Posted on 04/16/2003 5:44:44 AM PDT by Lady Eileen
Oh, and for the record, I got a new one:
mac_truck = chronic plagiarist.
This claim appears to be in error.
See Ex Parte Milligan, 71 U.S. 2 (1866)
The trial and sentence of Milligan were by military commission convened in Indiana during the fall of 1864. The action of the commission had been under consideration by President Lincoln for some time, when he himself became the victim of an abhorred conspiracy. It was approved by his successor in May, 1865, and the sentence was ordered to be carried into execution.
Ex Parte Milligan was after the war.
There was enough question about the issue to give President Lincoln the benefit of the doubt in 1861.
Lincoln did suspend the writ. It is a fact.
The question is whether it was lawful.
Contemporaneously, CJ Taney issued a Writ of Habeas Corpus. The Executive refused to comply.
As a matter of law (not right or wrong), can the Executive interpretation of the law overrule the Judiciary interpretation of the law?
While Ex Parte Milligan was decided by the Supreme Court after the war, it was ruling on events that occurred during the war.
From Ex Parte Milligan
The crimes with which Milligan was charged were of the gravest character, and the petition and exhibits in the record, which must here be taken as true, admit his guilt. But whatever his desert of punishment may be, it is more important to the country and to every citizen that he should not be punished under an illegal sentence, sanctioned by this court of last resort, than that he should be punished at all. The laws which protect the liberties of the whole people must not be violated or set aside in order to inflict, even upon the guilty, unauthorized though merited justice.
The trial and sentence of Milligan were by military commission convened in Indiana during the fall of 1864. The action of the commission had been under consideration by President Lincoln for some time, when he himself became the victim of an abhorred conspiracy. It was approved by his successor in May, 1865, and the sentence was ordered to be carried into execution.
The proceedings, therefore, had the fullest sanction of the executive department of the government. [71 U.S. 2, 133] This sanction requires the most respectful and the most careful consideration of this court. The sentence which it supports must not be set aside except upon the clearest conviction that it cannot be reconciled with the Constitution and the constitutional legislation of Congress.
* * *
The first question, therefore-Ought the writ to issue?-must be answered in the affirmative. [71 U.S. 2, 135] And it is equally clear that he was entitled to the discharge prayed for.
* * *
An affirmative answer must, therefore, be given to the second question, namely: Ought Milligan to be discharged according to the prayer of the petition?
That the third question, namely: Had the military commission in Indiana, under the facts stated, jurisdiction to try and sentence Milligan? must be answered negatively is an unavoidable inference from affirmative answers to the other two. [71 U.S. 2, 136] The military commission could not have jurisdiction to try and sentence Milligan, if he could not be detained in prison under his original arrest or under sentence, after the close of a session of the grand jury without indictment or other proceeding against him.
Indeed, the act seems to have been framed on purpose to secure the trial of all offences of citizens by civil tribunals, in states where these tribunals were not interrupted in the regular exercise of their functions.
* * *
We agree in the proposition that no department of the [71 U.S. 2, 137] government of the United States-neither President, nor Congress, nor the Courts-possesses any power not given by the Constitution.
* * *
It is not denied that the power to make rules for the government of the army and navy is a power to provide for trial and punishment by military courts without a jury. It has been so understood and exercised from the adoption of the Constitution to the present time.
* * *
We by no means assert that Congress can establish and apply the laws of war where no war has been declared or exists.
Where peace exists the laws of peace must prevail. What we do maintain is, that when the nation is involved in war, and some portions of the country are invaded, and all are exposed to invasion, it is within the power of Congress to determine in what states or district such great and imminent public danger exists as justifies the authorization of military tribunals for the trial of crimes and offences against the discipline or security of the army or against the public safety.
* * *
We cannot doubt that, in such a time of public danger, Congress had power, under the Constitution, to provide for the organization of a military commission, and for trial by that commission of persons engaged in this conspiracy. The fact that the Federal courts were open was regarded by Congress as a sufficient reason for not exercising the power; but that fact could not deprive Congress of the right to exercise it. Those courts might be open and undisturbed in the execution [71 U.S. 2, 141] of their functions, and yet wholly incompetent to avert threatened danger, or to punish, with adequate promptitude and certainty, the guilty conspirators.
* * *
We have confined ourselves to the question of power. It was for Congress to determine the question of expediency. And Congress did determine it. That body did not see fit to authorize trials by military commission in Indiana, but by the strongest implication prohibited them.
