President Lincoln and Habeas Corpus (Remarks by Justice O'Connor)

I am honored to have the opportunity to speak with you today, on this anniversary of the Gettysburg Address. But I have to admit that my task is a bit daunting, even for a Supreme Court Justice.

No speaker, I am afraid, can find the words to compete with those spoken here by Abraham Lincoln six score and thirteen years ago (that's 133 years, for those of you without calculators). That goes for me, as well as for Edward Everett, perhaps the greatest orator of the Nineteenth Century. He was commissioned to be the Keynote speaker at the dedication of this cemetery in Gettysburg in 1863. Everett's oration was a two-hour affair, filled with rhetorical flourishes, peppered with allusions to Greek antiquity, and ending with a recitation of every hill and gully where men had fought and fallen at Gettysburg. The speech was considered the masterpiece of Everett's career.

But is was quickly overshadowed when Lincoln rose from his chair and gave, as his secretary modestly described it, a "half dozen words of consecration." Lincoln was indeed a poor prophet when he predicted that "[T]he world will little note nor long remember what we say here."

"Fourscore and seven years ago our fathers brought forth on this continent, a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal. Now we are engaged in a great civil war, testing whether that nation or any nation so conceived and so dedicated can long endure."

In the early days of the Civil War, it looked as though the young American nation, "conceived in liberty" might not "long endure." It faced so many threats. The southern states had broken away. European powers were poised to intervene, to permanently divide the young nation into Union and Confederacy.

The war posed another sort of danger, as well--a danger less obvious, perhaps, than columns of soldiers marching through the countryside, but one far more insidious to a nation "conceived in liberty". It was the danger that government at war might use its extraordinary powers to stamp out political opposition. And when President Lincoln suspended the Writ of Habeas Corpus during the Civil War, there was a good chance of that happening.

Because it is an issue of considerable interest to lawyers and judges, I propose to talk today about Lincoln's suspension of Habeas Corpus. I will make three points. First, I will review a little bit of the history of Habeas Corpus: where it came from, what it means, and how it came to be viewed, by the beginning of the Civil War, as a principle guarantee of political liberty. Second, I will talk about what prompted President Lincoln to suspend the Writ of Habeas Corpus in those first few days of the Civil War, when states were seceding left and right, and our capital, Washington, was threatened with invasion. Finally, I will come to the main question: how did the Lincoln Administration act once Habeas Corpus was suspended, and it was free to take people into custody without arrest warrants issued by courts? I think that history shows that President Lincoln did not arrest civilians during the Civil War to repress political dissent, but only to protect the military and security interests of a nation at war.

But first, a bit of background is in order. Those of you who are not lawyers may recognize the term "Habeas Corpus" as a sort of criminal appeal. You may be following the ongoing debate about how to regulate Habeas Corpus proceedings brought by prisoners, particularly those on death row. Earlier this year, Congress passed a law making it more difficult for prisoners to challenge their convictions or sentences by invoking the Writ of Habeas Corpus. This new law has prompted quite a bit of activity in the courts, and it remains to be seen exactly what effects that law will have. But history shows that constant change is part and parcel of the remedy of Habeas Corpus.

We can trace the Writ Habeas Corpus as far back as the Norman Conquest of England. Back then, William the Conqueror sent royal judges to ride throughout the countryside of his new kingdom dispensing justice. These itinerant judges would, on occasion, order local sheriffs to "have the bodies" of accused criminals brought before their courts. That's where we get the Latin phrase "Habeas Corpus". It means literally, "have the body". And we call it a "writ" because these traveling judges would put their orders into a "written" document.

So Habeas Corpus began as a way of dragging an unwilling suspect into court. But eventually people who were unlawfully imprisoned--say, by a corrupt mayor, or even the king--began asking royal judges to bring them out of jail and into court, where their jailers would have to justify why they were in custody. This explains why today, when a prisoner seeks a Writ of Habeas Corpus, he technically names his prison warden as the defendant.

England grew to regard the Writ of Habeas Corpus as a beacon of individual liberty against the gloom of tyrannical government. It was not a "get out of jail free" card, mind you--but it at least ensured that a prisoner could have his day in court. If you were to ask an Englishman to name the greatest legal documents in English history, right alongside the "Magna Carta" would be the "Habeas Corpus Acts" passed by Parliament in the 1600s, guaranteeing this remedy to all English subjects.

When English settlers moved to the New World, they brought with them more than hammers and saws to build new homes, plows and shovels to till new fields. They also brought with them the English Common Law to build their new legal system. That included habeas corpus. When tensions mounted between the colonies and the crown, royal governors were known to lock up "troublemakers." And local courts were known to issue Writs of Habeas Corpus to release those troublemakers.

One of the guiding principles of the American Revolution, of course, was that governments should not be able to lock up citizens arbitrarily, or simply because they raised their voices against the government. The founding fathers took this concern to heart at the Constitutional Convention. Like their ancestors, they saw the Writ of Habeas Corpus as a bulwark against tyranny. So, to safeguard the writ, our new constitution provided 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."

