Posted on 08/20/2004 5:43:21 AM PDT by TexConfederate1861
Imagine that America had a Chief Justice of the United States who actually believed in enforcing the Constitution and, accordingly, issued an opinion that the war in Iraq was unconstitutional because Congress did not fulfill its constitutional duty in declaring war. Imagine also that the neocon media, think tanks, magazines, radio talk shows, and television talking heads then waged a vicious, months-long smear campaign against the chief justice, insinuating that he was guilty of treason and should face the punishment for it. Imagine that he is so demonized that President Bush is emboldened to issue an arrest warrant for the chief justice, effectively destroying the constitutional separation of powers and declaring himself dictator.
An event such as this happened in the first months of the Lincoln administration when Abraham Lincoln issued an arrest warrant for Chief Justice Roger B. Taney after the 84-year-old judge issued an opinion that only Congress, not the president, can suspend the writ of habeas corpus. Lincoln had declared the writ null and void and ordered the military to begin imprisoning thousands of political dissenters. Taney’s opinion, issued as part of his duties as a circuit court judge in Maryland, had to do with the case of Ex Parte Merryman (May 1861). The essence of his opinion was not that habeas corpus could not be suspended, only that the Constitution requires Congress to do it, not the president. In other words, if it was truly in "the public interest" to suspend the writ, the representatives of the people should have no problem doing so and, in fact, it is their constitutional prerogative.
As Charles Adams wrote in his LRC article, "Lincoln’s Presidential Warrant to Arrest Chief Justice Roger B. Taney," there were, at the time of his writing, three corroborating sources for the story that Lincoln actually issued an arrest warrant for the chief justice. It was never served for lack of a federal marshal who would perform the duty of dragging the elderly chief justice out of his chambers and throwing him into the dungeon-like military prison at Fort McHenry. (I present even further evidence below).
All of this infuriates the Lincoln Cult, for such behavior is unquestionably an atrocious act of tyranny and despotism. But it is true. It happened. And it was only one of many similar constitutional atrocities committed by the Lincoln administration in the name of "saving the Constitution."
The first source of the story is a history of the U.S. Marshal’s Service written by Frederick S. Calhoun, chief historian for the Service, entitled The Lawmen: United States Marshals and their Deputies, 1789–1989. Calhoun recounts the words of Lincoln’s former law partner Ward Hill Laman, who also worked in the Lincoln administration.
Upon hearing of Laman’s history of Lincoln’s suspension of habeas corpus and the mass arrest of Northern political opponents, Lincoln cultists immediately sought to discredit Laman by calling him a drunk. (Ulysses S. Grant was also an infamous drunk, but no such discrediting is ever perpetrated on him by the Lincoln "scholars".)
But Adams comes up with two more very reliable accounts of the same story. One is an 1887 book by George W. Brown, the mayor of Baltimore, entitled Baltimore and the Nineteenth of April, 1861: A Study of War (Johns Hopkins University Press, 1887). In it is the transcript of a conversation Mayor Brown had with Taney in which Taney talks of his knowledge that Lincoln had issued an arrest warrant for him.
Yet another source is A Memoir of Benjamin Robbins Curtis, a former U.S. Supreme Court Justice. Judge Curtis represented President Andrew Johnson in his impeachment trial before the U.S. Senate; wrote the dissenting opinion in the Dred Scott case; and resigned from the court over a dispute with Judge Taney over that case. Nevertheless, in his memoirs he praises the propriety of Justice Taney in upholding the Constitution by opposing Lincoln’s suspension of habeas corpus. He refers to Lincoln’s arrest warrant as a "great crime."
I recently discovered yet additional corroboration of Lincoln’s "great crime." Mr. Phil Magness sent me information suggesting that the intimidation of federal judges was a common practice in the early days of the Lincoln administration (and the later days as well). In October of 1861 Lincoln ordered the District of Columbia Provost Marshal to place armed sentries around the home of a Washington, D.C. Circuit Court judge and place him under house arrest. The reason was that the judge had issued a writ of habeas corpus to a young man being detained by the Provost Marshal, allowing the man to have due process. By placing the judge under house arrest Lincoln prevented the judge from attending the hearing of the case. The documentation of this is found in Murphy v. Porter (1861) and in United States ex re John Murphy v. Andrew Porter, Provost Marshal District of Columbia (2 Hay. & Haz. 395; 1861).
