New book challenges Civil War’s old myths

As I've already said, there could be any of a number of reasons.

None of which make sense. You would have us believe there was a conspiracy spanning 150 years by all of Taney's biographers and Taney himself to deliberately ignore Lincoln's plan to arrest him despite what you claim is irrefutable proof. Only you could see logic in that.

Because it was idiotic and not remotely comparable.

When if comes to idiocy then who would know that better than you?

the article I posted already did.

Crap. None of the biographers were aware of the Lamon memo? None of them were aware of the written accounts of conversations with Taney? Really?

None of which make sense.

I disagree.

You would have us believe there was a conspiracy spanning 150 years by all of Taney's biographers and Taney himself to deliberately ignore Lincoln's plan to arrest him despite what you claim is irrefutable proof. Only you could see logic in that.

Conspiracy? I never said there was a "conspiracy". The article I posted did not say there was a "conspiracy" either. This is a classic straw man argument.

When if comes to idiocy then who would know that better than you?

Indeed! After reading so many of your posts I've been exposed to a huge amount of idiocy.

Crap. None of the biographers were aware of the Lamon memo? None of them were aware of the written accounts of conversations with Taney? Really?

They were aware of the Lamon memo. Of course the Lincoln hagiographers attacked him and tried to discredit him. As for why the biographers did not mention that that was confirmed in the accounts of others, you'd have to ask them.

Then why did none of the biographers, or Taney himself, mention it in any of his biographies?

There is no autobiography by Taney. There is a Memoir of Roger Brooke Taney, LL.D. by Samuel Tyler. The first edition was published in 1872. I have a copy of the Second Revised and Enlarged Edition published in 1876. Taney did start writing a story of his life in 1854, but never completed it. At the start of Chapter I of Tyler's Memoir, Tyler stated "Written by Mr. Taney himself." Chapter I covers 1777-1801. The chapter begins on page 17 and ends on page 95, where Tyler adds, "Thus far Mr. Taney wrote his own life, but no farther." As Taney's biographical contribution only extended to 1801, that explains why Taney did not mention any event after 1801.

It is not particularly relevant that Taney's biographers did not dwell at length about the purported arrest warrant. The warrant was never even alleged to have been served upon Taney, so all he could contribute is hearsay about an unseen warrant. Biographer Tyler did reference the matter at page 427: "But the Chief Justice, with the weight of eighty-four years upon him, as he left the house of his son-in-law, Mr. Campbell, remarked that it was likely he should be imprisoned in Fort McHenry before night...."

See also Baltimore and the Nineteenth of April, 1861, by George William Brown, Chief Judge of the Supreme Bench of Baltimore, and Mayor of the City in 1861, page 90:

After the court had adjourned, I went up to the bench and thanked Judge Taney for thus upholding, in its integrity, the writ of habeas corpus. He replied, "Mr. Brown, I am an old man, a very old man" (he had completed his eighty-fourth year), "but perhaps I was preserved for this occasion." I replied, "Sir, I thank God that you were."
He then told me that he knew that his own imprisonment had been a matter of consultation, but that the danger had passed, and he warned me, from information he had received, that my time would come.
The charges against Merryman were discovered to be unfounded and he was soon discharged by military authority.

However, the warrant is mentioned by biographers of Lincoln, who is alleged to have signed the warrant.

It was finally determined to place the order of arrest in the hands of the United States Marshal of the District of Columbia. This was done by the president with instruction by him to use the marshal’s own discretion about making the arrest unless he should receive further orders from Mr. Lincoln. This writ was never executed, and the marshal never regretted the discretionary power delegated to him in the exercise of his official duty.¹³³⁸
- - - - - - - - - -
¹³³⁸ Ward Hill Lamon, the author of this manuscript, was the U.S. Marshal for the District of Columbia. He was appointed for a four year term on July 26, 1861. Ward Hill Lamon, Lincoln's "Particular Friend," pg. 216.

