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
Another repetitive hairball. Pre-war commentary and/or dicta. The New York ratification is a nice touch. I didn't mention it before. You must be hurting for examples to post a document that has no legal value other than for the unconditional act of ratification it provided. But we went over that a long time ago.
Taney was Chief Justice of the Supreme Court. In quoting all the relevant authorities on the law of habeas corpus, his motivation is not relevant. The decisions and orders from the Supreme Court, or other Federal courts are not nullified because you question the motivation of a judge. The Supreme Court, in an opinion written by Chief Justice John Marshall still ruled, "If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so. That question depends on political considerations, on which the legislature is to decide."
The Constitution reserves the power of authorizing suspension of the privilege of the writ of habeas corpus to the Legislative Branch. I realize this is unpleasant, but it is a fact and quoting history professors, philosophers, and specialists in metaphysics will not change that fact. Unless you can cite a LAW, rather than a Lincoln apologist, Lincoln's actions will remain UNLAWFUL. The Constitution contains no Paludan/Jaffa/Farber/Scottish historian clause granting Lincoln the power to suspend habeas corpus. Further, nobody even pretends that a president has the power to authorize military officers to suspend the privilege of the writ at their discretion. That is what Lincoln actually caused to happen -- you might not like it, but it is a fact.
Lincoln could have convened Congress at any time. He kept them OUT of session as long as he could without losing the militia.
And Chief Justice Marshall, in delivering the opinion of the supreme court in the case of Ex parte Bollman and Swartwout, uses this decisive language, in 4 Cranch [8 U. S.] 95: 'It may be worthy of remark, that this act (speaking of the one under which I am proceeding) was passed by the first congress of the United States, sitting under a constitution which had declared 'that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.' Acting under the immediate influence of this injunction, they must have felt, with peculiar force, the obligation of providing efficient means, by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give to all the courts the power of awarding writs of habeas corpus.' And again on page 101: 'If at any time, the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so. That question depends on political considerations, on which the legislature is to decide; until the legislative will be expressed, this court can only see its duty, and must obey the laws.' I can add nothing to these clear and emphatic words of my great predecessor.
-- Chief Justice Roger B. Taney, Ex Parte Merryman,/i>, In Chambers Opinion of the Chief Justice of the Supreme Court.
"Although this provision does not state that suspension must be effected by, or authorized by, a legislative act, it has been so understood, consistent with English practice and the Clause's placement in Article I."
-- Justice Antonin Scalia, Hamdi v. Rumsfeld, No. 03-6696. Argued April 28, 2004 - Decided June 28, 2004
"The decision that the individual shall be imprisoned must always precede the application for a writ of habeas corpus, and this writ must always be for the purpose of revising that decision, and therefore appellate in its nature. But this point also is decided in Hamilton's case and in Burford's case. If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so. That question depends on political considerations, on which the legislature is to decide."
-- Chief Justice John Marshall, writing for the majority in Ex Parte Bollman and Swartwout, United States Supreme Court, 1807
"And who could hold for a moment, when the writ of habeas corpus cannot be suspended by the legislature itself, either in the general government or most of the States, without an express constitutional permission, that all other writs and laws could be suspended, and martial law substituted for them over the whole State or country, without any express constitutional license to that effect, in any emergency? Much more is this last improbable when even the mitigated measure, the suspension of the writ of habeas corpus, has never yet been found proper by Congress, and, it is believed, by neither of the States, since the Federal Constitution was adopted."
-- Justice Levi Woodbury, dissent in Luther v. Borden, United States Supreme Court, 1849
--------------------
"That every person restrained of his liberty is entitled to an inquiry into the lawfulness of such restraint, and to a removal thereof, if unlawful; and that such inquiry and removal ought not to be denied or delayed, except when, on account of public danger, the Congress shall suspend the privilege of the writ of habeas corpus.
-- Act of Ratification of the Convention of the State of New York
-------------
"The Constitution seems to have secured this benefit [habeas corpus] to the citizen by the description of the writ, and in an unqualified manner admitting its efficacy, while it declares that it shall not he suspended unless when, in case of rebellion or invasion, the public safety shall require it. This writ is believed to be known only in countries governed by the common law, as it is established in England; but in that country the benefit of it may at any time be withheld by the authority of parliament, whereas we see that in this country it cannot be suspended even in cases of rebellion or invasion, unless the public safety shall require it. Of this necessity the Constitution probably intends, that the legislature of the United States shall be the judges. Charged as they are with the preservation of the United States from both those evils, and superseding the powers of the several states in the prosecution of the measures they may find it expedient to adopt, it seems not unreasonable that this control over the writ of habeas corpus, which ought only to be exercised on extraordinary occasions, should rest with them. It is at any rate certain, that congress, which has authorized the courts and judges of the United States to issue writs of habeas corpus in cases within their jurisdiction, can alone suspend their power"
-- William Rawle, "A View of the Constitution of the United States of America," 1826
"It would seem, as the power is given to congress to suspend the writ of habeas corpus in cases of rebellion or invasion, that the right to judge, whether exigency had arisen, must exclusively belong to that body."
