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, and as NC pointed out, your source, Levy, is NOT A CREDENTIALED LEGAL EXPERT. You might as well be citing Alec Baldwin's "expertise" on the war in Iraq.
But the gist of the case was that the Court released the prisoners from an indictment for treason.
No capitan. The gist of the case was that the court could issue writs of habeas corpus on a very specific constitutional and statutory jurisdiction. Virtually everything about the case was habeas corpus from the act that gave rise to it (a petition for a writ) to the holding of the case itself (a decision that the writ be granted).
The power of suspension of (the privilege of) the writ was not an question before the court, because it had not been suspended with regard to the case.
Specious nonsense. While a suspension had not happened, the direct corrollary to the suspension power (Congress' power to grant writ jurisdiction in the first place) was indeed before the court. If one holds true, so must the other and that is exactly what Bollman found.
Any mention by Marshall is in dicta.
Specious nonsense. You STILL do not understand that term and thus erroniously slap it on to any and every part of a court decision that you personally do not like. In reality Marshall's reasoning over the suspension power is the point on which the entire case itself turned (Congress had not suspended the court's jurisdiction on the writ THEREFORE the court was obliged to issue one).
If you are going to employ argumentum ad verecundiam - an inherently weak approach as it is though one you nevertheless seem to enjoy - the very least you can do and the only way you can give your appeal the shadow of legitimacy is to ensure that your chosen expert is credentialed in his field. Otherwise your quote about constitutional law is no more validated by its source than Sean Penn's opinion on global warming.
No. You perpetrated a falsehood, you got caught, and now you refuse to fess up. So, what's the frequency, capitan?
Not necessary. In absence of a specific governing clause that invokes otherwise, division of property defaults to either an equal dispursement based upon common status or a formulaic dispursement within the law based on degree of relationship to the former owner. Since the states were always treated on equal footing with each other in the constitution, it is safe to assume that the first case would govern.
There is that big assumption again, a valid act of secession.
You're free to dispute it and no doubt do. But that is not the point here. As I have noted, so long as one accepts it as valid the claim that others may exert over anything other than the equal dispursement of ownership of the former jointly owned properties is specious.
So it makes sense that the fate of the property should have been negotiated as part of the separation
...which brings us back to Saint Abe, who refused to have anything to do with any form of negotiation whatsoever.
Ever heard of procreation?
Just wait. Next he'll be telling us that the Battle of Fort Davis was "fake but accurate." What's the frequency, capitan?
I don't understand how you can accuse me of misrepresenting or lying about what he said, but refuse to do the minimum amount of work to check it out.
Look, Watie, you make an assertion and you challenged me to take it up with Dr. Lubar. I did just that and he refuted what you claimed he said. And for that, you've accused me of lying but refuse to ask Lubar. Now, I think that it's because you're afraid he'll confirm what he told me and blow your whole little pet theory about "8-row, mule-drawn cottonpickers" out of the water, and that's something that you won't risk. That's what I think--that you're deeply intellectually dishonest.
By the way, I'd still like to see something about Heyward Shepherd being a sworn law officer in Virginia. I mean, what a remarkable story that must be. Odd that there's not a thing about it anywhere I can find.
You want to recognize The Republic of Texas as a foreign nation and continue to exercise jurisdiction as if it continued to be a state of the union.
Appeals to authority are not valid when the authority cited is not recognized as an expert in the field. When I cite sources, you'll find they they are professionals who are well recognized in their field. Leonard Levy, who has become the latest object of your scorn, also won a Pulitzer Prize back in the 1960's for his book on the Fifth Amendment. Tommy D., on the other hand, is a crackpot.
There is no cover-up involved. All the posts are there for anyone to inspect. And anyone who does will find that your M.O. is to nit pick the minutia and utterly fail to address the broader issues.
Case in point. Levy has a disinguished career as a constitutional historian. He has written hundreds of articles and written, edited, or contributed to dozens of books and texts.
Your ingnorance is showing. Or are you just NC's passive partner?
Earlier guerrilla activity by confederates, especially in the Western theater and the trans-Mississippi, had done much to alienate the formerly sympathetic population. Many of the confederate partisan rangers were simply criminals who stole from friend and foe alike.
Freedman wrote: (at page 26 of his book, Habeas Corpus)
However, the heart of the Bollman opinion for present purposes is not its holding, but rather its proclamaton that the proviso in clause (4) of Section 14 (the limitation on granting the writ to those in state custody) "extends to the whole section," that is, restricts the exercise of power both by courts and by their individual judges.This statement is a classic example of obiter dictum -- a statement unnecessary to the decision of the case before the court, and therefore not entitled to legal weight in the future. Bollman involved federal, not state, prisoners and, indeed, ones who secured their release after full judicial investigation into the justification for their confinement.
Professor Freedman did not assert the rest of the decision was obiter dictum, but rather indicated that he had been discussing holding and was moving on to a discussion of obiter dictum.
It should be noted that Capitan has not quoted his source, Professor Freedman, pronouncing as dicta, those parts of the Bollman decision which are obviously holding.
Capitan, this is your ignorance showing.