There was only one brief incident during the early days of the republic when "public safety" led to suspension of the writ. During the War of 1812, General Andrew Jackson imposed martial law in New Orleans. At one point, he locked up a newspaper editor who had been fiercely critical of the General. When a judge issued a Writ of Habeas Corpus to free the editor, Jackson not only ignored the writ--he arrested the judge, too! Only a few days later, when a peace treaty had been signed and the British fleet sailed away from the coast, did Jackson release both editor and jurist.

This proved to be an isolated incident. After that brief wartime interlude, courts went on issuing the writ as justice demanded.

As time went on, the Writ of Habeas Corpus took on new dimensions. For a time, the writ became a lightning rod for people on both sides of the slavery issue. When runaway slaves were apprehended by slave catchers in Northern states, abolitionist lawyers helped them secure their freedom with Writs of Habeas Corpus from sympathetic courts. Perhaps the most successful lawyer in this regard was Salmon P. Chase, Secretary of the Treasury under Lincoln and later Justice of the Supreme Court. Chase extracted so many slaves from jail that he earned the moniker "Attorney General for Fugitive Slaves."

While abolitionists interposed the writ as a shield to protect freed slaves, some pro-slavery forces tried to use it as a sword. Some Northern states let slavemasters use the Writ of Habeas Corpus to force local sheriffs to bring back runaway slaves. But this fight over the soul of Habeas Corpus--a longstanding instrument of freedom--was interrupted by the Civil War.

1861 was a difficult time, to say the least. Barely a month after Lincoln's inauguration, Washington was abuzz with rumors that Confederate soldiers, gathering near Harper's Ferry in Virginia, might move against the capital. The Southern states had been seceding, one by one, and it looked as though Maryland--south of the Mason-Dixon Line and still a slave state--might be next. Lincoln himself had traveled incognito through Baltimore, at night, to avoid assassination plots on his way to his own inauguration.

In April, in the midst of all this confusion, a trainload full of Union soldiers passed through Baltimore en route to Washington. They were fresh recruits from Massachusetts, outfitted with polished boots and belt buckles, satin-trimmed coats and hats. They had been summoned to man the defensive fortifications around the capital.

These soldiers were not greeted by brass bands and waving flags, but by an angry mob of Southern sympathizers who were spoiling for a fight. The soldiers literally had to fight their way across the town of Baltimore to reach another station, where their train to Washington waited. Four of them did not make it out of town alive. Later that night, local authorities--whose sympathies clearly ran in a southerly direction--burned the bridges and cut the telegraph lines between Baltimore and Washington, claiming that Union soldiers might come back, looking for revenge after the riot. But as one commentator has put it, "Bridge-burning looked more like plain treason to the government in Washington, which was now defenseless and cut off from the rest of the North."

Washington had a rebel army to its south and a secession-minded mob to its north. Congress was out of session. Lincoln felt the need to take things into his own hands. Invoking his power as Commander-in-Chief, he authorized local military commanders to suspend the Writ of Habeas Corpus along the railroad line from Washington to Philadelphia. Essentially, this meant that the Army could arrest civilians without getting a warrant from a court or without probable cause to believe a crime had been committed by the person arrested, and without providing the speedy jury trial that the Constitution guarantees in times of peace.

Enter Mr. John Merryman, a member of the Maryland legislature. Merryman had been recruiting local men to march south and join the rebel army. When a Union General found out, he ordered Merryman's arrest and packed him of to Fort McHenry in Baltimore Harbor (of Star-Spangled Banner fame) for the rest of the war. Merryman, in turn, applied for a Writ of Habeas Corpus from his local federal circuit judge.

Now, as you may remember, I mentioned earlier that royal judges in medieval England used to "ride circuit," holding court throughout the countryside. Well, the Supreme Court worked much the same way until late in the Nineteenth Century. Justices of the Supreme Court sat together only part of the year. During their plentiful spare time the justices would hop onto their horses and serve as federal circuit judges around the country. When Merryman filed his request with his local circuit judge, he went to none other than Roger Taney, Chief Justice of the Supreme Court.

The Chief Justice was no friend of the Republican administration, having written the Dred Scott Decision only four years before. When he received Merryman’s petition, Taney ordered the commander of Fort McHenry to bring Merryman to his court in Baltimore. Instead of sending Merryman, the Colonel, sent back an aide bearing a polite message. The President had authorized the Colonel, in this time of war, to suspend the Writ of Habeas Corpus. Merryman would stay at Fort McHenry. This, as you can imagine, incensed the Chief Justice. He wrote a fiery opinion arguing that only Congress had the power to suspend Habeas Corpus. The President could not. The President’s job, he said, was merely to see that the laws be faithfully executed.

Lincoln did not publicly respond to Taney's opinion until Congress met a month later, on July 4. Lincoln said that, had he not suspended Habeas Corpus immediately, Washington itself might be now be in Southern hands. That, of course, would have prevented Congress from meeting, let alone from responding to the rebellion. Lincoln then took aim at Taney's claim that the President's job was to sit back and ensure that the laws be faithfully executed, even in the face of Merryman's recruiting soldiers for the Confederate cause. In the Confederacy, fully one-third of the country, the Constitution itself was being ignored. Should Lincoln's hands be tied by the writ of Habeas Corpus in such a national emergency? He asked; "[A]re all the laws, but one, to go unexecuted and the government itself go to pieces, lest that one be violated?"

