Lincoln’s 'Great Crime': The Arrest Warrant for the Chief Justice

The Civil War-era income tax was held constitutional by the SCOTUS, in a case called Springer v. U.S. It was the 1895 income tax which was held unconstitutional.

Anyone else besides me reading this decision get the impression that Springer got screwed? I read it through and I smelled a rat. I had the impression of an otiose and determinedly positivist decision that basically said, because there was a lot of money on the table, "hey, screw you, we keep the money, go cry to your mama."

Anyone else think that the Court played ducks and drakes with "direct tax" and "indirect tax" in circumlocuting a federal authority to tax incomes "within the category of an excise or duty"?

Thanks for the promotion. Nice to see you, too. Now how about speaking to the issue?

Bullshit. Nowhere have you documented that Lincoln ordered the detention of Merrick

You're throwing sand again, non-seq. I never claimed that he ordered Merrick's _house arrest_. I did claim and have fully documented that he authorized that _house arrest_ though.

which is the only action that would connect that with the alleged order to detain Taney.

Unsubstantiated garbage. I need only demonstrate that Lincoln employed and sanctioned the arrest and harassment of judges to prevent them from ruling against him. Lincoln did that with Merrick and he tried to do it with Taney. You simply don't like that it shows your boy Saint Abe wasn't so saintly after all.

Assuming that Lincoln's exercise of emergency warpowers and suspension of (the privilege of the writ of) habeas corpus were constitutional

That's a mighty big assumption for you to make, capitan, especially considering that it runs contrary to the unanimous opinion of the founding fathers and virtually every single case precedent from Federal District all the way up to the Supreme Court.

After Congress retrospectively approved Lincoln's actions, Taney's pique in Ex parte Merryman became a moot point.

Yawn. Even if Congress could retroactively allow it (a disputed issue in itself) the fact remains that they did not do so for another two years after Taney's ruling. During those two years at least four other federal courts in four different jurisdictions ruled the exact same way that Taney did. Lincoln ignored every single one of them and even let his henchmen place one of the judges under house arrest.

[cr] It's called the "chain of command." You, of all people, should know that.

Lincoln had no authority to suspend the writ, and no military officer can be lawfully delegated such authority.

What Lincoln wrote to Scott was, "If at any point on or in the vicinity of the military line which is now used between the city of Philadelphia, via Perryville, Annapolis City, and Annapolis Junction, you find resistance which renders it necessary to suspend the writ of habeas corpus for the public safety, you personally, or through the officer in command at the point where resistance occurs, are authorized to suspend that writ."

If General Scott found resistance which rendered it necessary to suspend the privilege of the writ, General Scott personally, or through the officer in command at the point where resistance occurs, was purportedly authorized to suspend the writ. A conditional authorization to do something is not a directive to do anything. There is no evidence to show that the privilege of the writ was suspended by General Scott or anyone else prior to Taney's opinion being issued.

General Scott did not suspend the writ personally. General Keim ordered the arrest, but he was not the officer in command at Maryland and could not even claim apparent authority to suspend the privilege of the writ. General Cadwalader was unaware of the arrest until after it happened and did not receive any apparent authorization to suspend the privilege of the writ until after Taney's opinion was issued.

[cr] Assuming that Lincoln's exercise of emergency warpowers and suspension of (the privilege of the writ of) habeas corpus were constitutional, then,

Assuming the conclusion, the conclusion is thus proven.

as Farber points out in Lincoln's Constitution (pg 190-191), the court would have utterly lacked jurisdiction to hear a habeas petition

What Farber actually said, page 191, is "Arguably, a valid suspension of the writ does eliminate the courts very power to proceed. This was apparently Congress's veiw in the Habeas Corups Act, which confirmed the suspension." ... "Thus, a plausible argument can be made that during a suspension, the executive not only has a valid legal defense that the habeas court should accept, but he is entitled to ignore any order to appear or to produce or releae the prisoner." Page 192 "Still, allowing the president to ignore an adverse ruling about the validity of the suspension is undoubtedly dangerous." ... "If this jurisdictional analysis is rejected, however, we should concede that Lincoln's action was unlawful. It is fruitless to argue for a general power of executive nullification. Lincoln himself did not even offer this defense, and history speaks strongly against it. Instead, we are thrown back on the necesiry defense that he did in fact offer."

"Arguably... a plausible argument can be made... if this jurisdictional analysis is rejected, however, we should concent that Lincoln's action was unlawful."

[cr] After Congress retrospectively approved Lincoln's actions, Taney's pique in Ex parte Merryman became a moot point.

