woodpusher:
"No, you were not referring to HR 591 in March 1863, you explicitly referred to SR-1 of 1861, with nary a mention of HR 591 of 1863.
You explicitly claimed that "The 1861 S No. 1 was introducted by Massachusetts Republican Senator Henry Wilson," and, still in reference to Wilson's Resolution, "here were two problems, the first was the lack of a filibuster cloture rule...."
You invented a filibuster that never happened, and when confronted by the official record of the relevant 1861 congressional debate, you seek to make believe you were talking about a bill from 1863." For anyone keeping score, woodpusher wins this point.
I did conflate 1861 SR-1 with 1862 HR-591 because both bills were part of Republicans' attempts to indemnify President Lincoln on habeas corpus, and I left the mistaken impression that Democrats' filibuster in March 1863 against HR-591 was actually against SR-1.
So woodpusher should savor his victory, but it's a very minor point which I'm happy to correct.
The fact is that minority Democrats did attempt to filibuster the habeas corpus bill HR-591, even after RINO Illinois Senator Trumbull removed the word "indemnification" from it.
woodpusher: "So, you were clearly talking about SR-1 of 1861 and your blather about 1863 is merely an attempt at diversion.
Be that as it may, the question was about where is your cited filibuster? "
My mistake here was to conflate 1861 SR-1 with 1862 HR-591, both of which attempted to indemnify Lincoln on habeas corpus.
HR-591 passed in March 1863 despite Democrats' attempted filibuster and after RINO Illinois Senator Trumbull removed the word "indemnification".
It seems to me now that our FRiend woodpusher has not yet grasped the fact, or is unwilling to admit it, that there was indeed an 1863 Revocation of Habeas Corpus law.
woodpusher on HR-591: "It was then agreed to take up the bill at 7 p.m. that evening.
Its passage was at about 2 a.m. in the morning.
It was done and dusted in seven hours, from time debate started until the voice vote was recorded.
When did your alleged 1863 filibuster take place? "
Here is one report on it:
"The Senate spent the evening of March 2 into the early morning of the next day debating the conference committee amendments.[24][34]
There, several Democratic Senators attempted a filibuster.
Cloture had not yet been adopted as a rule in the Senate, so there was no way to prevent a minuscule minority from holding up business by refusing to surrender the floor.
First James Walter Wall of New Jersey spoke until midnight, when Willard Saulsbury, Sr., of Delaware gave Republicans an opportunity to surrender by moving to adjourn.
That motion was defeated 5–31..."
woodpusher:
"Let us look at the "overwhelming majority" as recorded in the record.
As you state that an overwhelming majority voted for the bill, do tell how many voted for and against." Here is one report on that:
"The following Monday, March 2, the day before the Thirty-Seventh Congress had previously voted to adjourn, the House voted to accept the new bill, with 99 members voting in the affirmative and 44 against.[33]"
The whole Senate accepted HR-591 by voice vote.
woodpusher: "You explicitly stated that "In 1864, Trumbull's abolition bill became the US 13th Amendment."
For those keeping score, woodpusher wins another minor technicality -- in my efforts to be as brief as possible, I conflated the introduction of Trumbull's 1864 abolition resolution with the 1865 ratification of the 13th Amendment.
So let's give woodpusher a few minutes to spike the football and do his little end-zone victory dance.
woodpusher: "Of course, if you had bothered to actually look up the record, you could not help but notice that it was a Resolution.
Your posts reveal your lack of even the most basic knowledge of what you are talking about, and your disinclination to be bothered to research any of your purported facts or hallucinations about the law."
On second thought, I don't think that's a six-point touchdown, not even a sack of the quarterback.
All our FRiend woodpusher really did was divert attention away from his own lies and misstatements by focusing on the difference between a "bill" and a "resolution", in the mean time failing to block my game winning score which was that RINO Senator Trumbull was not yet 100% Democrat because he did introduce the... ah...
resolution in 1864 which eventually became the 13th Amendment in 1865.
woodpusher: "When Trumbull started working on it is irrelevant.
And stop calling it a bill.
It was not a bill.
Bills become Federal laws.
Resolutions propose constitutional Amendments. "
Again we're into the minutia of legalistic distinctions, but in this case our FRiend woodpusher loses yardage because:
"...these called for a constitutional amendment to abolish slavery nationally and permanently.
