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
Debs wasn't around until many years after the events we are discussing.
If you look at the number of drummer boys and cabin boys that served on both sides, I would be surprised if you could quote contemporary legislation which prevented their service. There are many famous examples - that of Johnny Clem coming first to mind.
Simply additional documentation, for those who might be lurking and enjoying the discussion. That was Professor of Law, Daniel Farber, in his book Lincoln's Constitution, (2003).
That is Professor of Political Philosophy (Emeritus), Harry Jaffa, in his recent book, A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War (2000).
"A New Birth of Freedom is a master work by a true and learned master of history and philosophy. It is a must for every serious student of the founding of our nation, of Abraham Lincoln, and of the Civil War." - The Civil War News
"With A New Birth of Freedom Harry V. Jaffa reestablishes himself as the greatest living scholar of Lincoln's political thought and Lincoln's greatest defender, period. For every citizen interested in the preservation of the American union and the principles on which it rests, Jaffa's book is a must-read." - Steven B. Smith, Yale University
"No mere review can do justice to this new book; suffice to say that it as a stunning work of scholarship and erudition that vindicates Lincoln against both his contemporary adversaries and those who in our own time would diminish him and the principles of the American Founding he sought to perpetuate." - The Washington Times
"A New Birth of Freedom more than meets the critical expectations that Professor Jaffa has invited in the years since his acclaimed study, Crisis of the House Divided .... A work of profound historical erudition and disciplined philosophical criticism, Jaffa's new work offers and original analysis of the crisis of the Union in the perspective of the Western political tradition and in the context of the constitutional principles of the American Revolution." - Herman Belz, University of Maryland, College park
A drummer is a different role entirely from that of a soldier. As for governing laws, one need only look into those of the contract which have governed underage minors in more or less the exact same way dating back to colonial days. Specifically, an underage minor retains the common law right to disaffirm a contract he enters into prior to a certain age (normally 16 or 18), the idea being that he isn't of age enough to be bound under the same standards as an adult. By this same principle, if a 16 year old kid walked into a car dealership and tried to purchase a new corvette they'd send him away or require an adult to sign the title as well - even if he had a suitcase of cash to pay for it - on the basis that he could technically disaffirm it at a later date before turning 18 and get every cent he paid back.
Or so it is alleged. It still remains though that his only credential in any specific field that we know of is English, and yes - he did indeed used to teach literature.
"A New Birth of Freedom is a master work by a true and learned master of history and philosophy. It is a must for every serious student of the founding of our nation, of Abraham Lincoln, and of the Civil War." - The Civil War News
Anybody can dig up a favorable quote or two on virtually any book ever written - even crappy ones. Hell, try opening the movie section of your newspaper tomorrow and you'll find the exact same thing happens there. Every single ad for every single movie has some quote from somebody giving it a "thumbs up" or 4 stars or some other lauditory praise even if it's the worst movie of the summer and tanked at the box office. Same holds for books, and the fact remains that Jaffa's latest book bombed.
As I stated earlier, Congress took its time - that's called "deliberative democracy." The proposed joint resolution, SR-1, became the basis for discussion, debate, and further legislation.
The fact of the matter is that it did not matter how long Congress took, as long as it acted. Had Congress not acted, then the discussion would be based on entirely different principles. As it was, Congress and the President agreed on the course the nation should take in subduing the insurrection, and those who would support that insurrection.
I have cited many, many authors, historians, law professors, and jurists in support of my views. I find Farber's arguments to be quite fair and balanced (unlike the tripe upon which this thread is based).
I admit, quoting Prof. Paul Finkelman was difficult, but it did illustrate that even the lefties recognize Taney for the schmuck he was. How do you reconcile that Finkelman on the left, and Jaffa on the right, share the same lack of regard for Taney's pro-southern judicial activism?
"Again, unanimously, 9-zip, all nine justices found that the Lincoln administration had unlawful[ly] violated the provisions of the Act of Congress of March 3, 1863."
Chase and the other Justices in the concurring opinion would have been happy to decide the case on statutory grounds.
But the case did turn on the constitutional principles, and these have been the main point of the discussion. The Court stated that in this case, "martial law can not arise from a threatened invasion," and the "necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration." Here we see the Court interpreting something that was not intended in the legislation. Davis inserted his political point of view, as can be seen from this bit of dicta: "[I]t could well be said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation." But Davis's melodrama was not really germane, as no cardinal principles of liberty were being sacrificed. After the emergency caused by the insurrection was settled, the need for such measures would cease to exist.
"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."
William Rehnquist, in his book All the Laws But One: Civil Liberties in Wartime, devoted two chapter to Milligan. He noted that,
The majority opinion deals only obliquely with the [Habeas Corpus] Act of 1863. It neither adopts nor rejects the construction placed on the Act by the concurring Justices, nor does it offer any alternative construction of its own. For the Court to unnecessarily decide such an important question at that particular time was peculiarly unfortunate ... [T]o reach out and attempt to decide the question in a case where it was not presented was not only unsound constitutional adjudication, but also doubly unwise in the political atmosphere of the country at the time."
Rehnquist goes on,
"The primary reason for the Supreme Court's practice of refraining from deciding a constitutional question unless necessary, is that the "delicacy" of one branch of government declaring invalid the action of a coordinate branch of that government. But an additional reason for caution is that unnecessary obiter dicta - statements made in the course of a judicial opinion that are not pertinent to the decision of the point in question - come back to haunt the Court in future cases. This is just what happened with some of the dicta in the Milligan opinion when the case of Quirin arose during the Second World War."
Earlier in the chapter, Rehnquist wrote:
"The Court's traditional approach required that it render a decision declaring an Act of Congress unconstitutional only if there were no other ground for deciding the case. This sound advice, repeated again and again in subsequent decisions throughout its two-hundred-year history, was simply ignored by Davis's opinion in Milligan.