[bold-face added]
[GOPcapitalist] That is not true. Article I, Section 1 states that the powers in that article belong to the legislature. The suspension power occurs in Article I, Section 9. Therefore the suspension power belongs to the legislature.
The Constitution is apparently not explicit enough. The Supreme Court has been very explicit in ruling, as you observe, that the suspension power belongs to the legislature.
In #583 (to WhiskeyPapa) I quoted from Ex Parte Milligan which supports that position. In more modern times, the Supreme Court ruled in the case of DUNCAN v. KAHANAMOKU, 327 U.S. 304 (1946).
U.S. Supreme Court DUNCAN v. KAHANAMOKU, 327 U.S. 304 (1946) http://laws.findlaw.com/us/327/304.html
Mr. Justice Hugo Black delivered the opinion of the court.
The petitioners in these cases were sentenced to prison by military tribunals in Hawaii. Both are civilians. The question before us is whether the military tribunals had power to do this. The United States District Court for Hawaii in habeas corpus proceedings held that the military tribunals had no such power and ordered that they be set free. The Circuit Court of Appeals reversed, and ordered that the petitioners be returned to prison. 9 Cir., 146 F.2d 576. Both cases thus involve the rights of individuals charged with crime and not connected with the armed forces to have their guilt or innocence determined in courts to law which provide established procedural safeguards, rather than by military tribunals which fail to afford many of these safeguards. Since these judicial safeguards are prized privileges of our system of government we granted certiorari. 324 U.S. 833 , 65 S.Ct. 677.
* * *
Courts and their procedural safeguards are indispensable to our system of government. They were set up by our founders to protect the liberties they valued. Ex parte Quirin, supra, 317 U.S. at page 19, 63 S.Ct. at page 6. Our system of government clearly is the antithesis of total military rule and the founders of this country are not likely to have contemplated complete military dominance within the limits of a Territory made part of this country and not recently taken from an enemy. They were opposed to governments that placed in the hands of one man the power to make, interpret and enforce the laws. Their philosophy has been the people's throughout our history. For that reason we have maintained legislatures chosen by citizens or their representatives and courts and juries to try those who violate legislative enactments. We have always been especially concerned about the potential evils of summary criminal trials and have guarded against them by provisions embodied in the constitution itself. See Ex parte Milligan, 4 Wall. 2; Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472. Legislatures and courts are not merely cherished American institutions; they are indispensable to our government.
Military tribunals have no such standing. For as this Court has said before: '... the military should always be kept in subjection to the laws of the country to which it belongs, and that he is no friend to the Republic who advocates the contrary. The established principle of every free people is, that the law shall alone govern; and to it the military must always yield.' Dow v. Johnson, 100 U.S. 158 , 169. Congress prior to the time of the enactment of the Organic Act had only once authorized the supplanting of the courts by military tribunals. Legislation to that effect was enacted immediately after the South's unsuccessful attempt to secede from the Union. Insofar as that legislation applied to the Southern States after the war was at an end it was challenged by a series of Presidential vetoes as vigorous as any in the country's history. And in order to prevent this Court from passing on the constitutionality of this legislation Congress found it necessary to curtail our appellate jurisdiction. Indeed, prior to the Organic Act, the only time this Court had ever discussed the supplanting of courts by military tribunals in a situation other than that involving the establishment of a military government over recently occupied enemy territory, it had emphatically declared that 'civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish.' Ex parte Milligan, 4 Wall. 2, 124, 125.
We believe that when Congress passed the Hawaiian Organic Act and authorized the establishment of 'martial law' it had in mind and did not wish to exceed the boundaries between military and civilian power, in which our people have always believed, which responsible military and executive officers had heeded, and which had become part of our political philosophy and institutions prior to the time Congress passed the Organic Act. The phrase 'martial law' as employed in that Act, therefore, while intended to authorize the military to act vigorously for the maintenance of an orderly civil government and for the defense of the island against actual or threatened rebellion or invasion, was not intended to authorize the supplanting of courts by military tribunals. Yet the government seeks to justify the punishment of both White and Duncan on the ground of such supposed Congressional authorization. We hold that both petitioners are now entitled to be released from custody.
REVERSED.