On December 14, 1863, a bill proposing such an amendment was introduced by Representative James Mitchell Ashley of Ohio.[14][15]
Representative James F. Wilson of Iowa soon followed with a similar proposal.
On January 11, 1864, Senator John B. Henderson of Missouri submitted a joint resolution for a constitutional amendment abolishing slavery.
The Senate Judiciary Committee, chaired by Lyman Trumbull of Illinois, became involved in merging different proposals for an amendment.
Radical Republicans led by Massachusetts Senator Charles Sumner and Pennsylvania Representative Thaddeus Stevens sought a more expansive version of the amendment.[16]
On February 8, 1864, Sumner submitted a constitutional amendment stating...
On February 10, the Senate Judiciary Committee presented the Senate with an amendment proposal..."
So notice the different terms used for virtually the same things:
- "called for constitutional amendment"
- "a bill"
- "proposal"
- "joint resolution"
- "submitted a constitutional amendment"
- "amendment proposal"
Sure, doubtless there do exist legalistic definitions for each of these, definitions which may be important in certain contexts, but I'm not sure why for layman's purposes they matter.
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You repeat your legal error
ad nauseam, that an unconstitutional act became a law, in various forms, the following being just a sample:
[BroJoeK #297] Woodpusher's suggestions to the contrary, my point here is not to defend the repealed law, but simply to notice that it was a law and President Andrew Johnson broke it, for which he was impeached. [BroJoeK #297] Johnson did break the 1867 Tenure of Office law, woodpusher's propaganda to the contrary notwithstanding.
http://law2.umkc.edu/faculty/projects/ftrials/impeach/imp_tenure.html
In 1926, in the case of Myers vs. United States, the Supreme Court, in an opinion by Chief Justice Taft, held unconstitutional a law requiring the consent of the Senate for removal of certain non-Cabinet officials.
I cite the comment of a law school, not an anonymous Wikipedia article. It is well beyond clear the the U.S. Supreme Court held the 1867 statute to be repugnant to the Constitution.
The holding in Marbury is well beyond argument that a legislative act, repugnant to the Constitution, cannot become a law.
Legally, the 1867 Statute, and all subsequent statutes to the same effect, never became laws. An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.
The other branches treat a statute as law until the Judiciary proclaims otherwise. When the Judiciary proclaims a statute to have been enacted as repugnant to the Constitution, it holds that the Legislature had no authority to issue the statute in the first place, and its act of issuance was entirely void.
As Marbury stated at 5 U.S. 178
If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on.
For a statute, repugnant to the Constitution, to have ever been effective as a law, one must recognize the power of Congress to change the Constitution with a statute. There is no such power. The the statute was enacted, the Constitution was the superior, supreme law, and any law in conflict with the Constitution is a nullity.
Statutes are treated by the other branches with a presumption of regularity until the Judiciary decides otherwise. A judicial holding of repugnance to the Constitution holds that the offending statute never became a law.
Your ignorant blustering is no substitute for knowledge.
Norton v. Shelby County, 118 U.S. 425, 442 - 443 (1886), Justice Field, Opinion of the Court
But it is contended that if the act creating the board was void, and the commissioners were not officers de jure, they were nevertheless officers de facto, and that the acts of the board as a de facto court are binding upon the county. This contention is met by the fact that there can be no officer, either de jure or de facto, if there be no office to fill. As the act attempting to create the office of commissioner never became a law, the office never came into existence. Some persons pretended that they held the office, but the law never recognized their pretensions, nor did the supreme court of the state. Whenever such pretensions were considered in that court, they were declared to be without any legal foundation, and the commissioners were held to be usurpers. [...]
Their position is that a legislative act, though unconstitutional, may in terms create an office, and nothing further than its apparent existence is necessary to give validity to the acts of its assumed incumbent. That position, although not stated in this broad form, amounts to nothing else. It is difficult to meet it by any argument beyond this statement: an unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.
A decision striking down a law as unconstitutional must, of necessity, operate retroactively, even to just apply to the case decided. All relevant acts must have occurred before the case was decided by the Court.
