he read democratic and republican papers, flaying away at each other, eventually over the mexican war, eventually over the sectional crisis. in that world, he developed what he read was possible from the newspapers. >> sure. >> and of course, educated himself in the law just as he had educated himself in the bible, shakespeare and the other things. >> conducted at least in the instance by the military who thought this was necessary. guided or misguided as it might have been. was that because lincoln had crd ad and do it? or was it because they were going to go ahead and do it and he would react to it and perhaps allow it or perhaps not allow it?

be more passive. >> lincoln is known as the great pardoner when it came to deserters who had death sentences imposed on them. by the same token, he was probably the biggest executioner in the history of the military because a lot of people who are accused of -- convicted of desertion were executed, they were shot. lincoln was always walking a the w and morale building. so letting generals have their they were on the ground. he didn't have instant access to the conditions on the ground.tis inept as so often they did like bernside who had been banished to the west because he'd done such a bad job in ea this was the guy who lost the battle of fredericksburg and ends up closing the "chicago times" in 1863, he was walking a fine line. --" chicago times waa

b bad idea. >> you used the word passive a few moments ago and reminded me of the bell that kept ring i was listening to your really faemarks. the editors seem so passive. where were all the editors? who was rising up to defend the great freedom of speech and first amendment? >> most -- >> where were they? >> in prison in some degree. >> they weren't all in prison at the same time. so who was there rising up to -- >> well -- >> with great value. >> judge, i think there weren't that many rising up. i haven't found them, but it has to be understood that there was a chilling effect. that the democratic editors were not all convinced it was only the traitors. they were worried that any expression of political opinion against the republicans which was their normal way of doing

things would get them into trouble. so you don't see after a while the democratic press objecting to the rule of law. meaning the most extreme right wing democratic editors are generally considered to be treacherous. >> well, let me ask this. we're a bunch of lawyers and judges here, but and most people have said over the years, at least in modern times that all the great societal issues eventually end up in court. but what strikes me about what you said is how little ended up in court during that period. now, of course, during that time we didn't have the application of the first amendment to the states incorporation hadn't occurred, but state courts were open. one would think these issues would be litigated constantly in state courts. why not? >> there are so few examples of it, and again, the wonderful example that i cited tonight of governor seymour throwing one of these cases into municipal court when it involved is sort of

comical. because no federal court is going to hear it. and the courts in the states where most of this suppression taking place, maryland, missouri, kentucky, are really not an operation. i mean the military courts have taken over the jurisdictions. and, again, with the writ of habeas corpus nationalized and the suspension created by congress, three times lincoln has free reign to have people arrested by the military and tried by military tribunals. >> i have the privilege of having the judge who is signaling to me that it's time for us to conclude. >> i thought he had a question. >> wonderful discussion. so just let me ask you, fast forward to the internet age. >> okay. >> where everyone's a journalist today, right? so how do we apply some of the lessons to the world of today?

>> there is no world today that equals the threat to this country that existed between 1861 and 1865. we tend to think of it because the sugar coated ways the civil war is still viewed by many people as this romantic struggle between southern chivalry and northern freedom-loving people. and at the heart a fight for freedom of enslaved people. but it doesn't get that -- that kind of view doesn't get into the nitty gritty and the danger that people felt that constitutional government was going to end and that the government if split once would split five times and this great experiment which lincoln

believed, you know, lincoln was an american exceptionalist, an argument we're having again with all the candidates, and he believed that the american example would light the world as he put it if it was shown that it could be perpetuated. i guess if you draw an example, it's -- if the situation would ever occur again, we would be severely tested to protect the constitution and maybe the patriot act is our current. but that in the end overreaction is sort of inevitable. because lincoln doesn't have the benefit of seeing the outcome in 1861. he only sees the danger. >> can i just say that -- i don't think i've ever been treated to such a fabulous exposition of an historical event period as i've seen -- as we've had tonight. thank you so much. >> terrific. >> i think we'll have time at the end if things go well. we'll have time at the end for

