Lincoln and the Constitution

Did Lincoln violate the Constitution at any time during his presidency?


  • Total voters
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Lincoln cleaned out the civilians imprisoned in early summer 1862 in a hurry, when McClellan was before Richmond.
He waited until after a victory (stalemate) to announce the EP.
So yes, I think Lincoln manipulating events for maximum gain would make him suspect.

But what would make postponing this something with anything to gain? Were it not brough before the Supreme Court, it would be an obscure case.

So I should just give up trying to show where Lincoln violated the Constitution? Why, when that is the topic of this thread? I have posted some very educational information on this thread. That is what this forum is supposed to be about.
Only through gathering as much evidence as possible can anyone understand the complete series of events leading up to ex parte Milligan. The majority of evidence I've found on this forum is what I've posted.

Of course not. If you believe it is possible to demonstrate one way or another, please do so - because my statement that I believe it is impossible is a comment on what I can see.

Wouldn't it be much more educational to post the evidence? The tribunal was only part of it. He didn't get indicted beforehand as required by law.

Sure. I have nothing against posting any and all evidence - I'm just summing up what seems to be where the situation seems to be from what I know.

So I suppose my question is - do we have any evidence to support that Lincoln definately did what you claim he did? We can go back to this if we discover we do, so I'm just seeing if you have anything more yet unposted.

Saying he "might have" is not enough to argue he violated the constitution over.
 
I had hoped that in your period of absence you had been to the library and would come back with a wealth of information.

Work intervenes sometimes. :smile:

It appears Milligan's private papers were destroyed sometime after his death, so there is no info to get from him.
I haven't found much in the OR but I'm not that good at searching them.

Sincerely,
dvrmte

You won't find anything other than his name listed in the OR.

I haven't opened my file on Milligan yet. Maybe Friday.

Regards,
Cash
 
Work intervenes sometimes. :smile:

I can relate to that. Sometimes I have more time on here when I'm at work. Sometimes the boss has the gall to make me actually do something.

You won't find anything other than his name listed in the OR.

All I found are the charges listed for each man and the verdict of the tribunal along with the sentences.

I haven't opened my file on Milligan yet. Maybe Friday.

Please do. It seems if there was something to find, one of the past Lincoln researchers would have found it.

Regards,
Cash

Sincerely,
dvrmte
 
Following is some info I missed. It's going to take me some time to put all of this together.
I was on a role for a little while. My brain is fizzling, now.
I hate politics and law.
Please go to this website and read all of it.

Sincerely,
dvrmte

http://www.historycooperative.org/journals/jala/28.1/barry.html#FOOT1
Justice Davis's views of infringements on civil liberties in the North were considered "well known" prior to the 1866 Supreme Court opinion. Much of it, however, was expressed verbally or conveyed secondhand to the president. Often quoted are Davis's remarks in 1866 to Lincoln biographer William Herndon that "Mr Lincoln was advised as Presdt that the various military trials in Northern states.... where the courts were open and untrammeled and free were unconstitutional and wrong." He went on to say, "I am satisfied that Lincoln was thoroughly opposed to these military commissions especially in the free states where the courts were open and free." See chapter 20 of Willard L. King, Lincoln's Manager: David Davis (Cambridge, Mass.: Harvard University Press, 1960). William H. Herndon and Jesse W. Weik, Herndon's Life of Lincoln: The History and Life of Abraham Lincoln (1942; reprint, New York: Da Capo Press, 1983).

Davis to Lincoln, 1 July 1864; 4 July 1864; 5 July 1864. Letters Received by the Office of the Adjutant General (Main Series), 1861–1870 (M619), roll 285, 199–799, National Archives and Records Administration, Washington, D.C. (Three letters are transcribed in Exhibits 1–3). Also cited by Peter J. Barry, "The Charleston Riot and Its Aftermath: Civil, Military, and Presidential Responses," Journal of Illinois History 7 (Summer 2004): 82–106. These Davis letters are located in the files for the Coles County prisoners at the NARA. Heretofore, the letters do not appear to have been located by researchers, family members, or others.