Congress R-E-F-U-S-E-D to approve Lincoln's action of delegating to the military, the power to suspend the privilege of the writ of habeas corpus. Congress R-E-F-U-S-E-D to retrospectively approve Lincoln's claim to authority to suspend the privilege of the writ of habeas corpus. The Lincoln administration tried to get such approval via Senate Resolution SR-1. It was crushed in the Senate.

When Congress did authorize suspension of the privilege of the writ in 1863, it added many conditions that had to be complied with.

The second section required that lists of all persons, being citizens of states in which the administration of the laws had continued unimpaired in the Federal courts, who were then held or might thereafter be held as prisoners of the United States, under the authority of the President, otherwise than as prisoners of war, should be furnished to the judges of the Circuit and District Courts. The lists transmitted to the judges were to contain the names of all persons, residing within their respective jurisdictions, charged with violation of national law. And it was required, in cases where the grand jury in attendance upon any of these courts should terminate its session without proceeding by indictment or otherwise against any prisoner named in the list, that the judge of the court should forthwith make an order that such prisoner desiring a discharge, should be brought before him or the court to be discharged, on entering into recognizance, if required, to keep the peace and for good behavior, or to appear, as the court might direct, to be further dealt with according to law. Every officer of the United States having custody of such prisoners was required to obey and execute the judge's order, under penalty, for refusal or delay, of fine and imprisonment.

The third section provided, in case lists of persons other than prisoners of war then held in confinement, or thereafter arrested, should not be furnished within twenty days after the passage of the act, or, in cases of subsequent arrest, within twenty days after the time of arrest, that any citizen, after the termination of a session of the grand jury without indictment or presentment, might, by petition alleging the facts and verified by oath, obtain the judge's order of discharge in favor of any person so imprisoned, on the terms and conditions prescribed in the second section.

[cr] Farber writes (pg 162), "Although it is usually said that the Supreme Court never ruled on the legality of Lincoln's habeas suspension, Moyer [v Peabody] was the next best thing to a direct holding on the point, though delivered years after the fact. In the spring and summer of 1861, the area of isurrection might be said to include Maryland. If so, under Moyer, Lincoln clearly would have been empowered to use deadly force to suppress insurrection. It is hard to quarrel with [Oliver Wendell] Holmes's conclusion that the power to detain dangerous individuals goes along with the power to use deadly military force against them."

In Ex Parte Milligan, during a suspension, the Supreme Court wrote, "The first question, therefore-Ought the writ to issue?-must be answered in the affirmative."

Moyer involved a miners strike.

The area of insurrection might be said to include Maine, however absurd that may be, and authorize Lincoln so authorize Scott to suspend the privilege of the writ in Maine. At the time of Merryman's arrest, there was not even any significant civil disturbance. While it might be said that there was some insurrection going on at the time of Merryman's arrest in Maryland, such claim cannot pass the laugh test.

It is hard to apply Holme's argument to Merryman. He was at home, sleeping in his bed, in the middle of the night. There was no legal power to used deadly force against Merryman. Nobody had the legal power to enter his abode and shoot him dead in his bed. No power to detain flowed from any nonexistent power to use deadly force.

The Civil War-era income tax was held constitutional by the SCOTUS, in a case called Springer v. U.S. It was the 1895 income tax which was held unconstitutional.

This is fundamentally in error. The 1895 case of Pollack held that ALL non-proportional direct tax was unconstitutional. It directly addressed "certain decisions of this court under the acts of 1861 and following years, in which it is claimed that this court had heretofore adjudicated that taxes like those under consideration are not direct taxes." [Underline added] Springer was decided on a finding of a part of the income involved not being a direct tax. The court found that the tax was not wholly invalid. In Pollack the Court specifically rejected the claim frequently attributed to Springer.

In Springer, the Supreme Court said:

"The question, what is a direct tax, is one exclusively in American jurisprudence. The text-writers of the country are in entire accord upon the subject."

"Mr. Justice Story says all taxes are usually divided into two classes,- those which are direct and those which are indirect, -- and that 'under the former denomination are included taxes on land or real property, and, under the latter, taxes on consumption.' 1 Const., sect. 950."

-----

"Our conclusions are, that direct taxes, within the meaning of the Constitution, are only capitation taxes, as expressed in that instrument, and taxes on real estate; and that the tax of which the plaintiff in error complains is within the category of an excise or duty. Pomeroy, Const. Law, 177; Pacific Insurance Co. v. Soule, and Scholey v. Rew, supra."

