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

Lew Rockwell.com ^ | August 19, 2004 | Thomas J. DiLorenzo

[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

[nolu chan]

Of course, in Milligan, the Court found that the Lincoln administration had violated the requirements of the Habeas Corpus Act in all of its particulars, and found that where the civilian courts were operating, all of the Lincoln administration military tribunals were unconstitutional.

Of course, in Milligan, the Court said:

Suspension of the privilege of the writ of habeas corpus does not suspend the writ itself. The writ issues as a matter of course; and, on its return, the court decides whether the applicant is denied the right of proceeding any further.

[capitan_refugio]

"Of course, in Milligan, the Court found that the Lincoln administration had violated the requirements of the Habeas Corpus Act in all of its particulars ..."

Preposterous! As Farber notes (pg 165), "Justice Davis touched upon some of those legitimate war powers, noen of which he found applicable [to Milligan's case]. First, men "wicked enough to counsel their fellow citizens to resist the measures" of the government in wartime may be arrested and detained without habeas corpus. But this power of detention did not include the power to try and punish the detainees. Second, if in "foreign invasion or civil war, the courts are actually closed, and it is impossible to adminster criminal justice according to the law," martial law applies "on the theater of active military operations, where war really prevails." But martial law cannot exist "where the courts are open, and in the proper and unobstructed exercise of their jurisdiction." Martial law is "also confined to the locality of actual war."

In Milligan the Court ruled martial law did not apply in Indiana. They left open the question as to where and when it did apply. Notably, the Court also upheld the terms and validity of the Habeas Corpus Act.

[GOPcapitalist]

Dissent is not illegal, but inducing soldiers to desert or draftees to evade conscription is illegal.

What about soldiers who are underage minors and are legally unqualified to enlist at their present age? As Murphy's case shows, Lincoln was pretty darn enthusiastic of forcing kids of that situation into service!

[GOPcapitalist]

Preposterous! As Farber notes (pg 165)

Since when did Farber become the grand supreme arbiter of all things constitutional in war time?

[GOPcapitalist]

As Jaffa observed

Jaffa is a literature professor with absolutely no legal training or qualifications. Citing him as an authority on the law is thus fallacious.

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.

Garbage. Jaffa appears not to even understand why it is in the constitution (it's there as a protection of the Great Writ by imposing strict and specific limitations upon its suspension, not the other way around - see Bollman for the court's oldest and strongest precedent on this issue), thus he cannot make a claim upon whether or not other clauses are subordinate to it.

[Gianni]

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.

It seems you're talking about a different set of cases then? Lincoln cannot use an egregious example which isn't applicable for justification no more than Bush can detain those who run red lights at Guantanimo Bay, right?

[GOPcapitalist]

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.

NC is correct. Congress killed Lincoln's attempts for a habeas corpus law for two whole years. A Federal court made note of this fact in September 1862 when yet another habeas corpus case was decided against Lincoln:

When the counsel for the petitioner, some days since, suggested that he desired to apply for a writ of habeas corpus to bring up the body of the petitioner, I had the impression that congress, at its last session, had passed an act authorizing the president to suspend the writ of habeas corpus, and that he had sanctioned the order of the war department under such authority. If this had been the case, I should have held it to be my duty to refuse a writ, in a case within the scope of the law of congress, and the order of the president; but having, since that suggestion was made, received the acts of the last session, I find that I was mistaken, and that congress has passed no law on this subject. The question of the power of the president to suspend the privilege of habeas corpus, without the authority of congress, is therefore presented in this case, if the order of the war department is deemed to be the order of the president, and to extend to such a case as that now under consideration. (Ex Parte Benedict, 1862)

[GOPcapitalist]

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

Interesting choice of words from a guy who considers Farber the ultimate arbiter of all matters constitutional in wartime and who recently posted several passages from a left wing Southern Poverty Law Center-funded slavery reparationist to malign Chief Justice Taney.