In the Ex Parte Milligan decision, the U.S. Supreme Court ruled against the use of military commissions to try civilians where civil courts were open and undisturbed. In late 1864, Lambdin Milligan and others had been tried, convicted of treasonous acts, and sentenced to be hanged by a military commission in Indiana, where the civil courts were open and no indictment by a grand jury had occurred. Upon the urgings of the attorneys and families of Milligan and his fellow prisoners, Lincoln had informally indicated their future release. One of his comments to Milligan's chief counsel, Joseph E. McDonald, was "I'll keep them in prison awhile to keep them from killing the government." Davis (Herndon interview), Douglas L. Wilson and Rodney O. Davis, Herndon's Informants (Urbana: University of Illinois Press, 1998), 349. After Lincoln's death, however, President Andrew Johnson favored carrying out the prisoners' death sentences. Johnson eventually relented, and the case, with the assistance of Davis, came before the U.S. Supreme Court. The Court decided in favor of Milligan. Justice Davis wrote the landmark opinion, which presented a profound and lasting statement about law versus oppression in a free society.
 
It appears, thusly, that while Lincoln did not release them (the Coles County fellows) as soon as possible, he had reason for delay that could be justified before the law.

Still, it would be beyond dishonest to argue that Lincoln did not push the Constitution as far as he dared.

I stand by my vote, but there's a decidedly worrisome tone to this - justifiable does not mean its not worth keeping a close eye on in similar situations.
 
What he said. I too don't believe Lincoln violated it -- just got to third base with it.

And ditto on the watching thing. Just because President X "used his powers for good," doesn't mean President Y will do the same.
 
And thus we go back to the essential issue that the government should be monitored by its people, rather than the people monitored by their government.

I would say, thusly, that Lincoln went to the point a Supreme Court ruling was necessary and appropriate to establish the boundaries for future reference.
 
Here's a little tidbit. It has nothing to do with the trials but shows that Lincoln was willing to violate the Constitution to save the Union.
http://www.questia.com/googleSchola...v5M7T0!348447045!-2106413634?docId=5010936499

When the government found itself out of money, Lincoln authorized the printing of "Greenbacks" (currency not backed by gold reserves). When the Secretary of the Treasury, Salmon Chase, objected because to do so violated the Constitution, Lincoln pointedly remarked, "I will violate the Constitution if necessary to save the Union."

Sincerely,
dvrmte
 
Interesting. Never heard that quote before, so I can't comment on its veracity - but it seems to be an accurate indication of Lincoln's priorities.
 
It appears, thusly, that while Lincoln did not release them (the Coles County fellows) as soon as possible, he had reason for delay that could be justified before the law.

Still, it would be beyond dishonest to argue that Lincoln did not push the Constitution as far as he dared.

I stand by my vote, but there's a decidedly worrisome tone to this - justifiable does not mean its not worth keeping a close eye on in similar situations.


Please explain how it was justified before the law to keep unindicted men in prison? According to Davis some of these prisoners were totally innocent. Allowing them to stay in prison violated their constitutional rights.

Sincerely,
dvrmte
 
"Lambdin Milligan and others had been tried, convicted of treasonous acts, and sentenced to be hanged by a military commission in Indiana..."

Its quite legitimate to keep the guilty imprisoned.

And Lincoln did not know one way or another on the legality of a military tribunal when he made the decision to "keep them in prison awhile to keep them from killing the government."

Now, keeping innocent men in prison would be wrong, but Lincoln does not appear to be dealing with innocent men.
 
"Lambdin Milligan and others had been tried, convicted of treasonous acts, and sentenced to be hanged by a military commission in Indiana..."

Its quite legitimate to keep the guilty imprisoned.

And Lincoln did not know one way or another on the legality of a military tribunal when he made the decision to "keep them in prison awhile to keep them from killing the government."

Now, keeping innocent men in prison would be wrong, but Lincoln does not appear to be dealing with innocent men.

I was speaking of the innocent and unindicted men of Cole county that David Davis wrote to Lincoln about. He kept them in prison after being notified by Davis in July 1864 until he wrote orders for their release in November 1864. The Habeas Corpus Act of 1863 stated they had twenty days to be indicted or released. They were not considered POW's. They should have been released.

Sincerely,
dvrmte
 
I believe I am either missing something or confused here.

