burnside, who had been banished to the west because he had done such a bad job in the east. i mean, this is the guy whoerksd ends up closing the chicago times in 1863. he was walking this fine line. and "the chicago times" was a bad idea. he recognized that immediately. >> you know, you used the word "passive" a few moments ago and you remembered me of something. a bell that kept ringing as i listened to your really fabulous remarks, the editors seemed so passive. where were all the editors? who was rising up to defend the great freedom of speech and first amendment? where were they? >> in prison in some degree. [ laughter ] >> but they weren't all in prison at the same time. >> no. >> so who was there rising up to protect this great value? >> well, judge, i think there weren't that many rising up. i haven't found them. but i will concede, and i think it has to be understood, that

there was a chilling effect, that the democratic editors were not all convinced that 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. a while the democratic press objecting to the rule of law, because the most radical democratic editors, meaning the most extreme right-wing democratic editors, aren't generally considered to be treacherous. >> well, let me ask you 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've 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 a municipal court when it involved the closing of the new york world is sort of comical because no federal court is going to hear it. and the courts in where most of this suppression is taking place, maryland, missouri, kentucky, are really not in operation. i mean, the military courts have taken over the jurisdictions. and, again, with the writ of habeas corpus now nationalized and suspended 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 judge rosenblat who is signalling to me that it's time for us to conclude -- >> i thought he had a question. >> this wonderful discussion. let me ask you to fast forward to the end stage. everyone is a journalist today. 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 of 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 its other heart a fight for freedom of enslaved people. but it doesn't get -- that kind of view doesn't get into the nitty-grty

people felt, that constitutional government was going to end, and that the government if split once would split five times in this great experiment, which lincoln believed -- you know, lincoln was an american exceptionalist, an argument that we are having again with all of 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, if the situation would ever occur again, we would be severely tested to protect the constitution. and maybe the patriot act is our current analogue. 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 have ever been treated to such a fabulous exposition of an historical event, period, as i have seen -- as we've had tonight. thank you so much. >> [ applause ]

i think we'll have time at the end, if things go well, time at the end for some audience participation so to speak. in the next phase of the program, will judge wesley please come forward? 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 tell a little bit of a tale out of school, but i won't embarrass you. many of you know judge wesley as a pre-eminent jurist in the united states serving on the second court of appeals. before that, he was a member of our new york court of appeals.

a supervising judge in the state, the justice of the appellate division fourth department, before that, a member of the assembly in new york. and a graduate of cornell. and hailing from livingston county. livonia, actually. but livonia is the larger setting. but more specifically hemlock. when you're from livonia, hemlock is the big apple, right? and i got to know him when the building was reconfigured. at that time, we were the two new kids on the block and we were on the third floor. and the important judges, the other five, were on the second floor. they are now all on the second floor. but we were there on the third floor, and i got to know him pretty well. and not only was he a great judge, sage, wise, hard working,

and scholarly, but we left me with one thing that i'll share with you that has resonated 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 and we're giving our input, you know, seeing whether we agree and how the court breaks down and so forth. and once in a while, dick would sort of hesitate and one of us would say, what is it, dick? and he would say, i'm thinking about the people in the livonia 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 imminent you become and however renown 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 livonia post office, where

to many of the people he is just little dickie wesley, to whom they can go up as he put it and put their finger on his head and say, what are you doing up there? and i carry that around with me. and i say with me because i caught it after a while. because i have to go back to the post office in poughkeepsie and see some of those folks. i think it's a quality that is wondrous, and one that has so endeared dick wesley to us. it's the kind of judging that we really do appreciate, and i think the public does as well. so fast forward, many years later. judge wesley is now in the second circuit, and writing a decision that involves one of the very subjects we are dealing with here tonight. and he writes a decision talking about ex parti merriman and milligan. and we thought what a great addition to this program to have

him talk about that. 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 telling me about halzer coming and 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 are always taken into the historic context of the cases or the cases that we look to for guidance. and so i got to immediately said to al, jeez, al, that's an interesting thing because when i was involved with padilla versus rumsfeld, which 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 for the

