Posted on 08/13/2003 6:57:47 AM PDT by bedolido
While doing my weekly shopping at the Jewel-Osco, I overheard a very unusual conversation. It was between two young baggers who were talking about an article one of them had read regarding President Lincoln. Both men happened to be black. One of them informed the other that President Lincoln cared nothing about blacks and was actually a racist. I was stunned. I wanted to interject a million things to their discussion but I didn’t. Instead, I silently watched the checker ring up my order. The incident immediately brought to mind the old commercial from the seventies where tears run down the eye of an Indian brave as he paddles across a river filled with pollutants. I felt like that Indian as I listened to President Lincoln, the man who freed the slaves, badmouthed by a couple of assistants in a grocery store.
This was the same Lincoln who, during a triumphant walk through Richmond, told a group of bowing slaves to get up because the only king they should bow to was Jesus Christ. I wanted to explain to the clerks that men should be judged by the standards of the days in which they live. Some of Lincoln’s opinions may seem outlandish today, but during the 1860’s he was one of the most enlightened men on the continent. By the standards of the nineteenth century, black Americans had no better friend than Abraham Lincoln.
Race is the biggest taboo issue in America today. Almost everyone acknowledges this but acknowledgement does not make our dialogues any smoother. I discovered this for myself the other day after I wrote a column about rap music. It was a favorable elaboration upon one wrote for City-Journal by John McWhorter. Based on my observations of urban youth, I supported McWhorter’s claim that rap music keeps blacks down through its celebration of pointless rebellion, violence, and nihilism. I received many irate responses. One of them turned into a ten email debate with a reader. By the end of the discussion, we knew a great deal about one another and, vicariously, quite a bit about discussing race in America.
Our little dispute could well have been a microcosm of the nation as a whole. It is unfortunate that I, and numerous other Caucasians, do not always emphatically state our views when asked. Yet, there are major hazards to beware of when addressing race. You never know what the reaction of the person you’re speaking to may be and no one wants to get fired over a conversation.
I could tell that the young man at the other end of the server was not used to dealing with white people like me. He only knows whites who defer to him and agree when he says that he has been wronged. He has been conditioned into thinking that all whites will apologize for their ancestry. I, absolutely, and under no circumstance, will ever apologize for my ancestors. In fact, thank G-d for my ancestors! I wish there were more Americans like them.
He began our exchange by telling me that I shouldn’t be writing about rap music at all as I don’t know anything about it. He also believes that there is nothing wrong with it and that it doesn’t harm anyone. I countered by stating that, while it’s true that I don’t know all the names of the famous rappers, I have unfortunately been subjected to a ton of it and know firsthand adolescents who emulate the words and actions of their favorite stars.
The dialogue went downhill from there (if that’s possible). There was practically no common ground between us, yet I think that is how it should be. White Americans, if they honestly responded to the claims of black separatists and black powerites, would hear little with which to agree.
Most Caucasian Americans are hard-working and middle class. There are very few like Bill Gates or Paul Allen. Most of us make a decent wage and are content with it. We oppress no one. No ancestors of mine were in the United States before 1910, but, even if they were, it would be superfluous as I personally have committed no wrongs to anyone. I told the young man that white guilt is one of the most pernicious influences within our society. Although this white guilt has not hurt our economic success, it has made many whites regard themselves as being morally inferior to the rest of the population.
He made the point that “institutional racism” is the reason many blacks “have not made it.” I told him there was no such thing. It is a creation of the university Marxists who have substituted “African-Americans, Hispanics, women and gays” for the word “proletariat.” The entire concept of “oppressed” and “oppression” is merely idiotic Marxist claptrap. It’s a product of juvenile leftists and should be disregarded. Besides, if there were such a thing as institutional racism no blacks would have ever made it. They’re be no Cedric the Entertainer’s, Deion Sanders’, Tiger Woods’ or Halle Berry’s. If there were any truth in the flawed rubric of institutional racism, all the aforementioned successful blacks would have been poor sharecroppers rather than cultural icons.
