Executive Orders...

[cash]

Today not so much?
Leftyhunter

Today not at all.

 

[Lnwlf]

Today is not a part of this discussion. Let's keep it to Lincoln's Era or Reconstruction.

Posted as casual moderator.

 

[Carronade]

Really? Ex Parte Merryman? What exactly was it other than a collection of words you quoted? What illegality did it entail? Looking intently for something?

If the Chief Justice doesn't convince you, I doubt I can.

What other authority would you suggest? The Supreme Court would be the only higher court, but as leftyhunter noted, the administration chose not to take it there. The courts are the ultimate arbiters of legality, and the court decision on the topic was Taney's "collection of words".

Lincoln's position was that he was going to do what he considered necessary to save the Union regardless of legal niceties, not unusual for a chief executive of a nation facing rebellion. If you agree with his position, why not acknowledge it?

 

[O' Be Joyful]

Concerning Ex parte Merryman, perhaps this will be instructive. H/T @amweiner for source found in this thread. Bold mine.

https://civilwartalk.com/threads/ex-parte-merryman-myth-history-and-scholarship.132646/#post-1500969

Limited orders of the court

In the courtroom announcement and in the written opinion, Taney took the extraordinary step of ordering the clerk of court to send a transcript of the Merryman proceedings to President Lincoln. "It will then remain for that high offi cer, . . ." concluded Taney, "to determine what measures he will take to cause the civil process of the United States to be respected and enforced." The provocative challenge to the President deflected attention from the court's own lack of action.

Taney issued no order to secure the release of John Merryman or to enforce the writs of the court. Taney announced to the court that he would not hold the marshal responsible for enforcing the writ of attachment or arresting General Cadwalader because "it has become so notorious that the military power is superior to the judicial." In his written opinion, Taney claimed to "have exercised all the power which the constitution and laws confer upon me, but that power has been resisted by a force too strong for me to overcome." The only formal orders of the court were those related to the filing of the records and the delivery of a copy to the President. As the written opinion made clear, Taney embraced the opportunity to chastise the President but avoided any order he could not enforce. [snip]

Conclusion

The failure to try the treason cases, like Taney's unwillingness to enforce his Merryman opinion, revealed the disruptions of the judicial process during the Civil War. In the trial courts, prosecutors could not expect to find impartial juries, especially in border states where most treason indictments were presented, and judges sympathetic to the South found ways to delay trials. When faced with judicial challenges to the President's restrictions on civil liberties, some judges, like Taney, declined to test the authority of the judiciary against what they recognized as the superior power of the administration and the military. Others, sympathetic to the war goals of Lincoln, deferred to what they expected to be a temporary exercise of broad executive powers. The limits of the judiciary's ability to enforce decisions and many judges' recognition, shared with Lincoln, that preservation of the Union required extraordinary executive powers, discouraged the federal courts from resolving many of the constitutional questions raised by restrictions on civil liberties. This judicial record left few clear rules about the protection of those liberties, including the privilege of the writ of habeas corpus, when other crises threatened what the Constitution called "the public safety."

https://www.fjc.gov/sites/default/files/trials/merryman.pdf

​

 

[jgoodguy]

If the Chief Justice doesn't convince you, I doubt I can.

What other authority would you suggest? The Supreme Court would be the only higher court, but as leftyhunter noted, the administration chose not to take it there. The courts are the ultimate arbiters of legality, and the court decision on the topic was Taney's "collection of words".

Lincoln's position was that he was going to do what he considered necessary to save the Union regardless of legal niceties, not unusual for a chief executive of a nation facing rebellion. If you agree with his position, why not acknowledge it?

I respect Taney as very good judge, but at times like he gets into the political games like Dred Scott and Ex Parte Marryman which makes him look bad.

We are in agreement that the matter began and ended with Taney.
We are in agreement that there is no SCOTUS decisions regarding this particular case.

However there is Ex parte Vallandigham where a real court with testimony and several judges ruled differently from Taney, so Taney at best is not the gold standard, but one of several Federal District Court decisions. Except for Taney, the courts did not issue habeas corpus. Taney's position is unique.

In addition one case made it to SCOTUS during the Civil War and the appeal was denied.
Ex parte Vallandigham

In February 1864, the Supreme Court avoided ruling on the question by instead unanimously holding that they could not take appeals from military tribunals at all.
​

In summary Taney is singularly unique in his decision, his decision is not a gold standard, multiple Federal District Courts ruled different, and SCOTUS denied appeals of those decisions.

 

[jgoodguy]

Concerning Ex parte Merryman, perhaps this will be instructive. H/T @amweiner for source found in this thread. Bold mine.

https://civilwartalk.com/threads/ex-parte-merryman-myth-history-and-scholarship.132646/#post-1500969

Limited orders of the court

In the courtroom announcement and in the written opinion, Taney took the extraordinary step of ordering the clerk of court to send a transcript of the Merryman proceedings to President Lincoln. "It will then remain for that high offi cer, . . ." concluded Taney, "to determine what measures he will take to cause the civil process of the United States to be respected and enforced." The provocative challenge to the President deflected attention from the court's own lack of action.

