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

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

[TexConfederate1861]

Imagine that America had a Chief Justice of the United States who actually believed in enforcing the Constitution and, accordingly, issued an opinion that the war in Iraq was unconstitutional because Congress did not fulfill its constitutional duty in declaring war. Imagine also that the neocon media, think tanks, magazines, radio talk shows, and television talking heads then waged a vicious, months-long smear campaign against the chief justice, insinuating that he was guilty of treason and should face the punishment for it. Imagine that he is so demonized that President Bush is emboldened to issue an arrest warrant for the chief justice, effectively destroying the constitutional separation of powers and declaring himself dictator.

An event such as this happened in the first months of the Lincoln administration when Abraham Lincoln issued an arrest warrant for Chief Justice Roger B. Taney after the 84-year-old judge issued an opinion that only Congress, not the president, can suspend the writ of habeas corpus. Lincoln had declared the writ null and void and ordered the military to begin imprisoning thousands of political dissenters. Taney’s opinion, issued as part of his duties as a circuit court judge in Maryland, had to do with the case of Ex Parte Merryman (May 1861). The essence of his opinion was not that habeas corpus could not be suspended, only that the Constitution requires Congress to do it, not the president. In other words, if it was truly in "the public interest" to suspend the writ, the representatives of the people should have no problem doing so and, in fact, it is their constitutional prerogative.

As Charles Adams wrote in his LRC article, "Lincoln’s Presidential Warrant to Arrest Chief Justice Roger B. Taney," there were, at the time of his writing, three corroborating sources for the story that Lincoln actually issued an arrest warrant for the chief justice. It was never served for lack of a federal marshal who would perform the duty of dragging the elderly chief justice out of his chambers and throwing him into the dungeon-like military prison at Fort McHenry. (I present even further evidence below).

All of this infuriates the Lincoln Cult, for such behavior is unquestionably an atrocious act of tyranny and despotism. But it is true. It happened. And it was only one of many similar constitutional atrocities committed by the Lincoln administration in the name of "saving the Constitution."

The first source of the story is a history of the U.S. Marshal’s Service written by Frederick S. Calhoun, chief historian for the Service, entitled The Lawmen: United States Marshals and their Deputies, 1789–1989. Calhoun recounts the words of Lincoln’s former law partner Ward Hill Laman, who also worked in the Lincoln administration.

Upon hearing of Laman’s history of Lincoln’s suspension of habeas corpus and the mass arrest of Northern political opponents, Lincoln cultists immediately sought to discredit Laman by calling him a drunk. (Ulysses S. Grant was also an infamous drunk, but no such discrediting is ever perpetrated on him by the Lincoln "scholars".)

But Adams comes up with two more very reliable accounts of the same story. One is an 1887 book by George W. Brown, the mayor of Baltimore, entitled Baltimore and the Nineteenth of April, 1861: A Study of War (Johns Hopkins University Press, 1887). In it is the transcript of a conversation Mayor Brown had with Taney in which Taney talks of his knowledge that Lincoln had issued an arrest warrant for him.

Yet another source is A Memoir of Benjamin Robbins Curtis, a former U.S. Supreme Court Justice. Judge Curtis represented President Andrew Johnson in his impeachment trial before the U.S. Senate; wrote the dissenting opinion in the Dred Scott case; and resigned from the court over a dispute with Judge Taney over that case. Nevertheless, in his memoirs he praises the propriety of Justice Taney in upholding the Constitution by opposing Lincoln’s suspension of habeas corpus. He refers to Lincoln’s arrest warrant as a "great crime."

I recently discovered yet additional corroboration of Lincoln’s "great crime." Mr. Phil Magness sent me information suggesting that the intimidation of federal judges was a common practice in the early days of the Lincoln administration (and the later days as well). In October of 1861 Lincoln ordered the District of Columbia Provost Marshal to place armed sentries around the home of a Washington, D.C. Circuit Court judge and place him under house arrest. The reason was that the judge had issued a writ of habeas corpus to a young man being detained by the Provost Marshal, allowing the man to have due process. By placing the judge under house arrest Lincoln prevented the judge from attending the hearing of the case. The documentation of this is found in Murphy v. Porter (1861) and in United States ex re John Murphy v. Andrew Porter, Provost Marshal District of Columbia (2 Hay. & Haz. 395; 1861).