We, of course, also clashed on affirmative action. He regarded it as a prerequisite for black success. He said, “The Supreme Court finally got it right.” I, on the other hand, think, “The Supreme Court wrote more legislation.” Clearly, affirmative action is one of the reasons blacks have not been more successful since 1970. You can’t put an average student in Cal Tech and expect them to flourish. They fail and the race hustlers could care less how the experience impedes their future development. Even more grievous, is that affirmative action gives racism the imprimatur of the state. A federal stamp of approval compounds its evil.
Towards the end of our exchange, the reader admitted that he felt blacks should not have to work more than one job and do overtime to get ahead in life. Their route should be more direct. He felt long hours were for immigrants and that “we’ve already played that game.” He argued that blacks have put their blood and sweat into this country’s infrastructure and deserve reparation for their effort.
Honestly, I have no respect for this argument whatsoever. The request for reparations could not be less valid. Blacks in America already have the world’s greatest reparation: United States citizenship. Every single one of the reader’s racial cousins in Africa, or anywhere else in the world for that matter, would kill to be in his shoes. They would stow away in a mouse trap just to get here and have an opportunity to be Americans. Most of them fantasize about an existence without murderous kleptomaniac dictators and having children who are free from disease. America is opportunity and blacks are no different from whites in that we all should be forever thankful that we somehow got to these shores.
I discovered that I profited greatly from this reader. Christopher Hitchens, in his fascinating book, Letters to a Young Contrarian, informs us that the great thing about argumentation is that both sides refine and modify their positions which doing it. I hold this to be true and my exchange with the young man is evidence of it.
In this particular argument, I realized something that I never had before. Clearly, it is conservatives like me who care about poor blacks (most, in fact, are middle class) as opposed to the pseudo-liberals. We offer them the best route for advancement. We want to challenge them and make them stronger. We resist the desire to infantilize them. By treating them like adults and inculcating responsibility through achievement, they will prosper just as every other group of Americans have before them.
My opponent, perhaps unconsciously, wants them to stay poor so he can continue to berate America and critique our way of life. Were their lot to suddenly improve, he’d have no positions and no identity.
Before this conversation, I never realized just how much that I am rooting for poor black folks. I want them to be as productive as everyone else and to “make it” in America. I want no less for them than I do for myself. It would please me to no end if all our citizens were grateful for what they have. No white people get anything out of a major percentage of the population being resentful and angry.
Racial harmony can only be achieved if we treat one another as individuals and not as members of fictitious classes. If you want to be oppressed you’ll find a way to be oppressed, and such a condition damages society as a whole. Racism is wrong in any of its manifestations. We will never all get along if we continue to pretend that some of us, due to the melanin content in our skin, are better than others. Period.
To comment on this article or express your opinion directly to the author, you are invited to e-mail Bernard at bchapafl@hotmail.com .
Regarding CJ Taney and the Merryman ruling, on page 17 of Lincoln's Constitution Daniel Farber asserts, "Technically, he did not issue it in his capacity as a judge 'on circuit' but rather as an 'in chambers' opinion of the chief justice."
There is support for Farber's assertion in the closing of the Merryman ruling:
In such a case, my duty was too plain to be mistaken. I have exercised all the power which the constitution and laws confer upon me, but that power has been resisted by a force too strong for me to overcome. It is possible that the officer who has incurred this grave responsibility may have misunderstood his instructions, and exceeded the authority intended to be given him; I shall, therefore, order all the proceedings in this case, with my opinion, to be filed and recorded in the circuit court of the United States for the district of Maryland, and direct the clerk to transmit a copy, under seal, to the president of the United States. It will then remain for that high officer, in fulfilment of his constitutional obligation to 'take care that the laws be faithfully executed,' to determine what measures he will take to cause the civil process of the United States to be respected and enforced.
If Taney were not writing from the Supreme Court, there would seem to be no need for him to order all the proceedings, with his opinion, to be filed and recorded in the circuit court of the United States for the district of Maryland.