-- Justice Joseph Story, "Commentaries on the Constitution of the United States," Book 3, Chapter XXXII, § 1336, 1833
"In England the benefit of this important writ can only be suspended by authority of parliament. It has been done several times of late years, both in England and in Ireland, to the great oppression of the subject, as hath been said. In the United States, it can be suspended, only, by the authority of congress; but not whenever congress may think proper; for it cannot be suspended, unless in cases of actual rebellion or invasion. A suspension under any other circumstances, whatever might be the pretext, would be unconstitutional, and consequently must be disregarded by those whose duty it is to grant the writ."
-- Tucker's Blackstone, Section 12 - Restraints on Powers of Congress, paragraph 2.
"There has been much discussion concerning the question whether the power to suspend the "privilege of the writ of habeas corpus" is conferred by the Constitution on Congress, or on the President. The only judicial decisions which have been made upon this question have been adverse to the power of the President.Still, very able lawyers have endeavored to maintain -- perhaps to the satisfaction of others -- have maintained, that the power to deprive a particular person of the "privilege of the writ," is an executive power. For while it has been generally, and, so far as I know, universally admitted, that Congress alone can suspend a law, or render it inoperative, and consequently that Congress alone can prohibit the courts from issuing the writ, yet that the executive might, in particular cases, suspend or deny the privilege which the writ was designed to secure. I am not aware that any one has attempted to show that under this grant of power to suspend "the privilege of the writ of habeas corpus," the President may annul the laws of States, create new offences unknown to the laws of the United States, erect military commissions to try and punish them, and then, by a sweeping decree, suspend the writ of habeas corpus as to all persons who shall be "arrested by any military authority." I think he would make a more bold than wise experiment on the credulity of the people, who should attempt to convince them that this power is found in the habeas corpus clause of the Constitution. No such attempt has been, and I think none such will be made. And therefore I repeat, that no other source of this power has ever been suggested save that described by the President himself, as belonging to him as commander-in-chief."
-- Justice Benjamin R. Curtis, "Executive Power," 1862
"The safest and best restriction, therefore, arises from the nature of the cases in which Congress are authorized to exercise that power [of suspending habeas corpus] at all, namely, in those of rebellion or invasion. These are clear and certain terms, facts of public notoriety, and whenever these shall cease to exist, the suspension of the writ must necessarily cease also."
-- Judge Francis Dana, presenting the Constitution to the Massachusetts Ratification Convention
Hairball - try mineral oil.
The Supreme Court, in an opinion written by Chief Justice John Marshall still ruled, "If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so. That question depends on political considerations, on which the legislature is to decide."
-- Ex Parte Bollman and Swartwout, United States Supreme Court, 1807
The Constitution reserves the power of authorizing suspension of the privilege of the writ of habeas corpus to the Legislative Branch. I realize this is unpleasant, but it is a fact and quoting history professors, philosophers, and specialists in metaphysics will not change that fact. Unless you can cite a LAW, rather than a Lincoln apologist, Lincoln's actions will remain UNLAWFUL. The Constitution contains no Paludan/Jaffa/Farber/Scottish historian clause granting Lincoln the power to suspend habeas corpus. Further, nobody even pretends that a president has the power to authorize military officers to suspend the privilege of the writ at their discretion. That is what Lincoln actually caused to happen -- you might not like it, but it is a fact.
Lincoln could have convened Congress at any time. He kept them OUT of session as long as he could without losing the militia.
And Chief Justice Marshall, in delivering the opinion of the supreme court in the case of Ex parte Bollman and Swartwout, uses this decisive language, in 4 Cranch [8 U. S.] 95: 'It may be worthy of remark, that this act (speaking of the one under which I am proceeding) was passed by the first congress of the United States, sitting under a constitution which had declared 'that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.' Acting under the immediate influence of this injunction, they must have felt, with peculiar force, the obligation of providing efficient means, by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give to all the courts the power of awarding writs of habeas corpus.' And again on page 101: 'If at any time, the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so. That question depends on political considerations, on which the legislature is to decide; until the legislative will be expressed, this court can only see its duty, and must obey the laws.' I can add nothing to these clear and emphatic words of my great predecessor.
-- Chief Justice Roger B. Taney, Ex Parte Merryman,/i>, In Chambers Opinion of the Chief Justice of the Supreme Court.
"Although this provision does not state that suspension must be effected by, or authorized by, a legislative act, it has been so understood, consistent with English practice and the Clause's placement in Article I."
-- Justice Antonin Scalia, Hamdi v. Rumsfeld, No. 03-6696. Argued April 28, 2004 - Decided June 28, 2004
"The decision that the individual shall be imprisoned must always precede the application for a writ of habeas corpus, and this writ must always be for the purpose of revising that decision, and therefore appellate in its nature. But this point also is decided in Hamilton's case and in Burford's case. If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so. That question depends on political considerations, on which the legislature is to decide."
-- Chief Justice John Marshall, writing for the majority in Ex Parte Bollman and Swartwout, United States Supreme Court, 1807
"And who could hold for a moment, when the writ of habeas corpus cannot be suspended by the legislature itself, either in the general government or most of the States, without an express constitutional permission, that all other writs and laws could be suspended, and martial law substituted for them over the whole State or country, without any express constitutional license to that effect, in any emergency? Much more is this last improbable when even the mitigated measure, the suspension of the writ of habeas corpus, has never yet been found proper by Congress, and, it is believed, by neither of the States, since the Federal Constitution was adopted."