Ward Hill Lamon, The Life of Abraham Lincoln as President, A personal account by Lincoln's Bodyguard Ward Hill Lamon, Edited by Bob O'Connor, 2011, pg. 341.

The matter is also referenced in the memoir of a contemporary U.S. Supreme Court justice.

I cannot take leave of this case [wp - Dred Scott] and its various incidents, without expressing my regret that Chief Justice Taney did not finish the autobiography which he began at Old Point Comfort, when he was in the seventy-eighth year of his age. The fragment of his own life which he then wrote, and which has been used in Mr. Tyler's memoir of him published at Baltimore in 1872, is one of the most beautiful pieces of that kind of writing that I know of in the English language. The late Chief Justice was master of a singularly graceful and easy style, perfectly perspicuous and correct; and when he sat down in his old age, during a vacation at the sea-shore, to write an account of his own life, he commenced a work which, if he had completed it, would have been a most valuable addition to our political, juridical, and personal literature. He had lived and acted in scenes of great importance in our history, had the means of throwing much light upon the motives and characters of the distinguished persons with whom he had been associated in public life, and as Chief Justice of the United States for a period of more than thirty years, beginning with the administration of General Jackson and coming down to the early years of our civil war, he conld have told of much that it would have been very desirable to know, and he would have told it in a charming way. What prevented his completion of the work which he had so felicitously begun, we are not informed. Nor can I pass from the mention of his name, without a tribute of respect to his public and private virtues. He was indeed a great magistrate, and a man of singular purity of life and character. That there should have been one mistake [wp - Dred Scott opinion] in a judicial career so long, so exalted, and so useful, is only a proof of the imperfection of our nature. The reputation of Chief Justice Taney can afford to have any thing known that he ever did, and still leave a great fund of honor and praise to illustrate his name. If he had never done any thing else that was high, heroic, and important, his noble vindication of the writ of habeas corpus, and of the dignity and authority of his office, against a rash minister of state [wp - Lincoln] who, in the pride of a fancied executive power, came near to the commission of a great crime [wp - the arrest of Chief Justice Taney], will command the admiration and gratitude of every lover of constitutional liberty, so long as our institutions shall endure.¹
¹ I refer to the case of John Merriman, a citizen, who in 1861 was imprisoned in Fort McHenry, near Baltimore, by a military order and in whose case the writ of the Chief Justice of the United States was refused entrance into the fort, upon the excuse, that the President had suspended the writ of habeas corpus.

Memoir of Benjamin Robbins Curtis, LL.D. (1879) by George Tichnor Curtis, edited by Benajmin R. Curtis, the son of the Supreme Court justice. George Tichnor Curtis was the elder brother of Justice Curtis. Justice Curtis wrote the famous dissent in the case of Scott v. Sandford. George Tichnor Curtis acted as counsel for Dred Scott on constitutional issues.

There is no autobiography by Taney.

Semantics. There are number of excellent biographies and one memoir of Taney. And not a single one of them mentions the arrest warrant. So either there is a grand conspiracy among Taney biographers to suppress the information or else each biographer analyzed the evidence during the course of their research and none of them found the evidence credible enough to include in their book.

It is not particularly relevant that Taney's biographers did not dwell at length about the purported arrest warrant.

They didn't touch on it at all. Why not? Wouldn't it be an important part of the Ex Parte Merryman narrative?

However, the warrant is mentioned by biographers of Lincoln, who is alleged to have signed the warrant.

The biographer, singular, in question is the same man that is the primary source for the claim - Ward Lamon. His book as been subject to its own scrutiny and has been found wanting.

Semantics. There are number of excellent biographies and one memoir of Taney.