"The Milligan majority, confronted with no effort on the part of Congress to establish such as law, nonetheless proceeded to suggest that congress could not constitutionally do so even if it chose. David Dudley Field [for the Government] had been at pains to point out the Court was confronted with no such question.
"The construction put on the Habeas Corpus Act of 1863 by the concurring Justices was not the only way in which that law might have been read. Entitled as it was, an Act dealing with habeas corpus, it would have been reasonable to say Congress was dealing only with persons detained for the purpose of trying them in civil court and did not by implication preclude trial of some arrested suspects by military commission."
With regard to your inaccurate blanket assertion that Congress may not authorize military tribunals, I suggest you might want to clarify your stement.
It is not an ad hominem attack to point out that Jaffa himself wrote that he is "probably the only living soul who has written on original intent who agrees with [his] central thesis."
There is no problem refuting the logic, so-called, behind Professor Jaffa's statement.
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."
The first sentence of the quoted Jaffa paragraph, which you eliminated, states, "It is true that the clause dealing with habeas corpus is in Article I, which sets forth the powers of Congress, and not in Article II, which concerns the executive."
"Lincoln's authority to do so were part of his constitutional duties." This statement is categorically false. The debate surrounding SR-1 leaves no doubt, as well as the various judicial decisions which had been rendered.
As Jaffa observed, ""Lincoln has already shown...."
There goes Jaffa's logic out the window. Lincoln may have shown whatever to the satisfaction to Harry Jaffa, but when it stands on its own in conflict with judicial opinions, it does not count for diddly squat except in Jaffa's realm of political philosophy. Such jabberwocky is a legal non-entity. Jaffa's piece of philosophical trash is notably missing any citation to any judicial ruling (or legal authority) which agrees with his unique philosophy.
According to legal authorities, the right to suspend habeas corpus belongs to the Legislature. No judicial authority has ever supported the absurd notion that a military officer can be authorized to suspend the privilege of the writ of habeas corpus at his discretion. Judicial rulings have consistently ruled that suspension of the privilege of the writ requires Congressional authorization.
As the venerable Chief Justice Roger B. Taney wrote and had delivered to President Lincoln,
And Chief Justice Marshall, in delivering the opinion of the supreme court in the case of Ex parte Bollman and Swartwout, uses this decisive language, in 4 Cranch [8 U. S.] 95: 'It may be worthy of remark, that this act (speaking of the one under which I am proceeding) was passed by the first congress of the United States, sitting under a constitution which had declared 'that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.' Acting under the immediate influence of this injunction, they must have felt, with peculiar force, the obligation of providing efficient means, by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give to all the courts the power of awarding writs of habeas corpus.' And again on page 101: 'If at any time, the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so. That question depends on political considerations, on which the legislature is to decide; until the legislative will be expressed, this court can only see its duty, and must obey the laws.' I can add nothing to these clear and emphatic words of my great predecessor.
"Although this provision does not state that suspension must be effected by, or authorized by, a legislative act, it has been so understood, consistent with English practice and the Clause's placement in Article I."
-- Antonin Scalia, Hamdi v. Rumsfeld, No. 03-6696. Argued April 28, 2004 - Decided June 28, 2004
"In England the benefit of this important writ can only be suspended by authority of parliament. It has been done several times of late years, both in England and in Ireland, to the great oppression of the subject, as hath been said. In the United States, it can be suspended, only, by the authority of congress; but not whenever congress may think proper; for it cannot be suspended, unless in cases of actual rebellion or invasion. A suspension under any other circumstances, whatever might be the pretext, would be unconstitutional, and consequently must be disregarded by those whose duty it is to grant the writ."
-- Tucker's Blackstone, Section 12 - Restraints on Powers of Congress, paragraph 2.
"That every person restrained of his liberty is entitled to an inquiry into the lawfulness of such restraint, and to a removal thereof, if unlawful; and that such inquiry and removal ought not to be denied or delayed, except when, on account of public danger, the Congress shall suspend the privilege of the writ of habeas corpus.
-- Act of Ratification of the Convention of the State of New York
Mr. J. Randolph said, "The Writ of habeas corpus is the only Writ sanctioned by the Constitution. It is guarded from every approach, except by the two Houses of Congress." (3d vol. Benton's Debates, pp. 520-540.)
On January 14, 1843, in the House of Representatives, Mr. Hunt said (after quoting the ninth section of the first Article of the Constitution, which provides that the privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it), "Who was to be the judge of that necessity? Was it the President of the United States, or any subordinate officer in command? No; it was the Legislature of the country that was the judge, and the only judge of that necessity. He supported the position by citing the practice of Mr. Jefferson, who, in 1807, as President of the United States, applied to Congress for a temporary suspension of the writ of habeas corpus for three months; which, however, was refused by the House of Representatives, where the bill was defeated, which had passed the Senate for that purpose."
In the House of Representatives, in the debate on the bill to indemnify General Jackson, January 2, 1844, Mr. Barnard said, " The Constitution gave Congress authority to pass laws for the regulation of the army and navy of the United States, and under that, Congress have passed laws for the government of the army and navy and the militia. That code was applicable to the officers and soldiers, and to the militia, when in service; but it was not applicable to any other human being. Congress itself could not proclaim martial law. It might suspend the habeas corpus act, but it could not suspend the Constitution. A proclamation of martial law by the Congress of the United States would, of itself, be a violation of the Constitution." (Vol. XIV. Benton's Debates, p. 657.)