In Pollack, the court said of "Unless the tax were wholly invalid, the defense failed." [Emphasis added] The court proceed in Springer to find, "that the tax of which the plaintiff in error complains is within the category of an excise or duty." Springer depended on a finding of part of the taxation in question being in the form of an excise or duty, i.e., an indirect tax. Springer did not rule that a non-proportional direct tax on income was constitutional.

Pollack addressed a series of cases, and specifically addressed Springer. Pollack clearly states, "If the question had related to an income tax, the reference would have been fatal, as such taxes have been always classed by the law of Great Britain as direct taxes."

LINK

POLLOCK v. FARMERS' LOAN & TRUST CO., 157 U.S. 429 (1895)

[Excerpts]

"The bill further charged that the income-tax provisions of the act were likewise unconstitutional, in that they imposed a tax on incomes not taxable under the constitution"

"If the question had related to an income tax, the reference would have been fatal, as such taxes have been always classed by the law of Great Britain as direct taxes."

From the foregoing it is apparent (1) that the distinction between direct and indirect taxation was well understood by the framers of the constitution and those who adopted it; (2) that, under the state system of taxation, all taxes on real estate or personal property or the rents or income thereof were regarded as direct taxes; (3) that the rules of apportionment and of uniformity were adopted in view of that distinction and those systems; (4) that whether the tax on carriages was direct or indirect was disputed, but the tax was sustained as a tax on the use and an excise; (5) that the original expc tation was that the power of direct taxation would be exercised only in extraordinary exigencies; and down to August 15, 1894, this expectation has been realized. The act of that date was passed in a time of profound peace, and if we assume that no special exigency called for unusual legislation, and that resort to this mode of taxation is to become an ordinary and usual means of supply, that fact furnishes an additional reason for circumspection and care in disposing of the case.

We proceed, then, to examine certain decisions of this court under the acts of 1861 and following years, in which it is claimed that this court had heretofore adjudicated that taxes like those under consideration are not direct taxes, and subject to the rule of apportionment, and that we are bound to accept the rulings thus asserted to have been made as conclusive in the premises. Is this contention well founded as respects the question now under examination? Doubtless the doctrine of stare decisis is a salutary one, and to be adhered to on all proper occasions, but it only arises in respect of decisions directly upon the points in issue. The language of Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 264, 399, may profitably again be quoted: 'It is a maxim not to be disregarded that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of the maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.' So in Carroll v. Carroll's Lessee, 16 How. 275, 286, where a statute of the state of Maryland came under review, Mr. Justice Curtis said: 'If the construction put by the court of a state upon one of its statutes was not a matter in judgment, if it might have been decided either way without affecting any right brought into question, then, according to the principles of the common law, an opinion on such a question is not a decision. To make it so, there must have been an application of the judicial mind to the precise question necessary to be determined to fix the rights of the parties, and decide to whom the property in contestation belongs. And therefore this court, and other courts organized under the common law, has never held itself bound by any part of an opinion, in any case, which was not needful to the ascertainment of the right or title in question between the parties.' Nor is the language of Mr. Chief Justice Taney inapposite, as expressed in The Genesee Chief, 12 How. 443, wherein it was held that the lakes, and navigable waters connecting them, are within the scope of admiralty and maritime jurisdiction as known and understood in the United States when the constitution was adopted, and the preceding case of The Thomas Jefferson, 10 Wheat. 428, was overruled. The chief justice said: 'It was under the influence of these precedents and this usage that the case of The Thomas Jefferson, 10 Wheat. 428, was decided in this court, and the jurisdiction of the courts of admiralty of the United States declared to be limited to the ebb and flow of the tide. The Orleans v. Phoebus, 11 Pet. 175, afterwards followed this case, merely as a point decided. It is the decision in the case of I which mainly embarrasses the court in the present inquiry. We are sensible of the great weight to which it is entitled. But at the same time we are convinced that if we follow it we follow an erroneous decision into which the court fell, when the great importance of the question as it now presents itself could not be foreseen, and the subject did not therefore receive that deliberate consideration which at this time would have been i ven to it by the eminent men who presided here when that case was decided. For the decision was made in 1825, when the commerce on the rivers of the West and on the Lakes was in its infancy, and of little importance, and but little regarded, compared with that of the present day. Moreover, the nature of the questions concerning the extent of the admiralty jurisdiction, which have arisen in this court, were not calculated to call its attention particularly to the one we are now considering.'

