Replies

It was definitively ruled on in Ex Parte Merryman by Chief Justice Taney.

At the circuit court level, not the Supreme Court level.

Its just that Lincoln being the unconstitutional tyrant that he was ignored the court order and signed an arrest warrant for the chief justice of the SCOTUS.

The first half is possibly correct. The second half is Southron BS. Regardless, in a Jeff Davis Confederacy a Jim Bob Merryman or a Bubba Milligan would have been out of luck, what with Davis ignoring the requirement for a Supreme Court and all.

False. We've had this discussion before and I provided the links. Lincoln signed the arrest warrant for Taney. As for Jefferson Davis, he trampled on civil liberties FAR less than Lincoln did. Even chief PC Revisionist James McPherson admitted that....as the cited quote I already provided before showed.

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.