-- Justice Levi Woodbury, dissent in Luther v. Borden, United States Supreme Court, 1849
--------------------
"That every person restrained of his liberty is entitled to an inquiry into the lawfulness of such restraint, and to a removal thereof, if unlawful; and that such inquiry and removal ought not to be denied or delayed, except when, on account of public danger, the Congress shall suspend the privilege of the writ of habeas corpus.
-- Act of Ratification of the Convention of the State of New York
-------------
"The Constitution seems to have secured this benefit [habeas corpus] to the citizen by the description of the writ, and in an unqualified manner admitting its efficacy, while it declares that it shall not he suspended unless when, in case of rebellion or invasion, the public safety shall require it. This writ is believed to be known only in countries governed by the common law, as it is established in England; but in that country the benefit of it may at any time be withheld by the authority of parliament, whereas we see that in this country it cannot be suspended even in cases of rebellion or invasion, unless the public safety shall require it. Of this necessity the Constitution probably intends, that the legislature of the United States shall be the judges. Charged as they are with the preservation of the United States from both those evils, and superseding the powers of the several states in the prosecution of the measures they may find it expedient to adopt, it seems not unreasonable that this control over the writ of habeas corpus, which ought only to be exercised on extraordinary occasions, should rest with them. It is at any rate certain, that congress, which has authorized the courts and judges of the United States to issue writs of habeas corpus in cases within their jurisdiction, can alone suspend their power"
-- William Rawle, "A View of the Constitution of the United States of America," 1826
"It would seem, as the power is given to congress to suspend the writ of habeas corpus in cases of rebellion or invasion, that the right to judge, whether exigency had arisen, must exclusively belong to that body."
-- Justice Joseph Story, "Commentaries on the Constitution of the United States," Book 3, Chapter XXXII, § 1336, 1833
"In England the benefit of this important writ can only be suspended by authority of parliament. It has been done several times of late years, both in England and in Ireland, to the great oppression of the subject, as hath been said. In the United States, it can be suspended, only, by the authority of congress; but not whenever congress may think proper; for it cannot be suspended, unless in cases of actual rebellion or invasion. A suspension under any other circumstances, whatever might be the pretext, would be unconstitutional, and consequently must be disregarded by those whose duty it is to grant the writ."
-- Tucker's Blackstone, Section 12 - Restraints on Powers of Congress, paragraph 2.
"There has been much discussion concerning the question whether the power to suspend the "privilege of the writ of habeas corpus" is conferred by the Constitution on Congress, or on the President. The only judicial decisions which have been made upon this question have been adverse to the power of the President.Still, very able lawyers have endeavored to maintain -- perhaps to the satisfaction of others -- have maintained, that the power to deprive a particular person of the "privilege of the writ," is an executive power. For while it has been generally, and, so far as I know, universally admitted, that Congress alone can suspend a law, or render it inoperative, and consequently that Congress alone can prohibit the courts from issuing the writ, yet that the executive might, in particular cases, suspend or deny the privilege which the writ was designed to secure. I am not aware that any one has attempted to show that under this grant of power to suspend "the privilege of the writ of habeas corpus," the President may annul the laws of States, create new offences unknown to the laws of the United States, erect military commissions to try and punish them, and then, by a sweeping decree, suspend the writ of habeas corpus as to all persons who shall be "arrested by any military authority." I think he would make a more bold than wise experiment on the credulity of the people, who should attempt to convince them that this power is found in the habeas corpus clause of the Constitution. No such attempt has been, and I think none such will be made. And therefore I repeat, that no other source of this power has ever been suggested save that described by the President himself, as belonging to him as commander-in-chief."
-- Justice Benjamin R. Curtis, "Executive Power," 1862
"The safest and best restriction, therefore, arises from the nature of the cases in which Congress are authorized to exercise that power [of suspending habeas corpus] at all, namely, in those of rebellion or invasion. These are clear and certain terms, facts of public notoriety, and whenever these shall cease to exist, the suspension of the writ must necessarily cease also."
-- Judge Francis Dana, presenting the Constitution to the Massachusetts Ratification Convention
The actions were lawful, and were approved of, and ratified by the Congress (in the acts of August 1861 and March 1863). End of story.
"Further, nobody even pretends that a president has the power to authorize military officers to suspend the privilege of the writ at their discretion."
Prior to the Habeas Corpus Act of 1863, the was no legislative guidance as to the mechanics of suspending the privilege of the writ. However, there was Revolutionary War precedent when military officers effected the suspension. One can also point to the pissing contest between Gen Andrew Jackson and the court in New Orleans.
But beyond that, there is no applicability of the circumstances of the Bollman case to the situation in the Spring of 1861. Lincoln was faced with an armed insurrection and Congress was not in session. Marshall could not have foreseen such an exigency, and Lincoln's paramount duty was not to wait for Congress to re-assemble.
This is a common theme among the conspiracy-minded. When the Congress adjourns or recesses (unless they adjourn sine die), they establish their own date to return. Congress, in those days, was not a full-time profession, so their sessions were often comprised of a long session and a short session, spaced several months apart. In the midst of of the greatest crisis facing the nation, when the 36th Congress adjourned on March 3, 1861, they did not schedule the first session fo the 37th Congress until December! The Special Session of the Senate in March 1861 was primarily for the purpose of approving Presidential appointments.