The second ruling contained a letter from Judge W.M. Merrick, the judge of the Circuit Court of the District of Columbia, explaining how, after issuing the writ of habeas corpus to the young man, he was placed under house arrest. Here is the final paragraph of the letter:

After dinner I visited my brother Judges in Georgetown, and returning home between half past seven and eight o’clock found an armed sentinel stationed at my door by order of the Provost-Marshal. I learned that this guard had been placed at my door as early as five o’clock. Armed sentries from that time continuously until now have been stationed in front of my house. Thus it appears that a military officer against whom a writ in the appointed form of law has first threatened with and afterwards arrested and imprisoned the attorney who rightfully served the writ upon him. He continued, and still continues, in contempt and disregard of the mandate of the law, and has ignominiously placed an armed guard to insult and intimidate by its presence the Judge who ordered the writ to issue, and still keeps up this armed array at his door, in defiance and contempt of the justice of the land. Under the circumstances I respectfully request the Chief Judge of the Circuit Court to cause this memorandum to be read in open Court, to show the reasons for my absence from my place upon the bench, and that he will cause this paper to be entered at length on the minutes of the Court . . . W.M. Merrick Assistant Judge of the Circuit Court of the District of Columbia

As Adams writes, the Lincoln Cult is terrified that this truth will become public knowledge, for it if does, it means that Lincoln "destroyed the separation of powers; destroyed the place of the Supreme Court in the Constitutional scheme of government. It would have made the executive power supreme, over all others, and put the president, the military, and the executive branch of government, in total control of American society. The Constitution would have been at an end."

Exactly right.

August 19, 2004

Thomas J. DiLorenzo [send him mail] is the author of The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War, (Three Rivers Press/Random House). His latest book is How Capitalism Saved America: The Untold Story of Our Country’s History, from the Pilgrims to the Present (Crown Forum/Random House, August 2004).

Copyright © 2004 LewRockwell.com

[capitan_refugio]

"Provide your evidence that the majority did not support the decision in Scott."

The text of the decision that Taney delivered orally was what was supported by "the majority" of the Court (although, considering that every justice submitted some sort of dissent or concurrence or both, there are some points made by Taney that seem not to have had a mjority behind them). That oral text was not the same text that was published. No one can be sure exactly what the court decided.

"As usual, blowing it out your butt."

You seem to have a fixation on all things anal.

[capitan_refugio]

"Catron to Samuel Treat, May 31, 1857, Treat Papers, MHS. Concerning Taney's argument [regarding Negro citizenship], which he label a "dictum," Catron declared, "It cannot stand a moment in face of the dissenting opinions on this point."

Fehrenbacher, pg 329, FN 20.

Perhaps this is why Taney rewrote it after the fact.

[nolu chan]

[cr #2039] The mods did not pulls threads as you requested

Another unsupported, and unsupportable LIE. I made no such request.

[cr #2039] The Mitchell case. I said I had not read it, still haven't, but that I had read a passage about it. I characterized it as a "footnote" which was incorrect. It was not a footnote, but what it said, and what I quoted and related WAS CORRECT. Mitchell was an American citizen, so the case was not analogous to the point that was being made. You missed the main point and continue to misrepresent what was stated.

What you cited as a footnote from Hamdi was not a footnote and was not from Hamdi. What you quoted from Mitchell was from a part of the decision having absolutely nothing to do with the subject matter to which you responded. On that point, the citizenship, or lack thereof, was and is irrelevant. My support is the Supreme Court decision in Mitchell and the quote of and comment upon said decision by Supreme Court Justice Benjamin Curtis. You have still failed to read the decision in Mitchell and speak from utter ignorance.

