or trying to stop con subscription. i will give you an example that you may not think about. prostitution. in broth he will owners were arrested by the military during the civil war. you wonder why. well, they didn't only offer the service they're famous for. broth he wills also would often have civilian clothes available, so a soldier could go to a brothel and purchase what they are famous for or purchase a civilian set of clothes. then he could get rid of his union army uniform and escape into the north and not be detected so those are the kinds of people who were being arrested most often during the sif war, people who are either aiding the confederacy or hurting the union war effort. that said, there were still a number of prominent politicians who were arrested during the sif war. now, antiwar democrats were

called copperheads. this was an ep thet and signified they were a poison us snake and this is a cartoon from 1862 or 1863 and shows you the faces of prominent democrats on the bodies of the snakes and you can see they're striking at the union to try to bite her and poison the union from within and the most famous arrest was of a copperhead politician named clement vanningham. i want to give you a little bit of the background to that letter. clement vanningham was a prominent democratic congressman from ohio. this is him on the left here. in 1862 he lost his seat in congress and so he returned to ohio and he decided that he wanted to run for the govern governorship. he was not the democrat's first choice.

so he had to come up with a way to become their first choice. the plan that he had was to become a martyr. he believed that if he could get himself arrested, then he would become a hero to democrats throughout the north and he would then become their nominee and become elected governor of ohio. now, he got some help from an unlikely source. next here is a man named a.m. burn side. he was a politician that became a general. for those of you with side burns, your facial hair comes from this guy's mut on chops. you swap the two parts of his name around and you get side burns, so now you know the history. he was a failure as a military commander. ef the yub general at fredericksburg and sent wave at wave into an entrenched

confederate line and lost thousands and thousands of soldiers in september 1862. it was to terrible an assault he offered to lead the next charge knowing that he would be killed in it and his subordinates talked him out of doing a rash thing. after this failure in the field lincoln decided i can't leave nim in command any more and i will move him to ohio and hopefully in ohio he won't have major battles he will have to deal with and he can take charge of a civilian area. so in the spring of 1863 ambrose burnside was in charge of the department of ohio which included ohio, indiana, parts of kentucky and other areas. he looked around him and saw many copperheads, people who opposed the war, people who opposed emancipation and spoke out against lincoln and heish autoed a military order, and i will read you a little bit of it in april 1863.

it is general orders number 38. listen to what he does and see if you have any reaction to it. the habit of declaring sympathies for the enemy will not be allowed in this department. persons committing such offenses will be at once arrested and with a view to being tried as above stated, that is with the military commission or sent beyond the lines into the lines of their friends. people who smeek out or sympathize with the enemy will be tried by military commission or sent, banished into the confederacy. it must be distinctly understood that treason expressed or implied will not be tolerated in this department. listen again. it must be distinctly understood that treason expressed or implied will not be tolerated in this department. what's going on here? what are your reactions to that?

taylor? >> a very broad definition of treason. you can say something very seemingly innocent and someone could twist it around and say you implied treason by the statement. >> it is a very broad definition. how does it line up with the constitutional definition of treason? treason expressed or implied, frank? >> the constitution requires an overt act rather than simply implications and so it is a harder to see an overt act and you can take anything to be an implication. >> exactly. the constitution requires an overt act. >> chris. >> get rid of their enemies. they can construe what somebody says if that's the political opponent of yours and you want to get rid of them because he is popular and just saying he is a treasonist and look what he said. >> you can construe the words sympathetic to the enemy. what if they say i oppose emancipation? it helps the union war effort. if you oppose it, maybe you want

to hurt the union war effort and if you hurt the union war effort the argument would go and sympathize with the confederacy and if you sympathize with the confederacy, then maybe we'll try you under general orders 38. now, clement looked at this and said here is my chance. i can get arrested under this. i can become the martyr i want to be and he was criticizing general orders and said i am bound by general orders number one, by which he meant the u.s. constitution and the bill of rights and the first amendment. burnside got wind and so in early may 1863 burnside selected ten citizens from cincinnati and two captains from the army who he dressed in civilian clothes and he sent them out to listen to a speech and vlanningham

spoke for over two hours. my lectures are short compared to his. these 12 men in civilian clothes had notebooks and stood close to the stage and wrote down everything they could that he said and sent the notes back to general burnside and burnside said, okay, now i have the evidence i need and vlanningham criticized the order and said he was inviting the first amendment and called on people to vote lincoln out of office referring to him as king lincoln. taking this evidence and dispatched a group of union soldiers and they went to the home and this is his home here and in dayton, ohio, and may 5th, 2 in the morning, for some reason the arrests always seem to happen at 2 in the morning and they knock on the door and ring the bell and he came to his upstairs window. he had been asleep. he is roused from the bed and probably running his hands over his eyes and looks down and sees the soldier with the bay owe

