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
Do you maintain that Roe v. Wade is only binding on Norma McCorvey and Henry Wade or a piece of Texas?
Agree with Roe or not, it still seems to be binding all over the nation.
[WhiskeyPapa] The government had every right to have Milligan tried. He was engaged in treasonous activity.
But they did not have the right to deny habeas corpus or to try him before a military tribunal, which is what they did.
When presented with the opportunity to try Milligan in a civil court, they did not. As you note, Milligan did sue and won nominal damages.
[WhiskeyPapa] 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.
The Supreme Court saved Milligan. Lincoln was dead. Andrew Johnson signed the execution order.
Lincoln died April 14, 1865. Milligan was sentenced to be hanged on May 19, 1865. Milligan filed his petition on May 10, 1865. It was decided during the December term, 1866.
Except for unlawful actions taken while Lincoln was in charge, Milligan would not have faced a military tribunal in the first place.
[WhiskeyPapa] Thing is too, Milligan clarified an issue that heretofore had not been clear.
The powers not given to the Federal government are reserved to the States, or to the People.
In Ex Parte Merryman, in April 1861, Circuit Court, D. Maryland, CJ Taney wrote:
2. Under the constitution of the United States, congress is the only power which can authorize the suspension of the privilege of the writ. [Cited in Ex parte Field, Case No. 4,761; McCall v. McDowell, Id. 8,673.]
The issue is now clear. What Lincoln and his administration did was unlawful.
Note: Originally there were 13 District Courts, one for each state in the Union. These were divided into 3 geographical circuits, eastern, middle, and southern. The Circuit Courts consisted of two Supreme Court justices and one District judge who was primarily responsible for managing the court's workload.
Today's U.S. Courts of Appeal were created by the March 1891 Evarts Court Reform Bill. The Supreme Court justices considered their circuit-riding duties to be an unwanted burden.
Milligan was in Maryland, and that was in the circuit of CJ Taney of the U.S. Supreme Court.
[WhiskeyPapa] A reasonable person MIGHT have thought it within constitutional grounds to try people before military commissions. The Court said no, fine.
It was unlawful. The court held it was unlawful.
[WhiskeyPapa] 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.
Article 1, Section 9, Clause 2. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
Article 1 pertains to the Legislative branch, not the Executive.
The court obviously disagreed with Lincoln's unique and convenient interpretation. Lincoln exceeded the powers granted by the Constitution.
The public safety must actually require suspension of the writ. The military court cannot supplant the civilian court when the civilian court is open and operating.
The powers not given to the Federal government are reserved to the States, or to the People.
[WhiskeyPapa] 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.
The powers not given to the Federal government are reserved to the States, or to the People.
Reasonable men will agree that the Constitution was at least open to the interpretation that the Court did in fact give it. What Lincoln and his administration did was unlawful. (Reasonable people can argue whether it was good, right, necessary or heroic, but that is another question.)
[WhiskeyPapa] 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.
Remember Merryman? Circuit Court, District of Maryland, 1861. Chief Justice Taney of the U.S. Supreme Court. Lincoln suspended the writ of habeas corpus WITHOUT congressional approval.
[WhiskeyPapa] 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.
I have only said it was unlawful.
Question: Was George Washington and company beyond the pale, totally over the top, ridiculous? The King probably thought so. What they did was seemingly unlawful, and had the revolution failed, they likely would all have been hung.
From Ex Parte Merryman, Circuit Court, D. Maryland, April Term, 1861:
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George Cadwalader, Brevet MajorGeneral, to CJ Taney:
'Headquarters, Department of Annapolis, Fort McHenry, May 26 1861. To the Hon. Roger B. Taney, Chief Justice of the Supreme Court of the United States, Baltimore, Md.
* * *
He, therefore, respectfully requests that you will postpone further action upon this case, until he can receive instructions from the president of the United States, when you shall hear further from him. I have the honor to be, with high respect, your obedient servant, George Cadwalader, Brevet MajorGeneral U. S. A. Commanding.'