In a concurring opinion, Mr. Justice Murphy wrote:
Such considerations led this Court in Ex parte Milligan, 4 Wall. 2, to lay down the rule that the military lacks [327 U.S. 304, 326] any constitutional power in war or in peace to substitute its tribunals for civil courts that are open and operating in the proper and unobstructed exercise of their jurisdiction. Only when a foreign invasion or civil war actually closes the courts and renders it impossible for them to administer criminal justice can martial law validly be invoked to suspend their functions. Even the suspension of power under those conditions is of a most temporary character. '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.' Id., 4 Wall. at page 127.
* * *
Moreover, there is no question here as to the loyalty of the Hawaiian judiciary or as to the desire and ability of the judges to cooperate fully with military requirements. There is no evidence of disorder in the community which might have prevented the courts from conducting jury trials. As was said in the Milligan case, 4 Wall. at page 127, 'It is difficult to see how the safety of the country required martial law in Indiana (Hawaii). 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 established court was better able to judge of this than a military tribunal composed of gentlemen not trained to the profession of the law.' Thus, since the courts were open and able to function, the military trials of the petitioners were in violation of the Constitution. Whether, if the courts had been closed by necessity, the military could have tried the petitioners or merely could have held them until the courts reopened is a constitutional issue absent from these cases.
The so-called 'open court' rule of the Milligan case, to be sure, has been the subject of severe criticism, especially by military commentators. That criticism is repeated by the Government in these cases. It is said that the fact that courts are open is but one of many factors relevant to determining the necessity and hence the constitutionality of military trials of civilians. The argument is made that however adequate the 'open court' rule may have been in 1628 or 1864 it is distinctly unsuited to modern warfare conditions where all of the territories of a warring nation may be in combat zones or imminently threatened with long-range attack even while civil courts are operating. Hence if a military commander, on the basis of his conception of military necessity, requires all civilians accused of crime to be tried summarily before martial law tribunals, the Bill of Rights must bow humbly to his judgment despite the unquestioned ability of the civil courts to exercise their criminal jurisdiction.
The argument thus advanced is as untenable today as it was when cast in the language of the Plantagenets, the Tudors and the Stuarts. It is a rank appeal to abandon the fate of all our liberties to the reasonableness of the judgment of those who are trained primarily for war. It seeks to justify military usurpation of civilian authority to punish crime without regard to the potency of the Bill of Rights. It deserves repudiation.
[WhiskeyPapa] Yes.
The Emancipation Proclamation freed approximately nobody. It exempted the Union states which allowed slavery, the 48 counties of Virginia designated as West Virginia (not then a separate state), and the other counties of Virginia and the parishes of Louisiana then controlled by the Union.
In point of fact, Lincoln left enslaved those he had the power to free, and declared free those he had no power to free.
The Proclamation had no particular legal authority.
Slavery was actually abolished by the 13th Amendment to the Constitution on Dec. 18, 1865. (Not the 14th Amendment of 1868)
From the Emancipation Proclamation:
Now, therefore, I, Abraham Lincoln, President of the United States, by virtue of the power in me vested as Commander-In-Chief of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for supressing said rebellion, do, on this 1st day of January, A.D. 1863, and in accordance with my purpose so to do, publicly proclaimed for the full period of one hundred days from the first day above mentioned, order and designate as the States and parts of States wherein the people thereof, respectively, are this day in rebellion against the United States the following, to wit:
Arkansas, Texas, Louisiana (except the parishes of St. Bernard, Palquemines, Jefferson, St. John, St. Charles, St. James, Ascension, Assumption, Terrebone, Lafourche, St. Mary, St. Martin, and Orleans, including the city of New Orleans), Mississippi, Alabama, Florida, Georgia, South Carolina, North Carolina, and Virginia (except the forty-eight counties designated as West Virginia, and also the counties of Berkeley, Accomac, Northhampton, Elizabeth City, York, Princess Anne, and Norfolk, including the cities of Norfolk and Portsmouth), and which excepted parts are for the present left precisely as if this proclamation were not issued.
And by virtue of the power and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated States and parts of States are, and henceforward shall be, free; and that the Executive Government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.
Thirteenth Amendment - Slavery And Involuntary Servitude
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
Fourteenth Amendment - Rights Guaranteed Privileges and Immunities of Citizenship, Due Process and Equal Protection
Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
[WhiskeyPapa] Yes.
The following is provided for completeness.
In the District of Columbia, slaves were declared free in April 1862, per the following Act:
Transcription
An Act for the Release of certain Persons held to Service or Labor in the District of Columbia
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons held to service or labor within the District of Columbia by reason of African descent are hereby discharged and freed of and from all claim to such service or labor; and from and after the passage of this act neither slavery nor involuntary servitude, except for crime, whereof the party shall be duly convicted, shall hereafter exist in said District.