The second ruling contained a letter from Judge W.M. Merrick, the judge of the Circuit Court of the District of Columbia, explaining how, after issuing the writ of habeas corpus to the young man, he was placed under house arrest. Here is the final paragraph of the letter:
After dinner I visited my brother Judges in Georgetown, and returning home between half past seven and eight o’clock found an armed sentinel stationed at my door by order of the Provost-Marshal. I learned that this guard had been placed at my door as early as five o’clock. Armed sentries from that time continuously until now have been stationed in front of my house. Thus it appears that a military officer against whom a writ in the appointed form of law has first threatened with and afterwards arrested and imprisoned the attorney who rightfully served the writ upon him. He continued, and still continues, in contempt and disregard of the mandate of the law, and has ignominiously placed an armed guard to insult and intimidate by its presence the Judge who ordered the writ to issue, and still keeps up this armed array at his door, in defiance and contempt of the justice of the land. Under the circumstances I respectfully request the Chief Judge of the Circuit Court to cause this memorandum to be read in open Court, to show the reasons for my absence from my place upon the bench, and that he will cause this paper to be entered at length on the minutes of the Court . . . W.M. Merrick Assistant Judge of the Circuit Court of the District of Columbia
As Adams writes, the Lincoln Cult is terrified that this truth will become public knowledge, for it if does, it means that Lincoln "destroyed the separation of powers; destroyed the place of the Supreme Court in the Constitutional scheme of government. It would have made the executive power supreme, over all others, and put the president, the military, and the executive branch of government, in total control of American society. The Constitution would have been at an end."
Exactly right.
August 19, 2004
Thomas J. DiLorenzo [send him mail] is the author of The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War, (Three Rivers Press/Random House). His latest book is How Capitalism Saved America: The Untold Story of Our Country’s History, from the Pilgrims to the Present (Crown Forum/Random House, August 2004).
Copyright © 2004 LewRockwell.com
Wanton violence is wrong. Then why would your boy Sherman pillage, loot and destroy the South to the extent that, by his own acknowledgement, 75% of the destruction was wasteful and resulted in no significant military advantage.
Wanton looting and destruction was the order of the day in Sherman's army.
Or, to quote the parody in Ghostbusters II:
"Atop a mountain of skulls, I ruled from a throne of blood!!!!"
To which the proper reply is, "Oh, just get over yourself!! Have a drink. Take a pill. Have a piece of pie. Here, have a warm cookie!"
Perhaps you have done an inadequate job of interpreting the Constitution.
Eglin evac'ed Tuesday; probably underwater today I suppose!
Yes, glad you're ok. Saw Gulf Shores on the tube at lunch, I hardly recognized it. Water a mile inland.
they cared NOTHING for HONOR or the simplest concepts of DECENCY.
free dixie,sw
Curious "logic." Does that also mean whatever Booth felt was necessary to snuff out the Lincoln was proper and justified?
Bottom line: There is precious little if anything that is more UNAMERICAN than oppressing a citizenry against its will and denying that citizenry the fundamental right of seeking recourse in the civil authority under the written rule of law.
They always do. It's the inescapable logical consequence of their position when taken to its ends.
Booth, a civilian, acted as an individual in the commission of a crime. Lincoln, in war, acted in his constitutional role as President and Commander-in-chief.
Please note that I wrote that the "wanton" killing of civilians was impermissible. That is one of the fundamental rules of war. However, the southerners, in particular, resorted to partisan or guerrilla warfare. In doing so they risked their own civilian population. In a guerrilla war there is no discernible difference between a civilian and a guerrilla in a war zone.
"Bottom line: There is precious little if anything that is more UNAMERICAN than oppressing a citizenry against its will and denying that citizenry the fundamental right of seeking recourse in the civil authority under the written rule of law."
I can tell you one thing that is more "unamerican" - unilateral secession. I believe that you like to note that the Southern population, after secession, was not answerable to American law. Whatever written law and protections the CSA purported to provide were unenforceable. As insurrectionist enemies of the United States, they had little recourse in US courts. Under the law of nations and the law of war, it was lawful to "ravage and lay waste" to the South.
One person's "crime against humanity" is another person's "enforcement of the law." You should be well aware of the illegality in war of guerilla tactics. It is stupid and puts the civilian population at risk. That is why the military leaders of the South, as the end approached, persuaded the hot-heads not to continue on in that manner. It would have resulted in death and destruction of the south far beyond what actually happened.
BTW, tell me more about the impending rise of AZTLAN?
Oh, so for purposes of attainder and murder, then you agree with us that the South wasn't part of the United States! Good of you to allow the scales to fall from your eyes, Herr Standartenfuehrer.
Okay. We're going to send them to your house, when they start foaming at the mouth and yelling "Mate los gringos, mate los todos!!!"
We'll point out to them that you're a foursquare, red-blooded Yanqui imperialist and that they don't have any natural rights or recourse to United States courts, because you said so.
That ought to about do it.
Been nice knowing you, kemos sabe.
[cr #1251] In short, whatever Lincoln felt was necessary to snuff out the insurrection was proper and justified. "Wanton" violence was improper, but ultimately, the judge of the degree of violence necessary can only be the belligerent. The fact that we have latter-day neo-rebs (or unreconstructed rebels by birth!) on this forum suggests to me that Lincoln and the Armies of the North and West did an inadequate job "to secure the object of the hostilities."