some audience participation so to speak. and in the next phase of the program, will judge wesly come forward? there he is. i don't want to introduce you when you're sitting out there, i want to introduce you when you're right over here. >> all right. >> and i promise i may -- i may tell a little bit of a tale out of school, but i won't embarrass you. many of you know, judge wesly, as a preeminent jurist, serving on the second court of appeals, before that he'd been a member of our court, the new york court

of appeals, a supervising judge in the state, the justice of the appellate division in new york and a graduate of cornell and hailing from livingston county, lavonia, actually. and when you're from hemloch, lovonia is the big apple. i got to know him before the new york court of appeals building was reconfigured. at the time we were the new kids on the block and on the third floor and the big shots, the important judges, the other five were on the second floor. we were up there on the third floor and i got to know him pretty well. and not only was he a great judge, saged, wise, hard-working, scholarly, but he left me with one thing i'll share with you that has resinated with me for a long, long time. every once in a while he'd say this maybe once a year or twice a year as we were going around the table, each of us giving our impression of a particular case, giving our input, seeing whether we agree and how the court breaks down and so forth.

and once in a while it would sort of hesitate and one of us would say, what is it? and he would say i'm thinking about the people in the lavonia post office. and i said what do you mean by that? and he did not mean that he's going to hold up his finger to the wind and see what the popular thing is to do. he didn't mean that at all. what he meant was something that we really do appreciate. and that is that however eminent you become and however renowned you become, it's not a good idea to lose touch with the population. and with the people because he's got to go back to the lavonia post office to many people he's just little dicky wesly. to where people can put their finger on his head and say "what

are you guys doing in albany?" and he would carry around that post office business with me. and i kind of caught it after a while. because i have to go back to a post office in poughkeepsie and see some of those folks. i think it's a quality that is wonderous and endeared dick wesly to us. it's the kind of judging we do appreciate and i think the public does, as well. so fast forward many years later, judge wesly's now in the second circuit and he's writing a decision that involves one of the very subjects we're dealing with here tonight and he writes a decision talking about ex-party merriman and the other milligan. what a great addition to have dick wesly talk about ex-party merriman and milligan. so with that, here he is, judge richard wesley. [ applause ] >> my presence here tonight is the result of a conversation that i had with albert about four months ago when he was

talking about lincoln and i got all excited about it because i think most of us who end up judging become somewhat interested in history because we're always taken into the historic context of the cases where the cases that we look to for guidance. so i got this immediately said to al, i said, al, that's an interesting thing because when i was involved in a case that was argued in october of 2003, which was one of the very first cases in the united states to begin to examine the president's war powers and the joint resolution for the authorization of the use of force on september 15th, 2001. the -- i started babbling on about milligan and merriman.

cases that no one paid any attention to, quite frankly, for many, many years. and now so this is great. it'll be terrific, you can do the final close up and you can do it with no notes, you know, because i was just rambling on. well, like john walker and like judith, i did do a fair amount of preparation tonight and before i came here i went to the cornell club, got off the plane, came down to the cornell club, got myself situated, we stayed at the cornell club. and then had to go down to 500 pearl street to the courthouse for the swearing in of susan carney, a colleague of the court. unfortunately for me, i left all of those notes in my room, so indeed, i am flying without a -- all i have here is my jetblue ticket and couple things i wrote on the back. but let me give you just a brief overview. and i think the thing that comes through with what the lecture and the panel shows is that these were extraordinary times.

lincoln's proclamation of april 15th, 1861 in essence lays out the case as to why the civil courts are unable to deal with what is currently going on. federal officers had been arrested in southern ports, federal officers are unable to collect taxes. arsenals in southern military installations in the united states have been seized by the confederate states. the government is in essence breaking down. in essence, there is not a way for the court at this moment in time to involve these matters. he imposes a blockade which originally does not include virginia and north carolina but expands it shortly thereafter. he suspend a writ of habeas corpus and promptly calls congress into session for july 4th, kind of an appropriate state to call congressmen to session. but in his message to congress