Your raising the question of why Taney did not mention the warrant in his autobiography was not semantics. There was no autobiography. What little Taney wrote was included in Tyler's memoir as the first chapter. Your point questioning why Taney did not mention the 1861 warrant falls to the fact that Taney died when his unfinished memoir had only advanced to 1801. Also, what is known on the warrant indicates Taney never claimed to see any warrant, but only claimed to have heard that his arrest was being considered. Taney was the alleged subject of the warrant, not a party to creating or serving the never executed warrant.

The principal named parties were Lincoln and Lamon. There is the primary evidence of the memo relating the existence of the warrant, that Lincoln signed it and gave it to Lamon; and its incorporation into a manuscript by Lamon.

That Taney's arrest was was under consideration is supported by the writings of Lamon, Curtis, Brown, and Tyler, among others.

And not a single one of them mentions the arrest warrant. So either there is a grand conspiracy among Taney biographers to suppress the information or else each biographer analyzed the evidence during the course of their research and none of them found the evidence credible enough to include in their book.

The only primary evidence is the memo and Lamon's manuscript which remained unpublished and not available to the public until 2010. Taney never saw the unserved warrant, and the only people alleged to have done so are Lincoln and Lamon. While it was known that Lamon had been writing a manuscript, its content was not public knowledge. As it was not something that Taney did, witnessed, or related, those writing about Taney could do little more than report that Taney and others felt Taney and others were in imminent danger of arrest at the time of the Merryman case.

However, the warrant is mentioned by biographers of Lincoln, who is alleged to have signed the warrant.
The biographer, singular, in question is the same man that is the primary source for the claim - Ward Lamon. His book as been subject to its own scrutiny and has been found wanting.

There was an unpublished manuscript by Lamon, supported by a memorandum relating the story of the arrest warrant which is the prmary evidence. The memorandum was not written by Ward Hill Lamon, but is in a secretarial script.

The claim that "his book ... has been found wanting" is vacuous at best. It cites nobody and nothing. Who found what wanting, and why? How is the memorandum found to be fictitious?

An 1872 biographical work ghostwritten by Chauncey Black, published as being written by Lamon came under scrutiny. The events of that book ended before Lincoln became President.

In any case, claiming something is unproven does not establish it as discredited. An absence of evidence is not evidence. Citing that people before 2010 did not cite that which was not publicly available is not evidence of anything.

While the evidence of the warrant is not verifiable proof, neither is there any evidence which disproves it.

That various officials in Washington contemporaneously heard that Taney's arrest was under consideration by the administration is abundantly demonstrated. Contemporaneously, newspapers called for Taney's arrest, impeachment, and/or prosecution; the New York Times among them. Certainly, judges of lower courts, to include Judge Merrick the U.S. Circuit Court for the District of Columbia, were arrested, and a sitting Congressman, Vallandigham, was tried by a military court and expelled into Confederate territory. Under the Lincoln administration, a tenth justice was seated on the Supreme Court, bringing the total of Lincoln appointees to five. The (non-existent) executive power to suspend the writ of habeas corpus was delegated to General Cadwalader in Virginia, with further power to delegate the power down the military chain of command. General Cadwalader delegated his (non-existent) power to General Keim in Pennsylvania. General Keim exercised his (non-existent) power to suspend the writ of habeas corpus in Maryland, for the purpose of effecting the military arrest of John Merryman. Following that line of legal ridiculousness, arose the case Ex parte John Merryman. It is not unthinkable that Lincoln would have considered the arrest of the Chief Justice. In the Merryman case, Taney acted as Chief Justice of the U.S. Supreme Court, at chambers, i.e, it was the opinion of a single justice on a motion brought while the full Court was not in session. The Lincoln administration could have appealed but did not. The administration chose to ignore the Court and rely on the fact that the order of the Court could only be enforced by the Executive.

As was made clear later in Ex parte Milligan, there is no power to ever suspend issuance of the writ of habeas corpus, neither executive nor legislative. The Constitution recognizes only the power to suspend the privilege of the writ. Under all circumstances, the writ shall continue to issue from the Court, and a reply to the writ is mandatory. If the privilege of the writ has been properly suspended by proper authority, that fact can be argued to the Court and sustained as a completely satisfactory reply to the writ.