It should be noted that Lincoln did NOT suspend habeas in the Merryman case. Lincoln authorized General Scott to suspend habeas at his discretion. General Scott further delegated the authority to suspend habeas. The order to suspend habeas came from General Keim in Pennsylvania.
Notice the recognition of this from the holding in Merryman:
Held, that the petitioner was entitled to be set at liberty and discharged immediately from confinement, upon the grounds following:
1. That the president, under the constitution of the United States, cannot suspend the privilege of the writ of habeas corpus, nor authorize a military officer to do it.
The arrest and imprisonment of Merryman was obviously unlawful if Lincoln lacked authority to suspend habeas. But it was also unlawful if Lincoln could not lawfully delegate authority to suspend habeas. Further, it was unlawful if General Scott could not lawfully delegate authority to suspect habeas to General Keim.
It was General Keim who actually ordered the suspension of habeas on a claim of delegated authority. To show that the arrest and imprisonment of Merryman was lawful, one must show that General Keim had the lawful authority to suspend habeas.
Who said the following? Lincoln or Clement Vallandingham?
And now this warfare is made on me because I would not surrender my connections of duty, because I would not abandon my constituency, and receive the orders of the executive authorities how I should vote in the Senate of the United States. I hold that an attempt to control the Senate on the part of the Executive is subversive of the principles of our constitution. The Executive department is independent of the Senate, and the Senate is independent of the President. In matters of legislation the President has a veto on the action of the Senate, and in appointments and treaties the Senate has a veto on the President. He has no more right to tell me how I shall vote on his appointments than I have to tell him whether he shall veto or approve a bill that the Senate has passed. Whenever you recognize the right of the Executive to say to a Senator, ''do this, or I will take off the heads of your friends,'' you convert this government from a republic into a despotism. Whenever you recognize the right of a President to say to a member of Congress, ''vote as I tell you, or I will bring a power to bear against you at home which will crush you,'' you destroy the independence of the representative, and convert him into a tool of Executive power. I resisted this invasion of the constitutional rights of a Senator, and I intend to resist it as long as I have a voice to speak, or a vote to give."Abraham Lincoln, "Seventh and Last Debate with Stephen A. Douglas at Alton, Illinois", 15 Oct 1858, Collected Works of Abraham Lincoln, Roy P. Basler, ed, Vol. III, pp. 292-293.
No. Please post the federal law equating secession to treason.
Ya think? The US Supreme Court disagreed.
There are, without doubt, occasions in which private property may lawfully be taken possession of or destroyed to prevent it from falling into the hands of the public enemy; and also where a military officer, charged with a particular duty, may impress private property into the public service or take it for public use. Unquestionably, in such cases, the government is bound to make full compensation to the owner.Your heroes all thought of the slaves as property -- not human at all, right?... Our duty is to determine under what circumstances private property may be taken from the owner by a military officer in a time of war. And the question here is, whether the law permits it to be taken to insure the success of any enterprise against a public enemy which the commanding officer may deem it advisable to undertake. And we think it very clear that the law does not permit it.
Chief Justice Taney, Mitchell v. Harmony, 54 U.S. 115 (1851)
Your despatch (sic), asking in substance, whether, in case Missouri shall adopt gradual emancipation, the general government will protect slave owners in that species of property during the short time it shall be permitted by the State to exist within it, has been received.Not my hero.
Abraham Lincoln, 'To John M. Schofield', 22 Jun 1863, Collected Works Of Lincoln, Roy P. Basler, ed, Vol 6, p. 291
Wrong. The case(s) ex parte Bollman and ex parte Swartwout, 4 Cranch 75 (1807) was a habeas corpus action for Samuel Swartwout and Erick Bollman. The writ in question was issued by Justice Willian Cranch on 27 Jan 1807. Chase wrote:
'If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so. That question depends on political considerations, on which the legislature is to decide.'
The vote was 3-1. It was not a circuit court decision, it was a full decision of the US Supreme Court, authored by Chief Justice Marshall, with Justices Johnson, Washington and Livingston concurring (Justices Cushing and Chase were sick, Justice Johnson dissented).