when congress does convene, he indicates in his view he did nothing more than that which congress itself would do if it had been present at the time. and so i think there was to some degree a sense of limiting, at least from lincoln's standpoint and an appreciation of what he was up to. but to understand fully the situation that lincoln confronted and -- i want to call you professor holzer, the presentation seemed so well along to me in an academic line. what harold said is that there was an awful lot of trouble involved. merriman was a member of a military unit, and merriman indicated he had been instructed by the governor to destroy several bridges that contained railroad tracks at the northern end of maryland and northern end of baltimore which were key to

getting military troops into d.c. at the time of the proclamation of april 18th, 1861, there were 5,000 federal troops in the district of columbia under the command of wynnefield scott. and in fact, they even put together a plan where scott would locate the troops around the federal treasury building and they were told lincoln was in that building to defend it in case they were met with forces by the confederacy. and there was a great concern that maryland was going to secede. so lincoln, railroad tracks were pulled up, telephone lines going to philadelphia were torn up, and maryland is viewed as part of a group that had done it and finally lincoln orders merriman's arrest and he's put in ft. mchenry. and roger took exception to that. and brought a writ of habeas corpus, which the judge refused who is the custodian of mr. merriman and informed the judge that it was not necessarily just

the president but he was the one himself delegated with presidential authority to suspend the writ if he saw so fit. there's just one paragraph i want to read you because i could just see canney writing this. the case then is simply this, military officer residing in pennsylvania issues an order to arrest a citizen in maryland upon vague and indefinite charges without any proof. under this order his house is entered in the night, about 2:00, 3:00 in the morning, he is seized as a prisoner and conveyed to fort mchenry.

and they're kept in close and when habeas corpus, requiring him before justice of the supreme court an order he may examine into the illegality of the imprisonment, the answer of the officer is he is authorized by the president to suspend the writ of habeas corpus at his cession. an officer is authorized at his discretion and in the exercise of that discretion suspended in this case and on that ground refuses obedience of the writ. can you imagine? can you imagine judicial authority so flaunted? we cannot imagine what the civil war presented with 600,000 americans died in the civil war by the time we were a nation of 30 million people. 1 in 50 died. if you go right across the lavonia post office that al talked about, there is a memorial to those people from the town of lavonia who gave their lives in armed conflict. and if you added up all of those who died in the korean conflict and the first and second world war and vietnam, they do not equal half of those who died in the civil war from that same little town in upstate new york.

the degree to which pain of this nation permeated rural communities in upstate new york was very, very deep. and the society in the north was not uniform. there were riots in new york, there was a great deal of resistance on a lot of discussion, so the country was not of one mind even with regard to the union's effort. but in terms of 1861, the suspension of the writ, merriman being the very first case lost, he got out of prison shortly thereafter. not too long thereafter. canney made sure that food and furniture was provided to merriman while he was housed at ft. mchenry and, indeed, named one of his children, he had 11, roger b. tanney merriman. so he was appropriately grateful for the chief justice's effort.

the other fellow i want to talk to you about is milligan. by the way merriman also became the treasurer from 1870 to 1872. in the state of maryland. landon milligan was known as a democrat, he lived in indiana, an attorney, he had been born in ohio. he had never held political office but he'd been a peace democrat. peace democrats thought war was wrong and supportive of the confederates. and he was involved in a plan that attempted to release a number of confederate prisoners from federal prisons in the indiana area and also there was allegations that perhaps they were going to seize or attempt to seize weapons from an arsenal.

milligan was charged in a military tribunal and convicted in 1865, i believe it was or 1864. ultimately his case made its way to the supreme court. and i believe he was represented by james garfield who later became president of the united states with regard to his petition. the supreme court said with regard to milligan, his case was unusual. he was a civilian. he was also tried in a military tribunal and we have to separate the suspension of the writ from military tribunals. lincoln suspended the writ and used it to hold people and many times subjected them to military tribunals -- many times withheld them. but in milligan's space, he was arrested after the suspension of the writ act of 1863. it took congress two years to ratify what lincoln had said. and the suspension of the writ act did not include the imposition of martial law in areas it had not been imposed and that is, indeed, exactly what happened in indiana. so when the case finally went to the united states supreme court in 1866, the supreme court ruled

that milligan should not have been tried in a military court and should not have been held therefore and therefore was released. actually milligan cheated the hang man, president johnson commuted his sentence five days before he was to have been executed and ultimately then the supreme court vacated his conviction. milligan sought what any good law-abiding lawyer would do, he thought regress of his grievance in court and brought an action against the jailer for $5 million of damages. the jury gave him $5. so apparently milligan and the defense against milligan's claim was indeed that he really was attempting to subvert the union's efforts and, indeed, he was deeply involved. i think that the lessons that we learned from these cases are that they are examples of country of extremists.

