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
I suppose all your trollish tearing down of other persons leaves us with an open ended question: exactly who DO you like? Let me guess. An obnoxious rent seeking yankee along the lines of, say, Thaddeus Stevens or the syphilitic Lincoln.
I'm a Stanton man, myself.
Yeah, secret in 1836. Lincoln spoke in 1846 by which time the treaties were already entered records. That he premised his speech on the wrong half of the treaty indicates either gross ignorance or willful deception on his part. That would make Lincoln either a fool or a liar - I'll let you pick which one.
And here's what the Texas State Library site you linked to says about it
I'm amused at how willing you are to take your history lessons out of the unsourced snippets of a bureaucracy, but what we do know of the 1840's indicates that Texas very much so considered the treaty to be valid and binding. Polk's speech treated it the same, referencing the Rio Grande boundary stipulation. The only people who seemed to have an issue with it at the time were, obviously, the invading Mexicans and those giving them aid and comfort in the minority party of Congress, among them Lincoln.
That would explain many things. Paranoids, kooks, crazies, and eccentrics do tend to gravitate to one another.
Which is exactly Lincoln's point in the speech. Just saying that you own your neighbor's property doesn' t make it so unless your neighbor agrees. Mexico never accepted the treaty.
Not so. The fact that property is disputed by a neighbor in no way deprives ownership to that property. A legitimate property claim may always be settled under legal mechanisms. The treaty was signed by the Mexican head of state, immediately accepted and treated as legal as signified by the withdrawal of his armies, and immediately incorporated into Republic of Texas law by an act of that same year defining the new nation's administrative boundaries. Lincoln got it wrong on all counts.
Mexico never accepted the treaty.
The Mexican head of state, who had assumed dictatorial capacity at the time and thus was an able signatory to the treaty, accepted it as his signature indicates. That he later reneged on his signature and that other regimes in the Mexican government later purported to invalidate it is of no consequence in negating its legality as that very act constituted a violation of the treaty.
Using the same illogic as Lincoln did in his speech, one can just as easily picture Cornwallis going back to England and writing the Americans a letter: "Hey George, remember that little thing at Yorktown where I handed you my sword and said I surrender? Well, funny thing is I thought about it and we decided we aren't gonna honor that any more. So would you mind giving my sword back? Oh, and the king just appointed a new governor to administer you just like the good old days."
"Hey Wellington, remember that little battle at waterloo? Well, yeah, y'all beat us up pretty badly. But you know, I never intended for the battle to go that way and I never intended for you to deprive me of my reign. And that little incident on the Bellerophon? Well, I decided that you pretty much had me surrounded so I was coerced into your exile plan. I decided I don't like it on Saint Helena anymore, so call up Castlereagh and tell him the Paris deal's off. And he can communicate to Metternich that I want my empire back since it was unlawfully deprived of me by the duress you placed me in."
Usually it takes a while for someone to get GOPcapitalist's mouth to foaming and his eyes to bugging and for his name calling to begin. You managed it right off the bat in less than a day. Congratulations amd welcome to the fray. I'm in awe.
Exactly Mexico's position. You can't possibly mean to dispute that the land was Mexico's to begin with. Therefore Texas' is the upstart claim.
The treaty was signed by the Mexican head of state, immediately accepted and treated as legal as signified by the withdrawal of his armies,
Except that Santa Anna was a prisoner of war whose army had just been soundly defeated at the time he signed the document. Pretty much a textbook example of duress. (There's also the suggestion he was stoned on opium at the time, but we'll disregard that)
The treaty was signed by the Mexican head of state, immediately accepted and treated as legal as signified by the withdrawal of his armies,
Except that the part of the treaty agreeing to send Santa Anna home was immediately violated when elements of the Texian army took him and threatened to shoot him. He was a prisoner from May 1836 until February 1837. Are you actually going to claim that he was the head of state of Mexico the entire time? Look at Article 5: "The present return of General Santa Anna to Vera Cruz being indispensable for the purpose of effecting his solemn engagements, the Government of Texas will provide for his immediate embarkation for said port."
In other words, if Santa Anna doesn't get home immediately to make this work, it's not going to. There wasn't a power vacuum while he was gone, and he didn't resume his place as head of state for over a year after his return.
I'm also curious as to how you reconcile the public treaty, which calls for Texas forces to not approach within five leagues of what you're claiming is their own border.
Lousy example. Cornwallis' surrender didn't end the war. It just surrendered the British army. The war ended when the Treaty of Paris was signed.
capitan_refugio:
Bryan Adams High School
Dallas, Texas
Learned "your" own history in "your" own schools.
Lousy example #2. Napoleon surrendered to the Brits fearing for his life if the Prussians or French monarchists got hold of him. He'd already abdicated his throne and was a mere prisoner, unable to negotiate anything. Sorta like Santa Anna.