nets glistening and says what do you want? they said burnside has given us an order to arrest you. please come down. he yelled back and said if burnside wants me, let him come up and take me. well, the men were prepared for something like this. so they pulled out axes and they tried to start chopping down the front door. this is a former congressman. they couldn't get through. it was a sturdy door. they went around to the back and chopped down the back door. this is a day before light switches, okay? they're fumbling through his house in the dark trying to find their way to the upstairs bedroom. they finally find the stairs. in the meantime he has locked two-doors into the bedroom. they get up the stairs and to the locked door and chop it down with an axe. they get to the second locked door and chop it down and crawl through the area that they have cut open and they find him standing in his pajamas and

says, well, i have been overwhelmed by a superior force and i guess i must surrender. his wife and sister-in-law, wife and her sister, were standing in the bedroom screaming hysterically and this was just a terrible experience for them. you can imagine being awakened at 2 in the morning by something like this. he was sent to cincinnati and he was tried before a military commission. he was convicted of speaking disloyally and he was sentenced to hard labor for the duration of the war. now, this was an embarrassment to lincoln. lincoln didn't want his military commanders going around arresting anyone who spoke out against the lincoln administration. so lincoln was placed in a difficult position. do you uphold the arrest or do you under mine your military commander in the field?

he found what he thought was a good compromise. he decided, well, if he liekds the south so much, why don't we just send him there, so this is a drawing from 1863 showing clement vlanningham being transferred over from union lines to confederate lines in tennessee and the confederates didn't want him and he didn't want to be there. he was antiwar but didn't see himself as pro confederate. he eventually made his way to richmond and traveled down the james river a mile away from us and he went out to the ocean and went out to canada and he settled in windsor, canada, right across the border from detroit. he got the martyr dom he wanted and became a hero among democrats nationwide and was nominated to be governor of ohio and ran for governor of ohio from exile and lost by a land slide, something like 100,000 votes. when he came back into the union, lincoln ordered his

military commanders leave this guy alone. let's not make a martyr out of him again. this is a cartoon from 1863 showing president lincoln and president davis playing bad mint on and neither of them wants him in their nation and they're trying to battle him or bat him back and forth. now, congress had to react to these situations. we're going to talk more about this next week, congress' reaction. i want to tell you a little bit about how congress reacted. congressman debating the civil liberties issue and the suspensions of habeas corpus as early as the summer of 1861. members of congress as is often the case couldn't come up with a solution. some people in congress thought, you know what, lincoln is doing what he needs to do and we just need to let him do it.

it is legal what he is doing. other members of congress thought lincoln is doing what he needs to do and he is doing it unlawfully. we need to give him permission, and other members of congress thought lincoln is acting illegally. we need to censure him for what he is doing so for the first two years of the war congress could not decide what to do about the suspension of habeas corpus. finally in march of 1863 congress passed a law, and the law did three things. first, it said that the president is authorized to suspend the writ of habeas corpus during the rebellion. this was a compromise in language and congress those the language because it was vague. was that language saying that what lincoln had done in the past is okay now? i am not sure. he could certainly suspend the writ of habeas corpus in the

future. congress couldn't agree on whether or not what lincoln had been doing was legal and said they used vague language to try to capture that sentence. second, the habeas corpus act offered some protection to civilians who were arrested by the military. it said that civilians who were arrested by the military can be held in a military prison but not indefinitely. only until the next term of the local federal court and then those civilians either needed to be indicted and prosecuted for the crime that they were accused of committing or they needed to be set free. now, as we'll talk about more next week, lincoln essentially ignored this provision. he continued to arrest people when he believed public safety required it and the military continued to try civilians in military courts even after congress passed this law. third, the habeas corpus act of

1863 offered protection to military officers who did the arresting. let me ask you a question. if you are wronged in a serious way, a way that has some financial implications or seriously causes damage to you as a person, what do you do? you sue. right? america has always been a litigious society, and the same thing happened in the 1860s. when people like john merriman got out of prison, one of the first things they did was sue the commanding officers who had over seen their arrests. when merriman got out of prison he sued general cadwalder for 50,000 dollars in damaging. it is a lot of money today, to me at least. back then if you were to translate it to today's currency you're looking at about $900,000. so military officers were very vulnerable. they could be taken into court and prosecuted for doing what they had been ordered to do. so congress passed this

provision of the habeas corpus act, in a sense in a way to try to protect military officers. this part of the act did two things. one, tgsd if you are an officer who is committed an arrest and is being sued for unlawful arrest or assault and battery or breaking and entering, if you can produce an order from the president showing that you were ordered to do this, you can use that as a defense in court. the second thing that it did was it said prosecutions cannot be in state courts where local voters elect the judges. they will only be in federal courts where the judges are appointed by the president and hopefully have more of a national interest in mind. if you will pardon my vanity for one moment. i love this picture of john merriman. when you are doing research for a book you look everywhere you can to find something no one has