it's very hard. i was very interested in the last part of the discussion at the table. your comments about really very hard to have an appreciation of the type of circumstance which lincoln faced. i don't think on a national -- replicable on a national experience. every time i think about it 600,000 americans giving their lives, 1 in 50, there are about 275 of us assembled tonight, six of us would've paid with our lives in this small grouping alone. the suspension of the writ is an interesting from a legal perspective, an interesting anecdote in american history. but its application to understanding presidential war

powers today and with national organizations are seeking to employ terrorist activities against the united states don't have an easy analog for us either at the federal or state level. but i will say tonight was a wonderful night and i'm glad i came. al, i'm glad you asked me to fly without a net. it wasn't so bad after all. thank you. [ applause ] >> now how did i know he could do this without notes? he didn't plan it that way, but that's the way it goes. well, it's dessert time. after dessert, we'll have a little coffee here. symbolically anyway. and the dessert is a scrumptious dessert indeed because no program could be complete without the dramatic reading by one of the great of all times, henry miller, who is not only past president of the west chester bar and the new york state bar and a past regent

of the american college of trial lawyers and one of the most prominent lawyers in this entire region if not america, out of the firm of clark and miller in white plains, he's appeared on television and radio, written a book called the art of advocacy, another called "new york practice" and most recently "on trial: letters from a lifetime in the courtroom" which is standing room only presentation. but for those of you who have seen henry at his finest in addition to being in the courtroom, of course, it was a one-person play right down here, a little bit off broadway. not too far off broadway. just a little bit off broadway in a portrayal of clarence darrell and brought to the audience an incomparable display of knowledge, scholarship, and dramatic presentation. so we're going to hear two short dramatic presentations, readings by henry miller as no one else can do it. one of which is very, very well

known to you of course. and the other is written by a judge of our court about 140 years ago and i find it so touching that i ask to include it in the reading because i cannot hear it without being gripped right here when we talk about the life, the loss of life for a cause. henry miller. [ applause ] >> the pain of the nation that judge weslef believe, very movingly revealed in the two very short readings i have for you.

the first is by samuel a. foote, judge of new york court of appeals. who while he was on the court wrote a letter at the end of 1862. so the war is well under way. he lost two sons. john and samuel. his third son alfred was seriously wounded but survived. although i noticed that boy died in 1869, nine years before his father, one would strongly suspect his wounds had something to do with it. in any event, in 1862, the judge writes this letter to the president.

mr. president, dear sirs, my three eldest sons responded to your call last year for volunteers to suppress the insurrection. the lives of the two eldest have been yielded. in the contest. they were dear and dutiful sons as is also the third one who is still in service. this priceless contribution which i have been called to make to sustain our institutions and the integrity of our country entitled me i respectfully

submit to say to the president of my choice that it is perfectly clear to my mind that rebellion cannot be effectually suppressed and we become a united people unless slavery is destroyed. and that i hope and trust that on new year's day i shall be allowed to read your proclamation designating the states and parts of states in rebellion that in them slavery may be abolished in accordance with your proclamation of the 22nd of september last. if i can read that proclamation, i shall feel that the lives of my dear sons have not been sacrificed in vain. respectfully yours, samuel a. foote. we know of no reply to that

letter by lincoln. though it's known that on occasion he did write such personal letters. but, however, the following year he spoke as we all know at gettysburg where they were consecrating this as burial ground where the great battle had taken place. and it was said later on at lincoln's eulogy that although lincoln had said in that address that the world will little note what we say here is one of his eulogyists, senator sumner of massachusetts, said the battle itself was less important than the speech. and in a sense, the gettysburg address is lincoln's response to ale