Sec. 2. And be it further enacted, That all persons loyal to the United States, holding claims to service or labor against persons discharged therefrom by this act, may, within ninety days from the passage thereof, but not thereafter, present to the commissioners hereinafter mentioned their respective statements or petitions in writing, verified by oath or affirmation, setting forth the names, ages, and personal description of such persons, the manner in which said petitioners acquired such claim, and any facts touching the value thereof, and declaring his allegiance to the Government of the United States, and that he has not borne arms against the United States during the present rebellion, nor in any way given aid or comfort thereto: Provided, That the oath of the party to the petition shall not be evidence of the facts therein stated.
Sec. 3. And be it further enacted, That the President of the United States, with the advice and consent of the Senate, shall appoint three commissioners, residents of the District of Columbia, any two of whom shall have power to act, who shall receive the petitions above mentioned, and who shall investigate and determine the validity and value of the claims therein presented, as aforesaid, and appraise and apportion, under the proviso hereto annexed, the value in money of the several claims by them found to be valid: Provided, however, That the entire sum so appraised and apportioned shall not exceed in the aggregate an amount equal to three hundred dollars for each person shown to have been so held by lawful claim: And provided, further, That no claim shall be allowed for any slave or slaves brought into said District after the passage of this act, nor for any slave claimed by any person who has borne arms against the Government of the United States in the present rebellion, or in any way given aid or comfort thereto, or which originates in or by virtue of any transfer heretofore made, or which shall hereafter be made by any person who has in any manner aided or sustained the rebellion against the Government of the United States.
* * *
Sec. 11. And be it further enacted, That the sum of one hundred thousand dollars, out of any money in the Treasury not otherwise appropriated, is hereby appropriated, to be expended under the direction of the President of the United States, to aid in the colonization and settlement of such free persons of African descent now residing in said District, including those to be liberated by this act, as may desire to emigrate to the Republics of Hayti or Liberia, or such other country beyond the limits of the United States as the President may determine: Provided, The expenditure for this purpose shall not exceed one hundred dollars for each emigrant.
Sec. 12. And be it further enacted, That all acts of Congress and all laws of the State of Maryland in force in said District, and all ordinances of the cities of Washington and Georgetown, inconsistent with the provisions of this act, are hereby repealed.
Approved, April 16, 1862.
I suggest that Lieberman is in error. Ex Parte Milligan concerned actions taken while habeas corpus was suspended as a result of legislation passed by Congress on March 3, 1863. Who may suspend habeas corpus was not an issue before the court in this case.
In the District of Columbia, slaves were declared free in April 1862, per the following Act:
The question as stated involved the EP.
President Lincoln opposed the timing of the act that freed the slaves in DC. It was always Union first with Lincoln; but without Union, nothing else was possible.
As a congressman in 1849-50, Lincoln wrote legislation that would have provided for compensated emancipation. That act was not introduced.
Walt
That is simply false, though often repeated.
Slavery was a state institution and protected by the Constitution. The president had no power over it, nor did Congress. Only a constitutional amendment could free the slaves in the normal course of administering the government.
The EP was based on the powers of the president in war time. The Supreme Court ruled in the Prize Cases that the powers of the president in regards to the rebels were the same as towards a foreign enemy. And the law of war clearly allowed for the seizing of enemy property. Weren't slaves property? The slave holders instigated in a bloody fratricidal war to keep them that way.
Walt
In common sense precluded by the law?
President Lincoln wrote two famous letters on this subject. To James Conkling:
"But to be plain, you are dissatisfied with me about the negro. Quite likely there is a difference of opinion between you and myself upon that subject. I certainly wish that all men could be free, while I suppose that you do not. Yet I have neither adopted nor proposed any measure, which is not consistant even with your view, provided you are for the Union. I suggested compensated emancipation; to which you replied you wished not to be taxed to buy negroes. But I had not asked you to be taxed to buy negroes, except in such way, as to save you from greater expense, to save the Union exclusively by other means. You dislike the emancipatio proclamation; and perhaps, would have it retracted. You say it is unconstitutional--I think differently. I think the Constitution invests the commander in chief with the law of war, in time of war. The most that can be said, if so much, is, that slaves are property. Is there--has there ever been--any question that by the law of war, property, both of enemies and friends, may be taken when needed? And is it not needed whenever taking it helps us, or hurts the enemy?