You were purporting to respond to what Justice Curtis wrote in 1862.

Executive Power, Benjamin Robbins Curtis, 1862, p.22

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. These are its words: "The President shall be the Commander-in-chief of the army and navy of the United States, and the militia of the several States, when called into the actual sevice 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 case of Mitchel vs. Harmony (13 How. 115), presented for the decision of the Supreme Court of the United States, the question of the extent of the right of a commanding general in the field to appropriate private property to the public service, and it was decided that such an appropriation might be made, in case it should be rendered necessary by an immediate and pressing danger or urgent necessity existing at the time, and not admitting of delay, but not otherwise.

In delivering the opinion of the court, The Chief Justice said: -- "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 we think it very clear that the law does not permit it. The case mentioned by Lord Mansfield, in delivering his opinion in Mostyn vs. Fabrigas (1 Cowp. 180), illustrates the principle of which we are speaking. Captain Gambier, of the British navy, by the order of Admiral Boscawen, pulled down the houses of some sutlers on the coast of Nova Scotia, who were supplying the sailors with spirituous liquors, the health of the sailors being injured by frequenting them. The motive was evidently a laudable one, and the act done for the public service. Yet is was an invasion of the rights of private property and without the authority of law; and the officer who executed the order was held liable to an action; and the sutlers recovered damages against him to the value of the property destroyed. This case shows how carefully the rights of property are guarded by the laws of England; and they are certainly not less valued, nor less securely guarded, under the Constitution and laws of the United States."

It may safely be said that neither of the very eminent counsel by whom that case was argued, and that no judge before whom it came, had then advanced to the conception that a commanding general may lawfully take any measure which may best subdue the enemy. The wagons, mules, and packages seized by General Donophon, in that case, were of essential service in his brilliant and successful attack on the lines of Chihuahua. But this did not save him from being liable to their owner as mere wrongdoer, under the Constitution and laws of the United States.

In Mitchell, the Court said, "But we are clearly of opinion, that in all of these cases the danger must be immediate and impending; or the necessity urgent for the public service, such as will not admit of delay, and where the action of the civil authority would be too late in providing the means which the occasion calls for. It is impossible to define the particular circumstances of danger or necessity in which this power may be lawfully exercised. Every case must depend on its own circumstances. It is the emergency that gives the right, and the emergency must be shown to exist before the taking can be justified."

The Court said the lawful taking for public use by a military officer, "It is the emergency that gives the right, and the emergency must be shown to exist before the taking can be justified." The Court did not say the officer must determine the nationality of the owner. To this question, the nationality of the owner is irrelevant. The snippet of Mitchell you found quoted by a public defender has nothing to do with the subject of taking property for public use.

[cr #2039] Bollman. Bollman was not a habeas corpus case. It was a case about the definition of treason and the jurisdiction of the courts to issue writs. I have cited my sources. You can argue, but to characterize my position as a lie, is itself dishonest. But I expect nothing less from you.

• In his book on habeas corpus, Freedman spends three chapters on Bollman.
• "Marbury v. Madison clarified that the power to issue writs of mandamus under section 13 of the Judiciary Act constitutes an exercise of appellate jurisdiction when exercised by the Supreme Court. See t U.S. (1 Cranch) 137, 147, 2 L.Ed. 60 (1803). Four years after Marbury the Court similarly construed the provisions of section 14 relating to writs of habeas corpus and mandamus. See Ex parte Bollman, 8. U.S. (4 Cranch) 75, 99-101, 2 L.Ed. 554 (1807)." Quoted from Nowak and Rotunda, Constitutional Law, West Publishing, 1991, § 2.9, Footnote 14.
• "Absent congressional authorization, federal courts lack power to issue even writs of habeas corpus. See Ex parte Bollamn, 8 U.S. (4 Cranch) 75 (1807)." Quoted from Laurence Tribe, American Constitutional Law, p. 268, footnote 3.

