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
That is incorrect. Lincoln himself stated in his inaugural that he believed ratification would be a sure thing - so much to the point that he urged the country to treat it as if it were already enrolled. He even believed he could obtain ratification from the seceded states. Most state legislatures in the north took up the measure very promptly. The Governor of New York publicly endorsed it and one of the two chambers in several of the states passed it. But the war threw it off the list of priorities with only the four states I mentioned approving of it.
The real question is: Is the description of the Mitchell provided incorrect?
No. Mitchell was an American citizen. So your analogy still fails.
As to those areas that had purported to secede, and were in armed insurrection against the Union and the Constitution, you would have us believe they still benefitted from some protections it provided?
Your arguments are nonsense. The only law that governed the the Union armies in the South during the war was the Law of War.
Winners of the war conduct the trials, not the losers.
The big deal is that this seems to be a recurring problem with you, capitan. Not only did you do this with Hamdi, but you also did it with the Prize Cases (presenting an argument as if it were the decision), Bollman (presenting the dissent as if it were the decision), and this latest case that NC pointed out. That's a a pretty bad track record, especially considering that the "decision" part of the case is easily found. It's the one that usually starts with "Justice So-and-so delivered the opinion of the court" and ends with something to the effect of "so held."
He wantonly raped its core tenets thus rendering it a useless document during his reign, which is by any other name throwing off the constitution.
The constitution continued to function just fine in the loyal states.
The fact that tens of thousands of private citizens in those states were imprisoned without charges for such things as political speech that was unfavorable to Lincoln, and considering that the civil authority in northern-controlled states and regions was in at least five cases disregarded to the convenience of the military (specifically the habeas corpus cases in Maryland, Massachusetts, Missouri, New York, and the District of Columbia - all of which Lincoln disregarded), that statement seems to be without validity.
The largest of all the war "crimes" committed was starting the war in the first place, and that dishonor belongs to the South. You neo-rebs are not unlike the insurrectionists in Iraq. You venerate the Ayatollah (Davis), try to pull down the lawful government, misrepresent yourselves, play to sectional prejudices, use lies and deceit to further your propaganda. The Iraqi insurgents have taken a page right out of the southern playbook, by hoping to unsettle an upcoming, lawful election by the loyal people, and change administrations.
It didn't work in 1864 and it won't work in 2004. Watch what happens over the next 12-18 months, and I am sure when all is said an done, there will still remain a few insurrectionists Iraqi pigs to squeal about the big bad Yankees.
The losers don't get to make those claims, because by their surrender, they acknowledge the errors in their way.
Southern partisan lurkers:
Post your documentation. Hold it up to the scrutiny of history.
It was a good thing the south was devastated in the ACW.
There has not been since then another attempt to overthrow the government of the people.
It was a good thing the south was devastated in the ACW.
The inhumane institution of human slavery was, in this country, snuffed out because of it.
It was a good thing the south was devastated in the ACW.
The vital principle of constitutional rule was upheld, rather than be allowed to degenerate into despotism and anarchy.
It was a good thing the south was devastated in the ACW.
A "balkanized" North America, without a strong and free United States, would have become the devil's playground in misery, oppression, and endless war.
It is an especially good thing the south was devastated in the ACW.
Because the founding principles of "all men are created equal," and that they have the right to "life, liberty, and the pursuit of happiness" actually continued to mean something.
The United States, today, is the greatest nation in the history of mankind, a beacon of liberty and freedom to the rest of the world, due in no small part to the victory of the Union over the forces of the confederacy.
The South seemed to shun the Constitution at its convenience.
WHile it is great to post such material, I have no doubt that you will ignore it just as you ignored the extensive documentation, a full transcript among it, of the atrocities at the hands of Robert Milroy. Your bar changes whenever somebody introduces proof that meets your previous standard and confronts you with an undesired fact. It's all word games.
Too bad you forfeited your right to pass moral judgment against slavery, a sin against human liberty, by demonstrating your reckless approval of indefensible and truly vile acts of murder, a sin against human life which is thus more grevious in its effect than one that merely deprives liberty.
If you want to skip around on some moral high horse over slavery then prove you have that right by retracting your endorsements of Robert Milroy and his and other acts of pure evil comitted upon southern civilians. Otherwise you have no more moral credibility than the partial birth abortionist who protests the "immorality" of capital punishment, or, put another way, your senator.
Which, even if we are to take your unsourced claim as accurate, still leaves the other 70%, or a clear majority. To put that figure in perspective, if Bush were to win the election by 55% it would be called a landslide.