George Tichnor Curtis expressed the noteworthy opinion that Lincoln "came near to the commission of a great crime," writing of Lincoln's purported intent to arrest the Chief Justice. These Massachusetts brothers were not Confederate sympathizers, but a lawyer for Dred Scott, and a Supreme Court justice who dissented in the case of Scott.

The absence of a document is not evidence that the document did not exist. It is a notorious matter of public record that Chief Justice Taney had a copy of his opinion in the Merryman case served upon the President. It is equally a matter of record that said copy of the Opinion has not been found to exist in White House or other government records. In the Collected Works of Abraham Lincoln, the Merryman Opinion is a non-event.

Your raising the question of why Taney did not mention the warrant in his autobiography was not semantics.

Actually the question I have raised all along is why none of his biographers ever brought the matter up in any of their books. And I include Taney in that. So far no answer.

You were provided an answer, you just don’t want to accept it.

You were provided an answer, you just don’t want to accept it.

Where?

Where?

All over the last two pages.

All over the last two pages.

In other words you haven't.

In other words you haven't.

We have repeatedly. You just don't want to admit it.

Your raising the question of why Taney did not mention the warrant in his autobiography was not semantics.
Actually the question I have raised all along is why none of his biographers ever brought the matter up in any of their books. And I include Taney in that. So far no answer.

[DoodleDawg #90] Who to believe? Taney himself? Or other people? Such a dilemma.

[FLT-bird #91] I was unaware Taney denied it in his memoirs. Do tell where he did so.

[DoodleDawg #92] Denied it? He didn't even mention it.

Your claim that none of his biographers ever brought the matter up” brings into question which, if any, of the Taney biographies you have read.

As previously shown, and here shown again, Taney did not mention the 1861 incident in his unfinished autobiography for the simple reason that his biographical writing only progressed to 1801, and he died. He did not write about the ensuing sixty years from his grave. All that Taney wrote was included in a chapter by his chosen biographer, Samuel Tyler. The events of that chapter ended with 1801.

I have already recounted biographer Samuel Tyler covering the matter at his page 427 thusly, “But the Chief Justice, with the weight of eighty-four years upon him, as he left the house of his son-in-law, Mr. Campbell, remarked that it was likely he should be imprisoned in Fort McHenry before night....”

For yet another famous biography, there is Carl Brent Swisher, Roger B. Taney, (1935).

As I noted, Taney never completed his autobiography. He began writing it at Old Point in 1854.

"He continued writing through the weeks which followed, beginning with his ancestors and carrying the story down to the time of his removal to Frederick in 1801."¹

"He [Taney] believed, indeed, that the government had considered the possibility of imprisoning him. Although that anger seemed to have passed, he warned Mayor Brown, a southern sympathizer, in what proved to be an accurate prediction, that the time of the latter would yet come."²

"To make them conscious of coercive power the authorities arrested Mayor Brown and the police commissioners of the city without making any specific charges against them and lodged them in Fort McHenry."³

"Eight years after Taney's death Samuel Tyler of Frederick, his chosen biographer, published a Memoir of Roger Brooke Taney, LL.D. It contains as much of Taney's autobiography as was completed during his sojourns at Old Point Comfort, and a rich story of letters and other materials dealing with Taney's life."⁴

¹ Carl Brent Swisher, Roger B. Taney (1936), pp. 464-65.
² Id. at pg. 553.
³ Id. at pg. 556.
⁴ Id. at pg. 582.

[Doodledawg #69] So how does Ex Parte Merryman connect with the arrest of members of the Maryland legislature.
[FLT-bird #70] two words: habeas corpus
[Doodledawg #73] Which had been suspended due to the rebellion in progress, as the Constitution allows.
[FLT-bird #74] Which cannot be suspended by the executive branch when there is a functioning court system - which there was.
[Doodledawg #75] In retrospect. That question was not definitively ruled on until Ex Parte Milligan in 1866.
[FLT-bird #76] It was definitively ruled on in Ex Parte Merryman by Chief Justice Taney.
[Doodledawg #77] At the circuit court level, not the Supreme Court level.