Randy Barnett, Constitutional Law, Cases in Context, Aspen Publishers, 2008, at 105:
The fact that judicial nullification was taken as given by all members of the Constitutional Convention does not mean everyone liked this power. John Mercer (Maryland) “disapproved of the Doctrine that the Judges as expositors of the Constitution should have authority to declare a law void.” Instead he “thought laws ought to be well and cautiously made, and then to be uncontroulable.” But Mercer’s was a lone voice. Even John Dickenson (Delaware) who “was strongly impressed with the remark of Mr. Mercer as to the power of the Judges to set aside the law,” said he “was at the same time at a loss to know what expedient to substitute.” Gouverneur Morris took issue with Mercer more sharply, stating that he could not agree that the judiciary “should be bound to say that a direct violation of the Constitution was law. A control over the legislature might have its inconveniences. But view the danger on the other side.”
Hamilton, Federalist 78
Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable. There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
[BroJoeK #289]: But there were two problems, the first was the lack of a filibuster rule, meaning Democrats could block pretty much anything in the Senate. [BroJoeK #297]: The fact is that minority Democrats did attempt to filibuster the habeas corpus bill HR-591, even after RINO Illinois Senator Trumbull removed the word "indemnification" from it.
Yet another fictional account. History is what happened, not what you fantasize.
The proceedings were taken down verbatim and reported in the official record, then called the Congressional Globe.
https://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=063/llcg063.db&recNum=548
I gave you links to the pages. Why can't you find the filibuster, or the removal of the word indemnity from H.R. 591 before the vote? Until the final vote, the change was only in the Senate version of a House Bill, which was an indemnity bill.
Here is the OFFICIAL RECORD on it at page 1459:
Mr. TRUMBULL. I must insist on calling up the report of the committee of conference on the indemnity bill, which was laid aside until seven o'clock. After that is before the Senate, if this other matter can be disposed of informally by unanimous consent, I will not object.
There is the indemnity bill, after 7 p.m. in the Senate. This is when the Report of the Committee is first brought up for debate.
https://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=063/llcg063.db&recNum=563
Here is the OFFICIAL RECORD at page 1474:
Mr. POWELL. I have concluded my speech, and move to adjourn in order that the Senator from Delaware may have an opportunity to speak tomorrow. The question being put, there were, on a division—ayes 4, noes 14; no quorum voting.
Mr.CHANDLER called for the yeas and nays.
The yeas and nays were ordered; and being taken, resulted—yeas 4, nays 32; as follows:
[recorded vote omitted]
So the Senate refused to adjourn.
Mr. Bayard took the floor and talked from pages 1474-1477.
Here is the OFFICIAL RECORD at page page 1477:
https://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=063/llcg063.db&recNum=566
Mr. FESSENDEN. Let us have the yeas and nays on the adjournment. The yeas and nays were ordered; and being taken resulted—yeas 4, nays 33; as follows:
[recorded vote on adjournment omitted]
So the Senate refused to adjourn.
The PRESIDING OFFICER, (Mr. Pomeroy.) The question is on concurring in the report af the committee of conference. Those in favor of concurring in the report will say “aye” those opposed “no.” The ayes have it. It is a vote. The report is concurred in.
Mr. TRUMBULL. I move that the Senate now proceed to the consideration of House bill No. 599.
Mr. POWELL. I hope the Senate will proceed with this indemnity bill.
The motion of Mr. Trumbull was agreed to.
Mr. TRUMBULL. It is a bill relating to the validity of deeds of public squares and lots in the city of Washington.
Mr. POWELL. What has become of the other bill?
Mr. GRIMES. It has passed.
This is the official record of the passage of the Report of the Committee on H.R. 599.
There was NO RECORDED VOTE on H.R. 599. It is contested that a call for the nays was even called and heard. The only record of the vote is the Presiding Officer stating, The ayes have it. The yeas and nays were not counted and recorded. This is your claimed overwhelming majority vote.
The reason you cannot find the removal of the word indemnity prior to the vote is that it did not happen.
Here is the OFFICIAL RECORD the House at page 1479:
https://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=063/llcg063.db&recNum=568
INDEMNITY BILLThe SPEAKER. The hour of one o'clock having arrived the vote will now be taken, by previous order of the House, on agreeing to the report of the committee of conference on the indemnity bill.
Mr. ALLEN, of Ohio, called for the yeas and nays.
The yeas and nays were ordered.
The question was taken; and it was decided in the aflirmative—yeas 99, nays 44; as follows:
[recorded vote omitted]
So the report of the committee of conference was agreed to.
There is the indemnity bill, Report of the Committee, passing at 1 a.m. in the House. The SPEAKER called the vote for the indemnity bill.
HR-591 passed in March 1863 despite Democrats' attempted filibuster and after RINO Illinois Senator Trumbull removed the word "indemnification".