Manifestly, as this court is clothed with the power and intrusted with the duty to maintain the fundamental law of the constitution, the discharge of that duty requires it not to extend any decision upon a constitutional question if it is convinced that error in principle might supervene.

Let us examine the cases referred to in the light of these observations.

In Insurance Co. v. Soule, 7 Wall. 433, the validity of a tax which was described as 'upon the business of an insurance company,' was sustained on the ground that it was 'a duty or excise,' and came within the decision in Hylton's Case. The arguments for the insurance company were elaborate, and took a wide range, but the decision rested on narrow ground, and turned on the distinction between an excise duty and a tax strictly so termed, regarding the former a charge for a privilege, or on the transaction of business, without any necessary reference to the amount of property belonging to those on whom the charge might fall, although it might be increased or diminished by the extent to which the privilege was exercised or the business done. This was in accordance with Society v. Coite, 6 Wall. 594, Provident Inst. v. Massachusetts, Id. 611, and Hamilton Co. v. Massachusetts, Id. 632, in which cases there was a difference of opinion on the question whether the tax under consideration was a tax on the property, and not upon the franchise or privilege. And see Van Allen v. Assessors, 3 Wall. 573; Home Ins. Co. v. New York, 134 U.S. 594 , 10 Sup. Ct. 593; Pullman's Palace Car Co. v. Pennsylvania, 141 U.S. 18 , 11 Sup. Ct. 876. In Bank v. Fenno, 8 Wall. 533, a tax was laid on the circulation of state banks or national banks paying out the notes of individuals or state banks, and it was held that it might well be classed under the head of duties, and as falling within the same category as Soule's Case, 7 Wall. 433. It was declared to be of the same nature as excise taxation on freight receipts, bills of lading, and passenger tickets issued by a railroad company. Referring to the discussions in the convention which framed the constitution, Mr. Chief Justice Chase observed that what was said there 'doubtless shows uncertainty as to the true meaning of the term 'direct tax,' but it indicates also an understanding that direct taxes were such as may be levied by capitation and on land and appurtenances, or perhaps by valuation and assessment of personal property upon general lists; for these were the subjects from which the states at that time usually raised their principal supplies.' And in respect of the opinions in Hylton's Case the chief justice said: 'It may further be taken as established upon the testimony of Paterson that the words 'direct taxes,' as used in the constitution, comprehended only capitation taxes and taxes on land, and perhaps taxes on personal property by general valuation and assessment of the various descriptions possessed within the several states.'

In National Bank v. U. S., 101 U.S. 1 , involving the constitutionality of section 3413 of the Revised Statutes, enacting that 'every national banking association, state bank, or banker, or association, shall pay a tax of ten per centum on the amount of notes of any town, city, or municipal corporation, paid out by them,' Bank v. Fenno was cited with approval to the point that congress, having undertaken to provide a currency for the whole country, might, to secure the benefit of it to the people, restrain, by suitable enactments, the i rculation as money of any notes not issued under its authority; and Mr. Chief Justice Waite, speaking for the court, said, 'The tax thus laid is not on the obligation, but on its use in a particular way.'

Scholey v. Rew, 23 Wall. 331, was the case of a succession tax, which the court held to be 'plainly an excise tax or duty' 'upon the devolution of the estate, or the right to become beneficially entitled to the same or the income thereof in possession or expectancy.' It was like the succession tax of a state, held constitutional in Mager v. Grima, 8 How. 490; and the distinction between the power of a state and the power of the United States to regulate the succession of property was not referred to, and does not appear to have been in the mind of the court. The opinion stated that the act of parliament from which the particular provision under consideration was borrowed had received substantially the same construction, and cases under that act hold that a succession duty is not a tax upon income or upon property, but on the actual benefit derived by the individual, determined as prescribed. In re Elwes, 3 Hurl. & N. 719; Attorney General v. Earl of Sefton, 2 Hurl. & C. 362, 3 Hurl. & C. 1023, and 11 H. L. Cas. 257.

In I 100 U.S. 595 , the validity of a tax collected of a corporation upon the interest paid by it upon its bonds was held to be 'essentially an excise on the business of the class of corporations mentioned in the statute.' And Mr. Justice Miller, in delivering the opinion, said: 'As the sum involved in this suit is small, and the law under which the tax in question was collected has long since been repealed, the case is of little consequence as regards any principle involved in it as a rule of future action.'

All these cases are distinguishable from that in hand, and this brings us to consider that of Springer v. U. S., 102 U.S. 586 , chiefly relied on and urged upon us as decisive.

