GDG- Ex Parte Vallandigham - Prequel

[Margaret D. Blough]

What rationale?  It was a statement of fact. I didn't categorize it, and I especially did not describe it as a good thing or even justifiable.  It's certainly the conclusion arrived at by scholars such as Mark Neely in his twin studies of civil rights & liberties during the Civil War, Southern Rights : Political Prisoners and the Myth of Confederate Constitutionalism and The Fate of Liberty : Abraham Lincoln and Civil Liberties.  

One thing to remember, though. Both the US and Confederate Constitutions authorized the suspension of the writ of habeas corpus.  The US Constitution states in Article I, Section 9, "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."  The primary issue in Ex parte Merryman 17 F. Cas. 144 (1861) (which is not a US Supreme Court decision; Roger B. Taney, Chief Justice of the United States  was sitting as a circuit judge) was the suspension of the writ by President Lincoln in the period between the attack on and surrender of Ft. Sumter and the beginning of the emergency session of Congress on July 4, 1861. The other main issue was the authority (or lack thereof) of the military to arrest a civilian non-combatant.  Since the power to suspend the writ lies in Article 1, Taney ruled that only Congress could suspend it.  The issue didn't reach the US Supreme Court. However, in 1863, when the S
upreme Court considered issues related to President Lincoln blockading the coasts of the rebel ruled in The Prize Cases 67 U.S. 635 (1863) (Taney was one of the dissenting votes) that:

>>By the Constitution, Congress alone has the power to declare a national or foreign war. It cannot declare war against a State, or any number of States, by virtue of any clause in the Constitution. The Constitution confers on the President the whole Executive power. He is bound to take care that the laws be faithfully executed. He is Commander-in-chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States. He has no power to initiate or declare a war either against a foreign nation or a domestic State. But, by the Acts of Congress of February 28th, 1795, and 3d of March, 1807, he is authorized to called out the militia and use the military and naval forces of the United States in case of invasion by foreign nations and to suppress insurrection against the government of a State or of the United States.
If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader or States organized in rebellion, it is nonetheless a war although the declaration of it be "unilateral." Lord Stowell (1 Dodson 247) observes,
It is not the less a war on that account, for war may exist without a declaration on either side. It is so laid down by the best writers on the law of nations. A declaration of war by one country only is not a mere challenge to be accepted or refused at pleasure by the other.
The battles of Palo Alto and Resaca de la Palma had been fought before the passage of the Act of Congress of May 13th, 1846, which recognized "a state of war as existing by the act of the Republic of Mexico." This act not only provided for the future prosecution of the war, but was itself a vindication and ratification of the Act of the President in accepting the challenge without a previous formal declaration of war by Congress.
This greatest of civil wars was not gradually developed by [p669] popular commotion, tumultuous assemblies, or local unorganized insurrections. However long may have been its previous conception, it nevertheless sprung forth suddenly from the parent brain, a Minerva in the full panoply of war. The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact.<<
Regards,

Margaret
-------------- Original message -------------- 
From: Richard M Kadas <rkadas at sbcglobal.net> 

> Esteemed GDG Member Contributes: 
> 
> 
> What an interesting rational. It harkens back to the U.S. Army junior officer 
> who was caught on TV circa 1968 saying, "We had to burn the village to save it." 
> Tacitus put it more succinctly when he wrote, "They created a wasteland and 
> called it peace.(he was referring to the Roman army campaigning in Britain). 
> Dick 
> 
> "Margaret D. Blough" wrote: 
> Esteemed GDG Member Contributes: 
> 
> 
> Dennis, 
> 
> It should be noted that Confederate authorities arrested the fiery East 
> Tennessee Unionist William G. "Parson" Brownlow in December 1861 and "escorted" 
> him into Union lines in early 1862. Civil liberties quite frequently take a 
> beating in wartime, even in republics and/or democracies, and civil wars, which 
> make distinguishing friend from foe difficult and fear of the enemy within that 
> much more intense, are particularly problematical for civil rights and 
> liberties. 
> 
> Regards, 
> 
> Margaret 
> 
> -------------- Original message -------------- 
> From: Dennis Lawrence 
> 
> > Esteemed GDG Member Contributes: 
> > 
> > 
> > To Edwin M. Stanton 
> > Executive Mansion, Washington, 
> > Hon. Secretary of War May 13, 1863. 
> > 
> > My dear Sir Since parting with you I have seen the Secretaries of 
> > State and the Treasury, and they both think we better not issue the 
> > special suspension of the Writ of Habeas Corpus spoken of. Gov. Chase 
> > thinks the case is not before Judge Swaine, that it is before Judge 
> > Levett, that the writ will probably not issue, whichever the 
> > application may be before; and that, in no event, will Swaine commit 
> > an imprudence. His chief reason for thinking the writ will not issue, 
> > is that he has seen in a newspaper that Judge Levett stated that 
> > Judge Swaine & he refused a similar application last year. Yours 
> > truly A. LINCOLN 
> > 
> > Annotation 
> > 
> > [1] ALS, DLC-Stanton Papers. On May 4, Clement L. Vallandigham had 
> > been arrested, on orders of General Burnside. On May 8, Burnside 
> > telegraphed in reply to a non-extant telegram from Lincoln, ``Your 
> > dispatch just rec'd. I thank you for your kind assurance of support & 
> > beg to say that every possible effort will be made on my part to 
> > sustain the Govt of the United States in its fullest authority.'' 
> > (DLC-RTL). The furor in Ohio and throughout the North over the arrest 
> > and ensuing trial was such that Secretary Stanton feared the impact 
> > on Union morale if the U.S. district judge should ignore the general 
> > proclamation suspending the writ of habeas corpus. On May 13, he 
> > therefore prepared an order especially suspending the writ in 
> > Vallandigham's case and drafted an accompanying despatch to Burnside. 
> > Both documents, unsigned, are 
> > 
> > http://www.civilwarhome.com/vallandighambio.htm 
> > 
> > 
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