found before and i found this in a book that was privately published by his church in 1930 and there is only a few copies left in the world. i found it and i thought this is just a brilliant version of 19th century photoshop. i thought, you know, photoshop has really improved over the last a150 years and i wanted to have fun with it myself. i did that to it. i sent this to my editor at lsu press and said -- and she loved it so much she said do you think we can get a blurb for the back of the book and i am still waiting and i thought it is at least a good endorsement. if this stuff interests you i have put together a facebook page where i have a lot of images related to the merriman arrest and other arrests during the civil war and you can see a few of them here. we'll talk more about jefferson davis in a few weeks and when davis was arrested the union

troops were catching up with him and caught up with him in may of 1865. his wife allegedly threw her shawl over his head and then when the soldiers were closing in said my mother is very afraid. can i take her away from the commotion and the guns and davis was a tall man and had big feet with spursz on the shoes and one of the union soldiers looked down and saw his feet and said them boots don't belong to a woman and they picked up the shawl and there was the confederate president and the north had a field day with this and printed dozens of images of the confederate president dressed in drag. he was not dressed like a woman but the north pretended like he was, and you can see a few of them here. you can see the bod disand wear a cap over the head and a dress on and if you're interested in seeing more pictures of jefferson davis as a woman, you can see them there. okay. let's talk about some of the

readings that you guys did for today. if you have those, please pull them out. let's start with taney. what are some of taney's criticisms of the arrest and imprisonment of john merriman? what are some of his arguments? as always, if you can point us to a particular part in the text and read it, a sentence or two, or a short paragraph, please do so so that we can hear the words and engage with them. why did taney think that merriman's arrest was illegal? ashley? >> he said that only congress, not the president, had the power to suspend the writ. >> good. only congress. why is it that taney makes that argument? frank? >> in article 1, section 9, it

doesn't say the president can do it and since it is in article 1 he said it is the congress powers and belongs to congress only. >> good. article 1 of the constitution generally has to do with congress. there is a few exceptions, but article 1 has been generally seen to not article dealing with congress, and if the suspension clause is there, then it must be a congressional power. and he points out that most legal thinkers from the founding era to the present, present being 1861, although even to the present today, say that, no, this is a legislative power, not a presidential power. what else does he say? how does he portray the president? the presidency? molly? >> he portrays the presidency as like a military government. he's saying that the president is now causing mart marshal law his powers greatly outnumber the constitution and there's no

checks or ability to stop them. >> yeah, the president is acting unlawfully, instituting marshal law or military law and the rights of civilians are at stake. how does he think the president should act? does anyone pick up on this, frank? >> he claims that he cites section iii, article ii, he should take care that the law will be faithfully executed so he said you should follow the laws as they are, not to execute power over it so he should follow the constitution as written. >> good, you follow the constitution as it's written. let's look at section page 34, so the left-hand column here, the second full paragraph there, and the only power therefore which the president possesses were the life, liberty or property of a private citizen is concerned, is the power and duty prescribed in the third section of the second article that frank just mentioned, which requires that he shall take care that the laws be faithfully executed.

he is not authorized to execute them himself or through agents or officers civil or military appointed by himself, but he is so take care that they be faithfully carried into execution as they are expounded and adjudged by the coordinate branch of the government, to which that duty is assigned by the constitution. it is thus made his duty to come in aid of the judicial authority. if it shall be resisted by a force too strong to be overcome without the assistance of the executive arm. what is tawny arguing about the nature of the presidency there? what is the role of the president according to tawny? frank? >> to support the judicial and the congressional branches. it's like a subordinate role in which he carries out their will, rather than carrying out his own will. >> yeah, it's a subordinate position, to assist judges, if

the judge tries to prosecute someone or if the judge is presiding over a prosecution, and the marshal goes out to arrest the person and the marshal can't do it, then the president should send in the military to assist him. what do you guys make of that argument? yeah? >> it's an odd argument because in the constitution itself is doesn't list so much power to the judicial branch, even the judicial review as it mentioned so he's usurping things that aren't in the constitution and claims that the president shouldn't do that so it's an odd contradictory. >> good, molly? >> the constitution was sort of written on the idea of three equal branches of government, with checks and balances that no one can become more powerful than the other. >> yeah. >> so it doesn't make sense for him to be claiming one is less powerful than the others. >> good. anything else? that jumps out at you from that? how does lincoln respond? we've got two different

responses from lincoln. the one is from a message to congress on july 4th, 1861, and the other is the letter to arsatus corning. what are some of lincoln's reactions? maddie? >> in hisler then in to cor anyone on page 308 he said "i think the time not unlikely to come when i should be blamed for having too few arrests rather than too many." so he argued if he wasn't, if he had less arrests other people would be upset with him because i guess there are people who were threatening the union that he was just letting go. >> good, yeah. he says if i had arrested the military commanders of the confederate army and navy before the war began, we could have cut this thing short. it could be over by now. we wouldn't have hundreds of thousands of deaths. maybe a rested too few people rather than too many. what else does lincoln argue?