Thanks for the info.
Well, there you go again. I was only pointing out that your statement was false when you said Abe wanted to go 'all the way' regarding black suffrage. If you consider factual corrections to be "damnations", then perhaps it is you who judge him more than I.
I have to admit letting out a chuckle when I saw this... You made it a lot longer than Grand Old Partisan usually does.
[Walt 255] There is no proof that Butler and Lincoln even met, and no way to corroborate Butler's story which, amazingly, he didn't bother to publish until 1892.
[nolu chan 269] As you note in 255, Butler's Book was published in 1892. Could you please provide your documentation regarding Butler running for office in 1892?
You have claimed that Lerone Bennett, Jr., is NOT a reputable historian BECAUSE (your claim) "Butler had every reason to lie. He was seeking office."
You have provided no support for your claim that it would have somehow helped Butler to lie about Lincoln and colonization.
You claim that Butler was seeking office. You document the fact that Butler's Book was published in 1892. It appears that, in reality, Butler had not sought any political office in about 8 years. If you have anything whatever to support your claim that Butler was seeking any political office in 1892, please present it.
It appears that you have attempted to denigrate the reputation of Lerone Bennett, Jr., by using make-believe "facts." If there is any support whatever for your claim, please provide the evidence.
Active in the Democratic party, he served one term as state representative in 1853, one term as state senator in 1858, and ran unsuccessfully for governor in 1859. The following year, he supported John Breckinridge, the Southern Democrat, for president and again ran unsuccessfully for governor, this time on the ticket of the Breckinridge faction.
* * *
After the war, Butler returned to Congress as a Republican, serving from 1867 to 1875 and from 1877 to 1879. He enthusiastically backed the Radical Reconstruction policies of the Congressional Republicans. A vociferous, unrelenting critic of President Johnson, he authored the tenth article of impeachment aimed at the President’s verbal attacks on Congress. At the suggestion of the ailing Thaddeus Stevens, Butler became the lead House prosecutor at Johnson’s removal trial in the Senate. The Massachusetts Congressman’s poor performance, however, has often been cited as a factor in Johnson’s acquittal.
Butler was an almost perennial candidate for governor of Massachusetts, running unsuccessfully in 1871, 1873, 1874, 1878, and 1879, before being elected in 1882. In his final bid for office, he was the Presidential nominee of the Greenback-Labor and Anti-Monopoly parties in 1884, polling less than 2% of the popular vote. Butler died in Washington, D.C.
[Lex Baird 236] (to stainless banner) At the time, the power was undelegated to either the Executive or the Legislative; it was simply a power of the Federal govt. during time of insurrection.
From the LINK provided:
[nc: underlines added]
The Suspension of Habeas Corpus And Ex parte: Milligan* * *
Whenever the case law related to Habeus Corpus is discussed, the landmark case Ex parte: Milligan will be cited. Lambdin P. Milligan moved to Indiana from New Orleans, Louisiana, bringing his slaves with him. When the Civil War started, he got himself involved in an subversive political organization, the Sons of Liberty, and launched an anti-government propaganda movement. In early 1864, Congress passed a law saying that Habeus Corpus could be suspended during war and insurrection. On 10/21/1864, Milligan was arrestedby the order of Gen. Alvin P. Hovey, commander of the military district of Indiana. On 10/21/1864, the military commission tried Milligan and found him guilty, and sentenced him to be hanged. Milligan's defending attorneys discussed the case with Lincoln who promised to commute Milligan's sentence. Of course, Lincoln was assassinated before he could pardon Milligan. The appeal dragged on to 1866, and by then, the war and the national emergency were long over. The need to hang traitors did not exist anymore and in fact, people wanted to forget this horrible war episode and it would be politically incorrect to carry out the sentence. What would the Supreme Court do? Well, the only route that the Supreme Court could do to save Milligan's neck was to declare the law unconstitutional. The decision was a narrow 5 to 4 votes by the 9 Supreme Court Justices. The interesting coincident was that the majority 4 of the 5 votes were Lincoln appointees. The court opinion was written by Justice David Davis, Lincoln's old Eighth Circuit court friend from Illinois and Lincoln's 1860 presidential campaign manager, and concurred by Chief Justice Salmon Chase, Lincoln's ex-Secretary of Treasury, and Justices Noah Swayne, Samuel Miller and James Wayne. Justice Chase