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In Merryman, Taney wrote:
The case, then, is simply this: a military officer, residing in Pennsylvania, issues an order to arrest a citizen of Maryland, upon vague and indefinite charges, without any proof, so far as appears; under this order, his house is entered in the night, he is seized as a prisoner, and conveyed to Fort McHenry, and there kept in close confinement; and when a habeas corpus is served on the commanding officer, requiring him to produce the prisoner before a justice of the supreme court, in order that he may examine into the legality of the imprisonment, the answer of the officer, is that he is authorized by the president to suspend the writ of habeas corpus at his discretion, and in the exercise of that discretion, suspends it in this case, and on that ground refuses obedience to the writ.
As the case comes before me, therefore, I understand that the president not only claims the right to suspend the writ of habeas corpus himself, at his discretion, but to delegate that discretionary power to a military officer, and to leave it to him to determine whether he will or will not obey judicial process that may be served upon him. No official notice has been given to the courts of justice, or to the public, by proclamation or otherwise, that the president claimed this power, and had exercised it in the manner stated in the return. And I certainly listened to it with some surprise, for I had supposed it to be one of those points of constitutional law upon which there was no difference of opinion, and that it was admitted on all hands, that the privilege of the writ could not be suspended, except by act of congress.
When the conspiracy of which Aaron Burr was the head, became so formidable, and was so extensively ramified, as to justify, in Mr. Jefferson's opinion, the suspension of the writ, he claimed, on his part, no power to suspend it, but communicated his opinion to congress, with all the proofs in his possession, in order that congress might exercise its discretion upon the subject, and determine whether the public safety required it. And in the debate which took place upon the subject, no one suggested that Mr. Jefferson might exercise the power himself, if, in his opinion, the public safety demanded it.
Having, therefore, regarded the question as too plain and too well settled to be open to dispute, if the commanding officer had stated that, upon his own responsibility, and in the exercise of his own discretion, he refused obedience to the writ, I should have contented myself with referring to the clause in the constitution, and to the construction it received from every jurist and statesman of that day, when the case of Burr was before them. But being thus officially notified that the privilege of the writ has been suspended, under the orders, and by the authority of the president, and believing, as I do, that the president has exercised a power which he does not possess under the constitution, a proper respect for the high office he fills, requires me to state plainly and fully the grounds of my opinion, in order to show that I have not ventured to question the legality of his act, without a careful and deliberate examination of the whole subject.
The clause of the constitution, which authorizes the suspension of the privilege of the writ of habeas corpus, is in the 9th section of the first article. This article is devoted to the legislative department of the United States, and has not the slightest reference to the executive department. It begins by providing 'that all legislative powers therein granted, shall be vested in a congress of the United States, which shall consist of a senate and house of representatives.' And after prescribing the manner in which these two branches of the legislative department shall be chosen, it proceeds to enumerate specifically the legislative powers which it thereby grants [and legislative powers which it expressly prohibits]; 1 and at the conclusion of this specification, a clause is inserted giving congress 'the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.'
The power of legislation granted by this latter clause is, by its words, carefully confined to the specific objects before enumerated. But as this limitation was unavoidably somewhat indefinite, it was deemed necessary to guard more effectually certain great cardinal principles, essential to the liberty of the citizen, and to the rights and equality of the states, by denying to congress, in express terms, any power of legislation over them. It was apprehended, it seems, that such legislation might be attempted, under the pretext that it was necessary and proper to carry into execution the powers granted; and it was determined, that there should be no room to doubt, where rights of such vital importance were concerned; and accordingly, this clause is immediately followed by an enumeration of certain subjects, to which the powers of legislation shall not extend. The great importance which the framers of the constitution attached to the privilege of the writ of habeas corpus, to protect the liberty of the citizen, is proved by the fact, that its suspension, except in cases of invasion or rebellion, is first in the list of prohibited powers; and even in these cases the power is denied, and its exercise prohibited, unless the public safety shall require it.
It is true, that in the cases mentioned, congress is, of necessity, the judge of whether the public safety does or does not require it; and their judgment is conclusive. But the introduction of these words is a standing admonition to the legislative body of the danger of suspending it, and of the extreme caution they should exercise, before they give the government of the United States such power over the libery of a citizen.