Why were the senators and the Speaker calling it the Indemnity Bill in the wee hours of the morning; the Speaker calling a vote on the indemnity bill. Apparently he had not yet gotten the word from Wikipedia.
When exactly did Senator Trumbull remove the word "indemnification?" (sic - indemnify)
James G. Randall was an historian and former president of the American Historical Association. Randall was a history professor and specialized on Abraham Lincoln and the American Civil War era. One of his noted books was Constitutional Problems Under Lincoln, originally published in 1926, reprinted in 1951 with updates and revisions, by the University of Illinois Press. In 1926, Randall wrote of the Indemnity Act of 1963. In my copy of the 1951 updated book, Randalls Chapter IX is entitled, The Indemnity Act of 1963. In footnote 8 on page 189, Randall explained:
8 In using the name "Indemnity Act" to designate the law of March 3, 1863, contemporary usage has been followed. Senator Trumbull and others referred to the measure while under debate as the "Indemnity Bill," and the same designation appeared in the headings of the record, as well as i many other places. (Cong. globe, 37 Cong., 3 sess., pp 1459, 1479.)
Your fictionalization that Senator Trumbull removed indemnification from the bill to indemnify is yourstory, not history.
Trumbull's amendment to House Resolution 591, changing the title of the bill, and eliminating the word indemnify was proposed to the Senate on January 15, 1863, almost a year before the Report of the Committee reached the floor of the Senate.
Journal of the Senate, January 26, 1863, page 152
The Senate proceeded to consider, as in Committee of the Whole, the bill (H. R. 591) to indemnify the President and other persons for suspending the privilege of the writ of habeas corpus, and acts done in pursuance thereof; and After the consideration of executive business,
The Senate adjourned.
The proposed title, To regulate judicial proceedings in certain cases therein mentioned, replacing the House phrasing, To indemnify the President and other persons for suspending the privilege of the writ of habeas corpus, and acts done in pursuance thereof, did not change the bill itself. It was still a House indemnity bill, the Senate just sought to obfuscate what Congress was doing, sort of like the USA PATRIOT Act or the Patient Protection and Affordable Care Act.
Randall, Constitutional Problems Under Lincoln, p. 192:
It is significant that Stevens, the author of the indemnifying feature of the House bill, was not one of those who held, with the Attorney General, that the President had the right to suspend habeas corpus privilege. Some who concurred in the Attorney General's opinion that the President had the full power to suspend, andto delegate such authority to subordinates, argued that no wrongs had been committed, and that no indemnification was necessary. Conversely, the very basis of the bill of indemnity, in the minds of many who voted for it, was an assumption that the President did not constitutionally have this power, or at least a doubt as to the legality of this presidential suspension and a desire to clear up the matter once and for all.
It appears, amongst other things, that you must add the name of Thaddeus Stevens to your list of RINOs, Democrats and Traitors.
Mr. Trumbull did all he could do before the vote on March 3, 1863. He effected a change to the Senate version only, which was not agreed to by the House until the vote on the Report of Committee on March 3.
Congressional Globe, 37th Cong, 3rd Sess, March 2, 1863, pp. 1435-1438
The congressional session of March 2, 1863 extended past midnight and into March 3, 1863. The bill passed during the March 2 session, after midnight.
1435 MESSAGE FROM T1IE HOUSE.
A message from the House of Representatives, by Mr. Etheridge, its Clerk, announced that the House of Representatives had agreed to the report of the committee of conference on the disagreeing votes of the two Houses on the bill (H. R. No. 591) to indemnify the President and other persons for suspending the privilege of the writ of habeas corpus, and acts done in pursuance thereof.
1435
Mr. TRUMBULL. The committee of conference on the bill of the House of Representatives (No. 591) to indemnify the President and other persons for suspending the privilege of the writ of habeas corpus, and acts done in pursuance thereof, have agreed on a report, which I submit.
1436
Mr. TRUMBULL. I will state, for the information of the Senate, that the report embraces nothing but the subject-matter of the bill which passed the House of Representatives, and the amendments which passed the Senate. The House of Representatives passed a bill containing two sections, the first with a preamble. The first section ratified all acts of the President in the arrest of parties, and indemnified and discharged all officers from suits or prosecutions in consequence of any arrests made under his authority; and the second section of the bill, as passed by the House of Representatives, authorized the President to suspend the writ of habeas corpus. This was the House bill. The Senate disagreed to the bill which passed the House, and passed a substitute for it. The substitute provided for the protection of officers in the courts of the United States, instead of declaring proceedings against them null and void. The two Houses having entirely disagreed, not having agreed upon any thing, what was before the committee? Unquestionably the bill as it passed the House of Representatives, and the amendments as they passed the Senate. Neither House had agreed with the other upon a single line.