In an opinion delivered by Mr. Attorney-General Cushing, upon the subject of martial law, and the suspension of the habeas corpus, in February, 1857, growing out of a proclamation of martial law by the Governor of Washington Territory, in order to suspend the habeas corpus, this language is used : "The opinion is expressed by commentators on the Constitution, that the right to suspend the writ of habeas corpus, and also that of judging when the exigency has arisen, belongs exclusively to Congress.
It may be assumed, as a general doctrine of constitutional jurisprudence in all the United States, that the power to suspend laws, whether those granting the writ of habeas corpus, or any other, is vested exclusively in the Legislature of the particular State."
-- (Opinions of Attorneys-General, Vol. VIII, p. 365.)
In 1842, in the debate on the bill to idemnify Gen. Jackson for the fine imposed on him by Judge Hall, at New Orleans, Mr. Bayard said, "Congress may indeed suspend the privilege of the Writ of habeas corpus, but cannot declare martial law to be the law of the United States, or any part of them...... The Constitution says, Congress shall have power to declare war, to raise armies, to provide a navy, to provide arms and munitions of war, and to make rules for the government of the land and naval forces. On these limited and specific powers it has been inferred that Congress may declare martial law. To avoid this very conclusion there is an express provision in the very next section, among the restrictions on the powers of Congress, declaring that the remedy of the Writ of habeas corpus shall not be suspended, unless in cases of rebellion or invasion. All Congress can do, even in cases of rebellion or invasion, is to suspend the privilege of the Writ of habeas corpus; and that can be done by Congress only -- not by an officer of the Government -- without its authority." (Vol. XIV Benton's Debates, pp. 627.)
posted on 12/28/2003 1:05:00 AM CST by GOPcapitalist
"The privileges and benefit of the writ of Habeas Corpus shall be enjoyed in this Government, in the most expeditious and ample manner; and shall not be suspended by the Legislature, except upon the most urgent and pressing occasions, and for a limited time not exceeding months."
-- Charles Pickney, announcing the proposal to limit the suspension of habeas corpus, Constitutional Convention, 1787
"The people by adopting the federal constitution, give congress general powers to institute a distinct and new judiciary, new courts, and to regulate all proceedings in them, under the eight limitations mentioned in a former letter; and the further one, that the benefits of the habeas corpus act shall be enjoyed by individuals." - Richard Henry Lee, Anti-Federalist #16, "Federal Farmer"
"In the same section it is provided, that "the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion and invasion, the public safety may require it." This clause limits the power of the legislature to deprive a citizen of the right of habeas corpus, to particular cases viz. those of rebellion and invasion; the reason is plain, because in no other cases can this power be exercised for the general good."
-- Robert Yates, delegate to the Constitutional Convetion, Anti-Federalist #9, "Brutus"
"The safest and best restriction, therefore, arises from the nature of the cases in which Congress are authorized to exercise that power [of suspending habeas corpus] at all, namely, in those of rebellion or invasion. These are clear and certain terms, facts of public notoriety, and whenever these shall cease to exist, the suspension of the writ must necessarily cease also."
-- Judge Francis Dana, presenting the Constitution to the Massachusetts Ratification Convention
"In the United States, it can be suspended, only, by the authority of congress; but not whenever congress may think proper; for it cannot be suspended, unless in cases of actual rebellion, or invasion. A suspension under any other circumstances, whatever might be the pretext, would be unconstitutional, and consequently must be disregarded by those whose duty it is to grant the writ."
-- St. George Tucker, Commentaries, 1803
"The decision that the individual shall be imprisoned must always precede the application for a writ of habeas corpus, and this writ must always be for the purpose of revising that decision, and therefore appellate in its nature. But this point also is decided in Hamilton's case and in Burford's case. If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so. That question depends on political considerations, on which the legislature is to decide."
-- Justice John Marshall, writing for the majority in Ex Parte Bollman and Swartwout, United States Supreme Court, 1807
"Those respecting the press, religion, & juries, with several others, of great value, were accordingly made; but the Habeas corpus was left to the discretion of Congress, and the amendment against the reeligibility of the President was not proposed by that body."
-- Thomas Jefferson, Autobiography, 1821
"The Constitution seems to have secured this benefit [habeas corpus] to the citizen by the description of the writ, and in an unqualified manner admitting its efficacy, while it declares that it shall not he suspended unless when, in case of rebellion or invasion, the public safety shall require it. This writ is believed to be known only in countries governed by the common law, as it is established in England; but in that country the benefit of it may at any time be withheld by the authority of parliament, whereas we see that in this country it cannot be suspended even in cases of rebellion or invasion, unless the public safety shall require it. Of this necessity the Constitution probably intends, that the legislature of the United States shall be the judges. Charged as they are with the preservation of the United States from both those evils, and superseding the powers of the several states in the prosecution of the measures they may find it expedient to adopt, it seems not unreasonable that this control over the writ of habeas corpus, which ought only to be exercised on extraordinary occasions, should rest with them. It is at any rate certain, that congress, which has authorized the courts and judges of the United States to issue writs of habeas corpus in cases within their jurisdiction, can alone suspend their power"
-- William Rawle, "A View of the Constitution of the United States of America," 1826
"It would seem, as the power is given to congress to suspend the writ of habeas corpus in cases of rebellion or invasion, that the right to judge, whether exigency had arisen, must exclusively belong to that body."
-- Justice Joseph Story, "Commentaries on the Constitution of the United States," Book 3, Chapter XXXII, § 1336, 1833
"And who could hold for a moment, when the writ of habeas corpus cannot be suspended by the legislature itself, either in the general government or most of the States, without an express constitutional permission, that all other writs and laws could be suspended, and martial law substituted for them over the whole State or country, without any express constitutional license to that effect, in any emergency? Much more is this last improbable when even the mitigated measure, the suspension of the writ of habeas corpus, has never yet been found proper by Congress, and, it is believed, by neither of the States, since the Federal Constitution was adopted."