You did not write about the Supreme Court case of Lemmon v. The People, you only purported to do so. As a Supreme Court case, it case does not exist. You claim you confused it with some other sojourn and transit case. You have never been able to identify that imaginary case, either. You claimed, "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." It never happened. It did not happen in the non-existent Supreme Court case of Lemmon v. The People, nor in your other unidentified and unidentifiable, imaginary case. What's the frequency, Capitan?

The point being that you quoted from the argument of an attorney, Mr. Carlisle, in the case of the Brilliante, and you claimed you were quoting from the Opinion of the Court in Amy Warwick.

You remain confused in your terminology. One nation may recognize another without having diplomatic relations.

In capitan_refugio's words, "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."

All of your purported "findings" of the court were the reverse of the actual findings of the court.

The court actually found,

(1) "If it were necessary to the technical existence of a war, that it should have a legislative sanction, we find it in almost every act passed at the extraordinary session of the Legislature of 1861, which was wholly employed in enacting laws to enable the Government to prosecute the war with vigor and efficiency." Also, "The right of prize and capture has its origin in the 'jus belli,' and is governed and adjudged under the law of nations. To legitimate the capture of a neutral vessel or property on the high seas, a war must exist de facto, and the neutral must have knowledge or notice of the intention of one of the parties belligerent to use this mode of coercion against a port, city, or territory, in possession of the other."

(2) "That a blockade de facto actually existed, and was formally declared and notified by the President on the 27th and 30th of April, 1861, is an admitted fact in these cases." Also, "Let us enquire whether, at the time this blockade was instituted, a state of war existed which would justify a resort to these means of subduing the hostile force."

(3) "On this first question therefore we are of the opinion that the President had a right, jure belli, to institute a blockade of ports in possession of the States in rebellion, which neutrals are bound to regard."

[cr #2039] You have embarrassed yourself sufficiently.

You, apparently, have not embarrassed yourself sufficiently.

Review:

• You cited a footnote from Hamdi that was not a footnote and was not from Hamdi.
• You deny that Ex parte Bollman was a habeas corpus case.
• You recite the Taney court findings in the imaginary SCOTUS case of Lemmon v. The People.
• You attribute your error regarding the imaginary Lemmon decision to confusing it with some other unidentified, unidentifiable, imaginary case.
• You quote the argument of an attorney named Mr. Carlisle as the opinion of the Supreme Court.
• You say the court found there was not a war. The court found there was a war and found the President had the right to act in accordance with the laws of war.
• You say the court found the "so-called blockade was not a blockade." In the words of the court, "this blockade was instituted...."
• You say the court found "Closing the ports was a valid exercise of executive authority." The court found, "we are of the opinion that the President had a right, jure belli, to institute a blockade of ports in possession of the States in rebellion, which neutrals are bound to regard."

If you made all these errors while making your best effort to be accurate, then you have no credibility because you are incompetent, lazy and sloppy.

If you made some, or all, of these errors deliberately, then you have no credibility because you are ethically and factually challenged.

[nolu chan]

[cr #1606 to nolu chan, Admin Moderator, All]

[cr #1606] For a person who proclaims his hatred of Lincoln

I have not proclaimed any hatred of Lincoln, but disdain for the fabricated mythology that some have adopted, and the nonsensical and/or illogical apologies in defense thereof. In so doing, I quote extensively from Lerone Bennett, Jr., a Black historian and editor of Ebony magazine for about a half-century.

[cr #1606] his endorsement of legal slavery

I have not endorsed legal slavery. I have observed the historical fact that the Constitution recognized and protected the institution of slavery.

My #710 acts as a complete refutation of your unsupported allegation, "I'm a Yankee, native New Yorker, now residing in Arkansas. I do not mind talking the slavery issue. Slavery was wrong, it was always wrong, and never could be justified. It does not speak to the legal issue of secession. If secession was a legal right, it was no less a right whether its purpose was good, bad, or dumb."

Quote me endorsing legal slavery or please admit this is another of your smears and false accusations.