Merryman was at the SUPREME COURT level. It was explicitly a proceeding of the Chief Justice of the Supreme Court of the United States, at chambers. Judge Giles of the Circuit Court was excluded from participating explicitly because it was NOT being held as a Circuit Court proceeding. Had it been a Circuit Court proceeding, it could not have been an at chambers proceeding with both (all) Circuit judges present. It was an at chambers proceeding because the U.S. Supreme Court was not in session.

See the handwritten Opinion by Chief Justice Taney.

http://www.mdd.uscourts.gov/sites/mdd/files/btn-icons/msa_sc5463_7_12.pdf

Ex parte Merryman
Before the Chief Justice of the Supreme Court of the United States
At Chambers

https://msa.maryland.gov/megafile/msa/speccol/sc3500/sc3520/001500/001543/pdf/sun27may1861.pdf

Baltimore Sun, May 27, 1861, Front page, column 5

Yesterday morning a petition was presented to Judge Taney, asking that a writ of habeas corpus be issued requiring Gen. Geo. Cadwallader to produce the body of Mr. Merryman at 11 o'clock to-day, and show cause why he should be detained. The writ was accordingly issued and placed in the hands of Deputy U. S. Marshal Vance, who proceeded to Fort McHenry at 4 o'clock in the afternoon and served it upon Gen. C. Judge Taney issued the writ in his capacity as chief judge of the Supreme Court of the United States. The petition for the writ of habeas corpus was presented by George M. Gill and George H. Williams, Esqs., counsel for Mr. Merryman.

https://msa.maryland.gov/megafile/msa/speccol/sc3500/sc3520/001500/001543/pdf/sun29may1861.pdf

Baltimore Sun, May 29, 1861, Front page, column 5

Chief Justice Taney, upon taking his seat upon the bench, said that he desired to state that his associate, Judge Giles, of the Circuit Court, was present with him yesterday by his invitation, because he desired to avail himself of his counsel and advice in so important a case. The writ of habeas corpus was ordered by him as Chief Justice of the Supreme Court of the United States, consequently Judge Giles could not act with him in the case. He had also invited Judge Giles to be present today, but he was unable to appear, in consequence of an engagement in connection with a religious association, whose deliberations Judge Giles considered it important that he should attend.

The Constitution does NOT allow the President to suspend habeas corpus, or the privilege of the writ of habeas corpus, due to a rebellion in progress.

That question was answered in Merryman to which no government attorney responded, nor did the government file any appeal. Milligan was the final nail in the coffin of this legally absurd claim, only because the Legislature withdrew jurisdiction from the U.S. Supreme Court to issue an opinion in McCardle, after the Court had heard the case, but before it had ruled, thus avoiding another judicial thumping. Invoking power granted under the Constitution, Article III, Sec. 2 (In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.), the Congress carved out an exception to the Court's jurisdiction in the case of McCardle to prevent an opinion being issued.

Those were not the only cases that addressed the matter. See, for example, In re Nicholas Kemp, 16 Wis. 359 (1863) from the Supreme Court of Wisconsin, explicitly citing Chief Justice Taney in Merryman.

https://cite.case.law/pdf/11286123/In%20re%2OKemp,%2O16%2OWis.%2O359%2O(1863).pdf

In re Kemp, 16 Wis. 359 (1863)

