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