[cr #1606] your modus operandi is to smear and misrepresent

That is what I just documented you doing. Your allegation provides no documentation.

[cr #1606] You revel in quoting Hitler

Quote me quoting Hitler, or please admit this is just another of your smears and false accuations.

[cr #1606] You'll find in four years I have had exactly two pulled - neither for overt profanity.

The total text of your #1488 read "GFY". I am sure you intended it to mean "Good for you" and its was pulled in error.

[cr #1606] If you can not debate the issues, then I suggest you stay off of these threads.

I am debating the legal issues. You have been consistently losing that debate. You have thus resorted to the imaginary case, attributing argument of attorney to the Supreme Court, attributing argument by a public defender in a Petition to an opinion of the Supreme Court, and attributing comment from a dissenting opinion to the opinion of the Supreme Court, and denying the seminal case on habeas corpus was about habeas corpus. In arguing about the Supreme Court case of Scott v. Sandford, you provided quotes from Fehrenbacher pertaining only to the Missouri case of Scott v. Emerson.

If you cannot debate legal issues without misrepresenting what has been said by others as the opinion of the court, or opining upon non-existent court decisions, or opining about decisions you have not bothered to read, I would recommend you stay out of those legal discussions.

[cr #1606] You have chosen the loathsome task of defending the actions and the principles of the Confederacy.

I have chosen to debate the legal issues and whether secession was legal. Whether slavery was legal is not debatable. It was. However wrong and unpleasant that may be, it is historical fact. Whether slavery was right or wrong is not debatable. It was wrong. You only inject that issue as a diversion when you are losing the argument on the legality of secession.

[nolu chan]

[nolu chan #1873] Fehrenbacher, in the paragraph immediately preceding the changes you listed, said this, "This conclusion is partly confirmed by more definite evidence in the National Archives, where two different sets of page proofs of the Taney opinion have been preserved. Handwritten additions to the proofs constitute about eight pages of the version finally published."

[capitan_refugio #1909 to nc #1873] Unfortunately, nolu chan is ignorant and dishonest, as always. You neglect to add that Fehrenbacher's conclusion "is partly confirmed by more definite evidence in the national Archives, where two different sets of page proofs of the Taney opinion have been preserved. Handwritten additions to the proofs constitute about eight pages of the version finally published."

Another keen observation by capitan_refugio. What's the frequency, Capitan?

[nolu chan]

[cr] You seem to have a fixation on all things anal.

No, just with your process of squeezing out turds of thought. I redirect them to my printer and cut the result into four-inch squares and keep them in the little reading room where they can serve a useful purpose.

[cr] The text of the decision that Taney delivered orally was what was supported by "the majority" of the Court (although, considering that every justice submitted some sort of dissent or concurrence or both, there are some points made by Taney that seem not to have had a mjority behind them). That oral text was not the same text that was published. No one can be sure exactly what the court decided.

No, moron. The opinion is written and delivered after they reach agreement on the holding. It is the holding that is agreed upon. There are concurring opinions which disagree, in part, with the Opinion of Taney, but all concurring justices agree with the holding.

Everybody knows what the holding was in Scott. Well, with the possible exception of capitan_refugio.

[Non-Sequitur]

The court can rule on virtually anything that is material to the case.

To the case before it. But since habeas corpus had not been suspended then it was not a matter before the court, and your answer is incorrect. As usual.

[nolu chan]

[cr #2005] The case has already been made, on the historical merits, that Taney was a racist who was not above breaking the rules of the Court to bolster his his own ego and write his own prejudiced racial theories into constitutional law.

As usual, devoid of factual content. As usual, you sound like James Carville. The decision in Scott was 7-2, not 1-0.

[cr #2005] (1) Taney did espouse racist theories regarding the inferiority, and even the inhumanity, of black Africans. That has been abundantly documented here, and in the texts.