-- Justice Levi Woodbury, dissent in Luther v. Borden, United States Supreme Court, 1849
"With such provisions in the constitution, expressed in language too clear to be misunderstood by any one, I can see no ground whatever for supposing that the president, in any emergency, or in any state of things, can authorize the suspension of the privileges of the writ of habeas corpus, or the arrest of a citizen, except in aid of the judicial power. He certainly does not faithfully execute the laws, if he takes upon himself legislative power, by suspending the writ of habeas corpus, and the judicial power also, by arresting and imprisoning a person without due process of law."
-- Justice Roger B. Taney, Ex Parte Merryman, US Circuit Court of Appeals, 1861
"There has been much discussion concerning the question whether the power to suspend the "privilege of the writ of habeas corpus" is conferred by the Constitution on Congress, or on the President. The only judicial decisions which have been made upon this question have been adverse to the power of the President.Still, very able lawyers have endeavored to maintain -- perhaps to the satisfaction of others -- have maintained, that the power to deprive a particular person of the "privilege of the writ," is an executive power. For while it has been generally, and, so far as I know, universally admitted, that Congress alone can suspend a law, or render it inoperative, and consequently that Congress alone can prohibit the courts from issuing the writ, yet that the executive might, in particular cases, suspend or deny the privilege which the writ was designed to secure. I am not aware that any one has attempted to show that under this grant of power to suspend "the privilege of the writ of habeas corpus," the President may annul the laws of States, create new offences unknown to the laws of the United States, erect military commissions to try and punish them, and then, by a sweeping decree, suspend the writ of habeas corpus as to all persons who shall be "arrested by any military authority." I think he would make a more bold than wise experiment on the credulity of the people, who should attempt to convince them that this power is found in the habeas corpus clause of the Constitution. No such attempt has been, and I think none such will be made. And therefore I repeat, that no other source of this power has ever been suggested save that described by the President himself, as belonging to him as commander-in-chief."
-- Justice Benjamin R. Curtis, "Executive Power," 1862
In 1861, Senator Wilson brought a proposed Joint Resolution to the Senate, SR-1. It was batted around throughout the special session called by Ayotollah Abe.
It read as follows:
Be it resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That all of the extraordinary acts, proclamations, and orders hereinbefore mentioned, be, and the same are hereby, approved and declared to be in all respects legal and valid, to the same intent, and with the same effect, as if they had been issued and done under the previous express authority and direction of the Congress of the United States.
The items "hereinbefore mentioned" were:
First. He did, on the fifteenth day of April last, issue his proclamation calling upon the several States for seventy-five thousand men to suppress such insurrectionary combinations, and to cause the laws to be faithfully executed.
Secondly. He did, on the nineteenth day of April last, issue a proclamation setting on foot a blockade of the ports within the States of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas.
Thirdly. He did, on the twenty-seventh day of April last, issue a proclamation establishing a blockade of the ports within the States of Virginia and North Carolina.
Fourthly. He did, by an order of the twenty-seventh day of April last, addressed to the commanding general of the army of the United States, authorize that officer to suspend the writ of habeas corpus at any point on or in the vicinity of any military line between the city of Philadelphia and the city of Washington.
Fifthly. He did, on the third day of May last, issue a proclamation calling into the service of the United States forty-two thousand and thirty-four volunteers, increasing the regular army by the addition of twenty-two thousand seven hundred and fourteen men, and the navy by an addition of eighteen thousand seamen.
Sixthly. He did, on the tenth day of May last, issue a proclamation authorizing the commander of the forces of the United States on the coast of Florida to suspend the writ of habeas corpus, if necessary.
This pertained to Lincoln authorizing Scott to suspend habeas corpus and was shot down in flames. It never even attempted to justify Scott authorizing other military officers to suspend habeas corpus.
The battle continued down to the final day of the session, August 5, 1861. During the session, which started in July, the tide turned against this attempted rape of the Constitution.
Right near the end of the session, Mr. Wilson rose and implored the body one more time, "Let us have a vote."
A brave Senator, a true Patriot, a common-sense lover of the Law and the Constitution, rose up to smite the usurping infidel and told Mr. Wilson for the last time, NO! You may not defile and rape our beloved Constitution.
OK, what he really said was more polite and went like this, "Now, my friend is clamorous. He cannot keep still. He says, 'let us have a vote.' I am not disposed to vote upon the resolution. I will tell the Senator from Kentucky I am not prepared to vote for the resolution, and it is not going to pass without consideration. It is not going to pass in the shape it is by my approbation."
Yea, verily, that brave Senator, that true Patriot, that common-sense lover of the Law and the Constitution who rose up so bravely to slam-dunk infidel Senator Wilson and his bill into eternity was none other than ILLINOIS SENATOR LYMAN TRUMBULL.
QUOTES FROM THE SENATE RECORD REGARDING SR-1
Pages : [64] , [137] , [138] , [139] , [140] , [141] , [142]
[333] , [334] , [392] , [395] , [453]
Mr. President, in the State of Missouri, there was no "Law of the United States opposed, or the execution thereof obstructed by combinations of men too powerful to be suppressed by the ordinary course of judicial proceedings." Indeed, sir, there was no resistance of any United States law. Yet Missouri, peaceful and law abiding, without cause, against law and in defiance of the Constitution , was invaded by United States troops, by troops from Illinois, by troops from Iowa, and by troops from Kansas. Indeed, sir, it seems that from the very moment in which the administration resolved upon this policy of coercion, the State of Missouri was marked as a victim for sacrifice, for invation, and subjugation.
