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
Yes, one of the real sticking points on the 13th Amendment was what to do with all the slaves owned by Indians, primarily Cherokees. The government finally decided to consider them members of the tribes which had owned them.
It's an interesting point that Europeans first tried to enslave the Indians but gave it up because Indians simply refused to be enslaved. They just died in great numbers. So the sugar barons had to look elsewhere and found the tribal kings in Africa more than willing to raid neighboring villages for people to sell. Sometimes they sold their own.
Nice post.
THE BALLAD OF FORT JEFF DAVIS
In 1860 the temperature increased
So we went with Genr'al Carlton cross the desert to the east.
We loaded up our hard tack but it fell a little short
Then we fought hallucinations there at old Jeff Davis' fort.
CHORUS:
We fired our guns and the mirage kept a'comin.
There wasn't nigh as many as there was a while ago.
We fired once more and they began to runnin' on
Down the Rio Grand-e to the Gulf of Mexico.
We looked 'cross the desert and we see'd the rebels come.
Some bouncen apparitions of'em beatin' on the drum.
They zagged across the evening sky an floated through the night
We tried to shoot then cap'n said "ain't dat the Marfa light?".
CHORUS:
We fired our guns and the mirage kept a'comin.
There wasn't nigh as many as there was a while ago.
We fired once more and they began to runnin' on
Down the Rio Grand-e to the Gulf of Mexico.
Old Carlton said we could camp there for a bit
So we had a great big weenie roast, that fort it looked like sh*t
We slept inside the baracks on the dusty earthen floor
Till the injun's came a stirrin an they made off with the door!
CHORUS:
Well, we fired our guns and Apaches kept a'comin.
There soon was twice as many as there was a while ago.
They came right back an' we began to runnin'
Back up the Rio Grand-e from the Gulf of Mexico.
Yeah, we tripped through the sinkholes and we ran through the cactus
We flopped across the desert where the scorpion wouldn't go.
We ran so fast old Fort Davis couldn't keep us
And we left the Rio Grand-e and the Gulf of Mexico
We pulled back to the mill site there in old El Paso town.
And we told 'em bout the battle with the ghost rebs we had found.
We'd made a charge an taked the place but time was runnin' short
Yet we struck a blow to Richmond now by takin' Davis Fort!
Yeah, we tripped through the sinkholes and we ran through the cactus
We flopped across the desert where the scorpion couldn't go.
We ran so fast old Fort Davis couldn't keep us
And we left the Rio Grand-e and the Gulf of Mexico.
Well, they didn't hang Jeff Davis for a traitor or David E. Twiggs as a thief and traitor.
The Constitution created by the Framers and Founders, the Fathers and the Daddies, recognized and protected slavery in every state and was ratified by every state. At the time of the decision in Scott, every state in the Union had the lawful authority to authorize slavery within its jurisdiction. The Federal judges and justices interpreted Federal law and slavery was left to the states.
"But our rulers can have authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted; we cannot submit. We are answerable for them to our God."
-- Jefferson
In Scott v. Sandford, there were only two dissenting justices -- Justice McLean and Justice Curtis.
Several of the States have admitted persons of color to the right of suffrage, and in this view have recognised them as citizens; and this has been done in the slave as well as the free States.
-- Justice McLean, dissenting opinion, Scott v. Sandford, 60 U.S. 393, 533.
But, further: though, as I shall presently more fully state, I do not think the enjoyment of the elective franchise essential to citizenship, there can be no doubt it is one of the chiefest attributes of citizenship under the American Constitutions; and the just and constitutional possession of this right is decisive evidence of citizenship.
-- Justice Curtis, dissenting opinion, Scott v. Sandford, 60 U.S. 393, 581.
However, Governor Salomon of Wisconsin documents that as of August 12, 1862, about half the able-bodied men between 18 and 45 years old, in the great sovereign state of Wisconsin were:
Governor Salomon presumably meant "half the able-bodied White men."
In any case, about half the able-bodied White men, 18-45, were admitted to the right of suffrage and in the view of the Governor were not citizens. Apparently this chiefest attribute of citizenship was not an attribute of citizenship. There were citizens without property who could not vote in some states. There were non-citizens who could vote.
LINKOFFICIAL RECORDS: Series 3, vol 2, Part 1 (Union Letters, Orders, Reports)
Page 369 UNION AUTHORITIES.
MADISON, WIS., August 12, 1862.