was known as the "Attorney General for Runaway Negroes" in his salad days when he was practicing law in Ohio, using habeas corpus as his weapon. It was ironic that Salmon Chase used the same habeas corpus to save slaves and master alike. Every Supreme Court decision became precedent (stare decisis) and would be cited by the future generation. Therefore, they had to write a "narrow" decision so that the future case would apply only if it fits to all these narrow conditions. They said when the civil courts were open, military commission (court) had no authority to arrest, trial and convict a citizen of the United States. Let me quote part of their opinion: "It follows, from what has been said on this subject, that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to the law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. 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. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. 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 return made to it the court decides whether the party applying is denied the right of proceeding any further with it." During the 1866 era, the decision was considered as a blow to the Republican's attempt to reconstruct the South and cheered by the Democrats and the white southerners. Today, every law student has to study this case in their Constitutional Law course.
* * *
It was not a narrow 5-4 decision. It was a 9-zip decision. ALL NINE agreed on the decision, they split 5-4 on the reason for reaching the same decision.
As the writer noted, FOUR JUSTICES CONCURRED with the majority. There was NO DISSENTING OPINION. A concurring opinion agrees with the decision, and the decision was therefore, 9-zip.
The Congress passed an Act authorizing Lincoln to suspend Habeas Corpus on March 3, 1863, not 1864.
On 10/21/1864, Milligan was arrested by the order of Gen. Alvin P. Hovey, commander of the military district of Indiana. On 10/21/1864, the military commission tried Milligan and found him guilty, and sentenced him to be hanged. Milligan's defending attorneys discussed the case with Lincoln who promised to commute Milligan's sentence. Of course, Lincoln was assassinated before he could pardon Milligan. The appeal dragged on to 1866, and by then, the war and the national emergency were long over. The need to hang traitors did not exist anymore and in fact, people wanted to forget this horrible war episode and it would be politically incorrect to carry out the sentence. What would the Supreme Court do?
The civilian courts were operating in Indiana when Milligan was tried. The limiting provisions of the Act of 1863 under which habeas corpus had been suspended made this military trial unlawful. Four of the Supreme Court justices overturned Milligan on that basis. Five of the justices went further and overturned Milligan because it was not only unlawful, but also unconstitutional. Again, all nine said it was unlawful.
The Supreme Court did not rule narrowly that the government had violated only the Act of Congress, but ruled broadly that it violated the Constitution.
Milligan was neither charged nor convicted of treason. With reference to the alleged existing need to hang traitors, was any alleged Northern traitor convicted of treason and hanged during the Civil War?
The Supreme Court did what it was supposed to do. It ruled that the military tribunal was unlawful and unconstitutional.
Milligan was arrested on 10/5/1864, not 10/21/1864.
Milligan was placed on trial on 10/21/1864.
"It follows, from what has been said on this subject, that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to the law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. 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. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. 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 return made to it the court decides whether the party applying is denied the right of proceeding any further with it."
Let's add one more sentence to the above quote: "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."
Let's continue a bit more: "The provisions of this law having been considered in a previous part of this opinion, we will not restate the views there presented. Milligan avers he was a citizen of Indiana, not in the military or naval service, and was detained in close confinement, by order of the President, from the 5th day of October, 1864, until the 2d day of January, 1865, when the Circuit Court for the District of Indiana, with a grand jury, convened in session at Indianapolis; and afterwards, on the 27th day of the same month, adjourned without finding an indictment or presentment against him. If these averments were true (and their truth is conceded for the purposes of this case), the court was required to liberate him on taking certain oaths prescribed by the law, and entering into recognizance for his good behavior."