That was an action of ejectment, brought on a tax deed issued to the United States on sale of defendant's real estate for income taxes. The defendant contended that the deed was void, because the tax was a direct tax, not levied in accordance with the constitution. Unless the tax were wholly invalid, the defense failed.

The statement of the case in the report shows that Springer returned a certain amount as his net income for the particular year, but does not give the details of what his income, gains, and profits consisted in.

The original record discloses that the income was not derived in any degree from real estate, but was in part professional as attorney at law, and the rest interest on United States bonds. It would seem probable that the court did not feel called upon to advert to the distinction between the latter and the former source of income, as the validity of the tax as to either would sustain the action.

The opinion thus concludes: 'Our conclusions are that direct taxes, within the meaning of the constitution, are only capitation taxes, as expressed in that instrument, and taxes on real estate; and that the tax of which the plaintiff in error complains is within the category of an excise or duty.'

While this language is broad enough to cover the interest as well as the professional earnings, the case would have been more significant as a precedent if the distinction had been brought out in the report and commented on in arriving at judgment, for a tax on professional receipts might be treated as an excise or duty, and therefore indirect, when a tax on the income of personalty might be held to be direct.

Be this as it may, it is conceded in all these cases, from that of Hylton to that of Springer, that taxes on land are direct taxes, and in none of them is it determined that taxes on rents or income derived from land are not taxes on land.

We admit that it may not unreasonably be said that logically, if taxes on the rents, issues, and profits of real estate are equivalent to taxes on real estate, and are therefore direct taxes, taxes on the income of personal property as such are equivalent to taxes on such property, and therefore direct taxes. But we are considering the rule stare decisis, and we must decline to hold ourselves bound to extend the scope of decisions,- none of which discussed the question whether a tax on the income from personalty is equivalent to a tax on that personalty, but all of which held real estate liable to direct taxation only, -- so as to sustain a tax on the income of realty on the ground of being an excise or duty.

As no capitation or other direct tax was to be laid otherwise than in proportion to the population, some other direct tax than a capitation tax (and, it might well enough be argued, some other tax of the same kind as a capitation tax) must be referred to, and it has always been considered that a tax upon real estate eo nomine, or upon its owners in respect thereof, is a direct tax, within the meaning of the constitution. But is there any distinction between the real estate itself or its owners in respect of it and the rents or income of the real estate coming to the owners as the natural and ordinary incident of their ownership?

If the constitution had provided that congress should not levy any tax upon the real estate of any citizen of any state, could it be contended that congress could put an annual tax for five or any other number of years upon the rent or income of the real estate? And if, as the constitution now reads, no unapportioned tax can be imposed upon real estate, can congress without apportionment nevertheless impose taxes upon such real estate under the guise of an annual tax upon its rents or income?

As, according to the feudal law, the whole beneficial interest in the land consisted in the right to take the rents and profits, the general rule has always been, in the language of Coke, that 'if a man seised of land in fee by his deed granteth to another the profits of those lands, to have and to hold to him and his heirs, and maketh livery secundum formam chartae, the whole land itself doth pass. For what is the land but the profits thereof?' Co. Litt. 45. And that a devise of the rents and profits or of the income of lands passes the land itself both at law and in equity. 1 Jarm. Wills (5th Ed.) *798, and cases cited.

The requirement of the constitution is that no direct tax shall be laid otherwise than by apportionment. The prohibition is not against direct taxes on land, from which the implication is sought to be drawn that indirect taxes on land would be constitutional, but it is against all direct taxes; and it is admitted that a tax on real estate is a direct tax. Unless, therefore, a tax upon rents or income issuing out of lands is intrinsically so different from a tax on the land itself that it belongs to a wholly different class of taxes, such taxes must be regarded as falling within the same category as a tax on real estate eo nomine. The name of the tax is unimportant. The real question is, is there any basis upon which to rest the contention that real estate belongs to one of the two great classes of taxes, and the rent or income which is the incident of its ownership belongs to the other? We are unable to perceive any ground for the alleged distinction. An annual tax upon the annual value or annual user of real estate appears to us the same in substance as an annual tax on the real estate, which would be paid out of the rent or income. This law taxes the income received from land and the growth or produce of the land. Mr. Justice Paterson observed in Hylton's Case, 'land, independently of its produce, is of no value,' and certainly had no thought that direct taxes were confined to unproductive land.