Had Lincoln really wanted to keep Congress "out of the loop" and conduct the war as a "dictator," he could have done so until December. Afterall, a dictator would not let a little matter of militia enlistments get in his way; and besides, he was already raising armies. Lincoln, by proclamation in April, called Congress back into session and gave them a little over 2 months to assemble. Lincoln clearly wanted to Congress to be part of the war planning, because of their control of appropriations, and to ratify his emergency actions.
Only in your imagination. This is vividly demonstrated by the Congressional record of the Act of 1861 which I have shown you many times. Apparently you have forgotten yet again, and need a reminder.
The debate of the precise language occurred on S-70. That was tabled and the precise same language, having already been debated, was placed in S-72. This all happened in the Senate on the same day.
Congress did NOT approve "all the acts of the President." What they approved was "all the acts, proclamations, and orders of the President of the United States, after the 4th of March, 1861, respecting the Army and Navy of the United States, and calling out or relating to the militia or volunteers from the States...."
The Congressional debate made the issue at hand clear. Lincoln had no authority to increase the size of the standing army without Congressional approval. Volunteers had been enlisted. Said volunteers, now facing a full-blown civil war instead of the 90-day pep rally that had induced them to join, were claiming, correctly it would seem, that Lincoln had no authority to enlist them and they should be released from military service. Congress retroactively approved Lincoln's actions with regard to increasing the size of the military and funded his actions. Had they not done so, Lincoln's army threatened to melt away.
The Senate debate makes clear in unmistakeable, explicit terms that habeas corpus was NOT included. A proponent of the bill, Senator Fessenden explained it as follows: "The bill avoids all questions with regard to the habeas corpus and other matters, and refers simply to the military appropriations; and it is necessary we should do this in order to place that subject upon the right ground.
Below is an extract from the Senate debate.
The bill (S. No. 70) in relation to the Army and volunteer militia of the United States was read a first time by its title.
The PRESIDENT pro tempore. The bill will now receive its second reading, if there be no objection.
Mr. PEARCE. I should like to hear the bill read at length before I consent that it shall have its second reading now. I do not think it is treating the Senate with proper consideration to have a bill read twice in one day before we know what it is. Let us see what it is; and if it be not objectionable, of course there will be no opposition to it.
The PRESIDENT pro tempore. The bill will be read at length for the information of the Senate.
PAGE 442
The Secretary read it as follows:
Be it enacted &c, That all the acts, proclamations and orders of the President of the United States, after the 4th of March 1861, respecting the Army and Navy of the United States, and calling out, or relating to the militia, or volunteers from the States, are hereby approved, and in all respect legalized and made valid, to the same intent and with the same effect as if they had been done under the previous express authority and direction of the Congress of the United States.
Mr. PEARCE. I must object to its second reading to-day.
Mr. FESSENDEN. I hope my friend from Maryland will hear what I have to say before he objects. This bill takes up a single point only in the resolution that was introduced into the Senate, and upon which there has been considerable debate. It refers simply to the proclamations that were made for, and the employment of volunteers. We have since authorized the employment of the volunteers. But some of the volunteers now make a point that although they have enlisted for three years, yet the President having had no authority at that time, and no legal authority having been conferred upon him by Congress, they are discharged, and cannot be held under that enlistment. That idea will occasion considerable difficulty, and it is necessary that we should, so far as we have the power, legalize the acts of the President upon that particular point. The bill avoids all questions with regard to the habeas corpus and other matters, and refers simply to the military appropriations; and it is necessary we should do this in order to place that subject upon the right ground.
Now, sir, with regard to this bill, there can certainly be no objection that Senators can raise to it, unless they are desirous that a difficulty -- I will no say that --- but unless they fail to see the force of the position in which we are placed with reference to many of these volunteers. I hope, therefore, the Senator from Maryland will withdraw his objection. It takes but a single point, and avoids the points of debate in the joint resolution that was before the Senate, and simply legalized the action of the President which we have already indorsed, by giving him the authority. It refers merely to a point which it is very necessary for us to consider.
Mr. PEARCE. If it refers purely and solely to the volunteers, which I did not exactly understand at first, I withdraw the objection.
Mr. FESSENDEN. Entirely so; to those acts only.
* * *
Mr. SAULSBURY. I should like to accomodate my friend from New York; certainly he is very accommodating himself; but if gentlemen on the other side will indulge me a moment, I will say why it was that interposed the objection.
Mr. President, in the earlier state of this session, a joint resolution was introduced approving, in general terms, the acts of the President of the United States. For one, had not such a resolution been introduced, I never would have attacked the President of the United States for his course. I am one of those men who stand in a peculiar position on this point. I am one of those who approve of certain acts of the President, and disapprove of others. As this bill seemed to be only a mode of getting rid of a direct vote upon that joint resolution, by way of substitute, without knowing what was contained in the bill. I felt it incumbent on me to object to its consideration. If there is anything in this bill that looks to the toleration of the suspension of the writ of habeas corpus, I never will, under any circumstances, vote for it. Sir, that is the bulwark of the freedom of the citizen. If there is nothing in the bill, except to approve the calling out of volunteers --
Mr. KING. If the Senator will read it, he will see that there is nothing else in it.
Mr. FESSENDEN. There is nothing in the world in it except what relates to the Army and Navy volunteers. The Senator from Maryland has just read it, and says he is perfectly satisfied.