And let's continue with the government's cockamamie theory of the case, reduced to rubble: "But it is insisted that Milligan was a prisoner of war, and, therefore, excluded from the privileges of the statute. It is not easy to see how he can be treated as a prisoner of war, when he lived in Indiana for the past twenty years, was arrested there, and had not been, during the late troubles, a resident of any of the states in rebellion. If in Indiana he conspired with bad men to assist the enemy, he is punishable for it in the courts of Indiana; but, when tried for the offence, he cannot plead the rights of war; for he was not engaged in legal acts of hostility against the government, and only such persons, when captured, are prisoners of war. If he cannot enjoy the immunities attaching to the character of a prisoner of war, how can he be subject to their pains and penalties?"
And let's not forget the government threw another hilarious Hail Mary: "But it is said that this case is ended, as the presumption is, that Milligan was hanged in pursuance of the order of the President. Although we have no judicial information on the subject, yet the inference is that he is alive; for otherwise learned counsel would not appear for him and urge this court to decide his case."
And just for good measure:
From the first year of the reign of Edward the Third, when the Parliament of England reversed the attainder of the Earl of Lancaster, because he could have been tried by the courts of the realm, and declared, 'that in time of peace no man ought to be adjudged to death for treason or any other offence without being arraigned and held to answer; and that regularly when the king's courts are open it is a time of peace in judgment of law,' down to the present day, martial law, as claimed in this case, has been condemned by all respectable English jurists as contrary to the fundamental laws of the land, and subversive of the liberty of the subject.
In making reference to a narrow 5-4 decision, it appears Gordon Kwok did not read Ex Parte Milligan, or did not comprehend what he read. As I noted, there was no dissenting opinion. The concurring opinion of four justices found for Milligan, not against Milligan. The following is taken from the concurring opinion in which a four-justice minority found the administration actions to be in violation of law.
The CHIEF JUSTICE delivered the following opinion.Four members of the court, concurring with their brethren in the order heretofore made in this cause, but unable to concur in some important particulares with the opinion which has just been read, think it their duty to make a separate statement of their views of the whole case. We do not doubt that the Circuit Court for the District of Indiana had jurisdiction of the petition of Milligan for the writ of habeas corpus. Whether this court has jurisdiction upon the certificate of division admits of more question. The construction of the act authorizing such certificates, which has hitherto prevailed here, denies jurisdiction in cases where the certificate brings up the whole cause before the court. But none of the adjudicated cases are exactly in point, and we are willing to resolve whatever doubt may exist in favor of the earliest possible answers to questions involving life and liberty. We agree, therefore, that this court may properly answer questions certified in such a case as that before us. 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. 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. We must inquire, then, what constitutional or statutory provisions have relation to this military proceeding. The act of Congress of March 3d, 1863, comprises all the legislation which seems to require consideration in this connection. The constitutionality of this act has not been questioned and is not doubted. The first section authorized the suspension, during the Rebellion, of the writ of habeas corpus throughout the United States by the President. The two next sections limited this authority in important 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 to the judges of the Circuit and District Courts. The lists transmitted to the judges 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 forthwith 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 provided, 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. It was made the duty of the District Attorney of the United States to attend examinations on petitions for discharge. It was under this act that Milligan petitioned the Circuit Court for the District of Indiana for discharge from imprisonment. The holding of the Circuit and District Courts of the United States in Indiana had been uninterrupted. The administration of the laws in the Federal courts had remained unimpaired. Milligan was imprisoned under the authority of the President, and was not a prisoner of war. No list of prisoners had been furnished to the judges, either of the District or Circuit Courts, as required by the law. A grand jury had attended the Circuit Courts of the Indiana district, while Milligan was there imprisoned, and had closed its session without finding any indictment or presentment or otherwise proceeding against the prisoner. His case was thus brought within the precise letter and intent of the act of Congress, unless it can be said that Milligan was not imprisoned by authority of the President; and nothing of this sort was claimed in argument on the part of the government. It is clear upon this statement that the Circuit Court was bound to hear Milligan's petition for the writ of habeas corpus, called in the act an order to bring the prisoner before the judge or the court, and to issue the writ, or, in the language of the act, to make the order. 