[nolu chan]

[cr] In Milligan the Court ruled martial law did not apply in Indiana. They left open the question as to where and when it did apply.

Ex Parte Milligan:

Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. Because, during the late Rebellion it could have been enforced in Virginia, where the national authority was overturned and the courts driven out, it does not follow that it should obtain in Indiana, where that authority was never disputed, and justice was always administered. And so in the case of a foreign invasion, martial rule may become a necessity in one state, when, in another, it would be "mere lawless violence."

[nolu chan]

[cr] Preposterous! As Farber notes (pg 165),....

As usual, your reply is irrelevant. Farber is only discussing the Constitutional question, not the statutory one.

Once again, you completely misunderstand and misstate Milligan. In Milligan, the Supreme Court held 5-4 that the Congress did not have the power to authorize the military commission and it was therefore unconstitutional. However, the Court held 9-zip that the provisions of the Act of Congress of March 3, 1863 had been violated. There is no dissenting opinion. Chief Justice Chase wrote the concurring opinion which held, with the majority, that the provisions of the Act had been violated, stated that Congress had not authorized said military commission, but argued that Congress had the power to do so.

Unanimously, the Court found that the Lincoln administration had unlawfully violated the provisions of the Act of Congress of March 3, 1863. Unanimously, the Court held that the writ should have issued and that Milligan was entitled to the discharge prayed for.

Again, unanimously, 9-zip, all nine justices found that the Lincoln administration had unlawful violated the provisions of the Act of Congress of March 3, 1863.

From the concurring opinion of four justices.

The CHIEF JUSTICE delivered the following opinion.

Four members of the court, concurring with their brethren in the order heretofore made in this cause, but unable to concur in some important particulars with the opinion which has just been read, think it their duty to make a separate statement of their views of the whole case.

We do not doubt that the Circuit Court for the District of Indiana had jurisdiction of the petition of Milligan for the writ of habeas corpus.

Whether this court has jurisdiction upon the certificate of division admits of more question. The construction of the act authorizing such certificates, which has hitherto prevailed here, denies jurisdiction in cases where the certificate brings up the whole cause before the court. But none of the adjudicated cases are exactly in point, and we are willing to resolve whatever doubt may exist in favor of the earliest possible answers to questions involving life and liberty. We agree, therefore, that this court may properly answer questions certified in such a case as that before us.

The crimes with which Milligan was charged were of the gravest character, and the petition and exhibits in the record, which must here be taken as true, admit his guilt. But whatever his desert of punishment may be, it is more important to the country and to every citizen that he should not be punished under an illegal sentence, sanctioned by this court of last resort, than that he should be punished at all. The laws which protect the liberties of the whole people must not be violated or set aside in order to inflict, even upon the guilty, unauthorized though merited justice.

The trial and sentence of Milligan were by military commission convened in Indiana during the fall of 1864. The action of the commission had been under consideration by President Lincoln for some time, when he himself became the victim of an abhorred conspiracy. It was approved by his successor in May, 1865, and the sentence was ordered to be carried into execution. The proceedings, therefore, had the fullest sanction of the executive department of the government. Page 133

This sanction requires the most respectful and the most careful consideration of this court. The sentence which it supports must not be set aside except upon the clearest conviction that it cannot be reconciled with the Constitution and the constitutional legislation of Congress.

We must inquire, then, what constitutional or statutory provisions have relation to this military proceeding.

The act of Congress of March 3d 1863, comprises all the legislation which seems to require consideration in this connection. The constitutionality of this act has not been questioned and is not doubted.

The first section authorized the suspension, during the Rebellion, of the writ of habeas corpus throughout the United States by the President. The two next sections limited this authority in important respects.

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.

It was made the duty of the District Attorney of the United States to attend examinations on petitions for discharge.

It was under this act that Milligan petitioned the Circuit Court for the District of Indiana for discharge from imprisonment.