use of force on september 15, 2001, the -- i started babbling on about merriman and milligan because i had had to read those cases, cases that no one paid any attention to, quite frankly, for many, many years. and now i saal said, oh, this i great. you'll be terrific. you can do the final closeup and you can do it with no notes, 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. i always stay at the cornell club. and then had to go down to 500 pearl street to the courthouse for the swearing in of susan carney, our newest 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 a couple of 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 declaration or proclamation of april 18 of 1861 in essence pllays out the case to why civil courts is unable to deal with what is going on. officers have been arrested. officials are unable to collect taxes. arsenals in various southern military installations in the united states had been seized by the confederate states. the government is in essence breaking down. and lincoln in his proclamation says in essence, there is not a way for the courts at this moment in time to resolve these matters. and what does he do? he imposes a blockade, which

originally does not include virginia and north carolina. but expands it to those two states shortly thereafter. he suspends the writ of habeas corpus and promptly calls congress -- well, not promptly, but calls congress into session for july 4, kind of an appropriate date i think to call congress into session. but in his message to congress, when congress does convene, he indicates to congress that 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 a limiting principle at least from lincoln's stand-point and appreciation of what he was up to. but to understand fully the situation that lincoln confronted, i want to call on professor halzer, because the presentation seemed so well along an academic line. what harold said is there was an awful lot of trouble in baltimore.

merriman was a member of a military unit, and he indicated he was 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 go getting military troops into d.c. you should understand that at the time of the proclamation of april 16, 1861, there were but 5,000 federal troops in the district of columbia under the command of winfield scott. and in fact, they even put together a plan where scott would locate the troops around the federal treasury building and they would hold lincoln within that building to defend it in case they were met with forces from the confederacy. and there was a great concern that maryland was going to secede. so lincoln -- railroad tracks were torn up. the telegraph lines going to philadelphia had been cut. and merriman was viewed as part of this group that had done it. and so finally, lincoln orders merriman's arrest, and he's put in fort mchenry.

and roger tanny took exception to that, and brought a writ of habeas corpus, which colonel george cadwaller refused, who is the custodian of mr. merriman. refused to honor. and in fact informed judge tanny that it was not just the president but cadwaller himself was the one delegated with presidential authority to suspend the writ if he saw so fit. this enraged tanny. and there's just one paragraph that i want to read to you, because i can just see tanny writing this. i hear the judge's voice. the case then is simply this. a military officer residing in pennsylvania issues an order to arrest a citizen in maryland upon vague and indefinite charges without any proof as far as appears. under this order, his house is entered in the night, about 2:00 or 3:00 in the morning. he is seized as a prisoner and

conveyed to fort mchenry and there kept in close confinement. and when habeas corpus is served requiring him to produce the prisoner before a justice of the supreme court in order that he may examine into the legality of the imprisonment, the answer is that he is authorized by the president to suspend the writ of habeas corpus at his discretion, an officer is authorized at his discretion to suspend the writ of habeas corpus, and suspends it in this case and on that ground refuses obedience of the writ. can you imagine -- can you imagine judicial authority being so flaunted in today's society? i cannot begin to imagine that. but we cannot imagine what the civil war presented to us. 600,000 americans died in the civil war at a time that we were a nation of 30 million people. one in 50 died. if you go to the post office that we were talking about

earlier, there sis a memorial fr those who gave their lives in armed conflict. if you added up all of those who died in the korean conflict and in the first and second world wars and in vietnam, they do not equal half of those who died in the civil war from that same little town in upstate new york. and the general sacrifice, the degree to which the pain of this nation permeated even 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 and a lot of discussion then. so the country was not of one mind even with regard to the uni union's effort. but in terms of 1865 and the suspension of the writ, merriman being the very first case, lost. he got out of prison shortly thereafter. not too long thereafter. tanny, by the way, took care to