Mr. SAULSBURY. Then on the assurance of the Senator from Maine, I will withdraw the objection.
* * *
One can point to the fact that General Jackson was subjected to an attachment for contempt and compelled to pay a fine of $1,000. Other than citing a case where the civil authorities were upheld and Jackson was judicially found guilty of contempt, you do not have much of a point.
About 30 years later Congress chose to remit the fine back to Jackson in 1844 as he was on the verge of death. That does not change the judicial ruling.
He could not legally hold the troops in the field. After 90 days, they could have legally walked off and gone home, unless a session of Congress were called. By design, the standing army was not big enough to do much.
The official records show what utter bullcrap your position is. There can be no doubt that Lincoln waited for the Senate to adjourn and began a war.
Within 8 days of taking office, orders of March 12, 1861 issued from the Lincoln administration to reinforce Fort Pickens and thereby violate the armistice that was in effect. These orders to Army Captain Vogdes were delayed until after the Senate adjourned on March 28, 1861 and then delivered by USS Crusader on March 31, 1861. Capt. Vogdes delivered them to Navy Captain Adams on April 1, 1861. Capt. Adams refused to comply with the orders.
OPERATIONS IN FLORIDA.
[CHAP. IV.
HEADQUARTERS OF THE ARMY,
Washington, March 12, 1861.Captain VOGDES, U. S. Army,
On board U. S. sloop-of-war Brooklyn, lying off Port Pickens:SIR: At the first favorable moment you will land with your company, re-enforce Fort Pickens, and hold the same till further orders. Report frequently, if opportunities present themselves, on the condition of the fort and the circumstances around you.
I write by command of Lieutenant-General Scott.
I am, sir, very respectfully, your obedient servant,
E. D. TOWNSEND,
Assistant Adjutant-General.To: Captain I. Vogdes,
First Artiller, U. S. Army
on board Ship of War Brooklyn
off Fort Pickens,
Pensacola, Fla."
Delivery of these orders was delayed until after the Senate adjourned on March 28, 1861. They were delivered via USS Crusader to Capt. Vogdes, off Pensacola, on March 31, 1861, and by Capt. Vogdes to Navy Capt. Adams on April 1, 1861. Capt. Adams refused to comply with the orders, see below.
This the end of the Senate Journal for March 28, 1861:
Mr. Powell, from the committee appointed to wait on the President of the United States and inform him that, unless he may have any further communication to make, the Senate is now ready to close the present session by an adjournment, reported that they had performed the duty assigned them, and that the President replied that he had no further communication to make.Mr. Foster submitted the following resolution:
Resolved, That the Senate will adjourn without day at four o'clock this afternoon.
The Senate proceeded by unanimous consent to consider the said resolution; and, having been amended on the motion of Mr. Hale, it was agreed to as follows:
Resolved, That the Senate do now adjourn without day.
Whereupon
The President pro tempore declared the Senate adjourned without day.
Lincoln did not fail to obtain Congressional approval because Congress was not in session, he waited until Congress adjourned and commenced to initiate a war.
March 29, 1861
To the Secretary of the Navy
I desire that an expedition, to move by sea be go ready to sail as early as the 6th of April next, the whole according to memorandum attached: and that you co-operate with the Secretary of War for that object.
Signed: Abraham Lincoln
The memorandum attached called for:
From the Navy, three ships of war, the Pocahontas, the Pawnee and the Harriet Lane; and 300 seamen, and one month's stores.
From the War Department, 200 men, ready to leave garrison; and one year's stores.
April 1, 1861 by General Scott
April 2, 1861 approved by Abraham Lincoln
To: Brevet Colonel Harvey Brown, U.S. Army
You have been designated to take command of an expedition to reinforce and hold Fort Pickens in the harbor of Pensacola. You will proceed to New York where steam transportation for four companies will be engaged; -- and putting on board such supplies as you can ship without delay proceed at once to your destination. The object and destination of this expedition will be communicated to no one to whom it is not already known. Signed: Winfield Scott
Signed approved: Abraham Lincoln
April 4, 1861
To: Lieut. Col. H.L. Scott, Aide de Camp
This will be handed to you by Captain G.V. Fox, an ex-officer of the Navy. He is charged by authority here, with the command of an expedition (under cover of certain ships of war) whose object is, to reinforce Fort Sumter.
To embark with Captain Fox, you will cause a detachment of recruits, say about 200, to be immediately organized at fort Columbus, with competent number of officers, arms, ammunition, and subsistence, with other necessaries needed for the augmented garrison at Fort Sumter.
Signed: Winfield Scott
Herewith I send you a copy of an order received by me last night. You will see by it that I am directed to land my command at the earliest opportunity. I have therefore to request that you will place at my disposal such boats and other means as will enable me to carry into effect the enclosed order.
Signed: I. Vogdes, Capt. 1st Artly. Comdg.
Captain Adams REFUSED TO OBEY THE ORDER and reported to the Secretary of the Navy as follows:
The instructions from General Scott to Captain Vogdes are of old date (March 12) and may have been given without a full knowledge of the condition of affairs here.
It would be considered not only a declaration but an act of war; and would be resisted to the utmost.
Both sides are faithfully observing the agreement (armistice) entered into by the United States Government and Mr. Mallory and Colonel Chase, which binds us not to reinforce Fort Pickens unless it shall be attacked or threatened. It binds them not to attack it unless we should attempt to reinforce it.
