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
The Nazi Germans called that idea das Fuehrerprinzip. It was the keystone of Nazi jurisprudence and political science. Millions of Germans died carrying it into effect, and they killed millions of others before they died themselves. And you let Farber wave that bloody banner here, under the same excuse Hitler himself used to seize it -- "crisis authority"?
What a wonderful idea. Let a man win an election, invent a crisis, claim crisis authority, and then ride the People down into a mass grave.
No, I don't think even Hamilton had that in mind.
Re-read for comprehension of what your mega-jerk "authority" is actually saying.
It's clear that his adversary, the object of his alarm, is the People themselves.
Some adversary, for a faithful servant of the People.
I see that nolu chan must be working with awfully inadequate tools, if all you have to do, by way of reply, is to pronounce his arguments "hairballs".
What will you do now? Order him to disperse, that public order may be restored? Will you lay him under a peace bond, and forbid him the company of certain known criminal associates?
Your hauteur would suggest that you think these matters have already been disposed of by competent authority, and that our friend is merely disturbing the public peace.
Actually, he's beating you like a drum, and you just sound silly when you post stuff like that.
Since the courts were open during the duration of the Civil War, with the exception discussed above, it would seem that Farber has at least a little competition on the subject from ruling judges.
Including Roger Taney.
NC can post what he wants. It has been my experience that repetitive, long posts get ignored, so I try not to repeat myself, and never at length.
He posts at the discretion of Mr. Robinson, as do we all. I try not to wear out my welcome and get into flame wars. I express my displeasure in brief. If he is interested in civil discussion, I'm around.
"Actually, he's beating you like a drum, and you just sound silly when you post stuff like that."
More to the point, you are one of the choir members he is preaching to! It's all a matter of perspective.
Sorry, forgot to ping you on the previous post in reply the LG.
I gather from your posts and his that the original complaint in a contemplated criminal case was "treason" broadly construed, but that the instant case was a petition for a habeas writ. If the other case had been proved, there would be no entertaining a prayer for a writ.
You're right -- he can't say Ex Parte Bollman and Swartout is a treason case, even though it involved treason, inasmuch as, as you say, Marshall wanted to see to it that "treason" should be construed narrowly in the United States, as part of his reasoning for ordering the writ to be granted and the detainees released.
Paludan had earlier in the book noted that slave owners were relocating to the western territories and new states. He also noted that the that the Democrat Party was the last "national" political institution, after the demise of the southern Whigs. As such, to maintain national political power, the southern Democrats had an inordinate influence on the Democrat party. Paludan was noting that the pro-southern, secessionist mentality was not restricted to the South.
"Re-read for comprehension of what your mega-jerk "authority" is actually saying."
Why don't you read the book for yourself? You seem like a literate person. I see that you, too, subscribe to the NC school of ad hominem attacks.
Your lack of perspective and misinterpretation of history is puzzling.
(1) "Let a man win an election" - Yes, Lincoln won a lawful election conducted under the rules of the Constitution.
(2) "invent a crisis" - Several states had already purported to secede from the Union, seize federal armories and property, and commit other acts of aggression well before Lincoln was ever sworn in as President.
(3) "claim crisis authority" - As was Lincoln's constitutional duty.
(4) "then ride the People down into a mass grave" - Melodramatic and inaccurate. Most of the Northern soldier were volunteers, intent, like Lincoln, on preserving the constitutional Union and punishing southern lawlessness. If the southerners ended up in a "mass grave" (I presume you do not mean that in the literal sense, but if you do, you might want to expand upon your point), it was the logical and lawful result of their own mistaken beliefs. Whether the South participated in armed insurrection, or as I have often suggested, fought a war for independence, the consequences of being on the losing side were obviously not going to be good.
Did you say something?
Remember, at FR the first person to invoke the "Nazi" comparison loses by default. Lincoln acted according to the principles upon which this nation was founded.
Funny. I always thought that this was the principle on which our nation was founded:
"That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."
He has refuted his Assent to Laws, the most wholesome and necessary for the public good.
Lincoln refuted his assent to the laws by shunning at least five court rulings against him and using the military to intimidate and house arrest judges.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
Lincoln had at least two federal congressmen arrested, overthrew the Missouri legislature by force, and detained several members of the Maryland legislature to prevent it from meeting over secession.
He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.
Lincoln unconstitutionally suspended habeas corpus and refused his assent to the Judicial Act of 1789, which established the judiciary power of habeas corpus.
He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries. Lincoln employed federal soldiers to place a judge under house arrest and plotted to arrest the Chief Justice of the Supreme Court. He also attempted to use his new income tax to tinker with the salaries of federal judges he did not like, Taney among them, in violation of the Constitution's provision that judges will "receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office."
He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.
See Sherman's march through Georgia.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
Lincoln raised a massive standing army to invade Virginia a month before it even seceded, all while Congress was out of session.
He has affected to render the Military independent of and superior to the Civil Power.
Again, Lincoln shunned at least five major federal court rulings against him and used his military agents to detain, harass, and house arrest the civil power of the judiciary.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation
Lincoln gave his sanction to a rump legislature in Wheeling, West Virginia, which was purporting itself to conduct the government of the entire state of Virginia. He also overthrew the state constitution of Missouri and installed his own legislature there and oversaw the reorganization of the state constitution of Maryland with a highly suspect referendum.
The list goes on and on from there. It is without doubt that Lincoln committed many if not most of the same offenses that led the colonists to rebel against King George.