The holding of the Circuit and District Courts of the United States in Indiana had been uninterrupted. The administration of the laws in the Federal courts had remained unimpaired. Milligan was imprisoned under the authority of the President, and was not a prisoner of war. No list of prisoners had been furnished to the judges, either of the District or Circuit Courts, as required by the law. A grand jury had attended the Circuit Courts of the Indiana district, while Milligan was there imprisoned, and had closed its session without finding any indictment or presentment or otherwise proceeding against the prisoner.

His case was thus brought within the precise letter and intent of the act of Congress, unless it can be said that Milligan was not imprisoned by authority of the President; and nothing of this sort was claimed in argument on the part of the government.

It is clear upon this statement that the Circuit Court was bound to hear Milligan's petition for the writ of habeas corpus, called in the act an order to bring the prisoner before the judge or the court, and to issue the writ, or, in the language of the act, to make the order.

The first question, therefore - Ought the writ to issue? - must be answered in the affirmative. Page 135

And it is equally clear that he was entitled to the discharge prayed for.

* * *

But the opinion which has just been read goes further; and as we understand it, asserts not only that the military commission held in Indiana was not authorized by Congress, but that it was not in the power of Congress to authorize it; from which it may be thought to follow, that Congress has no power to indemnify the officers who composed the commission against liability in civil courts for acting as members of it.

We cannot agree to this.

The majority opinion also held that the Lincoln administration violated the provisions of the Act of Congress of March 3, 1863 and only then proceeded to address the Constitutional issue.

From the majority opinion written by Justice Davis:

The prayer of the petition was, that under the act of Congress, approved March 3d 1863, entitled, "An act relating to habeas corpus and regulating judicial proceedings in certain cases," he may be brought before the court, and either turned over to the proper civil tribunal to be proceeded against according to the law of the land or discharged from custody altogether.

* * *

The second and third sections of the law are explicit on these points. The language used is plain and direct, and the meaning of the Congress cannot be mistaken. The public safety demanded, if the President thought proper to arrest a suspected person, that he should not be required to give the cause of his detention on return to a writ of habeas corpus. But it was not contemplated that such person should be detained in custody beyond a certain fixed period, unless certain judicial proceedings, known to the common law, were commenced against him. The Secretaries of State and War were directed to furnish to the judges of the courts of the United States, a list of the names of all parties, not prisoners of war, resident in their respective jurisdictions, who then were or afterwards should be held in custody by the authority of the President, and who were citizens of states in which the administration of the laws in the Federal tribunals was unimpaired. After the list was furnished, if a grand jury of the district convened and adjourned, and did not indict or present one of the persons thus named, he was entitled to his discharge; and it was the duty of the judge of the court to order him brought before him to be discharged, if he desired it. The refusal or omission to furnish the list could not operate to the injury of any one who was not indicted or presented by the grand jury; for, if twenty days had elapsed from the time of his arrest and the termination of the session of the grand jury, he was equally entitled to his discharge as if the list were furnished; and any credible person, on petition verified by affidavit, could obtain the judge's order for that purpose.

Milligan, in his application to be released from imprisonment, averred the existence of every fact necessary under the terms of this law to give the Circuit Court of Indiana jurisdiction. If he was detained in custody by the order of the President, otherwise than as a prisoner of war; if he was a citizen of Indiana and had never been in the military or naval service, and the grand jury of the district had met, after he had been arrested, for a period of twenty days, and adjourned without taking any proceedings against him, then the court had the right to entertain his petition and determine the lawfulness of his imprisonment.

