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:
-----
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.'
-----
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.'
Do you maintain that Roe v. Wade is only binding on Norma McCorvey and Henry Wade or a piece of Texas?
No; I say again that the view during the ACW was different. It was then taken that judgements of the Supreme Court were only binding on the parties to the suit.
There was never filed in the Supreme Court any case that constrained the president in any thing that he did. That is, he never violated a Supreme Court ruling.
Walt
But they did not have the right to deny habeas corpus or to try him before a military tribunal, which is what they did.
That wasn't clear at the time. Had the Lincoln administration bucked the Milligan ruling (which I know came after the Lincoln administration; had Lincoln lived it might have come to that), then you'd have an argument. The Lincoln administration never bucked a ruling of the Supreme Court.
Walt
Lincoln died April 15.
Milligan was convicted and sentenced to death in 1863. A stay of execution by Lincoln was the only reason he lived to sue for damages later.
All this research and you missed that?
Walt
The powers not given to the Federal government are reserved to the States, or to the People.
The Supreme Court ruled in the Prize Cases that the whole executive power rests with the president. And earlier the Court had ruled:
"Among the enumerated powers, we do not find that of establishing a bank or of creating a corporation. But there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described. Even the 10th amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word "expressly," and declares that the powers "not delegated to the United States, nor prohibited to the states are reserved to the states or to the people," thus leaving the question, whether the particular power which may become the subject of contest, has been delegated to the one government, or prohibited to the other, to depend on a fair reading of the whole instument."
Your little tenth amendment one-note band is just sour grapes.
President Lincoln's actions were approved by the Congress, the Courts and the people.
Walt
Ex post facto.
Lincoln was taken to task at the time by a meeting organized to protest Lincoln's suspension of the Writ. He responded in June, 1863:
"Ours is a case of Rebellion -- so called by the resolutions before me -- in fact, a clear, flagrant, and gigantic case of Rebellion; and the provision of the Constitution that "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," is the provision which specially applies to our present case. This provision plainly attests the understanding of those who made the Constitution, that ordinary Courts of justice are inadequate to "Cases of Rebellion" -- attests their purpose that, in such cases, men may be held in custody whom the Courts, acting on ordinary rules, would discharge. Habeas Corpus does not discharge men who are proved to be guilty of defined crime; and its suspension is allowed by the Constitution on purpose that men may be arrested and held, who can not be proved to be guilty of defined crime, "when, in cases of Rebellion or Invasion, the public Safety may require it." This is precisely our present case, a case of Rebellion, wherein the public safety does require the suspension. Indeed, arrests by process of courts, and arrests in cases of rebellion, do not proceed altogether upon the same basis. The former is directed at the small percentage of ordinary and continuous perpetration of crime; while the latter is directed at sudden and extensive uprisings against the government, which, at most, will succeed or fail, in no great length of time. In the latter case, arrests are made, not so much for what has been done, as for what probably would be done. The latter is more for the preventive, and less for the vindictive, than the former-- In such cases the purposes of men are much more easily understood than in cases of ordinary crime. The man who stands by and says nothing, when the peril of his government is discussed, can not be misunderstood.If not hindered, he is sure to help the enemy. Much more, if he talks ambiguously -- talks for his country with "buts" and "ifs" and "ands". Of how little value the constitutional provision I have quoted will be rendered, if arrests shall never be made until defined crimes shall have been committed, may be illustrated by a few notable examples.
General John C. Breckinridge, General Robert E. Lee, General Joseph E. Johnston, General John B. Magruder, 2 General William B. Preston, General Simon B. Buckner, and Comodore Franklin Buchanan,3 now occupying the very highest places in the rebel war service, were all within the power of the government since the rebellion began, and were nearly as well known to be traitors then as now. Unquestionably if we had seized and held them, the insurgent cause would be much weaker. But no one of them had then committed any crime defined in the law. Every one of them, if arrested, would have been discharged on Habeas Corpus, were the writ allowed to operate. In view of these and similar cases, I think the time not unlikely to come when I shall be blamed for having made too few arrests rather than too many.
By the third resolution the meeting indicated their opinion that military arrests may be constitutional in localities where rebellion actually; exists; but that such arrests are unconstitutional in localities where rebellion, or insurrection, does not actually exist. They insist that such arrests shall not be made "outside of the lines of necessary military occupation, and the scenes of insurrection." In asmuch, however, as the constitution itself makes no such distinction, I am unable to believe that there is any such constitutional distinction. I concede that the class of arrests complained of, can be constitutional only when, in cases of Rebellion or Invasion, the public safety may require them; and I insist that in such cases, they are constitutional wherever the public safety does require them -- as well in places to which they may prevent the rebellion extending, as in those where it may be already prevailing -- as well where they may restrain mischievious interference with the raising and supplying of armies, to suppress the rebellion, as where the rebellion may actually be -- as well where they may restrain the enticing men out of the army, as when they would prevent mutiny in the army -- equally constitutional at all places where they will conduce to the public safety, as against the dangers of Rebellion or Invasion. Take the particular case mentioned by the meeting. They assert in substance that Mr. Vallandigham was by a Military Commander, seized and tried "for no other reason than words addressed to a public meeting, in criticism of the course of the administration, and in condemnation of the military orders of that general." Now, if there be no mistake about this -- if this assertion is the truth and the whole truth -- if there was no other reason for the arrest, then I concede that the arrest was wrong. But the arrest, as I understand, was made for a very different reason. Mr. Vallandigham avows his hostility to the war on the part of the Union; and his arrest was made because he was laboring, with some effect, to prevent the raising of troops, to encourage desertions from the army, and to leave the rebellion without an adequate military force to suppress it. He was not arrested because he was damaging the political prospects of the administration, or the personal interests of the commanding general; but because he was damaging the army, upon the existence, and vigor of which, the life of the nation depends. He was warring upon the military; and this gave the Military Constitutional jurisdiction to lay hands upon him. If Mr. Vallandigham was not damaging the military power of the country, then his arrest was made on mistake of fact, which I would be glad to correct, on reasonably satisfactory evidence.
