>> i may tell a little bit of a tale out of school, but i won't embarrass you. many of you know judge wesley, serving on the second court of circuit appeals. before that, he had been a supervising judge in the state, a justice of the appellate judge, fourth department. before that, a member of the assembly in new york. a graduate of cornell, hailing from livingston county, lavonia actually. it's within lavonia, he's from hemlock and when you're from hemlock, lavonia is the big apple. so i got to know dick wesley when -- before the new york court of appeals building was reconfigured. at that time, we were the two new kids on the block and we

were on the third floor and the other five were on the second floor. they're now all on the second floor. but i got to know him pretty well, and not only was he a great judge, sage, wise, hardworking, scholarly, but he left me with one thing i'll share with you, that has resonated with me for a long, long time. every once in a while he would say this, maybe once or twice a year as we were going around the table, each of us giving our impression of a particular case and giving our input, seeing what we agree and how the court breaks down and so forth. once in a while, dick would sort of hesitate and one of us would say, what is it, dick? he would say, i'm thinking about the people in the lavonia post office. what do you mean by that? 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.

what he meant was something that we really 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 post office where to many of the people in the post office, he's just little dicky wesley, to whom they can go up, as he put it, and put their finger on his head and say, what are you guys doing in albany? i kind of 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's wondrous and one that's endeared dick wesley to us, the kind of judging that we appreciate and i think the public does, as well. so fast forward, many years later, judge wesley is on the

second circuit and writing a decision talking about ex-party merriman and milligan. and we thought what a great addition to this program to have dick wesley 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 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're always taken into the historic context of the cases or the cases that we look to for guidance. so i got to immediately said to al, that's an interesting thing,

because when i was involved with padilla versus rumsfeld, argued in october of 2003, one of the 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 of september 15, 2001, i started babbling on about merriman and milligan. and al says this is great, you'll be terrific. you can do the final close and do it with no notes, because i was just rambling on. well, like john walker and like judith, i did a fair amount of preparation tonight. before i came here i got off the plane, came down to the cornell club, got myself situated.

then had to go down to 500 pearl street to the moynihan 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 i am flying. all i have here is my jetblue ticket and a couple of things i wrote on the back. but let me give you a brief overview. 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 15, 1861, in essence lays out the case as to why civil -- the civil courts are unable to deal with what is currently going on. federal officers had been arrested in southern ports, arsenals in various southern military instalations in the

united states had been seized by the confederate states. the government is in essence breaking down and lincoln says, in essence, there is not a way for the courts at this moment in time to resolve these matters, so he imposes a blockade, which originally does not include virginia and north carolina, but expands it to those states shortly thereafter. he suspends the writ of habeas corpus and calls congress into session for july 4, kind of an appropriate date i think to call congress into session. but in his message, he indicates he did nothing more than that which congress itself would do if it had been present. so there was a sense of a limiting principle, at least from lincoln's stand point, an appreciation of what he was up to. but to understand fully the situation that lincoln

confronted, and i want to call you professor hallser, because the presentation -- what harrold said is there was a lot of trouble in baltimore. merriman was a member of a military unit and indicated he had been instructed by the governor to destroy several bridges at the northern end of baltimore, which were key to getting military troops into d.c. you should understand that at the time of the proclamation of april 15, there were 5,000 federal troops in the district of columbia under the command of winfield scott. 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. there was a great concern that

maryland was going to secede. so railroad tracks were torn up, lines to philadelphia had been cut and so lincoln orders merriman's arrest and he's put in ft. mchenry. and roger taney took exception to that, and brought a writ of habeas corpus, which general cadwaller refused to honored. this enraged taney and there's just one paragraph i want to read to you. 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's seized as a prisoner and conveyed to ft. mchenry. and when habeas corpus is served on the commanding officer, in order that he may examine into the legality of the imprice opment, the answer of the officer is he's authorized by the president to suspend the writ of habeas corpus at his discretion. and in the exercise of that discretion, suspends it in this case and on that ground, refuses obedience of the writ. 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. 600,000 americans died in the civil war at a time that we are a nation of 30 million people. 1 in 50 die. if you go to lavonia at the post office, there is a memorial to those people from the town who gave their lives in armed conflict. and if you added up all of those who died in the korean conflict and in the first and second world war 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. the general sacrifice, the degree to which the pain of this nation permeated even rural communities in upstate new york was very deep. and the society in the north was not uniform. there were riots in new york. there was a great deal of resistance and 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 and the suspension of the writ, merriman, being the very first case, lost. he got out of prison shortly thereafter. taney, by the way, took care to make sure that food and furniture was provided to merriman while he was housed at ft. mchenry and merriman named one of his children, he had 11. roger b. taney merriman. so he was appropriately grateful for the chief justice's efforts. the other fellow is landen milligan. and by the way, merriman became treasure of the state of maryland from 1870 to 1871. milligan lived in indiana, he was an attorney. he was born in ohio. he had never held political office but had been 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 separation of the writ from