359
JANUARY TERM 1863.
In re. Nicholas Kemp.
The power of suspending the writ of habeas corpus under the first section of Art. 9 of the constitution of the United States, is a legislative power and is vested in congress, and the president has no power to suspend the privilege of the writ of habeas corpus within the sense of that section of the constitution.
There is a distinction between the suspension of the privilege of the writ of habeas corpus under § 9, art. 1 of the constitution of the United States, and the right of a military commander to refuse obedience to it when justified by the exigencies of war, or that ipso facto suspension which takes place where war actually exists. Per Dixon, C. J., and Paine, J.
That kind of suspension of the privilege of the writ of habeas corpus which comes with war and exists without proclamation or other act, is limited by the necessities of war, and applies only to cases where the demands upon the officer’s time and services are such that he cannot consistently with his military duty obey the mandate of the civil authorities, and to cases arising within districts properly subjected to martial law, and may take place without the exercise of the power of congress under § 9, art, 1 of the constitution. Per Dixon, C. J., and Paine, J.
Where martial law properly exists, it seems that civil magistrates would be bound to take judicial notice of its existence and of the consequent suspension of their powers, but in cases where a military offieer would be justified in disregarding the mandate of the writ on account of military exigencies, he should if possible? make return of the facts showing his excuse. Per Dixon, C. J.
Military law, is the rules and regulations enacted by the legislative power for the [*360] government and regulation of the army and navy, and the militia when called into active service. Per Dixon, C. J., and Paine, J.
Martial law, is that control and government which a military commander may lawfully exercise over the persons and property of citizens and individuals not engaged in the land or naval service. Per Dixon, C. J., and Paine, J.
The powers of the president as commander-in-chief of the army and navy in time of war, are strictly constitutional powers and are derived from the authority of congress to carry on war, and though not defined by the constitution, yet they are limited by the laws and usages of nations, adopted in their full extent by the common law. Per Dixon, C. J., and Paine, J.
Martial law is restricted to and can exist only in those places which are the actual theater of war and their immediate vicinity, and it cannot be extended to remote districts, or those not immediately connected with the operations of the contending armies.
If in time of civil war the civil authorities of a district are able by the ordinary process to preserve order and punish offenses and compel obedience to the laws, martial law does not exist there, and the military commander has no jurisdiction, but if owing to the disloyalty of magistrates or the insurrectionary spirit of the people, the laws cannot be enforced and order maintained, then martial law takes the place of civil law in such district, wherever there is a sufficient military force to execute it.
The president has no power to prescribe offenses, or to make rules for the conduct of citizens in districts not subject to martial law, and enforce them by fines or other punishment by any form of trial whatever.
The proclamation of the president, suspending the privilege of the writ of habeas corpus, &c., dated Sept. 24, 1862, (General order of the War Department, No. 141,) is not a legal and valid exercise of executive power under the constitution and laws, and is void.
A citizen not in the land or naval service, or the militia in the active service of the United States, who discourages volunteer enlistments or forcibly resists a militia draft, cannot be punished therefor by a court-martial or military commission.
The constitution knows no “political” process or “political” cause of imprisonment, but in all cases of imprisonment there must be due process of law, and a legal cause of restraint, and the power to determine what is legal imprisonment and to discharge from that which is illegal, is, except where the writ of habeas corpus is lawfully suspended, conferred on the judicial department. Per Dixon, C. J., and Paine, J.
That interference between the different departments of the government which is unauthorized and improper, is where one department denies to the others their appropriate powers and attempts to assume them itself. Per Paine, J.