Honorable E. M. STANTON:
About one-half of the able-bodied men between eighteen and forty-five years in this State are foreign born. They have declared their intention to become citizens of the United States. Have the right to vote under our State constitution if twenty-one years old. Have enjoyed and are enjoying all the privileges of citizens. Are they liable to be drafted? They should be liable. Great injustice will be done to our State if they are exempt, and our quota would be too large if they are exempt. Cannot those who are not willing to subject themselves to draft be ordered to leave the country? Answer this immediately. I must have the time for volunteering extended, as asked for by my dispatches of Saturday and yesterday. Please answer them.
E. SALOMON,
Governor of Wisconsin.
That's because there was no act of treason committed.
To determine, then, what is treason in fact, we are not to look to the codes of Kings, and Czars, and Kaisers, who maintain their power by force and fraud; who contemptuously call mankind their "subjects;" who claim to have a special license from heaven to rule on earth; who teach that it is a religious duty of mankind to obey them; who bribe a servile and corrupt priest-hood to impress these ideas upon the ignorant and superstitious; who spurn the idea that their authority is derived from, or dependent at all upon, the consent of their people; and who attempt to defame, by the false epithet of traitors, all who assert their own rights, and the rights of their fellow men, against such usurpations.Instead of regarding this false and calumnious meaning of the word treason, we are to look at its true and legitimate meaning in our mother tongue; at its use in common life; and at what would necessarily be its true meaning in any other contracts, or articles [*8] of association, which men might voluntarily enter into with each other.
The true and legitimate meaning of the word treason, then, necessarily implies treachery, deceit, breach of faith. Without these, there can be no treason. A traitor is a betrayer --- one who practices injury, while professing friendship. Benedict Arnold was a traitor, solely because, while professing friendship for the American cause, he attempted to injure it. An open enemy, however criminal in other respects, is no traitor.
Neither does a man, who has once been my friend, become a traitor by becoming an enemy, if before doing me an injury, he gives me fair warning that he has become an enemy; and if he makes no unfair use of any advantage which my confidence, in the time of our friendship, had placed in his power.
For example, our fathers --- even if we were to admit them to have been wrong in other respects --- certainly were not traitors in fact, after the fourth of July, 1776; since on that day they gave notice to the King of Great Britain that they repudiated his authority, and should wage war against him. And they made no unfair use of any advantages which his confidence had previously placed in their power.
It cannot be denied that, in the late war, the Southern people proved themselves to be open and avowed enemies, and not treacherous friends. It cannot be denied that they gave us fair warning that they would no longer be our political associates, but would, if need were, fight for a separation. It cannot be alleged that they made any unfair use of advantages which our confidence, in the time of our friendship, had placed in their power. Therefore they were not traitors in fact: and consequently not traitors within the meaning of the Constitution.
Furthermore, men are not traitors in fact, who take up arms against the government, without having disavowed allegiance to it, provided they do it, either to resist the usurpations of the government, or to resist what they sincerely believe to be such usurpations.
It is a maxim of law that there can be no crime without a criminal intent. And this maxim is as applicable to treason as to any other crime. For example, our fathers were not traitors in fact, for resisting the British Crown, before the fourth of July, 1776 --- that is, before they had thrown off allegiance to him --- provided they honestly believed that they were simply defending their rights against his usurpations. Even if they were mistaken in their law, that mistake, if an innocent one, could not make them traitors in fact.
For the same reason, the Southern people, if they sincerely believed --- as it has been extensively, if not generally, conceded, at the North, that they did --- in the so-called constitutional theory of "State Rights," did not become traitors in fact, by acting upon it; and consequently not traitors within the meaning of the Constitution. (Lysander Spooner, 1867)
So in other words, your contention is that Fehrenbacher did NO ORIGINAL research, and simply relied on others?
I'm sure Taney was just warm and fuzzy all over.
I'll bet he was too. Lincoln would have sent them to Panama to dig a canal.
The problem was that Taney could not honestly reconcile his racist attitudes with American history and the enlightenment of the founding principles. So he dishonestly created an alternative history in the Dred Scott case to support his personal prejudices.
What alternative history? Please document this. 6 other justices agreed with him? Are they ALL Liars?
With respect to your contentions regarding Fehrenbacher, your observations and so-called proofs are laughable. You are strictly "Amateur Hour" material.
Unlike Fehrenbacher, I can read a court case, and understand the difference between citizen and non-citizen, and that only aliens can be naturalized. But aside from that, Elvis Presley appeared on Milton Berle's show twice, on Ed Sullivan's Toast of the Town, the Beatles on Ted Mack's Amateur Hour, and numerous other stars have had their start in similar shows.
Bwahahahahahahahaha!