* * *

Why was he not delivered to the Circuit Court of Indiana to be proceeded against according to law? No reason of necessity could be urged against it; because Congress had declared penalties against the offences charged, provided for their punishment, and directed that court to hear and determine them. And soon after this military tribunal was ended, the Circuit Court met, peacefully transacted its business, and adjourned. It needed no bayonets to protect it, and required no military aid to execute its judgments. It was held in a state, eminently distinguished for patriotism, by judges commissioned during the Rebellion, who were provided with juries, upright, intelligent, and selected by a marshal appointed by the President. The government had no right to conclude that Milligan, if guilty, would not receive in that court merited punishment; for its records disclose that it was constantly engaged in the trial of similar offences, and was never interrupted in its administration of criminal justice. If it was dangerous, in the distracted condition of affairs, to leave Milligan unrestrained of his liberty, because he "conspired against the government, afforded aid and comfort to rebels, and incited the people to insurrection," the law said arrest him, confine him closely, render him powerless to do further mischief; and then present his case to the grand jury of the district, with proofs of his guilt, and, if indicted, try him according to the course of the common law. If this had been done, the Constitution would have been vindicated, the law of 1863 enforced, and the securities for personal liberty preserved and defended.

Another guarantee of freedom was broken when Milligan was denied a trial by jury.

[Here the majority proceeded to find the trial my military tribunal was also unconstitutional, as well as unlawful.]

[nolu chan]

JUSTICES v. MURRAY, 9 Wall. 274 (1869)

Our conclusion is, that no much of the 5th section of the act of Congress, March 3d, 1863, entitled 'An act relating to habeas corpus, and regulating proceedings in certain cases,' as provides for the removal of a judgment in a State court, and in which the cause was tried by a jury, to the Circuit Court of the United States for a retrial on the facts and law, is not in pursuance of the Constitution, and is void.

[nolu chan]

[GOPcap] Interesting choice of words from a guy who considers Farber the ultimate arbiter of all matters constitutional in wartime....

Also free of any substance. Farber is full of metaphysical non-substance. For Farber, sovereignty "seems to function as an al­most metaphysical concept -- some secret essence of legal potency that cannot be detected directly, but only as a kind of normative aura." In Farberitaville, you can only find sovereignty by having Ms. Cleo channel it.

FARBER'S WISDOM

In the American context, sovereignty often seems to function as an al­most metaphysical concept -- some secret essence of legal potency that cannot be detected directly, but only as a kind of normative aura. One hotly debated question, for example, is whether the populations of the various states existed (or still exist) as separate entities acting together as a con­glomeration, or rather as a single entity acting through the agency of multi­ple subgroups. This is reminiscent of medieval disputes about the nature of the Trinity. It is not in any real sense a question of fact or even one of law.

This is not to say that the concept of sovereignty is completely vacuous. In international law, it makes perfect sense to say that China is a sovereign nation and that California is not. In the law of federal jurisdiction, it is clear that Wyoming has sovereign immunity from suit in federal court under the Eleventh Amendment and that New York City does not. Thus, American states are "sovereign" governments for some purposes but not for others. The federal government is clearly sovereign in some respects, most obvi­ously in foreign relations, but it lacks unlimited power within its own terri­tory, since states do have some independent powers and rights of their own. As we will see, when we turn to the historical record and ask what people in 1776 or 1787 thought about sovereignty, the answers are equally ambiguous. In the end, there is no clear historical answer to the precise lo­cus of American sovereignty.

SOURCE: Lincoln's Constitution, Daniel Farber, 2003, p. 29

----------------------------

Ideas about sovereignty may also color the understanding of particular constitutional issues. Thus, while it may not be useful to ask who really had sovereignty in 1776 or 1789, it is potentially useful to ask who was believed to have sovereignty then.

SOURCE: Lincoln's Constitution, Daniel Farber, 2003, p. 30

------------------------------------------

The differences between these theories are somewhat subtle and can easily be misunderstood, in part because of the confusing vocabulary of the debate. One source of confusion involves the term state. The claim that the United States is a confederacy of sovereign states sounds as if the Con­stitution is an agreement between state governments, just as an interna­tional treaty is between national governments. But this was not Calhoun's claim (or Justice Thomas's, for that matter). The Framers of the Constitu­tion went to some trouble to insure that the Constitution would derive its authority directly from the people, rather than from the state governments. This was the reason for requiring it to be ratified in state conventions rather than by state legislatures. So in this setting, the term state refers to the state's populace, not to its government. It is easy to confuse this point, and states' rights advocates have been known to take advantage of the confusion to further the claims of state governments.