Merryman stayed in jail. Now, Merryman was only one of many people arrested, without benefit of Habeas Corpus relief, in the early days of the war for providing military aid to the young Confederacy. Lincoln later said that he regretted not arresting even more traitors to the Northern cause--particularly the Robert E. Lees who had abandoned the Union Army to lead its Southern enemy to victory after victory.

Scholars still debate whether Lincoln had the authority to invoke the Constitutional provision suspending Habeas Corpus during the early days of the war. I will not wade into the muddy waters of that debate. I am more interested in talking about what Lincoln did after March of 1863--for that is when Congress gave Lincoln legislative authority to suspend the writ. From that point forward, Lincoln faced no constitutional obstacles. He could arrest whomever he chose, without courts interfering with Writs of Habeas Corpus. What did Lincoln do at this point? Did he attempt to stifle political debate, by imprisoning his opponents? In short, did he trample on the civil liberties the Writ of Habeas Corpus was meant to protect?

A recent historical study, entitled The Fate of Liberty, says "no." The author, Mark Neely, combed through the musty boxes of arrest records from the Civil War "to find out who was arrested when the Writ of Habeas Corpus was suspended and why." Neely concludes that, throughout the war, Lincoln was guided by a "steady desire to avoid political abuse under the Habeas-Corpus policy."

According to the best estimates, about 38,000 civilians were arrested by the military during the Civil War. Who were they? Almost all fell within a few categories: "draft dodgers, suspected deserters, defrauders of the government, swindlers of recruits, ex-Confederate soldiers, and smugglers." And strikingly, most of these were Confederate citizens, caught behind Northern lines. The numbers show that very few civilians were taken from their homes and arrested. And of those few arrests, only a handful were colored by political considerations.

Indeed, Lincoln issued his most sweeping proclamation suspending Habeas Corpus not to silence political dissent, but to stop judicial interference in the draft. Early in the war, patriotic zeal was so strong that volunteers flooded into the Army. But as the war dragged on, public enthusiasm ebbed. Eventually, the government was reduced to instituting a draft. Conscription was rather unpopular, to say the least. If any of you remember the burning of draft cards during the Vietnam War, imagine that unrest multiplied several times over in the New York City Draft Riots in 1863. The problem was especially bad in Pennsylvania. Coal miners attacked men thought to be "in sympathy with the draft." State and federal courts added to the problem. They were churning out Writs of Habeas Corpus, freeing soldiers as soon as they were drafted. Lincoln observed that "[T]he course pursued by certain judges is defeating the draft."

Lincoln's response was to suspend the Writ throughout the North in any case that involved military arrest of deserters or draft dodgers. And for good measure, he threw in prisoners of war, spies, and those giving assistance to the enemy--say, by smuggling goods to the Confederate government. But his focus was always on military necessity. Lincoln never tried to suppress political dissent. He understood that a democracy only grows stronger by allowing people to voice their opposition to the government, even in the midst of war. He understood that the strength of the Union lay not only in force of arms, but in the liberties that were guaranteed by the open, and sometimes heated, exchange of ideas. And as one historian has put it, "[T]he opposition press in the North was vibrant, vigorous, and often vicious."

This point is illustrated by the most sensational arrest of the Civil War: the arrest of Clement Vallandigham, a former democratic congressman from Ohio. Vallandigham was an out-spoken Confederate sympathizer, a man who minced no words expressing his contempt for the Lincoln administration. He was one of the “Peace Democrats,” or “Copperheads,” who originally earned their name from “the poisonous snake that attacks without notice.” The Copperheads co-opted the title, wearing the head of the goddess Liberty cut from a copper penny as lapel pins, to broadcast their opposition to the war. Its a nice irony, I think, to remember whose head appears on the penny today! The Copperheads must be turning in their graves.

In May 1863, General Ambrose Burnside was in charge of the Department of The Ohio. Burnside, it turned out, is a man bettered remembered for his long whiskers--or "sideburns"--than for his political acuity. The general announced that anyone within his jurisdiction who was in the "habit of declaring sympathies for the enemy" would be arrested as a traitor.

Vallandigham took Burnside's proclamation as a challenge. At a public rally opening his campaign for the Governor of Ohio, Vallandigham gave a vitriolic speech. He denounced the President as "King Lincoln," accused Burnside of being a heavy-handed tyrant, and called for a negotiated peace with the south. Burnside read the speech, arrested Vallandigham, and shipped him off to jail in Boston.

This, of course, was exactly what Vallandigham wanted. Overnight, he became a martyr for the Copperhead cause. The papers called him "Valiant Val." Democrats triumphantly announced that Lincoln had finally shown his true colors: he was nothing more than a petty tyrant.