The Secretary of the Navy issued a CLASSIFIED response to Capt. Adams:
April 6, 1861
Your dispatch of April 1st is received. The Department regrets that you did not comply with the request of Capt. Vogdes. You will immediately on the first favorable opportunity after receipt of this order, afford every facility to Capt. Vogdes to enable him to land the troops under his command, it being the wish and intention of the Navy Department to co-operate with the War Department, in that object.
Signed: Gideon Welles, Secty. of the Navy
April 11, 1861 (USS Supply, official ship's log)
"April 11th at 9 P.M. the Brooklyn got under way and stood in toward the harbor; and during the night landed troops and marines on board, to reinforce Fort Pickens."
April 1, 1861 To: Lt. D.D. Porter, USN
You will proceed to New York and with least possible delay assume command of any steamer available.
Proceed to Pensacola Harbor, and, at any cost or risk, prevent any expedition from the main land reaching Fort Pickens, or Santa Rosa.
You will exhibit this order to any Naval Officer at Pensacola, if you deem it necessary, after you have established yourself within the harbor.
This order, its object, and your destination will be communicated to no person whatever, until you reach the harbor of Pensacola.
Signed: Abraham Lincoln
Recommended signed: Wm. H. Seward
April 1, 1861
Telegram
To: Commandant, Brooklyn Navy Yard
Fit out Powhatan to go to sea at the earliest possible moment, under sealed orders. Orders by confidential messenger go forward tomorrow.
Signed: Abraham Lincoln
April 1, 1861
To: Commandant, Brooklyn Navy Yard
You will fit out the Powhatan without delay. Lieutenant Porter will relieve Captain Mercer in command of her. She is bound on secret service; and you will under no circumstances communicate to the Navy Department the fact that she is fitting out.
Signed: Abraham Lincoln
The Secretary of the Navy was unaware that President Lincoln had relieved Captain Mercer and was "borrowing" the Powhatan. It was a real secret mission.
April 1, 1861
Telegram
To: Commandant, Brooklyn Navy Yard
Fit out Powhatan to go to sea at earliest possible moment.
April 5, 1861
To: Captain Mercer, Commanding Officer, USS Powhatan
The U.S. Steamers, Powhatan, Pawnee, Pocahontas, and Harriet Lane, will compose a naval force under your command, to be sent to the vicinity of Charleston, S.C., for the purpose of aiding in carrying out the object of an expedition of which the war Department has charge. The expedition has been intrusted to Captain G.V. Fox.
You will leave New York with the Powhatan in time to be off Charleston bar, 10 miles distant from and due east of the light house on the morning of the 11th instant, there to await the arrival of the transports with troops and stores. The Pawnee and Pocahontas will be ordered to join you there, at the time mentioned, and also the Harriet Lane, etc.
Signed: Gideon Welles, Secretary of the Navy
April 6, 1861
Lt. Porter took the Powhatan and sailed.
Seward sent a telegram to Porter: "Give the Powhatan up to Captain Mercer."
A dispatch boat caught up with Powhatan and delivered Seward's message.
Lt. Porter responded to Seward: "I received my orders from the President, and shall proceed and execute them.
Before leaving, Lt. Porter instructed the Navy Yard officials, "Detain all letters for five days."
Storms and boiler problems delayed Powhatan, but she arrived disguised and flying English colors.
Porter filed this report:
I had disguised the ship, so that she deceived those who had known her, and was standing in (unnoticed), when the Wyandotte commenced making signals, which I did not answer, but stood on.
The steamer then put herself in my way and Captain Meigs, who was aboard, hailed me and I stopped.
In twenty minutes more I should have been inside (Pensacola harbor) or sunk.
Signed: D.D. Porter
There is an interesting sequence of events.
SENATE JOURNAL, March 25, 1861
Resolved, That the President be requested, if, in his opinion, not incompatible with the public interest, to communicate to the Senate the dispatches of Major Robert Anderson to the War Department during the time he has been in command at Fort Sumter.
SENATE JOURNAL, March 27, 1861
The following message was received from the President of the United States, by Mr. Nicolay, his Secretary:
To the Senate of the United States:
I have received a copy of a resolution of the Senate, passed on the 25th instant, requesting me, if, in my opinion, not incompatible with the public interest, to communicate to the Senate the dispatches of Major Robert Anderson to the War Department during the time he has been in command of Fort Sumter.
On examining the correspondence thus called for, I have, with the highest respect for the Senate, come to the conclusion that, at the present moment, the publication of it would be inexpedient.
ABRAHAM LINCOLN.
Washington, March 26, 1861.
No. It's called you're desparately spinning an unfortunate and undesired fact. The bill DIED at the end of the summer session in 1861. They were not simply moving slowly. They were not "deliberating" over it while on break. They let it die. Hell, it wasn't even the same session of Congress!
The fact of the matter is that it did not matter how long Congress took, as long as it acted.
Two years of continuous federal court rulings against the Lincoln arrest machine say otherwise. You are obfuscating.
For the most part your "citations" consist of a narrow select handful of persons. For a while you were using Bill Rehnquist until you discovered that he endorsed a view contrary to Lincoln's in Hamdi v. Rumsfeld. That effectively leaves you with only three persons you've quoted in any substantial degree. One is a left wing Southern Poverty Law Center-funded slavery reparationist. Another is a left wing "metaphysical" Berkleyite law professor. The third is nominally a conservative, but a crackpot one at that who has more or less managed to piss off the rest of the movement with his pompous and intellectually shallow ways, save for his own narrow cultist following at his own school, most of whom are equally pompous and shallow.