Thus, the key issue is how to characterize "We the People of the United States" -- as fifty state peoples tied together in one Union or one American people divided among fifty states. This is a rather elusive distinction, which is further obscured by another terminological problem. The term compact is used by all of the theories but in different ways. A contract between the peoples of the separate states might well be termed a compact. The critical question was whether a national social compact arose at some point, bind­ing all Americans together into one people, or whether the only real social compacts were at the state level, with those political societies then forming a second-level compact. The "compact theory" of sovereignty refers to this second-level compact, which is considered to have a less fundamental status than the social compacts establishing each state. If this all seems rather aridly metaphysical, that's because it is.

SOURCE: Lincoln's Constitution, Daniel Farber, 2003, p. 32

------------------------------------------

[nolu chan]

[cr] The thrust of the legislation was to recognize and ratify the President's actions until congress could make its political decision.

If you look at HR 591, as recorded on Dec 9, 1862, the working title was "An Act to indemnify the President and other Persons for suspending the privilege of the writ of Habeas Corpus and acts done in pursuance thereof." It also came with a preamble which explained the reasons for the proposed Act:

The Indemnity Bill was passed on March 3, 1863.

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 heading of the record, as well as in many other places. (Cong. Globe, 37 Cong., 3 Sess., pp. 1459, 1479.)

Source: James G. Randall, Congressional Problems Under Lincoln, Revised Edition, (1951), p. 189, fn 8.

---

1863.

THE CONGRESSIONAL GLOBE.

INDEMNITY BILL.

The 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 affirmative-yeas 99, nays 44; as follows:

* * *

Source: Congressional Globe, 37th Congress, 3rd Session, March 2, 1863. (Page 1479)

LINK p. 1479, CG 2 Mar 1863

The Indemnity Bill of March 3, 1863 did not ratify any previous acts.

As Senator Trumbull, a sponsor of the Indemnity Bill, explained: "We do not propose to say that suit shall be dismissed, that a proceeding is null and void, but we propose that certain facts shall be a defense to an action." (Cong. Globe, 37 Cong., 3 sess., p. 1436.)

Had the unconstitutional suspensions been ratified, there would be no cause of action.

| Page 1435 | Page 1436 | Page 1437 |

[nolu chan]

As noted before, Jaffa himself has admitted that he is "probably the only living soul who has written on original intent who agrees with [his] central thesis."

As a philospher who opines about what he thinks the law should be, according to Jaffa, he is without authority regarding what the law actually is.

From Storm Over the Constitution, by Harry V. Jaffa, (1999), p. 142-3. Afterword by Charles Cooper.

He [nc - Jaffa] acknowledged that his view is unorthodox, confessing that he is "probably the only living soul who has written on original intent who agrees with [this] central thesis" (p. 395). When one follows Jaffa's thesis where it leads -- indeed, where he takes it himself, as we shall see -- it is not surprising that is has attracted so few adherents."

[nc - The page reference is to Harry V. Jaffa, Original Intent.]

[nolu chan]

[cr] This constitutional principle, as applied to ACW, would have allowed Lincoln similar latitude.

In Moyer the arrest occurred during an ongoing insurrection with associated violence taking place, and after authorization by the Chief Executive of the State, and State forces were used.

In Merryman, the arrest occurred a month after any violence had ended, Merryman was sleeping in his bed in the middle of the night, and the Chief Executive had not authorized the arrest, the Governor did not request it, and Federal forces were used.

The attempted application of Moyer to the facts in Merryman does not pass the giggle test.

[nolu chan]

[cr] 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.

As usual, bass ackwards. Advocacy, whether to teach the duty, necessity, or propriety of violence, or the doctrines of criminal syndicalism, is lawful. Advocacy, unless to incite to imminent lawless action, is lawful.