Lincoln, for his part, was not pleased by the General's actions. To be sure, he was not fond of Vallandigham. The former Congressman had been stirring up sentiments against the war, and Lincoln suspected that was purposely fanning the flames of street violence in opposition to the draft. But Lincoln realized that the arrest was valuable ammunition for his political opponents.

Burnside, ever the zealous soldier, had one more blunder to make. Turning his attention to Illinois, the General decided that the Chicago Times was getting too loud in criticizing the war effort. It was time to shut the paper down. So he sent out two companies of infantry, and they stopped the presses.

This was too much. Lincoln had to engage in what today might be called "damage control." Burnside had proclaimed that traitors would either be put on trial or sent "into the lines of their friends." Lincoln decided to take the second option. Early one morning, Union troops escorted a bewildered Vallandigham to the Confederate lines in Tennessee and, there, they set him free. After some confusion, he made his way to Charleston, South Carolina. He exchanged some awkward pleasantries with his Confederate hosts, and eventually caught a slow boat to Canada.

The next order of business was to get the Chicago Times back in circulation. Lincoln rescinded Burnside's order, called back the troops guarding the presses, and warned his overzealous general not to arrest any more civilians or shut down any more newspapers without express approval from Washington.

Although Lincoln undid most of the damage, he still wanted to make a point. He explained to a group of New York Democrats that he would not allow civilians to be arrested merely for "damaging the political prospects of the administration or the personal interests of the commanding general." Arrests would be made only to protect national security. Now, national security is always a difficult line to draw, especially during a civil war. But the line had to be drawn somewhere, if the Union was to be preserved.

"Must I shoot a simple-minded boy who deserts, while I must not touch a hair of wily agitator who induces him to 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."

In sum, the Vallandigham episode is emblematic of Lincoln's approach to political liberties during the Civil War. The President was not out to trample on the First Amendment. He was not out to crush his political opposition. He suspended the writ of Habeas Corpus in response to perceived military threats to the Union. After he, and later Congress, removed that Constitutional safeguard, the Lincoln Administration did not use its power selfishly or arbitrarily. It arrested only those people who actively supported the Confederate war machine--people like Merryman, who recruited troops to march south. And when people walked this fine line between political dissent and treason, as Vallandigham did, Lincoln tried to err on the side of free speech.

Midway through the war, Lincoln predicted that Habeas Corpus would quickly be re-instituted after the war was over. He could not bring himself to believe that Americans would allow the wartime suspension of Habeas Corpus to extend into peacetime, he said, "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 during the remainder of his healthful life." Lincoln died before he could see the writ of habeas corpus restored.

In one of his most famous debates with Stephen Douglas, Lincoln spoke about how a society that tolerates slavery corrodes the very foundations of its own liberty. These words, I think, reveal Lincoln's awareness that he wasn't battling for territory on a map. He was battling to preserve a nation "conceived in Liberty."

"What constitutes the bulwark of our own liberty and independence? It is not our frowning battlements, our bristling sea coasts, the guns of our war steamers, or the strength of our gallant and disciplined army. These are not our reliance against a resumption of tyranny in our fair land. All of them may be turned against our liberties, without making us stronger or weaker for the struggle. Our reliance is in the love of liberty which God has planted in our bosoms. Our defense is in the preservation of the spirit which prizes liberty as the heritage of all men, in all lands, everywhere. Destroy this spirit, and you have planted the seeds of despotism around our doors. Familiarize yourselves with the chains of bondage, and you are preparing your own limbs to wear them. Accustomed to trample on the rights of those around you, you have lost the genius of your own independence, and become the fit subjects of the first cunning tyrant who rises."

So today, let us heed the wisdom of a man who led our nation to a "new birth of freedom." Let us always be, first and foremost, lovers of liberty.

The Confederacy chose to secede

and ATTACK the United States.

Them rebel sumbucks didn't even wait to secede:

1861:

January 4 Alabama militia sieze the U.S. arsenal at Mt. Vernon, AL. Alabama has not yet seceded.

January 5 Alabama militia sieze Ft. Morgan and Ft. Gaines in Mobile Bay.

January 7 Florida militia sieze the Federal fort at St. Augustine. Florida has not yet seceded.

January 8 Florida militia attempting to sieze Ft. Barrancas are driven off by Federal troops.

January 9 South Carolina militia fire on US merchant vessel Star of the West, preventing reinforcement and resupply of Ft. Sumter garrison.

Mississippi secedes.

January 10 Louisiana militia sieze all Federal forts and arsenals in the state. Louisiana has not yet seceded.

Florida (belatedly) secedes. Federal troops abandon Ft. Barrancas.

North Carolina militia capture Ft. Johnson and Ft. Caswell. North Carolina has not yet seceded.

January 11 Alabama (belatedly) secedes.

January 12 Florida militia demands the surrender of Federal troops in Ft. Pickens. The demand is refused.

Mississippi fortifies Vicksburg and closes the Mississippi River to all traffic. Mississippi is the only state on the river, at this point, which has seceded.

January 19 Georgia secedes.

