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
Yes, when the judge was released, he fined Jackson for contempt. Jackson was never charged with violating the law, however, due to his actions to suspend the writ.
I don't know how "secret and intentional" it was, as I posted on the late, great thread that I wanted you to see what a "real leftie" was like. I'll reiterate the point; when the lefties and the righties come to the same conclusion about Taney, you just can't deny it any longer.
BTW, you are beginning to sound paranoid.
You might actually read the summary quoted from Levy, too.
4ConservativeJustices; Gianni; lentulusgracchus; stand watie
You forgot Curly Joe.
What?! I'm not part of the "Wlat Brigade" anymore? I am truly hurt. You should at least ping others you attempt to smear.
Weak. Lame. Pathetic.
I have Freedman's book which incorporates the material in the internet article and revises some of it. The book is HABEAS CORPUS, Rethinking the Great Writ of Liberty, by Eric M. Freedman, New York University Press, copr. 2001 by New York University. Paperback edition first published 2003.
Notably, in a book about habeas corpus, Freedman avoids the Civil War era entirely. Neither Lincoln, Taney, nor Merryman get a mention.
It does contain the Marshall explanation of the need for legislation to authorize the court to issue the writ. Marshall wrote, "courts which originate in the common law possess a jurisdiction which must be regulated by the common law... but courts which are created by written law, and whose jurisdiction is defined by written law cannot transcent that jurisdiction. It is unnecessary to state the reasoning on which this opinion is founded, because it has been repeatedly given by this court; and with the decisions heretofore rendered on this point, no member of the bench has, even for an instant, been dissatisfied.... 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 Swarthout, has been given to this court."
Britain did not have a Constitution and its courts were common law courts. The U.S. Supreme Court was created by written law, the Constitution.
Freedman asserts that "Marshall's suggestion that Congress could suspend the writ by doing nothing at all would certainly have come as a shock to all of the debaters over the Suspension Clause whose positions were described in Chapter 2 above, particularly since suspension of the writ in England or its colonies had required an affirmative Act of Parliament."
What Marshall was saying was that the Supreme Court was not created with the common law power to issue the writ. Not being a common law court, SCOTUS could not claim common law powers. This required the Judiciary Act which created that power. The provision in Section 1 of the Constitution was one of limitation on the powers of the Legislative Branch, not a grant of powers to the Judicial Branch (nor to the Executive Branch). Congress may not suspend the privilege of the writ at its discretion, but only "when in Cases of Rebellion if Invasion the public Safety may require it." Congress may suspend the privilege of the writ only in case of a Rebellion or an Invasion, and then only when the public safety may require it.
Freedman has two chapters entitled "Bollman's Errors -- 1" and "Bollman's Errors -- 2." It takes two chapters to explain all the things Chief Justice Marshall got wrong.
The following is noteworthy. Part 1 of Freedman's book contains 7 chapters.
1. Introduction to Part 1
2. The Origins ofthe suspension Clause
3. The Opinion in Ex Parte Bollman
4. Bollman's Errors - 1
5. Bollman's Errors - 2
6. Some Suggestive Court Decisions
7. Conclusion to Part 1
I now quote Freedman's first sentence from Chapter 7, with the above chapter list making clear the context of what the comment includes.
"One could certainly argue that even if the claims made so far are correct they are of purely academic interest."
-- Eric M. Freedman, HABEAS CORPUS, Rethinking the Great Writ of Liberty, New York University Press, copr. 2001 by New York University. Paperback edition first published 2003, Chapter 7, page 46.
In Bollman, CJ Marshall deals with the matter of jurisdiction. First he must find that the court has been empowered to grant the writ. That is satisfied by the Judiciary Act. Second, he must find that the privilege of the writ has not been lawfully suspended. He finds that is a Legislative power which has not been exercised. He thus finds that the Court has jurisdiction to proceed.
In Texas v. White, the court also dealt with the matter of jurisdiction. It found secession was not lawful. That is not considered dicta. Jurisdiction is a necessity, not just something mentioned in passing.
You are demonstrating your confusion again. The power to grant a writ of habeas corpus is given to the Supreme Court by the Judiciary Act of 1789. Unlike the British common-law courts which evolved from usage and were not created by any written law, the U.S. Supreme Court is created by written law, the Constitution, and Marshall ruled that the power to issue the writ derived from the Legislative Act. The power to suspend the privilege of the writ exists in the Constitution as a limit on the powers of the Legislature.