....but the proclamation, as law, either is valid, or it is not valid. If it is not valid, it needs no retraction. If it is valid, it can not be retracted, any more than the dead can be brought to life....The war has certainly progressed as favorably for us, since the issue of the proclamation as before. I know as fully as one can know the opinions of others that some of the commanders of our armies in the field who have given us some of most important successes, believe the emancipation policy and the use of colored troops, constitute the heaviest blow yet dealt the rebellion, and that at least one of those important successes could not have been achieved when it was but for the aid of black soldiers....
I submit these opinions as being entitled to some weight against the objections, often urged, that emancipation, and arming the blacks, are unwise as military measures, and were not adopted, as such, in good faith. You say you will not fight to free negroes. Some of them seem willing to fight for you; but no matter. Fight you then, exclusively to save the Union... negroes, like other people act upon motives. Why should they do anything for us if we will do nothing for them? If they stake their lives for us, they must be prompted by the strongest motive--even the promise of freedom. And the promise, being made, must be kept....peace does not appear as distant as it did. I hope it will come soon, and come to stay; and so come as to worth the keeping in all future time. It will have then been proved that, among free men, there can be no successful appeal from the ballot to the bullet; and that they who take such appeal are sure to lose their case, and pay the cost. And then, there will be some black men, who can remember that, with silent tongue, and clenched teeth, and steady eye, and well-poised bayonet they have helped mankind on to this great consumation; while, I fear, there will be some white ones, unable to forget that, with malignant heart, and deceitful speech, have strove to hinder it.
Still let us not be over-sanguine of a speedy final triumph. Let us be quite sober. Let us dilligently apply the means, never doubting that a just God, in his own good time, will give us the rightful result."
8/24/63
And to A. G. Hodges:
"You ask me to put in writing the substance of what I verbally said the other day, in your presence, to Governor Bramlette and Senator Dixon. It was about as follows:
"I am naturally anti-slavery. If slavery is not wrong, nothing is wrong. I can not remember when I did not so think, and feel. And yet I have never understood that the presidency conferred upon me an unrestricted right to act upon this judgment and feeling. It was in the oath I took, that I would, to the utmost of my ability, preserve, protect and defend the Constitution of the United States. I could not take the office without taking the oath. Nor was it my view that I might take an oath to get power, and break the oath in using the power. I understood too, that in ordinary civil administration this oath even forbade me to practically indulge my primary abstract judgment on the moral question of slavery. I have publically declared this many times, and in many ways. And I aver that, to this day, I have done no official act in mere deference to my abstract judgment and feeling on slavery. I did understand however that my oath to preserve the constitution to the best of my ability, imposed upon me the duty of preserving by every indispensible means, that government--that nation--of which that constitution was the organic law. Was it possible to lose the nation, and preserve the constitution? By general law life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensible to to the preservation of the of the Constitution, through the preservation of the nation. Right or wrong, I assumed this ground, and now avow it...
When in March, and May and July 1862 I made earnest, and succcessive appeals to the border states to favor compensated emancipation, I believed the indispensable neccessity for military emancipation and arming the blacks would come, unless averted by that measure. They declined the proposition; and I was, in my best judgment, driven to the alternative of either surrendering the Union, and with it the Constitution, or of laying strong hand upon the colored element. I chose the latter. In choosing it, I hoped for greater gain than loss; but of this, I was not entirely confident. More than a year of trial now shows no loss by it in our foreign relations, none in our home popular sentiment, none in our white military force, no loss any how or any where. On the contrary, it shows a gain of quite one hundred and thirty thousand soldiers, seamen and laborers. These are palpable facts, about which there can be no cavilling. We have the men; and we could not have them without the measure.
And now let any Union man who complains of the measure, test himself by writing down in one line that he is for subduing the rebellion by force of arms; and in the next, that he is for taking these hundred and thirty thousand men from the Union side, and placing them where they would be but for the measure he condemns. If he can not face his case so stated, it is only because he can not face the truth.
I add a word which was not in the verbal conversation. In telling this tale I attempt no compliment to my own sagacity. I claim not to have controlled events, but confess plainly that events have controlled me. Now, at the end of three years struggle the Nation's condition is not what either party, or any man devised, or expected. God alone can claim it. Whither it is tending seems plain. If God now wills the removal of a great wrong, and wills also that we of the North as well as you of the South, shall pay for our complicity in that wrong, impartial history will find therein new cause to attest and revere the justice and goodness of God."