It is the second article of the constitution that provides for the organization of the executive department, enumerates the powers conferred on it, and prescribes its duties. And if the high power over the liberty of the citizen now claimed, was intended to be conferred on the president, it would undoubtedly be found in plain words in this article; but there is not a word in it that can furnish the slightest ground to justify the exercise of the power.
The article begins by declaring that the executive power shall be vested in a president of the United States of America, to hold his office during the term of four years; and then proceeds to prescribe the mode of election, and to specify, in precise and plain words, the powers delegated to him, and the duties imposed upon him. The short term for which he is elected, and the narrow limits to which his power is confined, show the jealousy and apprehension of future danger which the framers of the constitution felt in relation to that department of the government, and how carefully they withheld from it many of the powers belonging to the executive branch of the English government which were considered as dangerous to the liberty of the subject; and conferred (and that in clear and specific terms) those powers only which were deemed essential to secure the successful operation of the government.
He is elected, as I have already said, for the brief term of four years, and is made personally responsible, by impeachment, for malfeasance in office; he is, from necessity, and the nature of his duties, the commander-in-chief of the army and navy, and of the militia, when called into actual service; but no appropriation for the support of the army can be made by congress for a longer term than two years, so that it is in the power of the succeeding house of representatives to withhold the appropriation for its support, and thus disband it, if, in their judgment, the president used, or designed to use it for improper purposes. And although the militia, when in actual service, is under his command, yet the appointment of the officers is reserved to the states, as a security against the use of the military power for purposes dangerous to the liberties of the people, or the rights of the states.
So too, his powers in relation to the civil duties and authority necessarily conferred on him are carefully restricted, as well as those belonging to his military character. He cannot appoint the ordinary officers of government, nor make a treaty with a foreign nation or Indian tribe, without the advice and consent of the senate, and cannot appoint even inferior officers, unless he is authorized by an act of congress to do so. He is not empowered to arrest any one charged with an offence agaisnt the United States, and whom he may, from the evidence before him, believe to be guilty; nor can he authorize any officer, civil or military, to exercise this power, for the fifth article of the amendments to the constitution expressly provides that no person 'shall be deprived of life, liberty or property, without due process of law'that is, judicial process.
Even if the privilege of the writ of habeas corpus were suspended by act of congress, and a party not subject to the rules and articles of war were afterwards arrested and imprisoned by regular judicial process, he could not be detained in prison, or brought to trial before a military tribunal, for the article in the amendments to the constitution immediately following the one above referred to (that is, the sixth article) provides, that 'in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law; and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defence.'
The only power, therefore, which the president possesses, where the 'life, liberty or property' of a private citizen is concerned, is the power and duty prescribed in the third section of the second article, which requires 'that he shall take care that the laws shall be faithfully executed.' He is not authorized to execute them himself, or through agents or officers, civil or military, appointed by himself, but he is to take care that they be faithfully carried into execution, as they are expounded and adjudged by the coordinate branch of the government to which that duty is assigned by the constitution. It is thus made his duty to come in aid of the judicial authority, if it shall be resisted by a force too strong to be overcome without the assistance of the executive arm; but in exercising this power he acts in subordination to judicial authority, assisting it to execute its process and enforce its judgments. $With such provisions in the constitution, expressed in language too clear to be misunderstood by any one, I can see no ground whatever for supposing that the president, in any emergency, or in any state of things, can authorize the suspension of the privileges of the writ of habeas corpus, or the arrest of a citizen, except in aid of the judicial power. He certainly does not faithfully execute the laws, if he takes upon himself legislative power, by suspending the writ of habeas corpus, and the judicial power also, by arresting and imprisoning a person without due process of law.
Nor can any argument be drawn from the nature of sovereignty, or the necessity of government, for selfdefence in times of tumult and danger. The government of the United States is one of delegated and limited powers; it derives it existence and authority altogether from the constitution, and neither of its branches, executive, legislative or judicial, can exercise any of the powers of government beyond those specified and granted; for the tenth article of the amendments to the constitution, in express terms, provides that 'the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states, respectively, or to the people.'