The suspension of the powers created by the Judiciary Act regarding the privilege of the writ may only be authorized by an Act of Congress in pursuance to the Constitution. Congress may not suspend the privilege of the writ at its discretion, but only "when in Cases of Rebellion if Invasion the public Safety may require it." Congress may suspend the privilege of the writ only in case of a Rebellion or an Invasion, and then only when the public safety may require it.
[cr] Harold M. Hyman, in an article about Ex parte Milligan, begins with, "In 1861, Chief Justice Roger B. Taney contrived a possibility of executive-judicial, civil-military clashes (Ex parte Merryman); in 1863 the Supreme Court averted similar confrontations (Ex parte Vallandigham; Prize Cases).
The opinion of Harold M. Hyman does not change the ruling of the Court. Many believe the Court contrived its ruling in Roe v. Wade. That does not make one scintilla of difference. Roe v. Wade, still stands as the enforceable law.
[cr] A judge's motivations are important. Especially when his opinion purports to establish precedent. Taney's "bad behavior" should never be mistaken for sound legal reasoning. As as has been demonstrated, Taney's in chambers opinion was not a decision of the Supreme Court - Taney engineered it all on his own.
Whatever one opines about the motivation of the judge does not change the ruling. Regardless of the motivation of the justices in Roe v. Wade, the ruling is not changed and it stands as the enforceable law.
The In-Chambers Opinion of Chief Justice Taney in Ex Parte Merryman was valid and there was a legal obligation to comply or to appeal the ruling.
Section 14 of the Judiciary Act of 1789 is clear:
Section 14. That all the before-mentioned courts of the United States, shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. And that either of the justices of the supreme court, as well as judges of the district courts, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment. --Provided, That writs of habeas corpus shall in no case extend to prisoners in gaol, unless where they are in custody, under or by authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify.
By law, Chief Justice Taney, or any of the associate justices had the legal authority to issue the writ of habeas corpus. The involvement of all nine justices was not required. In handling a habeas corpus matter on his own, Chief Justice Taney acted lawfully and properly. The defiance of the writ was unlawful and improper.
Nobody had suspended the privilege of the writ before Taney ruled. Lincoln had only (unlawfully) authorized military officers to suspend the privilege of the writ at their discretion. None had actually done so. General Cadwalader had possession of Merryman. A message purporting to grant suspension authority to Cadwalader was not sent until after CJ Taney had ruled.
In response to the writ, General Cadwalader sent his aide to the Court and informed the Court that he, General Cadwalader had been authorized to suspend the writ, but he did not inform the court he had actually done so, and produced no evidence of such "authorization."
Holding. In procedure, any ruling of the court, including rulings upon the admissibility of evidence or other questions presented during trial, may be termed a "holding." See 218 P. 2d 888, 893.
-- Law Dictionary, Second Edition, Steven H. Gifis
What are the basic ideas and principles of constitutional law, many of which are rejected by the foundationalists? We think that most Americans -- including most lawyers -- would endorse the following eight propositions about the Constitution.[Propositions 1, 3-8 omitted]
2. The Supreme court is in charge of enforcing the Constitution. ...
These eight propositions are, we think little more than common sense, and most people would find no hesitation in affirming all of them.
I wonder who is in charge of interpreting the Constitution?
There was a finding that the court-martial had no jurisdiction and that the prisoner must be released from military detention. Louallier was released, as was Judge D.A. Hall and the district attorney. Then General Jackson was hauled into court and fined by Judge Hall.
Jackson did not suspend the privilege of the writ. He declared and imposed Martial Law. Martial Law substitutes a military regime and military tribunals in place of the ordinary processes of justice. Under Martial Law the Executive Chief is the one and only source of authority.
Apparently not.
Oh well, Finkelman will have to do for now.
Excerpts re Finkelman. See link for complete article re Finkelman as expert witness against Judge Moore.
"Paul Finkelman, professor of law at the University of Tulsa, discussed the references to God in Blackstone's writings when he testified earlier Tuesday that he disagreed with Moore's contention that the Ten Commandments represent the primary source of the moral foundation of American law."
"Finkelman testified that if Jefferson had been writing about the Judeo-Christian God, he would have made that clear."
"Thomas Jefferson, if nothing else, was the most brilliant writer of his time. If he had wanted to base his writings on the Christian God he would have done that," Finkelman said.
"But Finkelman said other sources of law include the Declaration of Independence and the speeches of numerous Americans through history, including Abraham Lincoln, Susan B. Anthony and Martin Luther King Jr." [nc - Abe, Anthony and MLK give speeches and they become a source of American law??]