1437
Mr. RICHARDSON. Probably I can attain the object I have in view by making a motion that the report of the committee of conference be not received. I make that motion if it will attain the purpose I have of discussing, for it is a matter of importance enough to discuss the question before the Senate.
The PRESIDENTpro tempore. The Chair has passed upon no question of order. The Chair has said that theobjections raised do not presents question of order for the Chair to decide as such. They may raise objections, decisive reasons for non-con- currence in the report. The immediate question before the Senate is, “ Will the Senate concur in the report of the committee of conference?” and that opens the whole subject-matter to full debate before the Senate.
Mr. WALL. Understanding, Mr. President, that the Senator from Delaware who is not in his seat [Mr. Bayard] desires to speak on this bill, I move the postponement of the consideration of the report until to-morrow.
Mr. WILSON, of Massachusetts. I suggest that it be postponed until five o’clock this afternoon. There are some very important measures that we ought to act upon.
Mr. POWELL. 1 would suggest to the Senator from Massachusetts that this is one of the most important bills.
Mr. WILSON, of Massachusetts. I know it is very important.
Mr. POWELL. I hope it will be postponed until to-morrow. We shall all be busy to-day here, and cannot examine it at all. We should have an opportunity to examine it. There is plenty of other matter to take up to-day.
Mr. WILSON, of Massachusetts. I will simply say that the questions have all been discussed. The Senator from New Jersey, I understand, desires to speak, and I propose to postpone the report till five or six o’clock.
Mr. WALL. I would suggest seven o’clock, after the recess, if we take one.
Mr. WILSON, of Massachusetts. Very well; say seven o’clock.
The PRESIDENT pro tempore. By common consent this report may be laid aside until seven o’clock this evening.
Mr. TRUMBULL. I have not ngreed to suspend the report until seven o’clock.
The PRESIDENT pro tempore. The question then is on the postponement of the report until seven o’clock.
Mr. TRUMBULL. If we can have an understanding that there shall be a vote this evening, I shall have no objection; but if the intention is to suspend it with a view to go on and take up time in regard to it, I shall object to the postponement. If it is understood that a vote is to be taken on this bill to-night, I will make no objection to suspending it until seven o’clock. I do not wish to hurry it to a decision before Senators have an opportunity to express any views they desire to express; and if we can, by a sort of common understanding—I do not wish any formal agreement about it—generally consent that the vote shall be taken some time to-night, I shall make no objection to its going over until seven o’clock. It is now within a day of the last of the session, and that is the reason I make the suggestion. I hope our friends on the other side^vill indicate whether it will be acceptable to them to take a vote some time to night, in case we postpone the report until seven o’clock.
Mr. RICHARDSON. It introduces new matter, and we desire to discuss it.
Mr. TRUMBULL. That nobody objects to.
1438
Mr. TRUMBULL. Then I ask leave to withdraw the call for the yeas and nays by unanimous consent, and let the subject go over until seven o’clock.
The PRESIDENT pro tempore. If no objection be made, the call for the yeas and nays will be withdrawn. The Chair hears no objection, and the call is withdrawn; and the further consideration of this subject is postponed until seven o’clock this evening.
Mr. Trumbull's amendment to the title was not accepted until the vote in both houses approving the Report of the Committee. It was a House bill and Mr. Trumbull had no authority to unilaterally change it. The Report of the Committee proposed to approve the Senate version of the title, and both houses voted for that change on March 3, during the extended March 2, 1863 session.
The House Indemnity Bill remained the Indemnity Bill right up until it was voted on and became the Habeas Corpus Act. As a bill, the House never changed it from the Indemnity Bill. As it is, it is an indemnity act by another name.
In the House on March 2, 1863 the Speaker called up the indemnity bill; in the Senate, the bill to indemnify the President was called up.
It was agreed to take up the bill at 7 p.m. that evening. Its passage was after midnight, in the early morning. When did the filibuster take place? When was the word indemnification (sic - indemnify) removed from the House Bill?