If it be true that by varying the form the substance may be changed, it is not easy to see that anything would remain of the limitations of the constitution, or of the rule of taxation and representation, so carefully recognized and guarded in favor of the citizens of each state. But constitutional provisions cannot be thus evaded. It is the substance, and not the form, which controls, as has indeed been established by repeated decisions of this court. Thus in Brown v. Maryland, 12 Wheat. 419, 444, it was held that the tax on the occupation of an importer was the same as a tax on imports, and therefore void. And Chief Justice Marshall said: 'It is impossible to conceal from ourselves that this is varying the form without varying the substance. It is treating a prohibition which is general as if it were confined to a particular mode of doing the forbidden thing. All must perceive that a tax on the sale of an article imported only for sale is a tax on the article itself.'

In Weston v. City Council, 2 Pet. 449, it was held that a tax on the income of United States securities was a tax on the securities themselves, and equally inadmissible. The ordinance of the city of Charleston involved in that case was exceedingly obscure; but the opinions of Mr. Justice Thompson and Mr. Justice Johnson, who dissented, make it clear that the levy was upon the interest of the bonds and not upon the bonds, and they held that it was an income tax, and as such sustainable; but the majority of the court, Chief Justice Marshall delivering the opinion, overruled that contention.

So in Dobbins v. Commissioners, 16 Pet. 435, it was decided that the income from an official position could not be taxed if the office itself was exempt.

In Almy v. California, 24 How. 169, it was held that a duty on a bill of lading was the same thing as a duty on the article which it represented; in Railroad Co v. Jackson, 7 Wall. 262, that a tax upon the interest payable on bonds was a tax not upon the debtor, but upon the security; and in Cook v. Pennsylvania, 97 U.S. 566 , that a tax upon the amount of sales of goods by an auctioneer was a tax upon the goods sold.

In Philadelphia & S. S. S. Co. v. Pennsylvania, 122 U.S. 326 , 7 Sup. Ct. 1118, and Leloup v. Port of Mobile, 127 U.S. 640 , 8 Sup. Ct. 1380, it was held that a tax on income received from interstate commerce was a tax upon the commerce itself, and therefore unauthorized. And so, although it is thoroughly settled that where by way of duties laid on the transportation of the subjects of interstate commerce, and on the receipts derived therefrom, or on the occupation or business of carrying it on, a tax is levied by a state on interstate commerce, such taxation amounts to a regulation of such commerce, and cannot be sustained, yet the property in a state belonging to a corporation, whether foreign or domestic, engaged in foreign or domestic commerce, may be taxed; and when the tax is substantially a mere tax on property, and not one imposed on the privilege of doing interstate commerce, the exaction may be sustained. 'The substance, and not the shadow, determines the validity of the exercise of the power.' Telegraph Co. v. Adams, 155 U.S. 688 , 15 Sup. Ct. 268.

Nothing can be clearer than that what the constitution intended to guard against was the exercise by the general government of the power of directly taxing persons and property within any state through a majority made up from the other states. It is true that the effect of requiring direct taxes to be apportioned among the states in proportion to their population is necessarily that the amount of taxes on the individual taxpayer in a state having the taxable subject-matter to a larger extent in proportion to its population than another state has, would be less than in such other state; but this inequality must be held to have been contemplated, and was manifestly designed to operate to restrain the exercise of the power of direct taxation to extraordinary emergencies, and to prevent an attack upon accumulated property by mere force of numbers.

It is not doubted that property owners ought to contribute in just measure to the expenses of the government. As to the states and their municipalities, this is reached largely through the imposition of dirc t taxes. As to the federal government, it is attained in part through excises and indirect taxes upon luxuries and consumption generally, to which direct taxation may be added to the extent the rule of apportionment allows. And through one mode or the other the entire wealth of the country, real and personal, may be made, as it should be, to contribute to the common defense and general welfare.

But the acceptance of the rule of apportionment was one of the compromises which made the adoption of the constitution possible, and secured the creation of that dual form of government, so elastic and so strong, which has thus far survived in unabated vigor. If, by calling a tax indirect when it is essentially direct, the rule of protection could be frittered away, one of the great landmarks defining the boundary between the nation and the states of which it is composed, would have disappeared, and with it one of the bulwarks of private rights and private property.

We are of opinion that the law in question, so far as it levies a tax on the rents or income of real estate, is in violation of the constitution, and is invalid.

Thanks for the promotion. Nice to see you, too. Now how about speaking to the issue?

First of all let's clarify what this boy is supposed to call you? Massa? Boss? Suh? Asshole?

[nc quoting Cuomo] "Of course what Lincoln was saying, as touching as it sounds, might be translated into something like this: If the government thinks a war is a good idea but a citizen thinks it is an abomination and a fraud, he is not free to say so because he might convince someone."