What do you think?!
Sorta like his namesake, faced with anything like actual opposition, Stand doesn't. Press him to actually put up any anything like the proof for his claims that he insists on anyone opposed to him having, he'll resort to that standard (and tedious) tirade that you can find a thousand times over on FR. Believe me, I've been trying for two months to get him to prove (or at least provide a single bit of evidence for) his crackpot theories about "8-row mule-drawn cottonpicking machines" that would have ended slavery by 1875 if only the DAMNYANKEES hadn't burned down the massa's house.
It's truly amazing what lengths you Lincoln cultists will go to in order to protect the reputation of Saint Abe - even to the point of defending Santa Anna's claim over Texas!
You can't possibly mean to dispute that the land was Mexico's to begin with. Therefore Texas' is the upstart claim.
Being the "upstart" claim has nothing to do with the situation. If Texas declared and won its independence, then Texas necessarily has a series of set and defined borders in which that independence holds true. Looking to the documents and treaties the time, the ONLY specified border to appear with consistency is the Rio Grande. Thus we must conclude it to be the border of Texas. Conversely, if you wish to deny that the Rio Grande is the border you must also necessarily deny that Texas legitimately declared and won its independence. Why? Because having a defined border is what defines a nation's independence from another and if you deny the ONLY stated border that is formally recorded, you deny the concept that Texas had a border, and thus that Texas was a nation, entirely. So which is it, Heyworth? Are you gonna accept what Texas and the world have accepted since 1836? Or are you going to continue your quixotic endeavor to protect the reputation of Saint Abe and deny Texas it's nationhood after 1836 all together?
Except that Santa Anna was a prisoner of war whose army had just been soundly defeated at the time he signed the document. Pretty much a textbook example of duress.
Nice try, but the laws of battle differ from the laws of a contract. By your same measure Napoleon should have still ruled France after those little episodes on the Bellepheron and St. Helena. But he didn't, and you know why? Because his condition was the product of a military capture. The most common example of this sort of thing happened when two warships engaged and one was taken. The losing captain gave his sword over to the winner signifying a surrender, at which point the winner took full possession and ownership of the loser's warship, threw the other captain in the brig for a while, and normally paroled him on shore somewhere. Under the Lincolnian argument, that losing captain could later come back and claim that he gave up his sword, and ship with it, under "duress" then sue to have the ship restored to him - a notion that is flat out absurd, as would be Napoleon filing suit against Britain to have his empire restored.
Except that the part of the treaty agreeing to send Santa Anna home was immediately violated when elements of the Texian army took him and threatened to shoot him.
Wrong. The treaty stipulated only for the "prompt return" of Santa Anna to Mexico without stipulating any specific time, other than it should happen soon. Though he was not immediately allowed to disembark, Santa Anna was released in short order to Washington, and from there back to Mexico. That some desired to detain him longer and even to shoot him (which would have been perfectly justified given his atrocities), the fact remains that it did not happen and Santa Anna got his promised release.
He was a prisoner from May 1836 until February 1837. Are you actually going to claim that he was the head of state of Mexico the entire time?
If I recall correctly, instability in Mexico (the entire country was basically in revolution against Santa Anna - he had been marching his army around putting them down one by one until he got to Texas, where he lost) gave rise to others claiming to be head of state and years of subsequent turmoil. Santa Anna was indisputably the head of state the day he signed the treaty however.
Look at Article 5: "The present return of General Santa Anna to Vera Cruz being indispensable for the purpose of effecting his solemn engagements, the Government of Texas will provide for his immediate embarkation for said port."
...and he was eventually released. It may not have been as "prompt" as one might intend or desire, but given that no specific or binding timeframe was stipulated, it was "prompt" enough.
I'm also curious as to how you reconcile the public treaty, which calls for Texas forces to not approach within five leagues of what you're claiming is their own border.
Very easily. It's a zone of neutrality that limits military engagement. There have been hundreds of treaties throughout the history of the world with similar stipulations against countries militarizing parts of their territory but by no means depriving them of that territory. The most famous and most notorious was the 1918 stipulation against Germany for militarizing the Rheinland, which Hitler violated before WWII.
There is, by the way, some opinion that Napoleon's exile to St. Helena was illegal, a violation of British law since there was no trial or other legal proceeding.
Santa Anna's surrender (at San Jacinto several weeks earlier) didn't secure Texas' independence. It just surrendered the Mexican army. Independence was secured when the Treaty of Velasco was signed. Looks like the analogy fits to me!
"Rally behind the Virginians!"
You notice he said behind the Virginians. In other words, let them do some fighting.
Well, if anyone knows... (((ping)))
How's about it, carton253? Was ol' Bee running down T.J?
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