Taney issued no order to secure the release of John Merryman or to enforce the writs of the court. Taney announced to the court that he would not hold the marshal responsible for enforcing the writ of attachment or arresting General Cadwalader because "it has become so notorious that the military power is superior to the judicial." In his written opinion, Taney claimed to "have exercised all the power which the constitution and laws confer upon me, but that power has been resisted by a force too strong for me to overcome." The only formal orders of the court were those related to the filing of the records and the delivery of a copy to the President. As the written opinion made clear, Taney embraced the opportunity to chastise the President but avoided any order he could not enforce. [snip]

Conclusion

The failure to try the treason cases, like Taney's unwillingness to enforce his Merryman opinion, revealed the disruptions of the judicial process during the Civil War. In the trial courts, prosecutors could not expect to find impartial juries, especially in border states where most treason indictments were presented, and judges sympathetic to the South found ways to delay trials. When faced with judicial challenges to the President's restrictions on civil liberties, some judges, like Taney, declined to test the authority of the judiciary against what they recognized as the superior power of the administration and the military. Others, sympathetic to the war goals of Lincoln, deferred to what they expected to be a temporary exercise of broad executive powers. The limits of the judiciary's ability to enforce decisions and many judges' recognition, shared with Lincoln, that preservation of the Union required extraordinary executive powers, discouraged the federal courts from resolving many of the constitutional questions raised by restrictions on civil liberties. This judicial record left few clear rules about the protection of those liberties, including the privilege of the writ of habeas corpus, when other crises threatened what the Constitution called "the public safety."

https://www.fjc.gov/sites/default/files/trials/merryman.pdf

​

In short cash's comment "Ex Parte Merryman was Roger B. Taney sticking his tongue out at Lincoln and yelling, "Your mother wears army boots!" at him.' is accurate.

 

[leftyhunter]

I respect Taney as very good judge, but at times like he gets into the political games like Dred Scott and Ex Parte Marryman which makes him look bad.

We are in agreement that the matter began and ended with Taney.
We are in agreement that there is no SCOTUS decisions regarding this particular case.

However there is Ex parte Vallandigham where a real court with testimony and several judges ruled differently from Taney, so Taney at best is not the gold standard, but one of several Federal District Court decisions. Except for Taney, the courts did not issue habeas corpus. Taney's position is unique.

In addition one case made it to SCOTUS during the Civil War and the appeal was denied.
Ex parte Vallandigham

In February 1864, the Supreme Court avoided ruling on the question by instead unanimously holding that they could not take appeals from military tribunals at all.
​

In summary Taney is singularly unique in his decision, his decision is not a gold standard, multiple Federal District Courts ruled different, and SCOTUS denied appeals of those decisions.

Ex Parte Vallandigham is an I treating Supreme Court decision. Some of our Pro Confederate friends from Missouri have argued that their is no constitutional right to try civilians in a military court. Now we know they can. Yes the Supreme Court latter ruled in Ex Parte Muligan that the military can not try civilians if civil courts are open. However in case of a severe rebellion that forces the closure of civil courts the U.S. military can try civilians?
Interestingly enough since Ohio was not subject to any significant combat action during the Civil War the Civil courts in Ohio should have been fully functional. Yet the Supreme Court still upheld the right of the Union Army to try,convict and incarcerate Govenor Vallandigham. Why would that be so?
Leftyhunter

 

[jgoodguy]

Ex Parte Vallandigham is an I treating Supreme Court decision. Some of our Pro Confederate friends from Missouri have argued that their is no constitutional right to try civilians in a military court. Now we know they can. Yes the Supreme Court latter ruled in Ex Parte Muligan that the military can not try civilians if civil courts are open. However in case of a severe rebellion that forces the closure of civil courts the U.S. military can try civilians?
Interestingly enough since Ohio was not subject to any significant combat action during the Civil War the Civil courts in Ohio should have been fully functional. Yet the Supreme Court still upheld the right of the Union Army to try,convict and incarcerate Govenor Vallandigham. Why would that be so?
Leftyhunter

IMHO a lesson on why court rulings are ever so more important than bloggers opinions. The law is what the court's say, not what a lay person's say is. If SCOTUS defers to another court, in this case a military court, then that court determines legal and illegal, not an hypothetical. In this discussion, the Republic's survival are more important than Constitutional niceties in wartime.
Ex Parte Vallandigham, :: 68 U.S. 243 (1863)

Syllabus
The Supreme Court of the United States has no power to review by certiorari the proceedings of a military commission ordered by a general officer of the United States Army, commanding a military department.​

Constituting America | Ex Parte Vallandigham (1864) Emphasis mine.

The Supreme Court's rulings in ex parte Vallandigham and ex parte Milligan set a long-standing pattern regarding wartime cases. During war, with the very real dangers of sabotage, desertion, draft evasion, insurrection, espionage and other threats to the survival of the republic, the Supreme Court tends to defer to the elected branches and their willingness to narrow constitutional protections of rights. For example, in Vallandigham's 1864 case, the Supreme Court declined to interfere with the president's wartime policy and refrained from passing judgment regarding his conviction by military tribunal. According to the Constitution, the president is commander in chief, and the war-making power belongs to Congress. The judiciary has no role in the prosecution of a war. Once the war is over, the Court tends to restore a stricter interpretation of the rights of individuals, as in Milligan's case, returning to a more robust commitment to civil liberties and protection of the rights of the accused. This pattern of judicial interpretation is seen throughout the military conflicts of the twentieth century and remains controversial with the terrorism-related cases of the twenty-first.​