January 21 Mississippi militia sieze Ft. Massachussetts and Ship Island.

January 25 Georgia militia sieze the federal arsenal at Augusta. North Carolina calls for a referendum on secession.

January 26 Georgia militia sieze Ft. Jackson and Oglethorpe Barracks.

Louisiana (belatedly) secedes.

January 31 The U.S. Mint in New Orleans is siezed by Louisiana militia.

February 1 Texas submits an article of secession to popular referendum for February 23.

February 4 Delegates from the six seceded states meet in Montgomery to form the Confederate States of America.

February 9 Tennessee rejects secession in popular referendum by a large margin.

February 16 Texas militia sieze the federal arsenal at San Antonio. Texas has not yet seceded.

February 18 Texas militia besiege Federal army headquarters for Texas in San Antonio and force the surrender of over 3,000 troops. Texas has -still- not seceded.

Jefferson Davis inaugurated as President of the Confederacy.

February 21 The Confederate Provisional Congress orders Mississippi to end the blockade at Vicksburg.

February 23 Texas voters approve secession by a 75% majority, secession to take effect March 2 (Texas Independence Day).

February 28 North Carolina voters narrowly reject secession (by fewer than 1,000 votes).

March 2 Texas's secession takes effect; that same day, Texas is admitted into the Confederacy.

March 3 The militia units in Charleston Harbor are taken under Confederate authority.

March 20 Harbor authorities in Mobile sieze the U.S. merchant supply ship Isabella, loaded with supplies for Ft. Pickens, Florida.

April 3 Confederate batteries in Charleston harbor fire on US schooner Rhoda H. Shannon.

April 4 Virginia's State Convention rejects secession 2 to 1.

April 12 Confederate troops open fire on Ft. Sumter; Federal troops reinforcing Ft. Pickens, FL from sea are fired upon by more Confederate troops. The Civil War 'officially' begins.

April 15 Lincoln calls for 75,000 militiamen to serve for three months to put down the insurrection in the South.

April 16 Isham Harris, governor of Tennessee, requests military alliance with the Confederacy. Tennessee has NOT seceded and is making treaty or confederation with another power, violating the Constitution.

April 17 Virginia secedes.

And so forth.

Bunch of bums was all they were.

Walt

In the event that anybody wants to see the real truth about The Lincoln's unconstitutional suspension of habeas corpus, the following provides ample evidence that Congress alone, and not the president, can suspend that writ. Enjoy

"The privileges and benefit of the writ of Habeas Corpus shall be enjoyed in this Government, in the most expeditious and ample manner; and shall not be suspended by the Legislature, except upon the most urgent and pressing occasions, and for a limited time not exceeding months." - Proposal of Charles Pickney on habeas corpus, Constitutional Convention of 1787, submitted to committee for consideration and later adopted in its current language as Article I, Section 9, Clause 2, pertaining to the legislature

"All legislative Powers herein granted shall be vested in a Congress of the United States...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." - United States Constitution, Article I

"In the same section it is provided, that "the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion and invasion, the public safety may require it." This clause limits the power of the legislature to deprive a citizen of the right of habeas corpus, to particular cases viz. those of rebellion and invasion; the reason is plain, because in no other cases can this power be exercised for the general good." - Robert Yates, delegate to the Constitutional Convention, Anti-Federalist #9 "Brutus"

"The people by adopting the federal constitution, give congress general powers to institute a distinct and new judiciary, new courts, and to regulate all proceedings in them, under the eight limitations mentioned in a former letter; and the further one, that the benefits of the habeas corpus act shall be enjoyed by individuals." - Federal Farmer (believed to be Richard Henry Lee), Anti-Federalist #16

"The safest and best restriction, therefore, arises from the nature of the cases in which Congress are authorized to exercise that power [of suspending habeas corpus] at all, namely, in those of rebellion or invasion. These are clear and certain terms, facts of public notoriety, and whenever these shall cease to exist, the suspension of the writ must necessarily cease also." - Francis Dana, presenter of the Constitution to the Massachussetts ratification convention

"The decision that the individual shall be imprisoned must always precede the application for a writ of habeas corpus, and this writ must always be for the purpose of revising that decision, and therefore appellate in its nature. But this point also is decided in Hamilton's case and in Burford's case. 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." - United States Supreme Court, Ex Parte Bollman & Swartwout, authored by Justice John Marshall, 1807

"Those respecting the press, religion, & juries, with several others, of great value, were accordingly made; but the Habeas corpus was left to the discretion of Congress, and the amendment against the reeligibility of the President was not proposed by that body." - Thomas Jefferson, Autobiography, 1821