LINK

Brandenburg v. Ohio, U.S. Supreme Court, 395 U.S. 444 (1969)

Measured by this test, Ohio's Criminal Syndicalism Act cannot be sustained. The Act punishes persons who "advocate or teach the duty, necessity, or propriety" of violence "as a means of accomplishing industrial or political reform"; or who publish or circulate or display any book or paper containing such advocacy; or who "justify" the commission of violent acts "with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism"; or who "voluntarily assemble" with a group formed "to teach or advocate the doctrines of criminal syndicalism." Neither the indictment nor the trial judge's instructions to the jury in any way refined the statute's bald definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action.

Accordingly, we are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. Such a statute falls within the condemnation of the First and Fourteenth Amendments. The contrary teaching of Whitney v. California, supra, cannot be supported, and that decision is therefore overruled.

[capitan_refugio]

As usual, bass ackwards. Advocacy, whether to teach the duty, necessity, or propriety of violence, or the doctrines of criminal syndicalism, is lawful. Advocacy, unless to incite to imminent lawless action, is lawful."

Yeah. Tell that to Debs:

Debs v. United States (1919)

"Eugene V. Debs, a well known socialist, gave a public speech to an assembly of people in Canton, Ohio. The speech was about the growth of socialism and contained statements which were intended to interfere with recruiting and advocated insubordination, disloyalty, and mutiny in the armed forces. Debs was arrested and charged with violating the Espionage Act of 1917. At issue was whether the United States violated the right of freedom of speech given to Debs in the First Amendment of the United States Constitution.

"The Supreme Court of the United States upheld the lower court's decision in favor of the United States. The Court said that Debs had actually planned to discourage people from enlisting in the Armed Forces. The Court refused to grant him protection under the First Amendment freedom of speech clause, stating that Debs "used words [in his speech] with the purpose of obstructing the recruiting service." Debs' conviction under the Espionage Act would stand, because his speech represented a "clear and present danger" to the safety of the United States."

Your Warren Court era example would not have passed the smell test circa 1863. Interesting, though, that you would highlight a Klan case.

[capitan_refugio]

Ad hominem attacks again? Having a problem refuting the logic behind Professor Jaffa's statement?

[capitan_refugio]

"If you look at HR 591, as recorded on Dec 9, 1862, the working title was "An Act to indemnify the President and other Persons for suspending the privilege of the writ of Habeas Corpus and acts done in pursuance thereof." It also came with a preamble which explained the reasons for the proposed Act ..."

You might recall that I posted that, and the text of the proposed preamble, on the late, great deleted thread. I also noted, at that time, that the December draft had two sections. The first section dealt with "indemnification," and the second section dealt with authorization. By the time the Act reached its final form, it had been significantly changed, the term "indemnification" had been dropped completely, and addition sections added. The first section of the Act in final form dealt with the authorization by Congress for Lincoln to suspend the writ during the "present insurrection."

You misconstrue the purpose of the proposed and final "indemnification" clauses. They were "forward-looking" in that the proposed to shut down the inevitable post-war southern shysters. Your conclusion ("Had the unconstitutional suspensions been ratified, there would be no cause of action.") does not follow from the historical facts.

[GOPcapitalist]

Exactly how is it "ad hominem" to quote an academic source observing that Jaffa's constitutional "theories" do not have a mainstream following among scholars?

YOU cited Jaffa as a constitutional authority and YOU appealed to his expertise. NC was simply demonstrating that his "authority" is an extremely unconventional one with little credible academic following and his credentialed "expertise" is not in the field of law. And you know what, capitan? NC is absolutely right about Jaffa. You may just as well be quoting Lyndon LaRouche as he's about as credentialed in that subject as Jaffa is!

Oh, and one more thing. Save us the John Kerry-esque whines about the responses being used against you. When you make highlighting and/or smearing person's character, expertise, credentials, background, reputation, and authority the central and defining basis of virtually every single argument you compose it becomes perfectly fair game for us to scrutinize those alleged "experts" and deconstruct those character smears. If you can't take the heat get out of the kitchen.