~ Mr. Polk, July 11, 1861, page 64 ~
The joint resolution would seem, upon the face of it, to admit that the acts of the President were no performed in obedience to the Constitution and the laws. If that be true, I should be glad to hear some reasons assigned by gentlemen showing the power of the Congress of the United States, by joint resolution, to cure a breach of the Constitution or to indemnify the President against violations of the Constitution and the laws. If, in any respect that officer has violated the laws, he has also violated the Constitution; because one clause of that instrument declares that "he shall take care that the laws be faithfully executed." It confers on him the power to see that they are executed; but no power to violate them.
~ Mr. Breckinridge, July 16, 1861, page 137 ~
I deny, Mr. President, that one branch of this Government can indemnify any other branch of the Government for a violation of the Constitution or the laws. The powers conferred upon the General Government by the people of the States are the measure of its authority. Those powers have been confided to different departments, and the boundaries of those departments determined with perfect exactitude. The President has his powers and rights conferred on him by the Constitution; the legislative authority its powers and rights; the judicial authority its powers and rights; the judicial authority its powers and rights; and I deny that either can encroach upon the other, or that either can indemnify the other for a usurpation of powers not confided to it by the Constitution. Sir, Congress, by a joint resolution, has no more right, in my opinion, to make valid a violation of the constitution and the laws by the President, than the President would have by an entry upon the executive journal to make valid a usurpation of the executive power by the legislative department. Congress has no more right to make valid an unconstitutional act of the President, than the President would have to make valid an act of the Supreme Court of the United States encroaching upon executive power; or than the Supreme Court would have the right to make valid an act of the executive encroaching upon the judicial power.
~ Mr. Breckinridge, July 16, 1861, pp. 137-8 ~
It is proposed, sir, to approve and make valid the act of the President in enlisting men for three and five years. I ask you by what authority of Constitution or law he has done this act? The power is not conferred in the constitution; it has not been granted by the law. it is, therefore an unconstitutional and illegal act of executive power. The President, of his own will -- and that is one of the acts enumerated in this joint resolution which is propowed to approve and ratify -- has added immensely to the force of the regular Army. The Constitution says that Congress shall raise armies, and a law now upon your statute book limits the number of the regular force, officers and men. Hence, sir, that is an act in derogation both of the Constitution and of the laws.
~ Mr. Breckinridge, July 16, 1861, pp. 138 ~
The President has added immensely to the Navy of the United States. The Constitution says that Congress shall provide and maintain a navy; and there is now a law upon the statute book limited the number of men to be employed in the Navy. That, like the rest, sir, will not bear argument. I doubt if an attempt will be made to defend it upon constitutional or legal grounds. I pronounce it a usurpation.
~ Mr. Breckinridge, July 16, 1861, pp. 138 ~
I need not say to the Senate that in england, whence we derive this right, the legislative power alone can suspend it. We all know, sir, that the monarch of England cannot suspend it. We all know, sir, that the monarch of england cannot suspend that writ; but transatlantic freemen seem to be eager to approve and ratify acts which a European monarch would not dare to perform. Mr. President, it needs no elaborate argument to show that the executive authority of the United States has no right to suspend the write of habeas corpus.
~ Mr. Breckinridge, July 16, 1861, pp. 138 ~
I enumerate what I regard as usurpations of the Executive to go upon the record as a protest of those of us who are not willing to see the Constitution subverted, and the public liberty trampled under foot, under whatever pretest, of necessity or otherwise.
~ Mr. Breckinridge, July 16, 1861, pp. 139 ~
: I remember to have read, not long since, a speech made by the present able Secretary of War, in this city, in which he said that the southern States must be subdued, and that at the end of this contest there would be no more Virginians as such, or Carolinians as such; but only Americans all. Sir, the name of American is a proud one, and I lvoe it; but it is the preservation of the names of Virginians and Pennsylvanians, and the distinctive existence of all these States, which alone can keep the name of American a proud one. I never want to see them blotted out. I said, sir, that in my opinion, the tendency was to change our character of government, and that the purpose, if not avowed, is acted upon to conduct those proceedings without regard to the limitation of the Constitution. these things I have enumerated go to show it. This Joint Resolution goes to show it. I call upon Senators to defend the constitutionality of these acts, or else to admit that we intend to conduct this contest without regard to the Constitution.
~ Mr. Breckinridge, July 16, 1861, pp. 140 ~
In the course of the same speech to which I have referred, that eminent Senator declared that not only must that country be ravaged by armies, but that unless the people of those States paid willing and loyal obedience to the Federal Government, their State form must be changed, and they must be reduced to the condition of Territories; to be governed by Governors sent from Massachusetts and Illinois. This was said seriously; and afterwards, when referred to by my colleague on a subsequent day, reaffirmed by that eminent Senator. If necessary, reduced to the condition of Territories! Is there authority in the Constitution to do it?
~ Mr. Breckinridge, July 16, 1861, pp. 140-1 ~
We can only hope that this flash of frenzy may not assume the form of chronic madness, and that in any event Divine providence may preserve for us and for posterity, out of the wreck of a broken Union, the priceless principles of constitutional liberty and of self-government. [Applause in the galleries.]
~ Mr. Breckinridge, July 16, 1861, pp. 142 ~
The suspension of the privilege of the habeas corpus by executive authority is a violation of the principles of public freedom which have been consecrated for centuries. These principles were dear to our Anglo-Saxon forefathers before the period of Magna Charta. From the days of Magna Charta, which, seeking to restore ancient rights, provided that no freeman should be taken or imprisoned without the lawful judgment of his peers, or the law of the land, down to the declaration of our independence, that principle has been dear to the freemen of England and America.
~ Mr. Pearce, July 30, 1861, page 333 ~
If necessity, whichg is an odious plea, known for hundreds of years as "the tyrant's plea" -- a plea by which you may overthrow all constitutional provisions -- if that plea is efficient here; if that is a justification for a violation of one provision of the Constitution, it is equally a justification for any and all violations of it.
