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
You went there. If secession were lawful, what one side held would not make it unlawful and would not moot an offer to pay.
You should get that short-term memory loss checked out.
I thought that we were discussing public property and now you're getting into privately owned property, which included slaves. I'm not sure why you, of all people, have a problem with it being mentioned in the Treaty of Paris but if you want to discuss it then fine. Where would you like to begin?
True. Perhaps you can point to the agreement signed before or during the Constitutional Convention that said, "if the states shall ever separate then federal property belongs to the seceding state without compensation to the other states?"
To the contrary, the states were treated as equals and thus it must be inferred that all federal property was jointly owned among them and, presuming a valid act of secession happens, should be jointly divided.
There is that big assumption again, a valid act of secession. So it makes sense that the fate of the property should have been negotiated as part of the separation, assuming a valid secession of course, and not seized before any offer of negotiation.
But there were 5436 in the 1850 census, and 7628 in the 1860 census. So the population of free blacks doubled in the face of the legislation that you claim was there to prevent it. I don't think that there aren't that many states, north or south, where that happened.
I've read the legislation authorizing the confederate commissioners, and it states that they were sent "for the purpose of negotiating friendly relations between that government and the Confederate States of America," and only then "for the settlement of all questions of disagreement between the two governments." So unless the Lincoln government was willing to recognize the Davis regime as a legitimate government then there weren't two governments to negotiate questions of disagreement. So it cannot be termed an offer to pay for property seized by the Davis regime. It may have turned out to be so, assuming that the regime was serious, but it didn't because it fell apart over the first part of the instructions.
It's not short-term memory loss, it's trying to follow your train of thought as it careens all over the countryside. So, assuming that there is a point in there somewhere, what is it that you think we are supposed to be discussing?
Dan??? Dan Rather, is that you??? Dan! We've been waiting for you to enter the fray here at FR!
Un-froggin'-believable.
What you actually do is keep telling us that this is the case, when it is not.
Who can we ping (who disagrees with you) who will support your assertion that you've given them a commensurate level of respect? I'd bet I can find a half-dozen on this thread alone who would disagree.
We are discussing the assertion of Non-Sequitur in #1874.
[Non-Seq #1874] Even if the Texas secession were legal, Constitutionally only Congress can dispose of federal property.
OK, so what do you dispute? Are you saying that Congressional approval was not needed to turn over federal property in Texas? What do you base that on?
And a few who would agree.
cr #1279, of 9/16/2004 at 11:39pm CDT shows, in reference to Mitchell vs. Harmony, "I saw the case referenced several times, but I have not taken time to look it up yet...."
cr #1335, of 9/17/2004 at 11:30am CDT shows the dismissal of Mitchell with the comment "you cite a pre-war case about the Mexican-American War, which isn't at all analogous."
nolu chan #1273 of 9/16/2004 at 6:50pm CDT shows a quote from Executive Power, the 1862 pamphlet by former Supreme Court Justice Benjamin Robbins Curtis showing that Mitchell vs. Harmony was directly on point. That is a Supreme Court Justice, who, unlike capitan_refugio, presumably actually read the court decision, quoting Mitchell regarding the authority of what generals in the field may do. It is a direct comment on the limits of the powers of President Lincoln as Commander-in-Chief of the Armed Forces.
nolu chan #1277 stated "See Mitchell vs. Harmony, 13 How. 115 (1851) "The 2d and 3d objections will be considered together, ..."
nolu chan #1299 shows that cr #1279 (in response to nc #1277) provided a quote from Hamdi which had absolutely nothing to do with the comments in Mitchell regarding the 2nd and 3rd objections. Capitan's material is shown to speak to only the 1st objection, and occurs before the Court ever gets to its discussion of the 2nd and 3rd objections. This erroneous, irrelevant Capitan response resulted from capitan_refugio once again demonstrating his expertise about a court decision he had not read.
These were the FIVE objections, of which the Capitan quote spoke only to the first.
1. That the plaintiff was engaged in trading with the enemy.2. That he was compelled to remain with the American forces, and to move with them, to prevent the property from falling into the hands of the enemy.
3. That the property was taken for public use.
4. That if the defendant was liable for the original taking, he was released from damages for its subsequent loss, by the act of the plaintiff, who had resumed the possession and control of it before the loss happened.
5. That the defendant acted in obedience to the order of his commanding officer, and therefore is not liable.
I have no underlying capitan_refugio substance to address because capitan_refugio quoted a portion of a court decision he had not seen and quoted an irrelevant portion which had no applicability whatsoever to the material quoted by Justice Curtis and requoted by myself.
Justice Curtis wrote,
"But the military power of the President is derived solely from the Constitution; and it is as sufficiently defined there as his purely civil power. There are its words: "The President shall be the Commaner-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States." This is his military power. He is the general-in-chief; and as such, in prosecuting war, may do what generals in the field are allowed to do within the sphere of their actual operations, in subordination to the laws of their country, from which alone they derive their authority.* [The footnote is the discussion of Mitchell v. Harmony.]
The court said this in its discussion of objections 2&3, as quoted by Justice Robbins and myself.
Our duty is to determine under what circumstances private property may be taken from the owner by a military officer in a time of war. And the question here is, whether the law permits it to be taken to insure the success of any enterprise against a public enemy which the commanding officer may deem it advisable to undertake. And the question here is, whether the law permits it to be taken to insure the success of any enterprise against a public enemy which the commanding officer may deem it advisable to undertake. And we think it very clear that the law does not permit it.
[n-s] And a few who would agree.
Maybe I should've said, "who disagrees with you, and can read" to make it more clear.
why do you want to agrue about something so SILLY???
free dixie,sw
hardly anybody here is fooled, anymore.
free dixie,sw
free dixie,sw
the desertions happened MAINLY because it was obvious to many that the war was over in all but name.
had there been mass executions by the damnyankees, the number of bluebellies killed from ambush would have been MASSIVE, especially if a leader like 'ole Nate Forrest called for a guerrilla war.
free dixie,sw
once again, why do you want to argue about something so UNimportant???? (fyi, this is my LAST post on this trivial subject. i have a life.)
and as i've said numerous times, head over to DU, where you will be WELCOMED with open arms.
the DU coven seems to like pointless flame wars. i don't.
free dixie,sw
Because it's just one more example of the sort of wild assertion you consistently make on here without any credible support. Because when you're challenged on these points, you sputter and obfuscate. Because when you challenge someone to go to the source you've cited, and that source refutes what you've said, you still won't admit that you were wrong and that's terrifically fun to watch.
So, are you going to apologize for accusing me of lying about Dr. Lubar's statements? Are you afraid to ask him yourself? He got back to me the next day, so I'm sure he'll respond if you ask him if he actually said what I posted as his response. Would you like his e-mail address again? Did you lose it? I'd think you'd be eager to prove that I've lied or misrepresented his words.
free dixie,sw
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