[cr] What Lincoln was really saying was, "If you attempt to illegally subvert the war effort, you might end up in the graybar hotel."

What Lincoln was saying was that if you lawfully and constitutionally disagreed with Lincoln, he would forcibly deprive you of your constitutional right to free speech. If you were too persuasive, he would subject you to one of his unconstitutional military tribunals and then unconstitutionally deport you or unconstitutionally stick you in a bastille for political prisoners.

Cuomo had it quite correct: "There is no question that Lincoln took it upon himself to authorize suspending the writ in contradiction of the Constitution as interpreted by the Supreme Court. ... I still wish that the great Lincoln had stood by the Constitution despite the strong temptation not to. Our government has ample authority under the Constitution to take those steps that are genuinely necessary for our security. At the same time, our system demands that government act only on the basis of measures that have been the subject of open and thoughtful debate in Congress and among the American people and that invasions of the liberty or equal dignity of any individual are subject to review by courts that are open to those affected and independent of the government that is curtailing freedom. ... Lincoln's willingness to put himself above the law was particularly unfortunate because of the strong pledge to constitutional fidelity he had made and affirmed in his earlier days. In his Lyceum speech of 1838 he went so far as to say that compliance with the letter and the spirit of the law should be treated as the 'political religion' of the nation."

[cr] "If you attempt to illegally subvert the war effort, you might end up in the graybar hotel."

Missed that word the first time around. Dissent is not illegal. It seems axiomatic that those empowered to interpret the law (judges) are not engaging in anything illegal in so doing. If those in question here were doing something illegal there would be no need to suspend the writ. Legality is determined by the law, not the president, and certainly not cabinet officials with little silver bells.

Actually, I'm about 1/2 way between LAX and Santa Barbara - in Tom McClintock country. Your formatting seems fine.

While I applaud the effort of those who made an attempt to put a conservative in office here, I'd like to (and will continue to) think of it all as 'far from home.' We were recently faced with a choice between a squishy liberal with an (R) by his name and an obvious conservative a few years back... the party leadership pushed for 'someone who can win' and, naturally, we ended up sending (D)Harkin back to the US Senate.

Lincoln ignored every single one of them and even let his henchmen place one of the judges under house arrest.

That's clearly disrespectful and abusive language -- I insist you refer to them by the politically more sensitive and nonabusive "persons of hench". -- LOL!

[cr] "If you attempt to illegally subvert the war effort, you might end up in the graybar hotel."

[Gianni] Missed that word the first time around. Dissent is not illegal.

It's interesting that our friend capitan_refugio sets the trigger so high, when Lincoln himself seems to have set it a lot lower: sitting on a court case Lincoln didn't want decided, for instance, or simply asking a lot of awkward questions (as Lincoln had himself done in his 1848 "Spot Resolution" speech in the House of Representatives) like Congressman Vallandigham did -- Rep. Vallandigham being otherwise a Union man, if not necessarily a vote for abolition.

It didn't take much, as you emphasize, in the way of illegality to get you put in a federal prison -- just a few tart editorials, by the testimony adduced here.

Courtesy ping.

Pollack addressed a series of cases, and specifically addressed Springer. Pollack clearly states, "If the question had related to an income tax, the reference would have been fatal, as such taxes have been always classed by the law of Great Britain as direct taxes."

Being a simple sort of fellow, I boil that statement down as follows, regarding Springer:

The income tax was a direct tax, and the Court knew it, but pretended that it wasn't, by the expedient of disingenuous head-scratching over precedents and the ratification debates and copies of The Federalist, and then by quoting -- guess who -- Alexander Hamilton pleading another tax case, slow-walked the income tax out of the category of direct taxation and into the category of indirect taxation, with its eyes wide shut to abundant contemporary English jurisprudence on the subject of direct taxes, in order to screw poor Springer out of his property, lest an inconvenient precendent be set and an embarrassing amount of money become immediately refundable to taxpayers.

IOW, they lied like a rug.

Then they went back and reversed in Pollack, after all the claimants were dead.

Does that about sum it up?

Dissent is not illegal, but inducing soldiers to desert or draftees to evade conscription is illegal. I believe that is what Lincoln meant by his quote.

See #155 in reply to Gianni.

Quoting recently from Cuomo and Lerone Jr. That's quite a left-wing book club you belong to.

I shutter to think what would have happened if the Consigliere had been President in 1861. "I imagine he would have said of the Rebels, "Give them a little land, and few slaves, and maybe they'll play nice. Whadda you think?"