frank? >> page 38 he makes the case that every law but one should be violated to in order to hold the entire constitution, if one has to be violated it seems odd to not do that than to let the whole thing perish. >> what's going on in that clause, molly? >> oh, nevermind, i was -- >> you were going to do a different point. >> yes, i was. >> all right, we'll come back to you. look at this, page 38 towards the middle of the first paragraph, "the whole of the laws which were required to be faithfully executed were being resisted and failing of execution in nearly one-third of the states, must they all be allowed to finally fail of execution, even if it had been perfectly clear that, by the use of the means necessary to their execution, some single law made in such extreme tenderness of the citizen's liberty, that practically it relieves more of the guilty than the innocent should, to a very limited

extent, be violated?" that's complex language and lincoln knew it, so he says to state the question more directly, are all the laws but one to go unexecuted, and the government itself to go to pieces, lest that one be violated?" what's he saying? taylor? >> actually looking for the preservation of the union and the constitution, if we have to violate one law, to keep the rest of the country going, then it's okay. >> yeah. what do you guys make of that argument? if it's necessary to violate one law, it's okay. if it means preserving the union. do you sacrifice some things that might be unconstitutional to do, do you sacrifice them in order to save the union? what do you think? mary? >> definitely, like we do that all the time, we see in times of war, like us being, censoring ourselves and the patriot act, for example, like it's done throughout our history, just to

serve our nation. >> maddie? >> i was just going to say, at the same time, it's not even, like it is a state's constitutional right to leave, if they feel oppressed by government, so i think he's kind of like injecting his own opinion and saying that we're saving the constitution as a whole but that wording wasn't even exactly in the constitution. so i don't know, i don't necessarily agree. >> you don't agree. what else? yeah, david. >> maybe he starts out with one and stops going to two to three to, why not, do they why not just ignore all the laws. >> what do you think, is it a dangerous argue. a slippery slope? >> if you look at history, caesar was appointed by the senate then suspended it and took all the power for himself in the name of helping rome so that leads to a tie ranical government. >> lincoln argues in the corning letter, this is only during the war. once we get to after the war, of course i'll stop doing these measures. catherine?

>> on the same line, lincoln made it very clear with a lot of his actions that he had them and was taking use of them because of war, things he wouldn't do normally because of war, the emancipation of slaves, he did that under war powers, that he could not do that normally. he made that very clear throughout his presidency. >> he hinges all of his actions on the suspension clause, when in cases of rebellion or invasion, that's every time. he must quote that three or four times in the corning letter. chris? >> i don't think what he did was necessarily wrong. the only thing he could have broken was that he suspended the writ instead of congress. the writ should have gotten suspended anyway because it was totally undermining the war effort if the rebellions kept taking place. >> let's talk about that for a second. congress was out of session in april of 1861. they were not scheduled to come back until december of 1861. now, lincoln, when he called out for the troops in april said, i want congress to meet on july 4th and have a session this summer.

what do you guys think? did lincoln act rightly, because congress wasn't around, and it took congress a long time to make a decision anyway? is the president uniquely qualified to make a decision like this, or should he have tried to summon congress sooner to make the decisions? molly, and then jill. >> i think that it absolutely makes more sense for the president to have this power because i mean it took congress two years to make the law that basically justified what the president did, but that's two years as a war, like that war had one year left, it was, you know, or well i guess two, but, like congress can't act quickly enough and it's not practical for them especially in 1861 to be called back sooner because they can't all necessarily get there that quickly. >> they don't have planes flying into reagan national airport in d.c. >> right so it takes them longer to get there, takes them longer to act and it doesn't make logical sense for it to be part of congress, because it just -- >> jill, what do you think? >> i think that lincoln thought,

well, a lot of people thought that the, that clause was kind of vague as to who it particularly could say. >> why say that? >> i suspend the writ. it's kind of like the treason, sometimes it's broad and sometimes it's narrow when people think about it and in his case he was looking at it broadly in lincoln's case. >> yeah. >> he thought that he could do it because congress, one, wasn't there, and they couldn't, but if it's that broad and that vague, that he can do it because it says he can. >> chris? >> it also says right above section nine that it's a power forbidden to congress. >> that's added by the editors of the constitution, though, so that part is, the pocket constitution should make that more clear. that's how it's generally interpreted and it's a perfectly reasonable thing for the others to put that there. but yeah. what is lip con's argument that it's not a congressional power? because it's silent, right, it's si a