Lincoln's Unconstitutional Actions

[L Verge]

(01-04-2018 03:57 PM)Angela Wrote:  

(01-04-2018 03:12 PM)L Verge Wrote:  Angela - I have often used your argument with upper grade students at our museum, pointing out that things change in times of crisis. In the Mary Surratt movie, The Conspirator, I believe that it is Mary's respected lawyer who quoted the following: "In times of war, the law falls silent." This is derived from a Latin phrase, Inter arma enim silent lēgēs meaning "for among [times of] arms, the laws fall mute." It is credited to Cicero.

Abraham Lincoln's request for an opinion on the suspension of the right to habeas corpus during the American Civil War resulted eventually in the following decision, in Ex parte Merryman (1861), of Chief Justice Roger B. Taney, as a judge of the United States circuit court for the District of Maryland:

1. That the president... cannot suspend the privilege of the writ of habeas corpus, nor authorize a military officer to do it.
2. That a military officer has no right to arrest and detain a person not subject to the rules and articles of war... except in aid of the judicial authority, and subject to its control.

Please note that Taney wrote the majority opinion; this was not his exclusive decision - even though modern folks seem to want to make Taney a "dictator" of sorts as far as the Supreme Court is concerned. He is actually considered one of the best jurists, especially in Constitutional matters, that our country has ever seen.

The United States' government explicitly referred to this maxim within its argument in the case Ex parte Milligan, when it remarked (with an additional reference to Cicero) that "these [amendments of the Bill of Rights], in truth, are all peace provisions of the Constitution and, like all other conventional and legislative laws and enactments, are silent amidst arms, and when the safety of the people becomes the supreme law." The same principle was upheld during WWII in reference to "enemy belligerents."

I have told some members of this forum about my receiving a phone call in 2001 from the U.S. Department of Justice wanting to know where they could find complete transcripts of everything pertaining to the 1865 trial of the Lincoln conspirators. They were working with that term of "enemy belligerents" also as they were arresting the folks destined for Gitmo prisons. Abraham Lincoln is not the only leader who has had to face this issue.

Laurie, thank you for your thoughts!

Is there a particular reason you only refer to a United States Circuit Court of Maryland decision from 1861, when Congress in the Habeas Corpus Suspension Act of 1863 clearly authorized the president of the United States to suspend the privilege of the writ of habeas corpus in response to the United States Civil War?

I am sure that Abraham Lincoln would have loved to ask Congress for permission to suspend Habeas Corpus – had Congress been able to be in session, which it wasn’t only because of the reason why it was suspended in the first place.

It wasn’t an illegal usurpation of executive power by any stretch of the imagination.

However, your reply clearly shows the complexity of the topic and I thank you for it.

As for the phone call you received 17 years ago – I am not sure what you are trying to say. But I am sure it was a lovely experience.

Angela - As a native Marylander, I instinctively cited the Merryman case because it was a Maryland case and because it originated in April of 1861, shortly after the Baltimore Riots as Union troops were transported through that city. It is also usually overshadowed by the better known ex parte Milligan.

I hope I'm remembering the history correctly here, but John Merryman was a Marylander who participated in blowing up several rail bridges in his state when Lincoln refused the state's request to avoid bloodshed by not bringing Federal forces through Maryland en route to fortifying D.C. Lincoln answered by authorizing the military to suspend the writ of habeas corpus in cases like Merryman's - especially since he was being charged with treason.

The state officials appealed to Chief Justice Taney because, even though he was a justice of the Supreme Court, in those days, justices also served as circuit court judges. Note that the Merryman case was ruled a district court case. His case would set the tone for further cases involving the suspension of the writ -- and in Maryland, I can tell you that there were a large number of "political prisoners" who were being held for actions a lot less severe than blowing up bridges. And, they were ultimately released.

Taking this to a somewhat final conclusion was the 1866 decision on Milligan, which was chiefly about the use of military courts on civilian prisoners. This led to my comment about being contacted in 2001 by the U.S. Department of Justice because they were working on justifications for the treatment of terrorists following the attack on NY and D.C. Everything old is new again. That's a line from some musical, but I can't remember which one.

Those of you with a bend towards legal matters, please correct any errors I made in the above explanation to Angela. The law frankly scares me to death, so I can't blithely declare that I have crossed my t's and dotted my i's.