Now, perhaps you will answer the question I asked of you a number of days ago. Is it your contention that the government knew it was acting illegally when military tribunals were set up in states like Indiana? Obviously the court ruled in Milligan that such tribunals were not needed in states like Indiana where the court system operated. But are you suggesting that the administration knew it was illegal when they initiated them?
YES, THE GOVERNMENT KNEW IT WAS ACTING ILLEGALLY WHEN MILITARY TRIBUNALS WERE SET UP IN STATES LIKE INDIANA WHERE THE CIVILIAN COURTS WERE FUNCTIONING.
The question you actually asked, at 747, was: Is it your contention that the administration knew it was acting illegally when the arrest of Milligan was made?
My response was at 748, quoted here in part:
QUOTE
To directly address your question, I did not make the point that the administration acted illegally when it arrested Milligan. It most certainly acted illegally when it subjected him, as a civilian, to a military tribunal while the civilian courts were open and functioning.
In addition to violating the Constitution, the administration violated just about every requirement of the Congressional Act under which it acted as well. The four concurring Supreme Court justices reached their conclusion on this basis.
The Administration most certainly knew, or should have known, that it was in violation of the clear and explicit requirements of the Act of Congress under which it proceeded.
The four concurring justices explained it as follows:
[CLOSE QUOTE] [bold-face added]
See my 748 for the quote from the SC decision detailing the specific requirements of the Congressional Act under which the administration was purporting to act, and how it ignored and broke the requirements of the Act.
Under the Act, it was impossible to lawfully submit civilians to military tribunals in states such as Indiana while the civilian courts were open and functioning, as shown by the following brief extract from the SC decision previously quoted in my 748:
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.
Under it, in such states, the privilege of the writ might be suspended. Any person regarded as dangerous to the public safety might be arrested and detained until after the session of a grand jury. Until after such session no person arrested could have the benefit of the writ; and even then no such person could be discharged except on such terms, as to future appearance, as the court might impose. These provisions obviously contemplate no other trial or sentence than that of a civil court, and we could not assert the legality of a trial and sentence by a military commission, under the circumstances specified in the act and described in the petition, without disregarding the plain directions of Congress.
I paraphrased rather than quoted.
Your interpretation is incompatible with what I said. I indicated that Chase held the stated opinion that by the passage of 14th Amendment, Federal punishment for Davis and others had been legislated, and he/they could not be punished again for the same offenses. This indicates that the 5th Amendment objection was viewing the 14th Amendment as having raised a double-jeopardy issue.
I now quote from the original source material below:
http://jeffersondavis.rice.edu/faqs.cfm
In an unusual twist, Chase made known to Davis' attorneys, a distinguished group of northern and southern litigators, his opinion that the third section of the 14th Amendment nullified the indictment against Davis. His contention was that by stripping the right to vote from high Confederate officials, a punishment for treasonable activities had been legislated, so Davis could not be punished again for the same crime.
* * *
Chase's anger with Underwood was obvious, and he stated for the record why he believed the 14th Amendment exempted Davis from further prosecution.
http://odur.let.rug.nl/~usa/B/spchase/chase05.htm
When Chase finally sat at the Davis trial in November 1868 he approved Davis' lawyer's argument that the 14th Amendment that had recently gone into effect applied to Davis.
President Lincoln laid out his rationale in his letter to Erastus Corning of the New York democrats and in another letter to the Ohio democrats.
There is no way the neo-rebs can say that it was a dead cinch that HC couldn't be suspended or martial law imposed -before- these events.
1. The people of the day generally supported President Lincoln's actions. He was reelected, after all.
2. None of the behaviors resorted to prior to Milligan were resorted to after Milligan.
3. President Lincoln didn't have Milligan or Vallandigham arrested. Others did.
Lincoln clearly didn't approve of either arrest, but he did feel compelled to support those in charge in the local situation.
It's odd that Burnside simply couldn't be sent --anywhere-- without screwing things up. He had Vallangdigham arrested, as you know.
Walt