"[I]t is impossible to speak of original sovereignty in regard to the majority of the states. Many of them were not included in the federal complex until long after it had been established. The states that make up the American Union are mostly in the nature of territories, more or less, formed for technical administrative purposes, their boundaries having in many cases been fixed in the mapping office. Originally these states did not and could not possess sovereign rights of their own. Because it was the Union that created most of the so-called states."
What is a "major" federal court ruling? What is a minor federal court ruling? Are there other degrees of importance, such as "intermediate," "moderate," or "really important." How about "hugh" or "series"? And how do you come to your conclusion on "major" or some other ranking?
"Lincoln had at least two federal congressmen arrested"
Just for the record, they were ...? "... overthrew the Missouri legislature by force"
The "Long Convention" of Missouri citizens tossed the rascals out, because the rump legislature were traitors, and abdicated their positions.
"He also attempted to use his new income tax to tinker with the salaries of federal judges he did not like, Taney among them, in violation of the Constitution's provision that judges will "receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office."
You are certainly reaching on this one! If an income tax lowers your take home pay, it is not to say that it diminished your compensation. Your gross pay remained the same. Taney had a prepared opinion on that issue too, in the event a case ever came his way!
"See Sherman's march through Georgia."
Sherman's march through the deep south was a military offensive designed to break the back of the confederate war-making capability and destroy the will of the people of the CSA to resist superior moral and military force. In as much as the rebels did not claim to be Lincoln's "people," your analogy fails.
"Lincoln raised a massive standing army to invade Virginia a month before it even seceded"
I would agree that if the secessionists and the Union came to blows, the federal armies would have invaded through Virginia. You need to provide a little bit more proof than your gratuitous accusation.
"Lincoln gave his sanction to a rump legislature in Wheeling, West Virginia, which was purporting itself to conduct the government of the entire state of Virginia."
The good people of western Virginia wanted nothing to do with their traitorous eastern brethren. Lincoln was always happy to accommodate the loyal. He would have, no doubt, helped the people of the mountains in eastern Tennessee (home of the loyal Senator Andrew Johnson) and western North Carolina, if he could have gotten armies into those places to enforce constitutional law.
The great irony about the secessionist gripes concerning the creation of West Virgina is that they hypocritically would have denied those people the "right to unilateral secession" they divined for themselves. As it was, the people of "Kanawha" declared the secessionist legislature in violation of Constitution and no longer representative, and themselves passed an "ordinance of dismemberment."
"He also overthrew the state constitution of Missouri and installed his own legislature there"
Inaccurate and baseless. The treasonable Governor and his fellow travelers skedaddled in the face of moral authority. The vast majority of people of Missouri solved this problem on their own - democratically - and revised their own state constitution.
"The list goes on and on from there. It is without doubt that Lincoln committed many if not most of the same offenses that led the colonists to rebel against King George."
This tripe of yours would not rate a passing grade as a high school history essay.
It is gratifying to see that you recognize the legacy of natural law the provided the foundation for our system of government.
It's not nice to post quotations from Hitler on Free Republic. Why don't you ask the moderator to remove it?
In your #202 you replied with a quote of Harry V. Jaffa, a political philosopher.
In your #208 you quoted historian Paludan and Scottish historian Peter Parish, whoever he is.
In your #209 you quoted historian Paludan again.
In your #210 you made the unsupported assertion that Lincoln's "actions to protect the constitutional union, the enforce the laws, and to suppress the rebellion were both prudent and lawful."
In your #215 you quoted leftist liberal Berkeley law professor and Lincoln apologist, Daniel Farber.
In your #218 you made the irrelevant argument, "Taney's motivation was well-known."
In your #223, your entire argument was, "Hairball - try mineral oil."
In your #226 you repeated the known falsehood that the Act of August 1861 ratified Lincoln's habeas corpus violations.
In your #226 you invoked the "contest between Gen Andrew Jackson and the court in New Orleans." You did not note that martial law was in effect, not a suspension of habeas corpus, that the military court held it had no jurisdiction and that the prisoner must be released, and that Jackson was hauled before the court and found guilty of contempt and fined.
In your #227, your Lincoln excuse is "Lincoln's paramount duty was not to wait for Congress to re-assemble."
In your #228 you assert the ridiculous "Lincoln clearly wanted to Congress to be part of the war planning, because of their control of appropriations, and to ratify his emergency actions."
Big Lib,
Big Lib,
Every mornin' at the 'puter you can see him arrive
Stands 5 foot 4, weighs 245
Kind of narrow in the shoulder and broad at the hip
Everybody knows he is so full of s---
Big Lib.
Big Liiiiiiib,
Big bad Lib.
I don't know, but it's been said
as a youngun, he was dropped on his head
that was the cause of his cranial split
the left brain's addled, the right brain's s---
Francisco Forrest Martin he did quote
Til he was exposed as some sort of joke
When Johnny Taliban, he got caught
There was Martin, Friend of the Court
Jack N. Rakove, he was a kook
gun owners rights, he wants to nuke
Rakove thinks your protection from harm
means soldiers have the right, to keep and bear arms
Now its Farber, he does spew
another Berkeley lib, so what's new
deep into history, he did delve
told us Booth shot Lincoln, April twelve
On March 5, in committee I say
a bill was amended, just 5 nays
Farber said that was passage, of the bill
I just can't buy that liberal swill
Now Big Lib gives it his very best
Quotes left wing nut jobs, being a pest
Let him keep spewing, don't mind a bit
he's just proving he's so full of s---
Big lib.
Big liiiiiiib,
Big bad Lib.
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