"Initially, Lincoln was persuaded by the advice from Davis and Treat regarding the Coles County prisoners. He wrote a release order for the prisoners on July 19, 1864. However, he suspended it later on the same day in part because of the voluminous evidence, and he requested the Judge Advocate General to prepare a report on the case. The prisoners' supporters and attorney Ficklin in Charleston gathered and forwarded to the president numerous additional testimonies, letters, and petitions for the prisoners' release from Fort Delaware. Finally, after a mercy visit from Dennis Hanks—Lincoln's cousin and a Charleston resident—the president wrote the final release order on November 4, 1864, leading to the prisoners' actual release ten days later."

Voluminous evidence. That doesn't sound good.

Meanwhile, on Lincoln and law stretching/breaking:

"...it was the duty of the govt. after they were arrested to have had them prosecuted at the first term of the court. Court adjourned and no proceeding was had against them & as far as the United States were concerned, they were entitled to their discharge. The Secretary of War furnished no list of the prisoners to the judges which should have been done, and the Grand Jury adjourned. The letter as well as the spirit of the law of Congress required that these men should be discharged after the adjournment of the Grand Jury. Unless held as prisoners of war, to keep them longer would be oppression and would not harmonize with the obvious purpose and intention of the act of Congress. It was the intention of the court (if the prisoners have been brought before us) to have delivered over those who were indicted by the Grand Jury of Coles Co. to the sheriff of that county and to have discharged the others under the conditions imposed by law."

No mention of the Constitution at all.

A "law of Congress" and "act of Congress", but not the Supreme Law of the Land.

So...while I am left distinctly concerned, I don't see how the Constitution enters into this. Nor am I entirely sure on the innocence or guilt of those imprisoned.
 
I believe I am either missing something or confused here.

"Initially, Lincoln was persuaded by the advice from Davis and Treat regarding the Coles County prisoners. He wrote a release order for the prisoners on July 19, 1864. However, he suspended it later on the same day in part because of the voluminous evidence, and he requested the Judge Advocate General to prepare a report on the case. The prisoners' supporters and attorney Ficklin in Charleston gathered and forwarded to the president numerous additional testimonies, letters, and petitions for the prisoners' release from Fort Delaware. Finally, after a mercy visit from Dennis Hanks—Lincoln's cousin and a Charleston resident—the president wrote the final release order on November 4, 1864, leading to the prisoners' actual release ten days later."

Voluminous evidence. That doesn't sound good.

Meanwhile, on Lincoln and law stretching/breaking:

"...it was the duty of the govt. after they were arrested to have had them prosecuted at the first term of the court. Court adjourned and no proceeding was had against them & as far as the United States were concerned, they were entitled to their discharge. The Secretary of War furnished no list of the prisoners to the judges which should have been done, and the Grand Jury adjourned. The letter as well as the spirit of the law of Congress required that these men should be discharged after the adjournment of the Grand Jury. Unless held as prisoners of war, to keep them longer would be oppression and would not harmonize with the obvious purpose and intention of the act of Congress. It was the intention of the court (if the prisoners have been brought before us) to have delivered over those who were indicted by the Grand Jury of Coles Co. to the sheriff of that county and to have discharged the others under the conditions imposed by law."

No mention of the Constitution at all.

A "law of Congress" and "act of Congress", but not the Supreme Law of the Land.

So...while I am left distinctly concerned, I don't see how the Constitution enters into this. Nor am I entirely sure on the innocence or guilt of those imprisoned.

This is a quote from the site:
Often quoted are Davis's remarks in 1866 to Lincoln biographer William Herndon that "Mr Lincoln was advised as Presdt that the various military trials in Northern states.... where the courts were open and untrammeled and free were unconstitutional and wrong."

I feel the 5th Amendment was violated by Lincoln:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.


Sincerely,
dvrmte
 
Here's a little tidbit. It has nothing to do with the trials but shows that Lincoln was willing to violate the Constitution to save the Union.
http://www.questia.com/googleSchola...v5M7T0!348447045!-2106413634?docId=5010936499

When the government found itself out of money, Lincoln authorized the printing of "Greenbacks" (currency not backed by gold reserves). When the Secretary of the Treasury, Salmon Chase, objected because to do so violated the Constitution, Lincoln pointedly remarked, "I will violate the Constitution if necessary to save the Union."

Sincerely,
dvrmte


The one thing Geoffrey Perret is known for is inaccuracies. I wouldn't trust anything that came out of one of his books as far as I could throw a building.