"Congress R-E-F-U-S-E-D to approve Lincoln's action of delegating to the military, the power to suspend the privilege of the writ of habeas corpus. Congress R-E-F-U-S-E-D to retrospectively approve Lincoln's claim to authority to suspend the privilege of the writ of habeas corpus. The Lincoln administration tried to get such approval via Senate Resolution SR-1. It was crushed in the Senate."

You misunderstand the Habeas Corpus Act of 1863, and intentionally misrepresent it. Historian Phillip Shaw Paludan, writing about the 1863 Act:

"Conscription was clearly on their minds as lawmakers wrote the Habeas Corpus law (1862-1863). The Militia Act of 17 July 1862 had been followed quickly by an executive proclamation that suspended the writ to allow arrest of anyone running from or interferring with the draft provisions of the law. Conservative state judges had been accepting writs to protect men from such suspension and from confiscation of propoerty as the Union Army moved south. These suits often charged federal officials with violation of state trespass, false arrest, or libel laws.

"The Habeas Corpus Act gave immunity to federal officials acting under presidential suspension and allowed cases to be removed from state to federal courts when defendent soldiers faced state accusations. It was an important provision for the future. At the conclusion of the war, thousands of suits would be launched in the defeated Southern states suing Union soldiers and officials for allegedly unlawful seizure, destrcution of propoerty, or deprivation of liberty. The law would protect victorious Unionists form rebel vengeance."

What Paludan indicates here, and as I stated in the now-deleted 4000+ post thread, was that it took Congress some time to reach the final legislation. Your interpretation of the terms of the Habeas Corpus Act are wrong.

Section 1 of the Act empowered the President to suspend (the privilege of the the writ of) habeas corpus for so long as "said rebellion continue." It orders judges and courts to suspend habeas proceedings for any person held under the Presidnet's authority, "whenever and whereever.". That is a key point you ignore - those already held fall under the provisions.

Sections 2 and 3 amplify Section 1. Those who have been detained who are not prisoners of war ("state or political prisoners") can still be detained. The Sec. of State and Sec. of War were to provide lists of names of those detained. If they had not already been indicted, they could be released upon oath and/or bail, and failure to take the oath or post the bail meant that they continue to reside in custody. The effect was to release the minor offenders.

Section 4 again refers to the entire ACW, not just "from this time forward." It begins with the clause, "That any order of the President, or under his authority, made at anytime during the existence of the present rebellion ..." The thrust of the legislation was to recognize and ratify the President's actions until congress could make its political decision.

"Moyer involved a miners strike."

In part, that is true. More important, however, is the principle behind the majority decision. The background was that during the miner's strike, the executive of the state suspended habeas in the county where the mine was located because of the miners' insurrection and the inability of the local authorities to control the situation. The governor called out the National Guard to enforce the law. The miners' union boss was arrested and held without trial, until the situation was resolved. The union boss claimed he was held without due process.

Oliver Wendell Holmes, Jr., wrote the majority opinion. Holmes was a Union Civil War vet, who had been several times wounded in battle. Holmes wrote, "That means that [the executive] shall make the ordinary use of the soldiers to that end; that he may kill persons who resist, and, of course, that he may use the milder measure of seizing the bodies of those whom he considers to stand in the way of restoring peace." This constitutional principle, as applied to ACW, would have allowed Lincoln similar latitude. Wherever insurrection or rebellion existed, including those areas of the country not purporting to have seceded, such as Maryland or Missouri, the President was empowered to take those actions he thought necessary to protect the public safety and to preserve constitutional law and republican government.

"Lincoln had no authority to suspend the writ."

Lincoln's authority to do so were part of his constitutional duties. As Jaffa observed, ""Lincoln has already shown that in construing any one provision of the Constitution in its relationship with other provisions with which it may appear to be in conflict, the dominating purpose of the constitution, as distinct from its instrumental purposes, must provide the guide to its interpretation. There can hardly be any question but that the provision for suspending the writ of habeas corpus is placed in the Constitution to enable the government to provide for the public safety in the case of rebellion. Where in the constitution it is placed is wholly subordinate to why it is there at all. Lincoln's suspension of the writ is therefore lawful. Q.E.D."

"In Ex Parte Milligan, during a suspension, the Supreme Court wrote, "The first question, therefore-Ought the writ to issue?-must be answered in the affirmative."

Of course, in Ex parte Milligan, the Court upheld the Habeas Corpus Act, but limited its application to the "locality of actual war."