I understand the meeting,whose resolutions I am considering, to be in favor of suppressing the rebellion by military force -- by armies. Long experience has shown that armies can not be maintained unless desertion shall be punished by the severe penalty of death. The case requires, and the law and the Constitution, sanction this punishment. Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wiley agitator who induces him to desert? This is none the less injurious when effected by getting a father, or brother, or friend, into a public meeting, and there working upon his feelings, till he is persuaded to write the soldier boy that he is fighting in a bad cause, for a wicked administration of a contemptable government, too weak to arrest and punish him if he shall desert. I think that in such a case, to silence the agitator, and save the boy, is not only constitutional, but, withal, a great mercy.
If I be wrong on this question of constitutional power, my error lies in believing that certain proceedings are constitutional when, in cases of Rebellion or Invasion, the public safety requires them, which would not be constitutional when, in absence of rebellion or invasion, the public Safety does not require them; -- in other words, that the constitution is not, in it's application, in all respects the same, in cases of Rebellion or Invasion, involving the public safety, as it is in times of profound peace and public security. The constitution itself makes the distinction; and I can no more be persuaded that the government can constitutionally take no strong measures in time of rebellion, because it can be shown that the same could not be lawfully taken in time of peace, than I can be persuaded that a particular drug is not good medicine for a sick man, because it can be shown to not be good food for a well one.
Nor am I able to appreciate the danger, apprehended by the meeting, that the American People will, by means of military arrests during the rebellion, lose the right of public discussion, the liberty of speech and the press, the law of evidence, trial by jury, and Habeas Corpus, throughout the indefinite peaceful future which I trust lies before them, any more than I am able to believe that a man could contract so strong an appetite for emetics during temporary illness as to persist in feeding upon them through the remainder of his healthful life.
In giving the resolutions that earnest consideration which you request of me, I cannot overlook the fact that the meeting speak as "Democrats"; nor can I, with full respect for their known intelligence, and the fairly presumed deliberation with which they prepared their resolutions, be permitted to suppose that this occurred by accident, or in any way other than that they preferred to designate themselves "Democrats" rather than "American Citizens." In this time of national peril I would have preferred to meet you upon a level one step higher than any party platform; because I am sure that from such more elevated position, we could do better battle for the country we all love, than we possibly can from those lower ones where, from the force of habit, the prejudices of the past, and selfish hopes of the future, we are sure to expend much of our ingenuity and strength in finding fault with, and aiming blows at each other. But since you have denied me this, I will yet be thankful, for the country's sake, that not all democrats have done so. He, on whose discretionary judgment Mr. Vallandigham was arrested and tried,4 is a democrat, having no old party affinity with me; and the judge who rejected the constitutional view -- expressed in these resolutions, by refusing to discharge Mr. V. on Habeas Corpus,5 is a democrat of better days than these, having received his judicial mantle at the hands of President Jackson. And still more, of all those democrats who are nobly exposing their lives and shedding their blood on the battle field, I have learned that many approve the course taken with Mr. Vallandigham while I have not heard of a single one condemning it. I can not assert that there are none such.
And the name of President Jackson recalls a bit of pertinent history. After the battle of New Orleans, and while the fact that the treaty of peace had been concluded, was well known in the city, but before official knowledge of it had arrived, General Jackson still maintained martial, or military law. Now, that it could be said the war was over, the clamor against martial law, which had existed from the first, grew more furious. Among other things a Mr. Louaillier, published a denunciatory newspaper article-- General Jackson arrested him-- A lawyer by the name of Morel procured the U. S. Judge Hall to order a writ of Habeas Corpus to release Mr. Louaillier. General Jackson arrested both the lawyer and the judge. A Mr. Hollander ventured to say of some part of the matter that "it was a dirty trick." General Jackson arrested him. When the officer undertook to serve the writ of Habeas Corpus, General Jackson took it from him, and sent him away with a copy.
Holding the judge in custody a few days, the general sent him beyond the limits of his encampment, and set him at liberty, with an order to remain till the ratification of peace should be regularly announced, or until the British should have left the Southern coast. A day or two more elapsed, the ratification of the treaty of peace was regularly announced, and the judge and others were fully liberated. A few days more, and the judge called General Jackson into Court and fined him a thousand dollars, for having arrested him and the others named. The general paid the fine, and there the matter rested for nearly thirty years, when Congress refunded principal and interest.
The late Senator Douglas, then in the House of Representatives, took a leading part in the debates, in which the constitutional question was much discussed. I am not prepared to say whom the Journals would show to have voted for the measure."
There was clearly enough grounds for the president to exercise his powers under the Constitution in accordance with his interpretation, and the subsequent ruling by the Court in the Milligan case has no bearing on the rightness of his actions prior to that ruling.
It's just a sour grapes attack on his memory.
Walt
I have only said it was unlawful.
It wasn't unlawful when he did it.
Walt
I think you're thinking of John Merryman. Milligan was arrested and tried in Indiana and by that time Taney had been dead for two years.
The court obviously disagreed with Lincoln's unique and convenient interpretation. Lincoln exceeded the powers granted by the Constitution.
The Supreme Court has never considered President Lincoln's actions so we don't know what they think of them.