"The Constitution seems to have secured this benefit [habeas corpus] to the citizen by the description of the writ, and in an unqualified manner admitting its efficacy, while it declares that it shall not he suspended unless when, in case of rebellion or invasion, the public safety shall require it. This writ is believed to be known only in countries governed by the common law, as it is established in England; but in that country the benefit of it may at any time be withheld by the authority of parliament, whereas we see that in this country it cannot be suspended even in cases of rebellion or invasion, unless the public safety shall require it. Of this necessity the Constitution probably intends, that the legislature of the United States shall be the judges. Charged as they are with the preservation of the United States from both those evils, and superseding the powers of the several states in the prosecution of the measures they may find it expedient to adopt, it seems not unreasonable that this control over the writ of habeas corpus, which ought only to be exercised on extraordinary occasions, should rest with them. It is at any rate certain, that congress, which has authorized the courts and judges of the United States to issue writs of habeas corpus in cases within their jurisdiction, can alone suspend their power" - William Rawl, A View of the Constitution of the United States, Chapter 10, 1826

"It would seem, as the power is given to congress to suspend the writ of habeas corpus in cases of rebellion or invasion, that the right to judge, whether exigency had arisen, must exclusively belong to that body." - Justice Joseph Story, Commentaries on the Constitution of the United States, Book 3, Chapter XXXII, § 1336, 1833

"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." - Chief Justice Roger Taney, Ex Parte Merryman, United States Circuit Court, 1861

"There has been much discussion concerning the question whether the power to suspend the "privilege of the writ of habeas corpus," is conferred by the Constitution on Congress, or on the President. The only judicial decisions which have been made upon this question have been adverse to the power of the President." - Justice Benjamin R. Curtis, Executive Power, 1862

"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 had arrived, Gen. 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. Louiallier published a denunciatory newspaper article. Gen. Jackson arrested him. A lawyer by the name of Morel procured the United States Judge Hall to issue a writ of hebeus corpus to release Loualier. Gen. Jackson arreted both the lawyer and the judge. A Mr. Holander ventured to say of some part of the mater that "it was a dirty trick." Gen. Jackson arrested him. When the officer undertook to serve the writ Gen. Jackson took it from him, and sent him away with a copy. Holding the judge in custody for 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 regularly be announced, or until the British should have left the coast.

A day or two elapsed, the ratification of a treaty of peace was regularly announced and the judge and the others were fully liberated. A few days more and the judge called Gen. Jackson into court and fined him $1,000. 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.

It may be remarked: First, that we had the same Constitution then as now; secondly, that we then had a case of invasion, and now a case of rebellion; and thirdly, that the permanenet right of of the people to Public Discussion, the liberty of speech and the Press, the trial by jury, the law of evidence, and the Habeus Corpus, suffered no detriment whatever by that conduct of Gen. Jackson, or its subsequent approval by the American Congress."

A. Lincoln, 6/12/63

"Lincoln, with his usual incisiveness, put his finger on the debate that inevitably surrounds issues of civil liberties in wartime. If the country itself is in mortal danger, must we enforce every provision safeguarding individual liberties even though to do so will endanger the very government which is created by the Constitution? The question of whether only Congress may suspend it has never been authoritatively answered to this day, but the Lincoln administration proceeded to arrest and detain persons suspected of disloyal activities, including the mayor of Baltimore and the chief of police."

- Chief Justice William Rehnquist, November 17, 1999

Merryman was a citizen of Maryland who committed treasonous acts against the United States. He could easily have been hung, but even in 1861, Lincoln held malice toward none and had charity for all.

Trying to smear President Lincoln only makes you look a fool.

Walt

>> What's there to say? Wilson was a left wing globalist racist nut. <<

Really? Maybe you could explain this to all the freepers who INSIST "prior to FDR, the Democrat Party was the CONSERVATIVE party" and insist the south was "voting for true conservatives" when it gave overwhelmingly support to Woody and his clones on the state level.

>> Practically every freeper knows and admits that <<

Again, see above. Do you really NEED me to post the dozens of delusional freeper quotes that FDR "made the Democrat party liberal, before him it was conservative" stuff? I'm guessing I'll be wasting my time because a so-called "Republican" like yourself will apologize for the pro-Democrat rhetoric and claim they didn't "really" mean that. You'll be telling they really "meant" the whooping 10% of the DemocRAT party who happened to cross party lines. Right.

>> (except, possibly, Walt who seems to like big government liberal presidents <<

You know what? Since you insist on your double standards, why don't you put your money where your mouth is and move to North Carolina to meet as the "conservative" Democrats that your "third party conservative" buddy Billbears PROMOTES on here? You keep INSISTING your neo-confederate buddies are stauch conservatives. I'm sure you're enjoy the leadership of NC Speaker Jim Black (who just blackmailed the state into keeping him as speaker, and whom "less government" billbears wants to give MORE power too). How about Senate President Marc Basnight, and, of course, Governor Earley. And you can enjoy lots of taxpayer funded abortion and gay rights that Governor Warner of Virginia (he was the "true conservative", according to the yellow-dog Democrats here). How about it, "GOP capitalist"? We all know whoever the neo-confederate PROMOTE must be a great conservative, right?