~ Mr. Pearce, July 30, 1861, page 333 ~
So too, sir, these domiciliary visits, which are equally in violation of a provision of the Constitution, are sought to be justified by necessity. Now, let us see where these things are done. Nowhere, so far as I am informed, except in the State of Maryland, unless there be some exceptions in the State of Missouri.
~ Mr. Pearce, July 30, 1861, page 334 ~
My objection to taking up this resolution I will state in a word. I believe it is in order to state briefly the objection. This resolution which the Senator from Massachusetts seeks to take up is germane to the bill which is the unfinished business. The resolution proposed to declare legal the acts which have been done by the President in the recess of Congress. Will our declaration make them legal if they are not legal? Will it make them so if they were unconstitutional and void?
~ Mr. TRUMBULL, August 2, 1861, page 392 ~
The Senator from Maine evidently entertains a very sincere conviction that the action of the President has not been in violation of the constitution or the laws; because he has asserted it six or seven times in the ocurse of the brief speech he has made to the Senate. His convictions are evidently deep and sincere. All I have to say in reply to that is, that it will be a very great comfort to the President to be assured of that fact; forhe himself has been under the impression that he has been transcending both; and, indeed, he admits it in his message, and puts it expressly on the ground of a popular demand and what he deemed to be a public necessity. It has also been admitted by many Senators on the other side of the chamber. I have not believed, all along, that the resolution was going to be voted by the Senate. I do not believe it now. It may be; but I think not. My deliberate judgment is, that in some mode the Senate will avoid putting itself on record in favor of the principles contained in this resolution. It is indifferent to me whether it does or not. Of course, every Senator will vote his own convictions if brought to a vote; but I do not think there are many Senators who want their names to go upon history in favor of this resolution.
~ Mr. Breckinridge, August 2, 1861, page 392 ~
The President issued a proclamation calling into the service of the United States forty-two thousand and thirty-four volunteers. It was clearly illegal; I am not satisfied it was necessary. I am inclined to think it was not.
~ Mr. Howe, August 2, 1861, page 395 ~
I cannot consent to give my approval to the fourth and sixth acts enumerated in the resolution, by which the President authorized the commanding General to suspend the writ of habeas corpus. I do not rise to make a speech; but to give the reason why I cannot vote for the resolution.
~ Mr. Thomson, August 2, 1861, page 395 ~
MR. WILSON. Let us have a vote.
MR. TRUMBULL. Now, my friend is clamorous. he cannot keep still. he says "let us have a vote." I am not disposed to vote upon the resolution. I will tell the Senator from Kentucky I am not prepared to vote for the resolution, and it is not going to pass without consideration. It is not going to pass in the shape it is by my approbation.
~ Messrs. Wilson and Trumbull, August 5, 1861, page 453. ~
Blather. It was the Act of March 3, 1863. I quoted and gave you a picture of the Congressional Record of March 2, 1863.
Here is it again, on March 2, 1863 undergoing final passage.
[cr] Your conclusion ("Had the unconstitutional suspensions been ratified, there would be no cause of action.") does not follow from the historical facts.
One does not get indemnified for something that is lawful. Your blather is irrelevant to legal fact.
It is Harry Jaffa himself who wrote that he is "probably the only living soul who has written on original intent who agrees with [his] central thesis."
CHEAPSHOTS FROM HARRY V. JAFFA
"One wonders whether Judge Bork has ever read a single document of our Founding" (p. 31)."Comparing Bork's prose to Churchill's is approximately on a level with comparing Andy Warhol's Campbell's Soup can to Leonardo da Vinci's Last Supper" (p. 293).
"[I]t would take at least 50 pages to explain ... all of Bork's innumerable errors in dealing with [the Dred Scott] case" (p. 298).
"What then was the fundamental question in Dred Scott? Although I have written often on this subject, what I have written seems not to have penetrated the emanations or penumbrae that surround... Mr. Justice Rehnquist" (p. 101).
"Because [Meese] followed [Bork and] Rehnquist, [he] utterly misinterpreted the significance of the Dred Scott decision, as I believe I have shown beyond a reasonable doubt (or beyond a possible doubt by a reasonable person!)" (p. 391).
"The attempt by Bork no less than Rehnquist (or Meese) to treat Dred Scott as primarily a matter of judicial usurpation, shows as profound an ignorance of constitutional history as Taney himself displayed in his opinion for the Court in that case" (p. 275)
SOURCE: Harry V. Jaffa, Original Intent,
This is the same Harry V. Jaffa who laughably found that Honest Abe was an early supporter of the women's suffrage movement.
I did not opine on whether the Court upheld the constitutionality of the Indemnity Act of March 3, 1863. Neither did the Court rule on the constitutionality of the entire Act. Part of the Act was later held unconstitutional. "So much of the fifth section . . . 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'" under the Seventh Amendment. The Justices v. Murray, 76 U.S. (9 Wall.) 274 (1870).
[cr] But the case did turn on the constitutional principles
The court held 9-zip on violation of the Indemnity Act of March 3, 1863, and 5-4 on violation of the Constitution. The decision is 9-0, all justices agreeing on the holding, but reaching the holding by different reasoning. When you look it up in a law book, the citation does not read 5-4, it reads 9-0.
[cr quoting Rehnquist] "For the Court to unnecessarily decide such an important question at that particular time was peculiarly unfortunate ... [T]o reach out and attempt to decide the question in a case where it was not presented was not only unsound constitutional adjudication, but also doubly unwise in the political atmosphere of the country at the time."