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, it took congress two years to ratify what lincoln had said. and the suspension of the writ act did not include the imposition of marshal law in areas where marshal law had not been proposed and that is what happened in indiana. so when the case went to the united states 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 then the supreme court vacated his conviction. milligan sought what any good law asiding lawyer would do.

he sought redress of his grievance in court and brought an action against the jailer for $5 million for damages and the jury gave him $5. so apparently the defense against milligan's claim was indeed he really was attempting to subvert the union's efforts and he was deeply involved in the process. i think the lessons that we learned from these cases are, is that they are examples of a country of extremists. it's very hard, i'm very interested in the last part of the discussion at the table, your comments about, really hard to draw lessons today. very hard to have apappreciation of the type of circumstance which lincoln faced. i don't think replicatable in

the national experience. 1 in 50 giving their lives, there are about 300 of us here tonight. six of us would have paid with our lives. the war came home regularly. the suspension of the writ is an interesting -- from a legal perspective, interesting anecdote in american history, but its application to understanding presidential war powers today and with transnational organizations that aren't sovereign and are seeking to employ terrorist actives against the united states don't have an easy analog for us at the federal or state level. but tonight was a wonderful night and i'm glad i came, al. i'm glad that you asked me to fly without annette. it wasn't so bad after all. thank you. [ applause ]

>> thank you. 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 coffee here. people can hang around, symbolically any way. the dessert is scrumptious, indeed. because no program would be complete without a dramatic reading by one of the greats 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. he's 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 lifetime in the 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 off broadway, not too far off broadway. just a little bit off broadway. in a portrayal of clarence darrow and it brought 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 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, because i cannot hear it because 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 our 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 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 son, as is always 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, entitle me, i respectfully submit, to the president that is it perfectly clear to my mind that rebellion cannot be afek chully suppressed and we welcome 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 yourlamation 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 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 that what we say here is one of his eulogists said, the battle itself was less important than the speech. and in a sense, the gettysburg address is lincoln's response to all the many, many parents and others who lost their loved ones. obviously 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 all together 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 long remember what we say here. but it can never forget what they did here. it is for us, the living, rather to be dedicated here to the unfinished work were they who fought here have thus far so nobly advanced. it is rather for us to be here dedicated to the great task remaining before us. that from these honored dead, we take increased devotion to that cause, for which they gave the last full measure of devotion, that we here highly resolve that

these dead shall not have died in vain. that this nation, under god, shall have a new birth of freedom and that government of the people, by the people, for the people shall not perish from the earth. [ applause ] this week on the civil war, author and history professor steven berry discusses the relationships of president lincoln and the todd family. the brothers and sisters of first lady mary todd lincoln. professor berry spoke in gettysburg, pennsylvania. this is a little over 50 minutes.

>> i am delighted to be here. there are a lot of lincoln lovers in georgia, though this is the densest population of lincoln lovers i've ever been in. i'm truly delighted. i am going to be speaking today about inlaws. you hear that word and you have a visceral reaction, i think. you know that we're in some trouble already. presidential relatives have been a problem, as we know, throughout history. we don't have to go very far back. this, of course, is roger clinton. he was multiple duis, sold cocaine. that's a bit of a problem. here are the reagans as they wanted to be seen, right? but we all know that they had their problems, too.

of course, ron pursued ballet. not a problem in itself, though it didn't fit with reagan's own image as a cold warrior. he went on to perform the tom cruise underwear dance from "risk question business" on saturday night live. patty, of course, wrote a tell-all biography, claiming her father was cold, that her mother was abusive. she posed for "playboy." i think this may be the only inexcusable thing she really did, the trifecta of bad tv. she appeared on "the love boat," "chips," and "fantasy island." [ laughter ] and as much as it pains me to do this as a georgian -- [ laughter ] let's be honest, no survey of the black sheep of american first families would be complete without billy carter. billy seemed on a mission to

embarrass himself. he hocked redneck power, pickup trucks, made off color comments, slugged by his own estimate 20 to 30 cans of beer a day, which may have had something to do with the fact that he was caught on camera publicly urinating. so to the extent that scholars of lincoln and of the period have seen the todds, they have tended to see them in this mold. as the problematic relations of a great president. i think, though, i'm going to try to make the case that in this case the political and personal stakes for lincoln were a lot higher. the thing you all know is that lincoln had no real family of his own. his mother died early. his brother died early. his sister died early. he and his father were never particularly close. lincoln was told that his father was on his deathbed and that he

should come home and lincoln said, i don't see the point. he was close to his father's second wife, but he wasn't under her roof for very long. he described himself as a bit of driftwood. so he's essentially unfamilies. but after his marriage, lincoln was suddenly awash in a family of hubbub. what lincoln knew about extended families, all of these things he learned from the todds. so what i'm going to try to suggest is that even as some todds certainly did scandalize lincoln's administration, they were also integral to his experience and to his interpretation of the civil war. before i get much further, i always feel like richard dawson on "the fami