I suppose Davis is arguable as it was argued endlessly in his day. He did use his last days as Secretary of War to stuff the southern armories and forts with arms while still under oath to the US. If that is not treason, it's close enough. And Twiggs surrendered all Union property in his department before resigning his general's commission. Even his army buddies had little good to say about him:
I have a great deal of charity for many men who drifted away into the rebellion,but for General Twiggs none whatever. He knew his duty and did it not.--Richard Johnson, 1886 ( In A Soldier's Life in Peace and War.)
Uh, Davis' last days as Secretary of War were in March of 1857. I guess he must've been planning that secession thing four years in advance. I bet if you think hard enough you can even find a way to fit Karl Rove into his plan, which you seem to be suggesting was war all along.
And Twiggs surrendered all Union property in his department before resigning his general's commission.
He turned it over to the state authorities of Texas. His action even had the support of Governor Houston.
If you had bothered to actually read the book (which it is abundantly clear you have not), you would have been aware of the copious footnotes made by Prof. Fehrenbacher, many of which are to Taney's personal papers and correspondence. This book is extremely well-researched and, perhaps, that is why it won the Pulitzer Prize for History.
As I remarked earlier, the book is not a Taney biography, although understanding Taney's peculiar social and legal views is an important aspect to understanding why he produced arguably the worst decision ever made by the Supreme Court. Whether one dates a case from the time it was filed (late 1818) or the time it was tried (early 1819) is wholly secondary to the point Fehrenbacher was making - that Taney's legacy, as somehow against the institution of slavery, is without foundation.
Try not to become lost in the minutia, again.
It is entirely unclear as to whether the opinion given from the bench (which was the one which was voted upon as the decision) is the one Taney eventually published. In fact, it is quite clear that Taney violated the rules of the Supreme Court by not immediately turning the opinion over to the Clerk for publication ("The Supreme Court Rule 25 (in force since 1834) declared: 'All opinions delivered by the court shall, immediately upon delivery thereof, be delivered over to the clerk to be recorded.'"). Instead, Taney took back the decision and added, what was estimated to be at the time, about 50% more text.
In other words, the dishonest Chief Justice may very well have published an opinion that was not, on key points of law and documentation, the one that had been voted upon by the other Justices.
Justice Curtis correctly surmised that Taney was re-writing the decision to address the dissents. "What had been added, Taney continued in an incredible passage, were certain proofs and authorities to support historical facts and legal principles asserted in his oral opinion but denied in the dissenting opinion. 'And until the Court heard them denied, it had not thought it necessary to refer to proofs and authorities to support them - regarding the historical facts and the principles of law which were stated in the opinion as too well established to be open to dispute.' Here, covered over with a good deal of self-righteous indignation, was the plain acknowledgment that Taney revisions were indeed rebuttal to certain parts of the dissenting opinions." (Fehrenbacher, pg 318).
Fehrenbacher concludes that particular chapter, with the observation:
"It therefore appears that Curtis was substantially correct in his critique of the published opinion. Taney's denial of having made any significant changes, though perhaps not untruthful according to his own peculiar lights, must be labeled inaccurate. The so-called opinion of the Court included a considerable of material that few, if any, of the justices heard or read before its publication. And much of this new material was rebuttal to the dissenting opinions of Curtis and McLean. Another complication is thereby added to an already labyrinthine case, and especially to the question that has fascinated and confused several generations of historians and legal scholars: What did the Court actually decide?"
Maybe I better think about that one.
"Against stupidity the gods themselves contend in vain" -- Schiller
Twiggs wasn't under the command of Governor Houston. He had no authority to dispose of any federal facilities without the approval of Congress.
There is quite a bit of documentation in Fehrenbacher's book about the Curtis dissent and the quarrel between Curtis and Taney that resulted from Taney's rewrite of the decision after it had been delivered. Taney's imperious attitude and political machinations was some of the reason Curtis left the Court. There is even a passing mention, as posted, about Curtis's eulogy for Taney.
However, the book was about the Dred Scott Case, hence the title, and not about the relationship between two justices of the Supreme Court.
There are, in fact, several references to the Curtis's A Memoir of Benjamin Robbins Curtis, LL.D., Boston, 1879) and Curtis's private papers (Benjamin R. Curtis Papers, MDLC).
I can see you haven't read the book. I will suggest that before you comment on the level of Prof. Fehrenbacher's scholarship, you at least check the book out of the library and pretend to look at it.
Nope, but the state militia was and Houston told the state militia leaders to arrange for the peaceful transfer of federal facilities in Texas into state hands.
...in which case it is only proper to mention that Curtis was openly forgiving towards Taney over their dispute and the decision.
Then the folks up above must find yourself quite the adversarial fellow, non-seq. Oh wait. I almost forgot - your "god" is Saint Abe and you wouldn't dare put any dispute between yourself and him.
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