Regards,
Cash
 
The one thing Geoffrey Perret is known for is inaccuracies. I wouldn't trust anything that came out of one of his books as far as I could throw a building.

Regards,
Cash


I know nothing about him. I just came across it and found it interesting.
It sounded similiar to this statement of Lincoln:

"Was it possible to lose the nation, and yet preserve the
Constitution? By general law, life and limb must be protected; yet
often a limb must be amputated to save a life, but a life is never
wisely given to save a limb. I felt that measures, otherwise
unconstitutional, might become lawful by becoming indispensable to
the preservation of the Constitution through the preservation of the
nation. Right or wrong, I assumed this ground, and now avow it. I
could not feel that to the best of my ability I had even tried to
preserve the Constitution, if, to save slavery, or any minor matter,
I should permit the wreck of government, country, and Constitution
altogether."

Sincerely,
dvrmte
 
Please explain how it was justified before the law to keep unindicted men in prison? According to Davis some of these prisoners were totally innocent. Allowing them to stay in prison violated their constitutional rights.

Sincerely,
dvrmte

No, he didn't.

"Early in January 1865, it became publicly known that the commission had found Bowles, Milligan, and Horsey guilty on all charges and specifications except one, and sentenced each of them to be hanged. It found Humphreys guilty, but sentenced him only to confinement at hard labor for the duration of the war.

"General Alvin Hovey, the commandant of the Military Distrit of Indiana, whose approval was required to carry out any of the sentences, had been before the war a Justice of the Indiana Supreme Court. He approved each of the sentences but commuted that of Humphreys to limited release on parole because he concluded that the evidence did not show that this defendant had taken any active part in the conspiracy. The record of the proceedings against Horsey, Bowles, and Milligan was then sent to President Lincoln, whose approval was required for any death sentence imposed by a military court.

"By now, both the political and military situations had changed dramatically since the summer of 1864. Lincoln had been reelected in November; Sherman had taken Atlanta and was marching through Georgia; it was evident that the end of a southern resistance was but a matter of a short time. Joseph McDonald, a former Attorney General of Indiana and a leader of the Democratic party, now took over as chief counsel for Milligan, Bowles, and Horsey. McDonald was a person of unquestionable loyalty to the Union, unlike other Democrats who had become 'Copperheads'--the term for Northerners who were sympathetic to the South, and who manifested overt disloyalty to the Union. He had practiced law with Lincoln on the Illinois circuits, and he set out for Washington to seek clemency for his clients. McDonald wrote to a friend in 1883 to describe his meeting with Lincoln:

'Much to our surprise we found Mr. Lincoln in a singularly cheerful and reminiscent mood. He kept us with him until almost eleven o'clock. He went over the history of my clients' crimes as shown by the papers in the case, and suggested certain errors and imperfections in the record. The papers, he said, would have to be returned for correction, and that would consume no little time. 'You may go home, Mr. McDonald,' he said, with pleased expression, 'And I'll send for you when the papers get back; but I apprehend and hope there will be such a jubilee over yonder,' he added, pointing to the hills of Virginia just across the river, 'we shall none of us want any more killing done.'

"The corrected papers in the case of the Indiana conspirators, however, did not reach the White House again until after Lincoln had been assassinated on April 14 at Ford's Theater and been succeeded by Andrew Johnson. Johnson's first instincts on becoming President were draconian, and in May 1865, General Hovey issued an order reciting that the President had approved the sentences and directed that they be carried into execution without delay." [William H. Rehnquist, _All the Laws But One: Civil Liberties in Wartime,_ pp. 102-103]

Lincoln had reviewed the trial records once, quickly, had found errors, and had returned them to be corrected. He never had a chance to complete his review of the case.

Regards,
Cash
 
I was speaking of the innocent and unindicted men of Cole county that David Davis wrote to Lincoln about. He kept them in prison after being notified by Davis in July 1864 until he wrote orders for their release in November 1864. The Habeas Corpus Act of 1863 stated they had twenty days to be indicted or released. They were not considered POW's. They should have been released.