HABEAS CORPUS. On the 4th day of December, 1862, a writ of Habeas Corpus was issued out of this court and directed to General W. L. Elliott, commanding the department; of the North West, requiring him to have the body of Nicholas [*361] Kemp, with the time and cause of his imprisonment before the ’ court on the 16th day of December, 1862, to do and receive, &c. This writ was issued on the petition of John Deidrich, on behalf of said Nicholas Kemp, alleging among other things, his imprisonment at Camp Randall, in said State, by Brigadier General W. L. Elliott, and that the cause of the arrest and imprisonment of Kemp was for being present at a riot which was said to have occurred at Port Washington, in the County of Ozaukee, on the 10th day of November, 1862, and that his imprisonment was illegal for the reason that he was not committed or detained upon the final judgment or order of any competent tribunal of civil or criminal jurisdiction, nor by virtue of any execution issued upon such judgment or order, nor upon any affidavit or written complaint against him for any offense against the laws of the state or of the United States, and, that he had been wrongfully removed from the county in which said offence was alleged to have been committed, by an armed force to the city of Milwaukee and from thence to the city of Madison, where he was imprisoned as aforesaid.
The writ having been served, the respondent, Gen. Elliott, sent to the clerk of the court as a return thereto, the following communication but did not produce the body of the said Kemp before the court as commanded by the writ: “Headquarters Department of the North West, Madison, Wisconsin, December 16th, 1862. To the Honorable Supreme Court, State of Wisconsin, Madison. In answer to writs in cases of Nicholas Kemp, arrested Nov, 12th, 1862, Joseph Hine, arrested Nov. 15th, 1862, Anthony Ablehausen (Ablheisen,) arrested Nov. 15th, 1862, served upon me on the 5th inst., I have the honor to state that Anthony Ablheisen was released on parole, Dec. 12, 1862, and that I hold the others above named in custody, by order of the President of the United States, they having been arrested at Port Washington, Ozaukee county, Wisconsin, by the special provost marshal for the state of Wisconsin. The authority for the said arrests [*362] with the offense charged, is set forth in the enclosed papers marked “A” and “B.” The President of the United States having on the 24th day of September, 1862, as announced in general orders No. 141, war department, adjutant general’s office, Washington, September 25th, 1862, (copy of order herewith enclosed, marked “C,”) suspended the writ of habeas corpus for offenses as charged against the aforesaid persons, with due respect to the supreme court, I decline releasing them from military custody. I am very respectfully, your obedient servant, W. L. Elliott, Brig. Gen., U. S. Vol. Comd’g Dep’t."
[...]
[*366] ... I have not assumed to deny the legality of the acts of the President without a careful and deliberate examination of the whole subject; and these I must suffer to rest upon the assertion, that I have given the questions the fullest consideration that my time and limited opportunities would permit. I am also led to this course, because I cannot regard the principles involved as either new or doubtful. They are in my judg- [*367] ment settled, so far as any matters of judicial inquiry can be said to be settled, before a court not authorized finally to determine the law for itself, by the uniform decisions of the courts and the concurrent opinion of eminent jurists and statesmen. I say matters of judicial inquiry, because I observe a distinction has been attempted by the present learned attorney general of the United States, between judicial questions and political questions. I question the soundness of that distinction, and, without particular criticism, feel myself obliged for the present, and until it has received the sanction of the federal supreme court, to disregard it. I am acting in a judicial capacity, and must be governed by the established rules and maxims of the courts.
I may furthermore add that the principles involved, have recently been the subjects of most profound and elaborate argument by several most able lawyers and judges. I refer to the opinion of Chief Justice Taney in Ex parte John Merriman, 9 American Law Register, 524; the article entitled Habeas Corpus and Martial Law, North American Review, October, 1861, pp. 471 to 519, supposed to be from the distinguished pen of Professor Parker of Cambridge; the argument of Judge Curtis of Boston, entitled “Executive Power,” Pamphlet, Boston, Little, Brown & Co., 1862; and the opinion of Judge Hall of the Northern District of New York, In the matter of Judson D. Benedict. I might, under any circumstances, without repeating the arguments, content myself with a reference to these as a complete vindication of the conclusions at which I have arrived, and which I will proceed to state in as few words as possible.
And first, I think the President has no power, in the sense of the ninth section of the first article of the constitution of the United States, to suspend the privilege of the writ of habeas corpus. It is, in my judgment, a legislative and not an executive act; and the power is vested in congress. Upon this question it seems to me that the reasoning of Chief Jus- [*368] tice Taney in Ex parte Merriman, is unanswerable.