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
Act of March 26, 1790 (1 Stat 103-104) (Excerpts)That any alien, being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof, on application to any common law court of record, in any one of the States wherein he shall have resided for the term of one year at least, and making proof to the satisfaction of such court, that he is a person of good character, and taking the oath or affirmation prescribed by law, to support the Constitution of the United States, which oath or affirmation such court shall administer; and the clerk of such court shall record such application, and the proceedings thereon; and thereupon such person shall be considered as a citizen of the United States. And the children of such persons so naturalized, dwelling within the United States, being under the age of twenty-one years at the time of such naturalization, shall also be considered as citizens of the United States. And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States: . . .
Can you or anyone else point me to a source giving a total of all the people y'all keep claiming starved to death in the south as a result of Union action? I'm curious as to how many there were. Listening to y'all talk it must have been in the tens of thousands.
Now that's a new one. Perhaps you've summarized in one sentence what Whiskeypapa tried in vain to accomplish in so many years: That the power to wage war implies unlimited power to do anything.
For some, morality is not a statistics game.
How's about this instead, Non. Tell me how many civilian deaths from starvation you deem to be acceptable.
Ummmm, no. Fehrenbacher fails to understand naturalization. He writes, '[y]et something new was also added, for Taney insisted that the power of naturalization extended only to "persons born in a foreign country under a foreign government."' It's not Taney asserting anything - it's the very definition of naturalization - to grant citizenship to aliens [a person born outside the jurisdiction of the nation].
Per the Constitution, the federal Congress can craft laws that grant US citizenship to foreigners wishing to become US citizens. They cannot craft laws that grant US citizenship to the native born. Fehrenbacher might be considered a great historian, but his legal skills are lacking.
Taney, it will be remembered, had already excepted Indians from this dictum. They could be "naturalized," while neither the states nor the federal government could confer citizenship on Negroes "within the meaning of the Constitution."
Numerous court decisions, as well as the Constitution, hold that Native Americans are aliens - foreign citizens*, who by treaty (done between nations) are under the protection of the federal government. Again, foreign citizens can be naturalized.
At the same time, no category of foreigners, including black foreigners, was constitutionally incapable of being naturalized. (To be sure, Congress by statute had limited naturalization to white persons, but, as Taney acknowledged, it had the power to do otherwise.)
Fehrenbacher finally gets something right. Congress can naturalize any foreigner of any race. Give the man a cigar.
What this meant, though Taney never explicitly said so, was that American Negroes, free and slave, were the only people on the face of the earth who (saving a constitutional amendment) were forever ineligible for American citizenship.
Obviously, they are not aliens nor foreigners, so they cannot be naturalized. Until the Constitution was amended Taney et al were absolutely correct.
* 'The sixth and seventh articles stipulate for the punishment of the citizens of either country who may commit offences on or against the citizens of the other. The only inference to be drawn from them is that the United States considered the Cherokees as a nation.'
Justice Marshall, Worcester v. Georgia, 6 Pet. 515, 553 (1832)
So you don't have any, huh?
How's about this instead, Non. Tell me how many civilian deaths from starvation you deem to be acceptable.
Provide evidence that there were any southern civilians who were starved to death as a result of Sherman's actions or the actions of and I might have a better feel for that. Union POWs don't count.
So that you can then move on to questioning the source? Let's play our normal game, but in reverse this time. Tell me how many dead civilians you require, what sources are acceptable, how strong the linkage to Sherman must be, and then I'll start digging. Until then, I'm just inviting you to do your usual routine, which I think LG covered adequately in response to El Capitan's requirements (wrt the arrest warrant) earlier.
You're unable to provide any source at all, and you justify it by claiming I would question it. But let's play your game for a while. I don't think that deliberately starving to death civilians is acceptable. Now show me where this was Union policy and I'll condemn that, too.
Until then, I'm just inviting you to do your usual routine, which I think LG covered adequately in response to El Capitan's requirements (wrt the arrest warrant) earlier.
Yada, yada, yada. Let's cut to the real chase. Hasn't our mutual loathing reached the point yet where there is no point of debating any longer?
Ahh, we're playing your game again. It was not enough that it happened, but now it must be union policy.
It's probably easier to show it as a matter of policy anyway, thanks to your buddy:
"to the petulant and persistent secessionists, why, death is mercy, and the quicker he or she is disposed of the better..""extermination, not of soldiers alone, that is the least of the trouble, but the people" of the South."
Well, isn't that what you are saying? You're blaming Lincoln for it so you must be saying that it was government policy, unless you really want us to believe that the President lit individual fires or selected people to be starved to death.
And what about my second question, anyway?
G - "Now that's a new one. Perhaps you've summarized in one sentence what Whiskeypapa tried in vain to accomplish in so many years: That the power to wage war implies unlimited power to do anything."
There is nothing new about it. Refer to Henry Wheaton, Elements of International Law, 6th Edition, 1855"
"[A] belligerent has, strictly speaking, a right to use every means necessary to accomplish the end for which he has taken up arms.... From the moment one State is at war with another, it has, on general principles, a right to seize on all the enemy's property, of whatsoever kind and whatsoever found, and to appropriate the property thus taken to its own use, or to that of the captors."
Farber adds that "[p]rivate property on land was not normally seized (except for "military contributions levied upon inhabitants of the hostile territory"). But this limitation arose out of "the same original principle of natural law, which authorizes us to use against an enemy such degree of violence, and only such, as may be necessary to secure the object of hostilities." The ultimate question was necessity. "The same general rule, which determines how far it is lawful to destroy the persons of enemies, will serve as a guide in judging how far it is lawful to ravage or lay waste their country. If it be necessary, in order to accomplish the just ends of war, it may be lawfully done, but not otherwise." The lawlessness of seizing enemy property is confirmed by the U.S. Constitution, which empowers Congress to "make Rules concerning Captures on Land and Water."
In short, whatever Lincoln felt was necessary to snuff out the insurrection was proper and justified. "Wanton" violence was improper, but ultimately, the judge of the degree of violence necessary can only be the belligerent. The fact that we have latter-day neo-rebs (or unreconstructed rebels by birth!) on this forum suggests to me that Lincoln and the Armies of the North and West did an inadequate job "to secure the object of the hostilities."
Mutual loathing? I find you quite entertaining, and these little excersizes can, at times, be good learning experiences and quite worthwhile. Like I asked before, are you sure you're not taking this a little too seriously?
Ooo Ooo... let me try:
In short, El Capitan just said that Lincoln did an inadequate job, because our parents and grandparents aren't all dead.
And I thought it was just California Liberals that were insane!
Well, I had hoped that it wasn't all one sided. Ah well...
The US Supreme Court had already ruled prior to the war that the uncompensated taking of enemy property was illegal.
WHAT??????????????????????????????? You advocate the genocide and ethnic cleansing of the South? You desire the mass murder of ever single Southern man, woman and child? You advocate the position that people who fought for the right to govern themselves, and innocents guilty of nothing more than desiring to be free, should have been slaughtered?
And you wonder why we're incensed to this day???? How dare you sir, to assume that my ancestors are deserving of death, simply because they despised sanctimonious people like you.
Oh, here we go again.
Fuehrerprinzip is not only not codified in American law, it's illegal.
And we wouldn't keep bringing up these references to the Third Reich if you didn't sound quite so much like you were interviewing for Reinhard Heydrich's old job.
Hey, capitan! Your armband is showing.......
Well, it does kinda sound like the other side is tuning up the glockenspiels .....
<200-piece military band strikes up "Der Kaiser Jaeger">
Whatever respect I did have for him is gone. I would never wish for his family to be annihilated.
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