"Under cross-examination from Moore's attorney, Herbert Titus, Finkelman admitted he is not a biblical scholar. Titus pointed out that during an earlier deposition, Finkelman did not know that the Ten Commandments are located in the book of Exodus."
See Letter from Thomas Jefferson to James Madison (Dec. 20, 1787), reprinted in 8 Documentary History 250 ("I do not like... the omission of a bill of rights providing clearly and without the aid of sophisms... for the eternal & unremitting force of the habeas corpus laws"); Letter from Thomas Jefferson to Alexander Donald (Feb. 7, 1788), reprinted in id. at 354 (Hoping that Constitution would be amended "by a declaration of rights which shall stipulate... no suspension of the habeas corpus"); Letter from Thomas Jefferson to William Stephens Smith, (Feb. 2, 1788), reprinted in 14 id. at 500 (containing same idea).
Source: Eric M. Freedman, HABEAS CORPUS Rethinking the Great Writ of Liberty, paperback edition, Footnote 18 at page 159.
Per Ex Parte Bollman and Swartwout, the Judiciary Act of 1789 derives from the "suspension" or "habeas corpus" clause of Article I. As for the Judicial Act itself, certainly you know that it takes another law of Congress to repeal, amend, or suspend an existing one. And that is exactly what Taney and all the other judges after him who ruled the exact same way noted.
Or so you claimed after the fact. In reality we both know exactly what happened. You haphazardly stumbled across a purported academic who shared your slanders and character assaults upon Roger Taney. Not having the slightest clue that this same academic is somewhere to the left of Ron Dellums, you left several droppings from him all over the forum and suggested to others that they would do good to read more of his work. A day or so later I recognized the guy's name from the Alabama ten commandments lawsuit and exposed him as a leftist nutcase. The purported intentional nature of your post was thus nothing more than a not-so-sly attempt to wipe the egg off of your face.
I believe you are correct. If you do a google search for "Bollman" and "dicta" the first five or ten hits that pop up are stuff by Freedman, most of it angry rants assaulting Marshall's motives as "politically inspired." It is laughably obvious that capitan found the articles this way and, upon seeing the words "dicta" and "marshall" in the same article, he concluded it was the "proof" he needed.
Non-Sequitur did this exact same thing a year ago. The parallel is downright hilarious - they both began arbitrarily labelling Bollman as "dicta" without seeming to know that term. When pressed on it they both then posted a simple definition, claiming it "proved" their claims even though a definition alone does not make the term apply to the passage they both labelled. When pressed on that they both went in search of source material and google led them directly to Freedman as an "authority," who, aside from using their two search terms in the same article, has absolutely nothing to do with the passage in question.
As with non-seq, capitan still does not seem to understand the term obiter dictum and reacts with hostility to any attempt to inform him of its nature. His recent equivalent statement of "gee golly, I keep seeing references to dicta in the bollman case all over the place!" as if it were something out of the ordinary is sufficient proof that he does not understand what he purports to be lecturing about.
No capitan. You've only shown that one single purported right winger (who also happens to be a notorious crank that virtually all other right wingers constantly disagree with) has an unfortunate and revealing habit of ending up on the same side of an argument as lots and lots of radical left wingers.
Two of history's most prolific Lincoln praisers are Harry Jaffa and Karl Marx. Marx has a following on the left a million times larger than Jaffa does on the right.
Hyman is either ignorant or dishonest. If Taney's case was "contrived" it would still fail to explain why four other federal judges (including one supreme) in four other federal courts all around the nation took cases on and reached the same conclusions as Taney in between 1861 and the indemnity bill of 1863.
Google up Jaffa's vita online and the reason jumps out: boyhood infatuation with Lincoln. It's personal and emotional/psychological on Jaffa's part. He is the source of the Lincoln-worship among the Claremont Declarationists, which is shared by some other Chicago "big-government conservative" {you should pardon the oxymoron) Straussians, few if any of whom seem to have been given any pause by the emotional and personal (to Jaffa) foundations of their cultivation of Lincoln and his acts.
Part of the reason for Jaffa's early hero-worship may lie in the fact that Lincoln championed an ethnic minority (no, not the Irish -- he used us for cannon fodder), which would have been psychologically key to a young urban ethnic exposed to the usual peer harassment.
Once that hero halo is bestowed, woe betide anyone who invites that brilliant young man to grow up a little and see the whole man.
"LG"
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