Actually, ex parte milligan did not rule that suspension was
unconstitutional -- that was no the issue in the case; but rather that
because the civil courts were open at the time, Milligan was entitled to
a trial by a civilian court.  In other words, you cannot try civilians
by military court *if* the civilian courts are functioning.  That is
correct.  It is not, by the way, clear that Lincoln had much to do with
Milligan's trial; Milligan was a small potatoes traitor accused of
trying to organize an army in Indiana to make war on the United States. 
He was arrested by the military, and tried by the military, when he
ought to have been arrested by civilians and tried by a regular court.

One of the problems here Lincoln faced was that there were virtually no
federal laws and there was virtually no federal law enforcement to stop
treasonous activity when the war began.  Today someone like Merryman in
Maryland or Milligan in Indiana would be arrested by the FBI, hauled
into U.S. District Court, charged with various federal crimes, put in a
federal holding facility, and then tried in federal court.  Timothy
McVeigh comes to mind.  But Merryman, who like McVeigh was a terrorist
trying to blow things up, could not be arrested by a non-existent FBI,
or charged under laws that were not on the books; hence suspension of
HC.    Milligan could have been tried under existing law by 1864 and
should have been, and the SUpreme court correctly ruled that way. 

Paul Finkelman
President William McKinley Distinguished Professor of Law
     and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[log in to unmask]
>>> [log in to unmask] 02/14/07 7:12 PM >>>
I am sure Paul can recite the proper Constitutional history
better than can I.  That said, what Mr. Forest writes below is
misleading.

The opinion in Ex Parte Milligan was written by Justice David
Davis, who declared "the Constitution of the United States is
a law for rulers and people, equally in war and peace."  On
this basis, he ruled that Lincoln's suspension of the writ of
Habeus Corpus in southern Indiana was unconstitutional. 

This view, however, survived only until World War I, when
justice Holmes drew a distinction between the law during time
of war and the law during peacetime.  Holmes noted "when a
nation is at war many things that might be said in times of
peace are such a hinderance to its effort that no court could
regard them as protected by any constitutional right."  While
Holmes was talking here about the first amendment, subsequent
courts took the spirit of his declaration to apply to a wide
range of executive action during time of war, eg., Korematsu
v. United States.

Thus, it is not at all clear, from the perspective of modern
jurisprudence, that Lincoln's action with regard to Milligan,
or earlier with Merryman, was improper.  Davis' decision in Ex
Parte Milligan simply was not the last word on the issue.

Mr. Forest is thus incorrect to suggest that Lincoln violated
his oath to uphold the Constitution.  The traitors to the
Constitution, to the contrary, were the men who led the
Southern states out of the Union on a deeply misguided and
incorrect understanding of the nature of the Constitution. 
The Union was perpetual, and everyone involved at its founding
understood with much greater clarity than do modern apologists
for the Confederacy (or most Americans today, for that matter)
that the dissolution of the nation into two or more
confederacies would be disastrous in all sorts of ways.  The
fate of the Southern Confederacy more than confirmed the worst
fears of the Founders.

Mr. Forest, and anyone else interested in this, would be well
advised to read James Madison's notes from the Philadelphia
convention.  Hendrickson's recent book PEACE PACT is another
useful resource on this question.

All best,
Kevin



---- Original message ----
>Date: Wed, 14 Feb 2007 18:33:26 EST
>From: Basil Forest <[log in to unmask]>  
>Subject: Re: Long memories  
>To: [log in to unmask]
>
>It may be hard for you to imagine, but the Supreme Court,
charged with  
>deciding that issue, found Lincoln lacked the Constitutional
authority and that  
>was, and always is, the final word in Constitutional 
debates.  So, any debate 
>about it was ended and Lincoln was required to  comply with
the Court's 
>decision.  He refused to do so, a clearly  impeachable action
by any standard.
> 
>I fail to find anything meritorious in Lincoln's continual
actions in  
>ignoring the Constitution and his oath of office to follow
his own feelings on  what 
>he could and could not do.
> 
>I am sure the 600,000 dead Americans in the Civil War would
agree.
> 
> 
>
>To subscribe, change options, or unsubscribe, please see the
instructions
>at http://listlva.lib.va.us/archives/va-hist.html
Kevin R. Hardwick, Ph.D.
Department of History
James Madison University

To subscribe, change options, or unsubscribe, please see the
instructions
at http://listlva.lib.va.us/archives/va-hist.html

To subscribe, change options, or unsubscribe, please see the instructions
at http://listlva.lib.va.us/archives/va-hist.html