisoner thus in custody, upon these vague and unsupported accusations, he refuses to obey the writ of habeas corpus upon the ground that he is duly authorized by the President to suspend it.
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, 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 is 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.
* * *
WHAT blanket certification are you talking about? I have asked you to identify it and you have remained mute on the subject.
NO, this is incorrect. Lincoln did not personally suspend the writ. He authorized military officers to suspend the writ at their pleasure, and in the case of Merryman, it was a military officer who suspended the writ, not Lincoln.
On April 27 Lincoln wrote General-In-Chief Winfield Scott "authorizing" the suspension of the writ by Scott and his subordinates. Scott immediately sent word to his commanders in the field in Pennsylvania, Delaware, Maryland, and Washington. But no public proclamation was made, nor were the judicial authorities in those respective areas informed of the suspension. The order was never even printed as a general order for those military commanders for whom it may apply.
Lincoln's order read as follows:
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 being used between the City of Philadelphia and the City of Washington, 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 an officer in command at the point where the resistance occurs, are authorized to suspend the writ.
This one:
"It appears he refers to Joint Resolution #1, brought by Mr. Wilson on July 6, 1861."
Are you saying that Congress just overlooked the things you list?
Walt
The record shows that their is plenty of support for the president having the power to suspend the Writ in times of emergency.
Walt
Wrong.
It beggars credibility to suggest that the president can kill insurrectionists, but cannot have them arrested and detained.
In any case, a blanket amnesty was issued early in 1862. Even Merryman, who was clearly guilty of treasonous acts, was released.
Walt
Distorted and plain wrong.
You are a excuse maker for the slave power:
No, I posted what God says about slavery in the Bible. Joseph was a slave, servant of Potiphar and the Pharoh, was elevated to the 2nd highest position in the land, and witnessed to millions from his status as slave. It's an interesting book. You should read it sometime.
153 posted on 03/07/2003 9:35 AM EST by 4ConservativeJustices
You can be dismissed on that basis.
Walt
Last time I checked my opinions of Supreme Court decisions didn't have any effect on whether they were valid or not.
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