4/4/64
Quoted from "Lincoln; Speeches and Writings, 1859-65, Library of the Americas.
Walt
In President Lincoln's day, each branch was viewed as having the power to interpret the Constitution for itself.
Lincoln addressed this in his first inaugural address:
"I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal."
You don't want to fall into the very common trap of judging historical people by modern day standards.
Walt
"The decision was announced April 3, 1866. The court unanimously ruled that military commissions had no jurisdiction in a case such as Milligan's, and it ordered his sentence set aside. He was to be released. The justices took time and care in writing their opinions. The full ruling, finished in July 1866, was written by Justice David Davis, a Lincoln appointee and a longtime friend of the slain president.
"During the late wicked Rebellion," he wrote, "the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question. Then considerations of safety were mingled with the exercise of power; and feelings and interest prevailed which are happily terminated. Now that the public safety is assured, this question, as well as others, can be discussed and decided without passion, or the admixture of any element not required to form a legal judgment."
And he ruled that the administration's course had been wrong after all. "Martial law cannot arise from a threatened invasion," but only from a real one. "Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction." This had clearly been the case in Indiana in 1864, as even the government's lawyers admitted. "Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln; and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate."
Milligan was set free, then promptly seized by civil authorities, but they never pressed charges against him and ultimately released him. He filed suit to collect damages, but the statute of limitations had expired, and the jury awarded him a mere $5."
The court went out of its way to praise President Lincoln.
When Milligan was arrested, there was no precedent to say he might not be arrested. He would have hanged except for Lincoln
In 1942, the Court denied Habeas Corpus petetitions filed on behalf of German agents captured in New York and Florida. President Roosevelt ordred that six, as I recall, be executed at noon the next day. By 1:30 thet were all dead. Clearly under Milligan New York and Florida were not theaters of war.
Neo-reb apologists hate it when that the president takes reasonable action to defend the country.
Walt
Andrew Jackson suspended the Writ when he was a general.
You deny the most reasonable actions because you detest the outcome -- the maintenance of the United States.
Walt
Andrew Jackson was neither a founding father nor within his authority when he suspended the writ. Try again.
The father of R.E. Lee was Major General Henry Lee.
In 1773, Henry Lee graduated from Princeton.
In 1782, he married a cousin Matilda Lee, of the estate of Stratford, on the Potomac, following the death of her father, Philip Ludwell Lee,
In 1790, Matilda Lee put her estate in trust for her children. Soon afterwards she died.
In 1793, Henry Lee married Ann Hill Carter, daughter of Charles Carter, owner of the James River plantation and reportedly the second richest man in Virginia after George Washington.
In 1807, their fourth child, Robert Edward Lee was born.
In 1810, Robert Morris was unable to pay $40,000 he owed to Henry Lee.
In 1831, Robert E. Lee married Mary Custis at Arlington House. The mansion (on 1100 acres) overlooking what is now Arlington National Cemetery, was home. Robert E. Lee was not the butler.
http://laws.findlaw.com/us/106/196.html
The United States Supreme Court
U S v. LEE, 106 U.S. 196 (1882)
UNITED STATES v. LEE.
KAUFMAN and another
v. SAME.
December 4, 1882
* * *
These are two writs of error to the same judgment, one prosecuted by the United States, eo nomine, and the other by the attorney general of the United States in the names of Frederick Kaufman and Richard. P. Strong, the defendants against whom judgment was rendered in the circuit court. The action was originally commenced in the circuit court for the county of Alexandria, in the state of Virginia, by the present defendant in error, against Kaufman and Strong and a great number of others, in the names of the real parties under which the pleadings to recover possession of a parcel of land of about 1,100 acres, known as the Arlington estate. It was an action of ejectment in the form prescribed by the statutes of Virginia, under which the pleadings are in the names of the real parties plaintiff and defendant.