Sincerely,
dvrmte

"Initially, Lincoln was persuaded by the advice from Davis and Treat regarding the Coles County prisoners. He wrote a release order for the prisoners on July 19, 1864. However, he suspended it later on the same day in part because of the voluminous evidence, and he requested the Judge Advocate General to prepare a report on the case. The prisoners' supporters and attorney Ficklin in Charleston gathered and forwarded to the president numerous additional testimonies, letters, and petitions for the prisoners' release from Fort Delaware. Finally, after a mercy visit from Dennis Hanks—Lincoln's cousin and a Charleston resident—the president wrote the final release order on November 4, 1864, leading to the prisoners' actual release ten days later."

Lincoln had Davis' unofficial opinion and wanted to review the case more due to the large amount of evidence he had to go through. Additionally, he wanted the JAG's report. Davis' unofficial opinion wasn't law. It was merely his advice to Lincoln.

Regards,
Cash
 
I know nothing about him. I just came across it and found it interesting.
It sounded similiar to this statement of Lincoln:

"Was it possible to lose the nation, and yet preserve the
Constitution? By general law, life and limb must be protected; yet
often a limb must be amputated to save a life, but a life is never
wisely given to save a limb. I felt that measures, otherwise
unconstitutional, might become lawful by becoming indispensable to
the preservation of the Constitution through the preservation of the
nation. Right or wrong, I assumed this ground, and now avow it. I
could not feel that to the best of my ability I had even tried to
preserve the Constitution, if, to save slavery, or any minor matter,
I should permit the wreck of government, country, and Constitution
altogether."

Sincerely,
dvrmte

Perret's books are well known for being unreliable and inaccurate.

http://www.thenation.com/doc/20040614/mcpherson

Regards,
Cash
 
No, he didn't.

"Early in January 1865, it became publicly known that the commission had found Bowles, Milligan, and Horsey guilty on all charges and specifications except one, and sentenced each of them to be hanged. It found Humphreys guilty, but sentenced him only to confinement at hard labor for the duration of the war.

"General Alvin Hovey, the commandant of the Military Distrit of Indiana, whose approval was required to carry out any of the sentences, had been before the war a Justice of the Indiana Supreme Court. He approved each of the sentences but commuted that of Humphreys to limited release on parole because he concluded that the evidence did not show that this defendant had taken any active part in the conspiracy. The record of the proceedings against Horsey, Bowles, and Milligan was then sent to President Lincoln, whose approval was required for any death sentence imposed by a military court.

"By now, both the political and military situations had changed dramatically since the summer of 1864. Lincoln had been reelected in November; Sherman had taken Atlanta and was marching through Georgia; it was evident that the end of a southern resistance was but a matter of a short time. Joseph McDonald, a former Attorney General of Indiana and a leader of the Democratic party, now took over as chief counsel for Milligan, Bowles, and Horsey. McDonald was a person of unquestionable loyalty to the Union, unlike other Democrats who had become 'Copperheads'--the term for Northerners who were sympathetic to the South, and who manifested overt disloyalty to the Union. He had practiced law with Lincoln on the Illinois circuits, and he set out for Washington to seek clemency for his clients. McDonald wrote to a friend in 1883 to describe his meeting with Lincoln:

'Much to our surprise we found Mr. Lincoln in a singularly cheerful and reminiscent mood. He kept us with him until almost eleven o'clock. He went over the history of my clients' crimes as shown by the papers in the case, and suggested certain errors and imperfections in the record. The papers, he said, would have to be returned for correction, and that would consume no little time. 'You may go home, Mr. McDonald,' he said, with pleased expression, 'And I'll send for you when the papers get back; but I apprehend and hope there will be such a jubilee over yonder,' he added, pointing to the hills of Virginia just across the river, 'we shall none of us want any more killing done.'

"The corrected papers in the case of the Indiana conspirators, however, did not reach the White House again until after Lincoln had been assassinated on April 14 at Ford's Theater and been succeeded by Andrew Johnson. Johnson's first instincts on becoming President were draconian, and in May 1865, General Hovey issued an order reciting that the President had approved the sentences and directed that they be carried into execution without delay." [William H. Rehnquist, _All the Laws But One: Civil Liberties in Wartime,_ pp. 102-103]

Lincoln had reviewed the trial records once, quickly, had found errors, and had returned them to be corrected. He never had a chance to complete his review of the case.

Regards,
Cash



Thanks for the info on Milligan but I was replying to Elennsar about the Cole County incident in the post you quoted.
I knew if I branched off into the Charleston Riots it would get confusing.

Sincerely,
dvrmte
 
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