I admit, quoting Prof. Paul Finkelman was difficult
So I take it you are no longer denying that your use of him was part of a secret and intentional plan to slip in a left wing wacko to see how we'd respond? As if the gobs of egg dripping off your face didn't already give that away...
but it did illustrate that even the lefties recognize Taney for the schmuck he was.
Odd. Most people would take virtually anything a left wing nut job like Finkelman said with a substantial grain of salt, yet here you are giving credibility to him since in this (lone?) case he happens to agree with you. I, of course, prefer Justice Curtis' assessment of Taney as both credible and credentialed.
How do you reconcile that Finkelman on the left, and Jaffa on the right, share the same lack of regard for Taney's pro-southern judicial activism?
That's a question for Jaffa to figure out and it may even raise the issue of just how truly conservative he really is. On a similar note, how do you reconcile Jaffa with Karl Marx, who was one of Lincoln's biggest and most outspoken admirers in the president's own lifetime and one of the few public writers who lavished gushy praises upon Lincoln before the assassination when most GOP radicals had not yet discovered that the man they despised almost as much as the south could be used as a martyr for their cause in death. And how do you reconcile the fact that the Claremont Institute writers love to quote civil war "history" from James McPherson, a known marxist red daiper baby who writes lots of books on the civil war?
Put another way, Harry Jaffa's views of the civil war have placed him in some extremely odd and very leftist company.
Ex Parte Bollman & Swartwout (1807) and Hamdi v. Rumsfeld (2004) say otherwise. Live with it.
Yes, but as you know, the Constitution explicitly provides that the president may call Congress back into session during an emergency. As both Hamdi and Bollman (as well as the unanimous position of the founding fathers) note, only Congress may suspend the writ thus the president must ask Congress if he wants this done. If they are out of session it is necessarily so that he must call them back into session to ask them.
obiter dictum (Latin "something said in passing") A judicial statment made during the course of delivering a judicila opinion, but one that is unnecessary to the decision in the case and therefore not precedential (though it may be considered persuasive). - Often shortened to dictum, or, less commonly, obiter.
Ex parte Bollman & Swartout - "The Supreme court discharged the prisoners, confederates in Aaron Burr's conspiracy, from an indictment for treason. The indictment specified their treason as levying war against the United States. chief Justice John Marshall, for the Court, distinguished treason from a conspiracy to commit it. he sought to prevent the crime of treason from being 'extended by construction to doubtful cases.' To complete the crime of treason or levying war, Marshall said, a body of men must be 'actually assembled for the purpose of effecting by force a treasonable purpose,' in which everyone involved, to any degree and however remote from the scene of the action, is guilty of treason. But the levying of war does not exist short of the actual assemblage of armed men. Congress had the power to punish crimes short of treason, but hte constitution protected Americans froma charge of treason for a crime short of it."
Leonard Levy in Encyclopedia of the American Constitution
Bollman was not about habeas corpus, it was about conspiracy to commit treason. Marshall's paasing commnet with regard to habeas are obiter dicta, and as you can see from the definition provided, are "not precedential."
The same can be said for Hamdi.
Yawn. I guess it's safe to say that you're still parroting a term that you do not understand to make an argument that simply is not sustained anywhere in the record of either of those two cases. As you have seen, the holding of Bollman literally turns upon Marshall's determination that the clause applies to Congress, hence the "therefore."
Bollman was not about habeas corpus, it was about conspiracy to commit treason.
Try telling that to Marshall. Here's the section of Bollman where he states the court's ruling:
The decision that the individual shall be imprisoned must always precede the application for a writ of habeas corpus, and this writ must always be for the purpose of revising that decision, and therefore appellate in its nature. But this point also is decided in Hamilton's case and in Burford's case. If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so. That question depends on political considerations, on which the legislature is to decide. Until the legislative will be expressed, this court can only see its duty, and must obey the laws. The motion [to grant a writ of habeas corpus], therefore, must be granted.
I don't know how that may be interpreted in metaphysical Farber land, but that sure looks a habeas corpus case to me!
Marshall's paasing commnet with regard to habeas are obiter dicta
It wasn't a passing comment though. Read it closely (I'd say again but to date you have demonstrated no evidence of having even read it a first time), noting in particular the bolded term:
The decision that the individual shall be imprisoned must always precede the application for a writ of habeas corpus, and this writ must always be for the purpose of revising that decision, and therefore appellate in its nature. But this point also is decided in Hamilton's case and in Burford's case. If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so. That question depends on political considerations, on which the legislature is to decide. Until the legislative will be expressed, this court can only see its duty, and must obey the laws. The motion, therefore, must be granted.
As you are not the only person with a dictionary handy, let's see how it defines the term "therefore"...
there·fore ( P ) Pronunciation Key (thârfôr, -fr) adv. For that reason or cause; consequently or hence. (American Heritage Dictionary, 2001 Edition)
So in Bollman, the case's ruling is that "therefore" the motion for a writ of habeas corpus "must be granted," but upon what? That is what the "therefore" tells us - upon that which precedes it - its reason or cause. Turning back to Bollman, we immediately and easily discover that Marshall very clearly stated this preceding reason, it being that the Constitution gives the habeas corpus clause to Congress, which in turn means that the courts derive their ability to issue writs of habeas corpus from the laws of Congress and the laws of Congress alone.