Henry Wheaton (1785–1848).
A decision of the U.S. Supreme Court trumps Wheaton.
See Mitchell v. Harmony, 13 How. 115 (U.S. Supreme Court) 1851
See also U.S. v. U.S. District Court, 407 U.S. 297 (1972)
U.S. Supreme Court
UNITED STATES v. UNITED STATES DISTRICT COURT, 407 U.S. 297 (1972)
JUSTICE DOUGLAS CONCURRING OPINION [407 U.S. 297, 332]
When the Executive attempts to excuse these tactics as essential to its defense against internal subversion, we are obliged to remind it, without apology, of this Court's long commitment to the preservation of the Bill of Rights from the corrosive environment of precisely such expedients. [13] As Justice Brandeis said, concurring in Whitney v. California, 274 U.S. 357, 377 : "Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty." Chief Justice Warren put it this way in United States v. Robel, 389 U.S. 258, 264 : "[T]his concept of `national defense' cannot be deemed an end in itself, justifying any . . . power designed to promote such a goal. Implicit in the term `national defense' is the notion of defending those values and ideas which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of . . . those liberties . . . which [make] the defense of the Nation worthwhile."
[13] E. g., New York Times Co. v. United States, 403 U.S. 713 ; Powell v. McCormack, 395 U.S. 486 ; United States v. Robel, 389 U.S. 258, 264 ; Aptheker v. Secretary of State, 378 U.S. 500 ; Baggett v. Bullitt, 377 U.S. 360 ; Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 ; Duncan v. Kahanamoku, 327 U.S. 304 ; White v. Steer, 327 U.S. 304 ; De Jonge v. Oregon, 299 U.S. 353, 365 ; Ex parte Milligan, 4 Wall. 2; Mitchell v. Harmony, 13 How. 115. Note, The "National Security Wiretap": Presidential Prerogative or Judicial Responsibility, 45 S. Cal. L. Rev. 888, 907-912 (1972).
Executive Power, Benjamin Robbins Curtis, 1862, p.22
But the military power of the President is derived solely from the constitution; and it is as sufficiently defined there as his purely civil power. These are its words: "The President shall be the Commander-in-chief of the army and navy of the United States, and the militia of the several States, when called into the actual sevice of the United States."
This is his military power. He is the general-in-chief; and as such, in prosecuting war, may do what generals in the field are allowed to do within the sphere of their actual operations, in subordination to the laws of their country, from which alone they derive their authority.*
* The case of Mitchel vs. Harmony (13 How. 115), presented for the decision of the Supreme Court of the United States, the quesiton of the extent of the right of a commanding general in the field to appropriate private property to the public service, and it was decided that such an appropriation might be made, in case it should be rendered necessary by an immediate and pressing danger or urgent necessity existing at the time, and not admitting of delay, but not otherwise.
In delivering the opinion of the court, The Chief Justice said: -- "Our duty is to determine under what circumstances private property may be taken from the owner by a military officer in a time of war. And the question here is: whether the law permits it to be taken, to insure the success of any enterprise against a public enemy, which the commanding officer may deem it advisable to undertake. And we think it very clear that the law does not permit it. The case mentioned by Lord Mansfield, in delivering his opinion in Mostyn vs. Fabrigas (1 Cowp. 180), illustrates the principle of which we are speaking. Captain Gambier, of the British navy, by the order of Admiral Boscawen, pulled down the houses of some sutlers on the coast of Nova Scotia, who were supplying the sailors with spirituous liquors, the health of the sailors being injured by frequenting them. The motive was evidently a laudable one, and the act done for the public service. Yet is was an invasion of the rights of private property and without the authority of law; and the officer who executed the order was held liable to an action; and the sutlers recovered damages against him to the value of the property destroyed. This case shows how carefully the rights of property are guarded by the laws of England; and they are certainly not less valued, nor less securely guarded, under the Constitution and laws of the United States."
It may safely be said that neither of the very eminent counsel by whom that case was argued, and that no judge before whom it came, had then advanced to the conception that a commanding general may lawfully take any measure which may best subdue the enemy. The wagons, mules, and packages seized by General Donophon, in that case, were of essential service in his brilliant and successful attack on the lines of Chihuahua. But this did not save him from being liable to their owner as mere wrongdoer, under the Constitution and laws of the United States.
But he felt it was necessary to end Lincoln's reign of tyranny.
Lincoln, in war, acted in his constitutional role as President and Commander-in-chief.
Nope. Lincoln was commander in chief of the military, but substantial activities of his reign were anything but constitutional. Unilaterally suspending the writ and having judges put under house arrest are two of the better known cases of this.
Please note that I wrote that the "wanton" killing of civilians was impermissible.