How can a government be constituted "of the people" when half of its very existence is predicated upon holding a bayonet to the chests of the people living there?
The inhumane institution of human slavery was, in this country, snuffed out because of it.
Once again, you've forfeited your right to pass moral judgment on that institution by giving your sanction and endorsement to a far more grievous sin: murder by torture. Your position is thus akin to the abortionist who crusades against capital punishment.
The vital principle of constitutional rule was upheld, rather than be allowed to degenerate into despotism and anarchy.
Tearing down a constitution in a professed attempt to save it still leaves you with a violated and thus voided document. As to despotism, one cannot degenerate into what is already established in the policies of Lincoln, most notably his wanton abuses of the judicial branch of the government.
A "balkanized" North America, without a strong and free United States, would have become the devil's playground in misery, oppression, and endless war.
Exactly how would an agreement to separate in peace, or even the successful reaching of a separation by war in which definitive boundaries were decided, produce "balkanization," a tendency that occurs only in locations where (1) two or more historically conflicted peoples share the same land or (2) the same historically conflicted people live in different locations but are forced against their will to unite under a common political boundary and government.
Because the founding principles of "all men are created equal," and that they have the right to "life, liberty, and the pursuit of happiness" actually continued to mean something.
How can life mean something when it is wantonly deprived to almost a million men? How can liberty mean something when it is trumped by military convenience? How can the pursuit of happiness mean something when a despot employs force to prevent men from exercising that pursuit?
I must admit, you neo-reb are an endless source of entertainment. Especially the self-righteous use of the Millgan decision to prove some hypercritical point you attempt to make. But it just doesn't wash. It didn't wash in the 1860's either.
Professor Thomas D. Morris in his article, "The Constitution: A Law for Rulers in War and Peace?" documents the post-case clarifications by Justice David Davis to the wrong-headed interpretations then being made by southern whites and other unreconstructed losers. Morris writes:
"But there was still more at stake in Milligan than a libertarian protection of dissent during war. The case must be seen within the context of Reconstruction as much as that of Civil War. Throughout the South during 1865 and 1866 federal authorities used the military to prevent a resurgence of power by conservative southern white and to protect blacks and their allies from violence and oppression. Throughout the South, trials were held by military commissions, or in military provost courts, or in courts of the Freedmen's Bureau, an agency largely run by military personnel. What was the relationship between the Milligan opinion and the use of the military in the South? President Andrew Johnson argued that the opinion prohibited the use of military courts. Justice Davis, in an extensive letter, tried to explain his view of the relationship. There was none, he wrote. The was "not a word said in the opinion about reconstruction & the power is conceded in insurrectionary states." He was particularly stung by charges in Republican newspapers that Milligan was a second Dred Scott opinion in that it stripped the power to protect blacks and carry out an effective reconstruction policy. Dred Scott, Davis retorted, "was in the interest of Slavery, & the Milligan opinion in the interest of liberty." But he immediately gave away the game when he added in the next sentence: "I did not suppose the Republican party would endorse such trials after the war is over. Yet they do it."
The points made by Prof. Morris and by Justice Davis are very clear. Milligan was not intended to apply to "insurrectionary states." It was not intended to interfere with military rule there in times of war.
As Morris had noted earlier in his article:
"Despite these profound affirmations of civil liberties [i.e. "the Constitution ... is a law for rulers and people, equally in war and peace"], however, there was something slightly disingenuous about Davis's opinion. He opened it with an admission that during the 'wicked Rebellion' the temper of the country precluded a calmness vital to judicial resolution. Once the war ended and the public safety was secured, he maintained, the issues could be discussed and resolved. This was nearly an admission that during the war itself, 'adequacy' constitutionalism necessarily prevailed."
In other words, you cannot refute what the decision itself so you turn to outside obfuscation and word games in attempt to discredit its plain meaning. Oh well. At least this time you aren't claiming those ad verecundiam quotes came from the decision itself!
Defending the indefensible is the genre of the neo-rebs. "Cruel and unusual" is a provision from the Constitution - something the southerners had renounced. it didn't apply to traitors. Besides, there is nothing unusual about executing guerillas, spies, partisans, bushwackers, and other traitors. Catch them, shoot them, bury them - by the book.
Oh, and who is Thomas D. Morris by the way? Another pro-northern "academic" with an obsession over slavery - the very same issue you forfeited your moral right to condemn by giving your personal sanction to murder and torture. The thrust of his work consists of two books: one about slavery in the south, the other a contrasting work about supposed "personal liberty" in the north, which if you know anything about the yankee black codes, was virtually non existant.
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