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. It must be borne in mind that the prayer of the petition was not for an absolute discharge, but to be delivered from military custody and imprisonment, and if found probably guilty of any offence, to be turned over to the proper tribunal for inquiry and punishment; or, if not found thus probably guilty, to be discharged altogether. And the express terms of the act of Congress required this action of the court. The prisoner must be discharged on giving such recognizance as the court should require, not only for good behavior, but for appearance, as directed by the court, to answer and be further dealt with according to law. The first section of the act authorized the suspension of the writ of habeas corpus generally throughout the United States. The second and third sections limited this suspension, in certain cases, within states where the administration of justice by the Federal courts remained unimpaired. In these eases the writ was still to issue, and under it the prisoner was entitled to his discharge by a circuit or district judge or court, unless held to bail for appearance to answer charges. No other judge or court could make an order of discharge under the writ. Except under the circumstances pointed out by the act, neither circuit nor district judge or court could make such an order. But under those circumstances the writ must be issued, and the relief from imprisonment directed by the act must be afforded. The commands of the act were positive, and left no discretion to court or judge. 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. 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. 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. We agree, therefore, that the first two questions certified must receive affirmative answers, and the last a negative. We do not doubt that the positive provisions of the act of Congress require such answers. We do not think it necessary to look beyond these provisions. In them we find sufficient and controlling reasons for our conclusions.
The Supreme Court ruling in the Prize Cases refers to secessionists as traitors, as you well know.
Walt
There are, without doubt, occasions in which private property may lawfully be taken possession of or destroyed to prevent it from falling into the hands of the public enemy; and also where a military officer, charged with a particular duty, may impress private property into the public service or take it for public use. Unquestionably, in such cases, the government is bound to make full compensation to the owner.
You make excuses for slavery.
Some people in the ACW era thought slavery was a monstrous evil, but you don't seem to think so.
Walt
In all fairness, I did try to find where Lincoln addressed the sentiments expressed by Douglas above, yet find no reply. In this case, though, actions speak louder than words.
So. It's obiter dicta. Grier had already stated that the Confederacy - as a matter of fact - had 'cast off their allegiance' to the federal government. He also recognized the duality of that allegiance,
'The co-existence of Federal and State sovereignties, and the double allegiance of the people of the States, which no statesman or lawyer has doubted till now, and which this Court has repeatedly recognized as lying at the foundation of some of its most important decisions; the delegation of special and limited powers to the Federal Government, with the express reservation of all other powers 'to the States and the people thereof' who created the Union and established the Constitution.'I previously posted the US law (1 Stat. 112, 1790) covering treason, which states taht it applies ONLY to, 'any person or persons, owing allegiance to the United States of America'. No treason could be possible for the Confederacy.
Grier also states,
'When the party in rebellion occupy and hold in a hostile manner a certain portion of territory; have declared their independence; have cast off their allegiance; have organized armies; have commenced hostilities against their former sovereign, the world acknowledges them as belligerents, and the contest a war.' [emphasis mine]Belligerents. A war. Not a rebellion. It was made into a public war, aided by none other than Lincoln himself. A blockade is an international act demanding foreign recognition that a war exists, else the captures at prize are nullities.
Even Grier admits it was a war:
'But it is not necessary to constitute war, that both parties should be acknowledged as independent nations or sovereign States. A war may exist where one of the belligerents, claims sovereign rights as against the other.'Again, the proof is by the actions. The union and the Confederacy exercised belligerents rights,
'[T]he parties to a civil war usually concede to each other belligerent rights. They exchange prisoners, and adopt the other courtesies and rules common to public or national wars.'
The kicker? Grier wrote that the 'parties belligerent in a public war are independent nations.'
A legal recognition of secession.
I had not heard of this case before. Do you have a link to the whole decision? Also, you quote Chase, but say the Bollman decision was authored by Marshall with Chase absent. Is your quote from that decision, or from Chase speaking elsewhere?
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