I'm happy you noted that, but you should also note that such wanton killings did occur on Lincoln's watch at far to high of a frequency to tolerate. And I'm not just talking about Sherman. I'm talking about yankee-sanctioned war criminals like Fielding Hurst and even yankee generals like Robert Milroy who were just as bad - the guys who patrolled behind the union lines and basically raped whatever the could out of the southern people who were unfortunate enough to live there as war spoils and to pass the boredom.
However, the southerners, in particular, resorted to partisan or guerrilla warfare.
That's not entirely true as northern guerrillas such as Fielding Hurst were also common and, at least in Hurst's case, substantially more severe and brutal than even Quantrill. Other southern guerrillas like Mosby were downright gentlemenly. That guerrilla warfare was resorted to needn't be a willful act either. It is virtually a given that it will happen naturally at any time when any people are invaded or overrun by a hostile army. The French resistance in WWII is a notable and widely celebrated form of the same thing.
I can tell you one thing that is more "unamerican" - unilateral secession.
Garbage. Separation from a previous regime is the very thing this country was founded on. You can't get any more american than that. One thing that our country was NOT founded on, however, was tyranny and the usurpation of the civil authority and rule of law for military convenience.
Nice try, capitan, but your Lincoln was the one insisting to everybody that the laws of the US still applied over the southern states and still governed their people. If those laws applied then they applied in full - not simply the parts that were convenient to apply. Debate that all you want but one thing is certain. They either applied, meaning Lincoln violated them, or they did not, meaning Lincoln's claim that they applied over the south was false. You can't have your cake and eat it too.
What a sumpremly moronic statement. A unanimous Supreme Court in ex part Milligan held,
The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.
See Mitchell vs. Harmony, 13 How. 115 (1851)
The 2d and 3d objections will be considered together, as they depend on the same principles. Upon these two grounds of defence the Circuit Court instructed the jury, that the defendant might lawfully take possession of the goods of the plaintiff, to prevent them from falling into the hands of the public enemy; but in order to justify the seizure the danger must be immediate and impending, and not remote or contingent. And that he might also take them for public use and impress them into the public service, in case of an immediate and pressing danger or urgent necessity existing at the time, but not otherwise.* * *
If the power exercised by Colonel Doniphan had been within the limits of a discretion confided to him by law, his order would have justified the defendant even if the commander had abused his power, or acted from improper motives. But we have already said that the law did not confide to him a discretionary power over private property. Urgent necessity would alone give him the right; and the verdict finds that this necessity did not exist. Consequently the order given was an order to do an illegal act; to commit a trespass upon the property of another; and can afford no justification to the person by whom it was executed. The case of Captain Gambier, to which we have just referred, is directly in point upon this question. And upon principle, independent of the weight of judicial decision, it can never be maintained that a military officer can justify himself for doing an unlawful act, by producing the order of his superior. The order may palliate, but it cannot justify.
* * *
We do not understand that any objection is taken to the jurisdiction of the Circuit Court over the matters in controversy. The trespass, it is true, was committed out of the limits of the United States. But an action might have been maintained for it in the Circuit Court for any district in which the defendant might be found, upon process against him, where the citizenship of the respective parties gave jurisdiction to a court of the United States. The subject was before this court in the case of McKenna v. Fisk, reported in 1 How. 241, where the decisions upon the question are referred to, and the jurisdiction in cases of this description maintained.
stainless: intended for you, I'm sure. Slip of the clicker.
"The Fourth Circuit’s ruling also is entirely inconsistent with this Court’s long experience with the review of Executive branch seizures. In Mitchell v. Harmony, this Court reviewed and rejected the military’s seizure of a citizen’s property in Mexico during the Mexican-American war. 54 U.S. (13 How.) at 128-29. The plaintiff, a naturalized American businessman, filed an action against a U.S. colonel to recover the value of his property seized by the military. The government responded that the businessman had a “design” to trade with the enemy, and that the decision of the military commander to seize the property “must be entitled to some respect.” Id. at 118, 120.
"Rejecting these arguments, Chief Justice Taney’s opinion for the Court found the government’s defense to be based on “rumors which reached the commanding officer.” Id. at 133. “Mere suspicions of an illegal intention,” the Court stated, “will not authorize a military officer to seize and detain the property of an American citizen. The fact that such an intention existed must be shown; and of that there is no evidence.” Id. If an Article III court, consistent with separation of powers principles, can inquire into the seizure of a citizen’s property by the military within a country at war with the United States as in Harmony, these same principles surely pose no barrier to an inquiry into the seizure of the citizen himself."
It seems that Mitchell is not applicable to the situation of the South in the ACW. By their insurrection, the southern rebels forsook their claim to United States citizenship. I do not see how they could assert legal protections, if those protections were even applicable, from the document and country they renounced.
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