>> Though Lincoln falls into the same category as those other three, there are many freepers out there who live in denial of the evidence and some who practically worship at the feet of the guy, both figuratively and literally. <<

You should see the freepers here who practically worship at the feet of Zell Miller, both figuratively and literally (who has a lifetime "conservative" rating IDENTICAL to Olympia Snowe). Nobody EVER mentions that FDR is his role model, that he was the number one Clinton supporter in the 1992 Democrat primary, that he promotes abortion on demand, that he is a HUGE supporter of McCain-Feingold, etc. A Republican like yourself doesn't seem bothered by all the worship of southern Democrats, does he?

>> That is why you see many threads exposing his big government tendencies <<

Lots of Presidents have "big government tendencies" that are rarely mentioned. Did you see President Bush's state of the union address? 2.2 trillion dollars? $500 mil to reward NASA? Zillions of dollars to Africa. Not really a lot of threads "exposing" it, but clearly Big-government tendencies if you ask me. A lot of people deny it hear and some even "worship" the President, but that doesn't make them Marxists. I'm disappointed, but I don't think President Bush is evil incarnate either.

The Lincoln threads aren't there to promote his "big government", since the figures will show you that by 1860s standards, even Ronald Reagan's government would be a huge buecracy. Yes, the 1860 congress and administration could have never DREAMED of the type of spending we had even under conservative governments in the late 20th century. We had about 20 threads pointing out that Lincoln came up with a income tax (that bore almost no resemblance to today's income tax and which 99% of us wouldn't have to pay) and only ONE thread pointing out that it was the 90th anniversary of the REAL income tax (Wilson's) that we are CURRENTLY paying. ("A mass tax, not a class tax") VERY FEW freepers were aware they are paying income DUE solely to Wilson's actions in 1913. Which one do you think had more of an impact on big government modern society?

More likely, the Lincoln threads MAIN purpose is to attack Lincoln BECAUSE he was pro-union, and anti-secession (and therefore, he must be a "Marxist"). In the minds of the neo-confederate, ANYONE who is pro-union and anti-secession is a "Marxist", and anyone who is pro-confederacy must be a inclusive conservative patriot.

That is why you will see DOZENS of threads that mention Lincoln's position on that, but not ONE thread that says this:

"Joseph Wilson" [Woodrow's father was] a stauch supporter of the South during the Civil War, he helped organize the Presbyterian church of the Confederate States of America. He had a profound influence in the development of Woodrow Wilson's character and development."
"My first memory" said Wilson "was hearing someone pass and say that Lincoln was elected and there would be war" He saw General Robert E. Lee pass under the Union guard is Augusta, GA, in 1865. His earliest impressions, were of the civil war, the devastation of the South, and humiliation of Reconstruction. Though he left the region as a young adult, he regarded himself as a southerner his entire life. He always believed the South was full justified in seceding from the Union; he also believed in white supremacy ... His ambition was for a career in politics. In college he had cards printed to read "Thomas Woodrow Wilson, Senator from Virginia" "
"In the 1912 campaign, Wilson came out in favor of the nationalization of the railroads. BOTH [Teddy] Roosevelt [frequently attacked by neo-confederate on this forum as example how "liberal" the GOP was back then] and Taft ATTACKED Wilson's proposal as "rank socialism", so he backpedaled on the issue... [in 1916], Roosevelt rejoined the Republican Party to unite against a second Wilson term. ... calling Wilson a "damned Presbyterian hypocrite" and a "dangerous radical" .
"UNDERWOOD TARIFF, 1913-- Wilson pushed the bill through congress, sponsored by DEMOCRAT representative Oscar W. Underwood of ALABAMA, to provide for a new income tax in accordance with the 16th amendment"
"FEDERAL RESERVE ACT, 1913-- "Sponsored by DEMOCRAT Representative Carter Glass of VIRGINIA, and DEMOCRAT Senator Robert L. Owen of OKLAHOMA, this law was pushed by Wilson to create the modern federal reserve system..."
CLAYTON ANTI-TRUST ACT, 1914 "sponsored by DEMOCRAT Representative Henry DeLemar Clayton of ALABAMA, Wilson's urged it's creation "to compete with big business..."
ADAMSON ACT, 1916-- "President Wilson persuading congress to enact this bill, sponsored by DEMOCRAT Representative William C. Adamson of GEORGIA, to regulate the eight-hour work day..."
"President [Wilson] is the most prejudiced man I ever knew and likes but few people"
--Colonel E.M. House, Wilson advisor, 1919
"He thinks he is another Jesus Christ come upon the earth to reform men"
--George Clemenceau, 1918

And that's only a brief account of his pro-confederate views and legislation from his first term (the one that even you said is ONLY remembered for "he kept us out of war"). Now, let's see. Is it clear NOW where Wilson was from, what he stood for, and who supported and promoted his agenda? Hint: it wasn't those evil "Marxist" Lincoln Republicans was the midwest.