While Rehnquist may feel that it was unfortunate that the Court decided such an important question, the fact remains that the Court did, in fact, decide that important question. Until it is decided differently, the ruling remains, and your argument is irrelevant.
[cr quoting Rehnquist] "The construction put on the Habeas Corpus Act of 1863 by the concurring Justices was not the only way in which that law might have been read.
Which does not change the Supreme Court ruling. Until the ruling changes, stare decisis applies to all subordinate courts.
[cr] With regard to your inaccurate blanket assertion that Congress may not authorize military tribunals, I suggest you might want to clarify your stement.
I did not make a blanket assertion that Congress may not authorize military tribunals. Speaking of the Milligan case, I wrote that in the Milligan case, the Supreme Court held 5-4 that the Congress did not have the power to authorize "the military commission." That is singular, one single military commission, specifically the military commission in the Milligan case.
[nc #170] 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.
LIBERAL HISTORY
The scholarship and poetry of this story still brings tears to my eyes. It is extraordinarily authoritative and documented. It is by Dr. Daniel Farber, McKnight Presidential Professor of Public Law, Henry J. Fletcher Professor of Law, and associate dean for research and development at the University of Minnesota, Sho Sato professor of law at the University of California, Berkeley, and is even footnoted.
LINCOLN'S CONSTITUTION
Daniel Farber, 2003, page 8, Chapter 1The Civil War began in the chilly morning hours of April 12, 1861, when a Confederate battery opened fire on Fort Sumter.
* * *
The early morning shots of April 12 began the bloodiest war in American history. It was four years to the day later when Major Anderson ran the U.S. flag back up at sumter. In the meantime, the world had forever changed. "By then," in the words of a leading historian, "[s]lavery was dead; secession was dead; and six hundred thousand men were dead." "That," he added, "was the basic balance sheet of the sectional conflict."2
Later that same day, April 12, 1865, yet another price was added to that balance sheet. As the war had begun with the death of a single individual, so it would end. That evening, just about the time Major Anderson toasted the president of the United States, John Wilkes Booth entered the presidential box at Ford's Theater. By the next morning, Lincoln was dead."3
Footnotes:
1. David Detzer, Allegiance: Fort Sumter, Charleston, and the Beginning of the Civil War (New York: Harcourt, 2001), Detzer provides a good blow-by-blow acocunt of events in South Carolina, though less information about developments in Washington.
2. David Potter, The Impending Crisis, 1848-1861 (New York, Harber and Row, 1976), 583. Potter's book is indispensable reading on the background of the war.
3. See Detzer, Allegiance, 320
Stipulating that Dr. Farber, professor of law, has it correct, I submit that John Wilkes Booth must be innocent because he did not get to Ford's Theater until April 14, 1865, after Lincoln had been shot and had died, at least according to Farber.
Nor can we really attribute this to a typo. After all, we can't change it to, "Later that same day, April 14, 1865," now can we? Or shall we change it to "four years and two days to the day later?"
But when considering the poetic power of Farber's liberal history, and the warm fuzzy feeling it gives to the reader, the date change fades into obscurity. After all, isn't liberal history all about warm fuzzy feelings?
Let's see, secession brought on the single biggest constitutional crisis in the country's history, but it was Lincoln who is the bad guy. Still got too many confederates in the attic.
Here is what historian Paludan says, cited to an actual book, with page number.
State governments earned the respect of their citizens by energetic efforts to protect state regiments and support the war. They demanded the respect of the federal government by jealously upholding their rights in state courts. When Congress passed the 1863 Habeas Corpus Act, it had inserted a provision which provided protection from prosecution for federal officers performing military duties. In state after state, judges either struck down the measure or evaded it and asserted the traditional lineaments of the federal systern. Despite a war for Union and against the ultimate assertion of state sovereignty, state judges insisted on affirming their own prerogatives. The Union they envisioned was a union of states. Before the Democratic party had adopted the slogan "The Constitution as it is, the Union as it was," state judges had insisted on the slogan as a fact. [18]Perhaps the most revealing explanation of states' rights feeling came from Illinois Governor Yates in January, 1865. Yates was a militant radical in the Reconstruction era and anticipated such sentiment before Appomattox. During the war he was most vigorous in urging greater effort by the federal government against the rebellion. He led the way in demanding the radical step of using black troops as combatants. Yet such beliefs did not preclude a marked commitment to preserving state influence and integrity.
There was, he told the state assembly in January, 1865, no "political heresy so dangerous to our existence as the doctrine of the right of secession." But it was dangerous because it was similar to ideas rightly cherished by Americans everywhere. Southerners had taken the poisonous doctrine of secession and "sugar coated [it] with the plausible sobriquet of State Sovereignty." Beguiled by the southern view of what constituted such sovereignty, unprincipled Northerners had attempted to inhibit the ability of the government to preserve itself.
That did not mean that state sovereignty was in itself wrong. After all, Yates explained, the motto of Illinois was "State Sovereignty and National Union." When understood properly, this was "the best and most beautiful motto which adorns the armorial bearing of any state in the Union." He continued:
I am for unlimited state sovereignty in the true sense, in the sense that the State is to control all its municipal and local legislation and I would be the first to resist all attempts upon the part of the Federal Government to interpose tyrannical usurpation of power in controlling the legislation of States. The States are sovereign in every sense in whcih it is desirable they should have sovereignty.... [19]
[18] The state cases are Griffin v. Wilcox, 21 Indiana 370 (1863); In re Kemp, 16 Wisconsin 382 (1863); Warren v. Paul, 22 Indiana 276 (1864); Short v. Wilson, 1 Bush 350 (1866), (Kentucky). Randall (Constitutional Problems, 428-429) describes as "frequent" cases where federal officers were held answerable by state courts despite the 1863 bill.