make sure that food and furniture was provided to merriman while he was housed at fort mchenry. and indeed, merriman named one of his children -- he had 11 -- roger b. tanny merriman. so he was appropriately grateful for the chief justice's efforts. the other fellow i want to talk to you very briefly about is lamb den milligan. oh, by the way, merriman also was later the treasurer of the state of maryland from 1870 to 1872. lambden milligan was known as a peace democrat. he lived in indiana. he was an attorney. he had been born in ohio. he had never held political office, but he had been very, very active in the peace democrats. the peace democrats felt that war was absolutely wrong. and were very, very supportive of the confederates. and he was involved in a plan to attempt 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 that 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 supension of the writ for military tribunals. lincoln suspended the writ, and used it to hold people and many times subjected them to military tribunals. or many times just held them. but in milligan's case, milligan was arrested after the supension of the writ had been ratified by

congress in 1863. it took congress two years to ratify what lincoln had said. and the suspension of the writ act did not include martial law. when the case went to the supreme court in 1866, the supreme court ruled that milligan could not have been tried in a military court and could not have been held therefore, and therefore was to be released. actually, milligan cheated the hangman. 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 sought redress of his grievance in court, and brought an action against the jailer for $5 million in damages. the jury gave him five dollars. so apparently milligan and the defense against milligan's exclaim was indeed that he

really was attempting to subvert the union's efforts and indeed he was deeply involved in the process. i think that the lessons that we learned from these cases are that they are examples of a country in extremists. it's very hard. and i was very interested in the last part of the discussion at the table. your comments about really very hard to draw lessons today. very hard to have an appreciation of the type of circumstance which lincoln faced. i don't think replicable again in the national experience. i hope not, because it cost us dearly. one in every 600,000 americans giving their lives. 1 in 50. there are about 275 of us, maybe 300 of us assembled, six of us would have paid with our lives in this grouping alone. the war came home regularly.

the suspension of the writs an interesting thing from a legal perspective anecdote from the american history standpoint. but its application to understanding presidential war powers today and with nations that aren't sovereign and are seeking to employ terrorist activities against the united states don't have an easy analogue for us either at the federal or the state level. but i will say tonight was a wonderful night, and i'm glad i came. al, i'm glad that 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 and people can hang around, symbolically

anyway, and the dessert is a scrumptious dessert indeed because no program could be complete without a dramatic reading by one of the great dramatists of all time, henry miller, who is not only past president of the westchester bar and of 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, galiardi, and miller in white plains. he has appeared on television and radio. he's written a book called "the art of advocacy." another called "new york practice." and most recently, "on trial: letters from a listentifetime i courtroom" which is a 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 dare oh. -- darro w, bringing to the audience knowledge, scholarship, and dramatic presentation. so we'll hear two short readings by henry miller, as no one else can do it. one of which is very, very well known to you. and the other is one written by a judge of our court about 140 years ago. and i find it so touching that i asked henry 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 wesley referred to is i 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 underway. he lost two sons, john and samuel. his third son, alfred, was seriously wounded but survived. although i notice that boy died in 1869, nine years before his father, judge foote. one would strongly suspect his wounds had something to do with

it. in any event, in 1862, judge foote 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 still 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, although 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 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, one of his eulogyists said, the battle

itself was less important than the speech. and in a sense, the gettysburg address is lincoln's response to all of the many, many parents and others who lost their loved ones. and so i -- and obviously, as pale as my rendition may be compared to the original, i do believe these words were meant to be heard, not just read. so i would like to at least make this attempt of reading those words to you. fourscore and seven years ago, our fathers brought forth on this continent a new nation, conceived in liberty and dedicated to the proposition that all men are created equal. now we are engaged in a great civil war, testing whether that

nation or any nation so conceived and so dedicated can long endure. we are met on a great battlefield of that war. we have come to dedicate a portion of that field as a final resting place for those who here gave their lives that that nation might live. it is altogether fitting and proper that we should do this. but in a larger sense, we cannot dedicate, we cannot consecrate, we cannot hallow this ground. the brave men living and dead who struggled here, have consecrated it far above our poor power to add or detract. the world will little note nor