The Indianapolis times. [volume] (Indianapolis [Ind.]) 1922-1965, 1935-06-19
LINCOLN FAILED
TO OBEY COURT,
HISTORY SHOWS
IGNORED Famous 0ictum All
During War, Writer
Reveals.
By HERBERT LITTLE
IImrs sneciaI Writer

WASHINGTON. June l9.-Abra-
ham Lincoln ignored a famous die
tum Of Chief Justice fancy through
out the Civil war. students OF legal
history pointed out today in seek
ing a parallel for the current con-
trovcrsy over judicial power.
A relation between the Supreme
Courts -ecent NRA decision and
Lincoln's co1rse was traced in the
famous TX Parte MiIligan" decision
OF 1866. which Chief Justice Hughes
cited as a precedent against NRA.
This is a ruling that neither war nor
other emergency creates Federal
powers not specified in the COnsti-
tuition.
Louis 3 Boudin Of New York in
a recent tWO-volume study Of the
Supreme Courts effect on history,
entitled Government by judiciary.
charges that Lincoln was IN con-
fict with the courts Interpretation
of the Constitution throughout the
war. and that the court s resOund
lag personal liberty declarations IN
The Milliran case came two years
after the war. too late to impede
Lincoln's course. Most historians.
Mr.. Boudin charges. ignore this
point.
Taney Writes President
tx Parte Merryman was the first
famous fight. Chief Justice fancy.
sitting in Circuit Court in Mary
land. issued a writ Of hsbeas corpus
commanding Union General Cad
waIader to release one MeTTyman,
accused Of recruiting a rebel mill
tarv force in this crucial border
state. The general ignored It. jus
tice fancy issued a writ Of attach
mcnt for the general.
The marshal who attempted 10
serve the writ was stopped by n
sentinel at #. McHenry. and the
Chief Justirc wrote his decision, a
COPY Of which he sent TO President
Lincoln. arguing that the President
had no power TO suspend habeas
corpus
In one part Of his decision. jus
tice fancy said the President was
uglirning legislative power. and in
another ne said not even Congress
could suspend habCas corpus. The
President did not heed the decl-
sion. a little later LincOln's attOr-
ncy-CeueraI held that the Presi-
dent did have such power, and
Congress. in session At the time.
took no action to Overturn the
policy.
Union Blockade Upheld
The only important Supreme
Court wartime case involved the
validity OF the Union blackade of
the South, and Lincoln won 1t by
10 T.
In the critical year Of 1864 an at
tempt 10 test the validity of trials
by military commissions was dis
missed by the high court on a tech
nicaItv. II also dismissed on
jurisdiCtional grounds an attack on
the paper currency. which was in
volved SIX years later in the legal
tender cases.
Mr. BOudin comments Of these
two actions that the court either
did not want or did not dare 10 in
terfere" with Lincoln and the war
Indiana Case Decided
After the war it decided the case
Of Milligan. who had been arrested
IN Indiana IN 1864 and sentenced
by a military commission TO be
hanged for taking part in a plot
TO free war prisoners and TO start
a military uprising against the
Union. After LincOln's death.
President johnson approved the
sentence.
The Supreme Court unanimously
held the trial invalid. but divided.
TO (. as 10 whether jury trial could
be suspended in wartime. Justice
Davis in holding for the majority
that it could not, wrote a decision
IN which. according 10 Mr.. BOudin,
he conceded that the courts readi-
ness TO rule was due TO the end OF
the war. Justice Davis wrote.
During the late wicked Rebellion
the temper Of the times did not al
low that CalmneSS IN deliberatiOn
and discussion SO necessary TO q
correct conclusion Of a purely judi
cial question. Then. considerations
OF safety were mingled with the
exercise OF power: and feelings and
interests prevailed which are hap
PLY terminated. Now that the pub
lie safety Is assured. this question
as well as all others. can be discus
sod and decided without passion OF
the admixture OF any element no,
required 10 form a legal judgment. %
Police Radio Chief Retained