* * *
The plaintiff offered evidence establishing title in himself by the will of his grandfather, George Washington Parke Curtis, who devised the Arlington estate to his daughter, the wife of Gen. Robert E. Lee, for life, and after her death to the plaintiff. This, with the long possession under that title, made a prima facie right of recovery in plaintiff. The title relied on by defendants was a tax-sale certificate made by the commissioners appointed under the act of congress of June 7, 1862, 'for the collection of direct taxes in the insurrectionary districts within the United States,' as amended by the act of February 6, 1863. At this sale the land was bid in by said commissioners for the United States, and a certificate of that fact was given by these commissioners and introduced on the trial as evidence by defendants. If this sale was a valid sale, and the certificate conveyed a valid title, then the title of plaintiff was thereby divested, and he could not recover. If the proceedings evidenced by the tax sale did not transfer the title of the property to the United States, then it remained in the plaintiff, and, so far as the question of title was concerned, his recovery was a rightful one.
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The circuit court was competent to decide the issues in this case before the parties that were before it. In the principles on which these issues were decided no error has been found, and its judgment is affirmed.
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It is claimed that martial law covers with its broad mantle the proceedings of this military commission. The proposition is this: that in a time of war the commander of an armed force (if in his opinion the exigencies of the country demand it, and of which he is to judge), has the power, within the lines of his military district, to suspend all civil rights and their remedies, and subject citizens as well as soldiers to the rule of his will; and in the exercise of his lawful authority cannot be restrained, except by his superior officer or the President of the United States. If this position is sound to the extent claimed, then when war exists, foreign or domestic, and the country is subdivided into military departments for mere convenience, the commander of one of them can, if he chooses, within his limits, on the plea of necessity, with the approval of the Executive, substitute military force for and to the exclusion of the laws, and punish all persons, as he thinks right and proper, without fixed or certain rules. The statement of this proposition shows its importance; for, if true, republican government is a failure, and there is an end of liberty regulated by law. Martial law, established on such a basis, destroys every guarantee of the Constitution, and effectually renders the 'military independent of and superior to the civil power'-the attempt to do which by the King of Great Britain was deemed by our fathers such an offence, that they assigned it to the world as one of the causes which impelled them to declare their independence. Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish. This nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution.
Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln; and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate. If our fathers had failed to provide for just such a contingency, they would have been false to the trust reposed in them. They knew-the history of the world told them-the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued, human foresight could not tell; and that unlimited power, wherever lodged at such a time, was especially hazardous to freemen. For this, and other equally weighty reasons, they secured the inheritance they had fought to maintain, by incorporating in a written constitution the safeguards which time had proved were essential to its preservation. Not one of these safeguards can the President, or Congress, or the Judiciary disturb, except the one concerning the writ of habeas corpus.
It is essential to the safety of every government that, in a great crisis, like the one we have just passed through, there should be a power somewhere of suspending the writ of habeas corpus. In every war, there are men of previously good character, wicked enough to counsel their fellow-citizens to resist the measures deemed necessary by a good government to sustain its just authority and overthrow its enemies; and their influence may lead to dangerous combinations. In the emergency of the times, an immediate public investigation according to law may not be possible; and yet, the period to the country may be too imminent to suffer such persons to go at large. Unquestionably, there is then an exigency which demands that the government, if it should see fit in the exercise of a proper discretion to make arrests, should not be required to produce the persons arrested in answer to a writ of habeas corpus. The Constitution goes no further. It does not say after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by the course of the common law; if it had intended this result, it was easy by the use of direct words to have accomplished it. The illustrious men who framed that instrument were guarding the foundations of civil liberty against the abuses of unlimited power; they were full of wisdom, and the lessons of history informed them that a trial by an established court, assisted by an impartial jury, was the only sure way of protecting the citizen against oppression and wrong. Knowing this, they limited the suspension to one great right, and left the rest to remain forever inviolable. But, it is insisted that the safety of the country in time of war demands that this broad claim for martial law shall be sustained. If this were true, it could be well said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation. Happily, it is not so.
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Also, from Ex Parte Milligan:
But it is said that the jurisdiction is complete under the 'laws and usages of war.'
It can serve no useful purpose to inquire what those laws and usages are, whence they originated, where found, and on whom they operate; they can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed. This court has judicial knowledge that in Indiana the Federal authority was always unopposed, and its courts always open to hear criminal accusations and redress grievances; and no usage of war could sanction a military trial there for any offerce whatever of a citizen in civil life, in nowise connected with the military service. Congress could grant no such power; and to the honor of our national legislature be it said, it has never been provoked by the state of the country even to attempt its exercise. One of the plainest constitutional provisions was, therefore, infringed when Milligan was tried by a court not ordained and established by Congress, and not composed of judges appointed during good behavior.