>> whereas Wilson's are universally known and admitted. <<

Bull----. NOBODY pays attention to what legislation was passed in 1914. Wilson is remembered as that tall guy with glasses from Princeton who got us into World War I. Even you admitted this. Most people think "Teddy Roosevelt" when they think "Progressive era" (Much to the delight of the TR haters and "Democrats are true conservatives" crowd here). Wilson was clearly to the left of even Teddy. And Also to the delight of the neo-confederate, very few people, especially freepers are aware that Wilson's election was considered "an avenge of the south" (I wasn't even aware of this until I read an account of his swearing-in and his worship in the south at the time) and that Woody was a LIFELONG neo-confederate who only lived in New Jersey so he keep his ivy-league university career and lecture "foolish" people on much of a devout Christian man and self-appointed expert on the "true" knowledge of history and politics he was (arrogant neo-confederate model if I ever saw one). The guy was always a hardcore Dixiecrat "rebel" and southern transplant, which nobody knows. People associate FDR as the one responsible for WILSON's agenda and falsely picture Wilson as a nice scholarly Yankee from New Jersey.

Which is exactly what the neo-confederate want. They want the truth? They can't handle the truth.

Really? Maybe you could explain this to all the freepers who INSIST "prior to FDR, the Democrat Party was the CONSERVATIVE party"

They do? Cause my own studies of history have led me to conclude that from Bryan to FDR, the Democrat party was in a transitional shift between its conservative and liberal elements, just as during the same period of McKinley to Coolidge, the Republican Party was undergoing a similar but opposite transition.

Again, see above. Do you really NEED me to post the dozens of delusional freeper quotes that FDR "made the Democrat party liberal, before him it was conservative" stuff?

I have an even better idea. Why don't you post some showing one of these same individuals praising Woodrow Wilson instead of simply assuming it to be so like you do so often.

You know what? Since you insist on your double standards

How so? You have insisted for quite some time that the southern freepers here love and adore, among others, Woodrow Wilson yet I don't recall you ever posting evidence where he is specified by name. I have shown, by contrast, evidence that Walt openly praises and supports Lincoln, FDR, Mondale, Dukakis, Clinton, and Gore - all of which you could seemingly care less about. In fact, it would seem that you are practicing the true double standard on this issue. You whine incessantly about supposed non-existant quotes of support for Wilsonian globalism by southerners, yet could care less when one on your own side regularly brags about voting for Clinton, blames George Bush Sr. for the 9/11 attacks, trashes the legacy of Ronald Reagan, questions the legitimacy of George W. Bush's election in 2000, and denounces the Constitution as a "pact with the devil" by "rich white men." If that is not a double standard, I do not know what else is.

why don't you put your money where your mouth is and move to North Carolina to meet as the "conservative" Democrats

I have no need to pack up and move across several states to satisfy the requests of a fool.

You keep INSISTING your neo-confederate buddies are stauch conservatives.

I've yet to see one of them espouse the greatness of the New Deal, sing praises for Al Gore and Bill Clinton, or attempt to blame 9/11 on George Bush and the Republican party. Your friend Walt has done all of these things though, with not so much as a peep in response from yourself.

You should see the freepers here who practically worship at the feet of Zell Miller, both figuratively and literally (who has a lifetime "conservative" rating IDENTICAL to Olympia Snowe).

Hey, as far as Democrats go, I wish they ALL were like Zell Miller or maybe John Breaux. Ralph Hall would not be bad either, considering he has a conservative rating that is higher than many Republicans in Congress. But that is not the norm of the party of the left, even though it would make life a whole lot easier for us. We should nevertheless be thankful for those few who are when they give us support, and work to replace them with conservative Republicans when they are up for election or retire.

Nobody EVER mentions that FDR is his role model

Why don't you ask Walt about that one? He speaks very highly of Uncle Joe's highest ranking agent in America.

that he was the number one Clinton supporter in the 1992 Democrat primary

Why don't you ask Walt who he voted for in that primary then. It very well could have been Clinton. Or better yet, ask him who he supported in '88. Was it Dukakis? Or maybe Gephardt? Or Algore? He may have even voted for Jesse! Then you can ask him who he backs for '04 - Kerry? Edwards? Lieberman? Moseley-Braun? Hilsama bin Rodham? Al Sharpton!

Lots of Presidents have "big government tendencies" that are rarely mentioned. Did you see President Bush's state of the union address? 2.2 trillion dollars?

Yeah, and it is apalling. So what's your point? That "they all do it," and that it is therefore somehow right? Sounds awfully like a statement somebody famous made back around 1998 involving a female companion of his.

The Lincoln threads aren't there to promote his "big government", since the figures will show you that by 1860s standards, even Ronald Reagan's government would be a huge buecracy.

Bureaucracy yes, but the use of widespread military coercion to extract obediance from its citizens, no. In that latter category of tyranny, The Lincoln stands alone.

We had about 20 threads pointing out that Lincoln came up with a income tax (that bore almost no resemblance to today's income tax and which 99% of us wouldn't have to pay)

The first modern income tax applied to only 1% as well. The issue is its use as a type of taxation though - getting the foot in the door.

and only ONE thread pointing out that it was the 90th anniversary of the REAL income tax (Wilson's) that we are CURRENTLY paying.

Actually, the 16th amendment was adopted in 1909 and ratified(??) in February 1913. Taft was president at this time. Wilson and FDR raised it to high levels (with a tax cut in between by Coolidge).

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