I have not read Mitchell, but the description in the Hamdi footnote is that the plantiff was a US citizen.
-- capitan_refugio, #1370, 09/18/2004
The provided description is not in a footnote to anything. It is not from any Supreme Court decision. It was written by a public defender attorney and runs from the bottom of page 24 through the beginning of page 25 within the Petitition for a Writ of Certiorari.
Bollman was not about habeas corpus....
-- capitan_refugio, #237, 08/29/2004
Eric M. Freedman in Habeas Corpus, Rethinking the Great Writ of Liberty, devotes his chapters 3, 4, and 5 exclusively to Ex Parte Bollman.
Lemmon v the People was a case which foreshadowed Dred Scott. The Taney Court overturned a New York State statute which immediately freed slaves brought into the state. The decision guaranteed "sojourn and transit" and transit rights to slave-owners through free states. It did not address, to my knowledge, the issue of residence.
-- capitan_refugio, #386, 03/31/2004
The Supreme Court case of Lemmon v. The People does not exist.
Thank you for chiming in> I refer you to the text of Amy Warwick (1862): "But chiefly, the terms of the President's proclamation instituting [67 U.S. 635, 641]...."The Supreme Court finds:
(1) The rebellion is an insurrection and not a war betwenn countries,
(2) The "so-called blockade" was not a blockade under international law, and (3) Closing the ports was a valid exercise of executive authority.
-- capitan_refugio, #649, 09/03/2004
On FINDLAW, bracketed comments in text of case [67 U.S. 635, 641] indicate this report starts at Volume 67, page 635 and you are at the beginning of page 641.
[nc] cr quotes are from pp. 640-642 of the Supreme Court Reporter.
The entirety of the quoted matter was from the Court Reporter's recitation of the Argument of Mr. Carlisle which runs from page 639 to 650. The Opinion of the Court by Mr. Justice Grier starts at page 665.
All of the findings attributed to the Court are argments of Mr. Carlisle. None was adopted by the Court.
| 635 | 639 | 640 | 641 | 650 | 665 | 682 | 699 |
[court reporter at p. 638] "The case of the Amy Warwick was argued by Mr. Dana, of Massachusetts, for Libellants...."
[court reporter at p. 639] "The Brilliante, by Mr. Eames, of Washington City, for Libellants, and by Mr. Carlisle, of Washington City, for Claimants."
[court reporter at p. 639] "One argument on each side is all that can be given. Those of Mr. Dana and Mr. Carlisle have been selected...."
[court reporter at p. 639] Begins presentation of argument by Mr. Carlisle.
[court reporter at p. 650] Ends presentation of argument by Mr. Carlisle.
[court reporter at p. 650] Begins presentation of argument by Mr. Dana.
[Opinion of the Court] Mr. Grier pp. 665 - 682.
[Dissenting Opinion] Mr. Nelson pp. 682 - 699.
the redlegs,CO volunteers,jayhawkers, KS militia & the loudoun county rangers were ALL CRIMINALS.
MOST of those boys preyed on BOTH/ALL sides. their only TRUE motivation was PROFIT, looting & rapine of the HELPLESS. (for example, on the day of the cavalry raid on Lawrence,KS, "doc" jennison, who styled himself a captain of the US volunteer cavalry, escaped being killed because he was away from Lawrence raiding unionist farms in KS! NOTE: see the book INSIDE WAR for more details.)
free dixie,sw
You want to go back through the thread an list all of the bad-mouthing, accusations, and snide comments? It could nearly double the size of the thread! There are no clean hands here.
Case in point. Thank you.
Hairball. Noted.
Not at all, capitan. I do however have a problem with persons who habitually form their arguments on the LOGICAL FALLACY of argumentum ad verecundiam - the appeal to authority, which is especially erronious when the authority cited is NOT a credentialed expert in the field. Put another way, you like to pull out random names that support your side of the argument, cite their opinions as if they were fact based upon their "expertise," and declare the matter settled when time and time again it turns out that your sources aren't even credentialed in the field! Responding to a legal argument with this "well, Harry Jaffa says such and such and it must be so" or "Well, Levy says such and such and it must be so" garbage simply doesn't fly. If Levy wants to state his _OPINION_ about Bollman and you want to quote it, fine! But when that opinion is subjected to material scrutiny and shown to be misleading, to say the least, as Levy's was with Bollman, you cannot simply revert to citing his authority as a basis for IGNORING those criticisms. Why? BECAUSE HE IS NOT A CREDENTIALED AUTHORITY.
When I cite sources, you'll find they they are professionals who are well recognized in their field.
Nice try, Dan, but that simply is not so. You cited Jaffa, the english literature professor, as a legal source when it turns out he does NOT have professional credentials in law and is NOT widely recognized for his work in that area (most scholars consider him a crank with some fringe theory). Now you cite Levy as a "legal" source, yet it turns out that he's not a credentialed professional in law either and that the overwhelming volume of scholarly opinion on Bollman says what the case's words make obvious: yes, it was a habeas corpus decision.
Yeah, and so did Walter Duranty, Maureen Dowd, James "Red" McPherson, and Doris "plagiarist" Goodwin.
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