[19] Reports Made to the General Assembly of Illinois, 34th sess. (Springfield, 1865), I, 28; Edward Gambill, "Who Were the Senate Radicals?" Civil War History, XI (Sept., 1965), 237-244.
Source: Phillip S. Paludan, A Covenant With Death, 1975, pp. 33-35.
The Indemnity Bill of March 3, 1863 provided in relevant part:
That, during the present rebellion, the President of the United States, whenever, in his judgment, the public safety may require it, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United States, or any part thereof.
Even had this bill been passed in March 1861, the actions of the Lincoln administration during April 1861 and the rest of 1861 would have been unlawful. Similarly, the nationwide suspension of the privilege of the writ by Stanton.
On August 8, 1862, Stanton proclaimed: "That all U. S. marshals and superintendents or chiefs of police of any town, city, or district be, and they are hereby, authorized and directed to arrest and imprison any person or persons who may be engaged, by act, speech, or writing, in discouraging volunteer enlistments, or in any way giving aid and comfort to the enemy, or in any other disloyal practice against the United States."
In addition, Stanton proclaimed, "The writ of habeas corpus is hereby suspended in respect to all persons so arrested and detained and in respect to all persons arrested for disloyal practices."
Under the 1863 Indemnity Act, Congress authorized only the President, when in the judgment of the President, the public safety required it, to suspend the privilege of the writ.
It would have still been unlawful for a military officer to suspend the privilege of the writ when in his judgment it was required. It would have still been unlawful for Stanton to suspend the privilege of the writ nation-wide.
Additionally, specific requirements were imposed upon the administration should it arrest anyone where the courts were open.
Sec. 2. And be it further enacted,That the Secretary of State and the Secretary of War be, and they are hereby, directed, as soon as may be practicable, to furnish to the judges of the circuit and district courts of the United States and of the District of Columbia, a list of the names of all persons, citizens of States in which the administration of the laws has continued unimpaired in the said federal courts, who are now, or may hereafter be, held as prisoners of the United States, by order or authority of the President of the United States or either of said Secretaries, in any fort, arsenal, or other place, as state or political prisoners, or otherwise than as prisoners of war; the said list to contain the names of all those who reside in the respective jurisdictions of said judges, or who may be deemed by the said Secretaries, or either of them, to have violated any law of the United States in any of said jurisdictions, and also the date of each arrest
--the Secretary of State to furnish a list of such persons as are imprisoned by the order or authority of the President, acting through the State Department,
and the Secretary of War a list of such as are imprisoned by the order or authority of the President, acting through the Department of War.
And in all cases where a grand jury, having attended any of said courts having jurisdiction in the premises, after the passage of this act, and after the furnishing of said list, as aforesaid, has terminated its session without finding an indictment, or presentment, or other proceeding against any such person, it shall be the duty of the judge of said court forthwith to make an order that any such prisoner desiring a discharge from said imprisonment be brought before him to be discharged; and every officer of the United States having custody of such prisoner is hereby directed immediately to obey and execute said judge's order; and in case he shall delay, or refuse so to do, he shall be subject to indictment for a misdemeanor, and be punished by a fine of not less than five hundred dollars and imprisonment in the common jail for a period not less than six months, in the discretion of the court:
Provided, however, That no person shall be discharged by virtue of the provisions of this act until after he or she shall have taken an oath of allegiance to the government of the United States, and to support the Constitution thereof; and that he or she will not hereafter, in any way, encourage or give aid and comfort to the present rebellion, or the supporters thereof:
And provided, also, That the judge or court before whom such person may be brought, before discharging him or her from imprisonment, shall have power, on examination of the case, and, if the public safety shall require it, shall be required to cause him or her to enter into recognizance, with or without surety, in a sum to be fixed by said judge or court, to keep the peace and be of good behavior towards the United States and its citizens, and from time to time, and at such times as such judge or court may direct, appear before said judge or court to be further dealt with, according to law, as the circumstances may require. And it shall be the duty of the district attorney of the United States to attend such examination before the judge.
Sec. 3. And be it further enacted, That in case any of such prisoners shall be under indictment or presentment for any offence against the laws of the United States, and by existing laws bail or a recognizance may be taken for the appearance for trial of such person, it shall be the duty of said judge at once to discharge such person upon bail or recognizance for trial as aforesaid. And in case the said Secretaries of State and War shall for any reason refuse or omit to furnish the said list of persons held as prisoners as aforesaid at the time of the passage of this act within twenty days thereafter, and of such persons as hereafter may be arrested within twenty days from the time of the arrest, any citizen may, after a grand jury shall have terminated its session without finding an indictment or presentment, as provided in the second section of this act, by a petition alleging the facts aforesaid touching any of the persons so as aforesaid imprisoned, supported by the oath of such petitioner or any other credible person, obtain and be entitled to have the said judge's order to discharge such prisoner on the same terms and conditions prescribed in the second section of this act: Provided, however, That the said judge shall be satisfied such allegations are true.
You hit the nail on the head. Brother, you better believe that there are a LOT of Confederates. And I am one of them.
The so-called "crisis" was caused by Yankees not minding their own business.
And Lincoln was a bad guy. Unfortunately, Booth didn't shoot him in 1861. But, oh, well........
Quite right. They tried, at least.
"Unlimited state sovereignty" never really existed, as no state ever existed as a state out of the Union. To some degree or another, a dual sovereignty always existed with the Union. The Constitution of 1787 provided the death knell for the concept of unlimited state sovereignty, and the American Civil War accomplished its final demise. We can still smell the stench of Calhounian state's rights from time to time, but that too will eventually pass.
"After all, isn't liberal history all about warm fuzzy feelings?"
You tell me. You're the leftie who likes to quote from Larry Tribe and Lerone Bennett! What a joke.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.