[nonsequitur] I suggest that Lieberman is in error. Ex Parte Milligan concerned actions taken while habeas corpus was suspended as a result of legislation passed by Congress on March 3, 1863. Who may suspend habeas corpus was not an issue before the court in this case.
It would seem to me that the issue of who may lawfully suspend habeas corpus, and under what circumstances, will only arrive at the Supreme Court when somebody does suspend the writ. Otherwise, there would be no case to bring to court.
The court explicitly considered the Act of March 3, 1863.
The court explicitly noted that the president had suspended the writ.
The court ruled that the writ must issue.
From Ex Parte Milligan
Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction.
The first question, therefore-Ought the writ to issue?-must be answered in the affirmative. And it is equally clear that he was entitled to the discharge prayed for.
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.
http://laws.findlaw.com/us/71/2.html
U.S. Supreme Court EX PARTE MILLIGAN, 71 U.S. 2 (1866) .
December Term, 1866
THIS case came before the court upon a certificate of division from the judges of the Circuit Court for Indiana, on a petition for discharge from unlawful imprisonment.
The case was thus:
An act of Congress-the Judiciary Act of 1789, section 14-enacts that the Circuit Courts of the United States 'Shall have power to issue writs of habeas corpus. And that either of the justices of the Supreme Court, as well as judges of the District Court, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment. Provided,' &c.
Another act-that of March 3d, 1863, 'relating to habeas corpus, and regulating judicial proceedings in certain cases'-an act passed in the midst of the Rebellion-makes various provisions in regard to the subject of it.
The first section authorizes the suspension, during the Rebellion, of the writ of habeas corpus, throughout the United States, by the President.
Two following sections limited the authority in certain respects.
The second section required that lists of all persons, being citizens of States in which the administration of the laws had continued unimpaired in the Federal courts, who were then held, or might thereafter be held, as prisoners of the United States, under the authority of the President, otherwise than as prisoners of war, should be furnished by the Secretary of State and Secretary of War to the judges of the Circuit and District Courts. These lists were to contain the names of all persons, residing within their respective jurisdictions, charged with violation of national law. And it was required, in cases where the grand jury in attendance upon any of these courts should terminate its session without proceeding by indictment or otherwise against any prisoner named in the list, that the judge of the court should forth-with make an order that such prisoner, desiring a discharge, should be brought before him or the court to be discharged, on entering into recognizance, if required, to keep the peace and for good behavior, or to appear, as the court might direct, to be further dealt with according to law. Every officer of the United States having custody of such prisoners was required to obey and execute the judge's order, under penalty, for refusal or delay, of fine and imprisonment.
The third section enacts, in case lists of persons other than prisoners of war then held in confinement, or thereafter arrested, should not be furnished within twenty days after the passage of the act, or, in cases of subsequent arrest, within twenty days after the time of arrest, that any citizen, after the termination of a session of the grand jury without indictment or presentment, might, by petition alleging the facts and verified by oath, obtain the judge's order of discharge in favor of any person so imprisoned, on the terms and conditions prescribed in the second section.
This act made it the duty of the District Attorney of the United States to attend examinations on petitions for discharge.
By proclamation, dated the 15th September following the President reciting this statute suspended the privilege of the writ in the cases where, by his authority, military, naval, and civil officers of the United States 'hold persons in their custody either as prisoners of war, spies, or aiders and abettors of the enemy, . . . or belonging to the land or naval force of the United States, or otherwise amenable to military law, or the rules and articles of war, or the rules or regulations prescribed for the military or naval services, by authority of the President, or for resisting a draft, or for any other offence against the military or naval service.'
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Thing is also, Lincoln didn't have Milligan arrested, someone else did. And Milligan wouldn't have lived to collect his $5 in damages except for President Lincoln.
Thing is too, Milligan clarified an issue that heretofore had not been clear. A reasonable person MIGHT have thought it within constitutional grounds to try people before military commissions. The Court said no, fine.
Thing is three, that as President noted in one of his writings, the Constitution nowhere --says-- where martial law may be imposed, only that it -may- be imposed. And as the Constitution is silent, he felt he had the power. Reasonable men will agree with that, or at least that it was open to the sort of interpretation that the Court did in fact give it. PResident Lincoln never to my knwledge bucked adecision of the court, and the court, the Congress and the people pretty much approved of his actions.
President Lincoln's suspension of the Writ and use of military courts was not beyond the pale, it's not totally over the top ridiculous, like a claim of legal unilateral state secession, or anything like that.
Walt
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