The same can be said for Hamdi.
Nope. One of the succinctly stated holdings of Hamdi, and perhaps the most important issue decided in that case, read as follows:
Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process....the process being the judicial system. Hamdi too was a habeas corpus case as it originated on a petition by Hamdi's father for a writ of habeas corpus.
In short, it is still plainly evident that you do not understand or know how to properly apply the term "obiter dicta," instead opting to throw it out as a blanket excuse for dismissing any and every section of a court opinion that you personally do not approve of. If you have to so quickly resort to pulling stuff like that out of your @ss, capitan, perhaps you should reconsider whether you are intellectually ready to take on an issue such as this.
"Bollman was not about habeas corpus, it was about conspiracy to commit treason" - capitan_refugio, post 237
Of course, there is no doubt as to what Marshall actually said the case was about:
The inquiry therefore on this motion will be, whether by any statute, compatible with the constitution of the United States, the power to award a writ of habeas corpus, in such a case as that of Erick Bollman and Samuel Swartwout, has been given to this court.
And there's similarly no doubt as to what Marshall actually ruled in the case:
The decision that the individual shall be imprisoned must always precede the application for a writ of habeas corpus, and this writ must always be for the purpose of revising that decision, and therefore appellate in its nature. But this point also is decided in Hamilton's case and in Burford's case. If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so. That question depends on political considerations, on which the legislature is to decide. Until the legislative will be expressed, this court can only see its duty, and must obey the laws. The motion [for a writ of habeas corpus], therefore, must be granted.
Yet capitan has seen it fit to brazenly declare that "Bollman was not about habeas corpus." With outright delusions such as these in the face of incontrovertible evidence one seriously has to wonder about his sanity.
Of course there is one other explanation aside from a degraded mental state, that being honesty. Of late capitan has suffered severely in this area. When faced with an incontrovertable fact his favored tactic nowadays seems to be flinging whatever unsubstantiated and contrived piece of refuse he can in the direction of that fact. Prove to him that Lincoln illegally obstructed Judge Merrick and he pulls a chunk of crap out of his @ss claiming that Merrick was a "confederate sympathizer" even though no source or document found anywhere even remotely suggests that. Prove to him that John Marshall ruled on the habeas corpus issue in 1807 as has been common knowledge of the legal profession ever since then and he stares the decision's own words down claiming that they do not say what indeed they do say. In a way it's actually somewhat pitiful.
Article II, Section 3 - "... he [the President] may, on extraordinary Occasions, convene both Houses [of Congress], or either of them ..."
So far so good.
"As both Hamdi and Bollman (as well as the unanimous position of the founding fathers) note, only Congress may suspend the writ thus the president must ask Congress if he wants this done."
(1) I assume you meant the "Framers of the Constitution." The "Founding Fathers" were responsible for the Declaration if Independence, the Continental Congresses, and the Revolutionary War. Although some were one in the same, the Framers were responsible for the "Suspension Clause." In any case, the Framers were not unanimous in their views on the Suspension Clause and its placement in the Constitution. As you have previously noted, Jefferson, a Founding Father but not a Framer, was initially dubious about the need for the "Suspension Clause."
(2) Hamdi v Rumsfeld and Ex parte Bollman & Swartwout, as I demonstrated in my prior post, were not precedent-setting cases with regard to who might act to suspend the privilege of the writ of habeas corpus.
(3) That "only Congress may suspend the writ" is not demonstrated by the verbiage of the "Suspension Clause" itself:
Article I, Section 9, Clause 2: "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion, the public Safety may require it." Had an exclusive congressional power been mandated, the clause may have read, "The privilege of the Writ of Habeas Corpus shall not be suspended by Congress ..." But it doesn't say that, implicitly leaving open other options.
(4) Because the clause finally ended up in Section I, it is a textural interpretation that the power to suspend resides exclusively with the Congress. By way of additional textural interpretation, contrary to the alleged exclusivity, the "Suspension Clause" was not found in Section 8 - "Powers of Congress." Clause 6 in Section 9 applies to both the Congress and the President. In fact, the writing of Regulations has been traditionally an Executive Branch function. Furthermore, Section 10, Clause 1, in Article I, has nothing to do with Congress - it presents prohibitions on the States. And of course, the presidential power of the "veto" is also found in Article I. Not everything in Article I exclusively applies to Congress.
Your textural interpretation that the power to suspend belongs exclusively to Congress is not proved.
"If they [the Congress] are out of session it is necessarily so that he must call them back into session to ask them [to suspend the privilege of the writ].
That again, it not "necessarily so." If Congress is not in session, and war is made upon the country, the President is "bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name." It is not the role of the courts to "cripple the arm of the government and paralyze its power by subtle definitions and ingenious sophisms." So said the majority in the Prize Cases.
To date, your arguments against the early war actions of Lincoln to preserve the constitutional Union have been just that, "subtle definitions and ingenious sophisms." Lincoln believed like Jefferson, who said that a "strict observance of written laws is doubtless one of the higher duties of a good citizen, but it is not the highest .... [The] laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation."
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