Typical Capitan bullcrap. Such bullcrap relies upon quoting Taney interpreting Federal law. That would be Federal law that permitted slavery in every state of the union. That would be a Constitution that recognized and protected the institution of slavery. That would be Federal law that prohibited the naturalization of -all- non-white persons. Perhaps you think a Constitution, as ratified by every state of the union, that authorized slavery in every state of the union, should be interpreted by a judge to afford equal rights to all. Perhaps you think Federal law that denied naturalization to all non-Whites should be interpreted by a judge to afford equal rights to all. Taney's great sin was telling the ugly truth and documenting it by quoting a series of acts of the New England hypocrites.

In the Treaty of 1783 it was stipulated that his "Brittanic Majesty should, with all convenient speed and without causing any destruction or carrying away any negroes or other property of American inhabitants, withdraw all his armies," etc. Under this treaty negroes belonging to citizens of New Jersey were claimed as their property.

At the first session of Congress, in March 1790, a Quaker society prayed Congress to take jurisdiction of slavery. The House referred the petition to Foster, of New Hampshire; Gerry, of Massachusetts; Huntington, of Connecticut; Lawrence, of New York; Sinnickson, of New Jersey; Hartley, of Pennsylvania, and Parker, of Virginia. They recommended the following: "Resolved, That Congress has no authority to interfere in the emancipation of slaves or in the treatment of them in any of the States, it remaining with the several States alone to provide rules and regulations therein which humanity and true policy may require." This resolution was passed without opposition.

Concerning the establishment of a mixed international court to adjudicate cases against vessels alleged to be captured slavers, proposed by Lord Castlereigh on behalf of England in a treaty with the United States, November 2, 1818, Secretary-of-State John Quincy Adams said, "The condition of the blacks being in this Union regulated by the municipal laws of the separate States, the Government of the United States can neither guarantee their liberty in the States where they could only be received as slaves nor control them in the States where they would be recognized as free."

In the War of 1812 the British removed a considerable number of slaves to Nova Scotia against the will of the owners. Others were sold to the West Indies. In the treaty of peace, known to history as the Treaty of Ghent, in 1814, negotiated on behalf of America by Messrs. Admas, Russell, and Gallatin, from Northern free States, and Clay and Bayard, from slave States, -- these confiscated slaves were claimed as property, and the British Government was required to pay for them. Payment was refused; this led to a series of diplomatic correspond­ence until at length, in the convention with Great Britain on the question, May 20, 1820, in which "the United States claimed for their citizens, and as their private property" the removed slaves, nego­tiated by Albert Gallatin, Richard Rush, Frederick John Robinson, and Henry Goolburn, plenipotentiaries, the question was agreed to be arbitrated before Emperor Alexander, Emperor of all the Russias. This was done according to agreement. The arbitration agreements were carefully prepared, -- Henry Middleton representing the United States and Sir Charles Bagot representing Great Britain. Alexander held that the slaves which had been removed against their masters' wills were lawful and valuable property, and adjudged that Great Britain was liable in damages. At London in 1826, Gallatin representing the United States, and Huskisson and Addington Great Britain, it was agreed that this finding of the emperor was correct, and Great Britain promised to pay to the United States for the benefit of those who had owned these slaves one million two hundred and four thousand nine hundred and sixty dollars. The next year, 1827, Gallatin, a Northern man, under the administration of John Quincy Adams, of Massachusetts, and with the approval of the administration, actually secured the payment of this sum.

In 1830 the Comet and in 1834 the Encomium were carrying slaves from one port in the United States to another port in the same. Storms drove and stranded both near Nassau, New Providence on the Bahama Islands. The slaves were removed by the wreckers to the island; and detained by the local authorities with­out the consent of the masters or those in charge of the vessels. In 1835 the Enterprise, sailing from the District of Columbia destined for some Southern, port of the United States "on a lawful voyage and with regular papers," was forced by storm to put in at Port Hamilton, Bermuda Island. There her slaves were forcibly seized and detained by the local authorities. In each case the owners pro­tested in vain, after which they applied to our government for re­dress. Each of these islands at each respective time was under the jurisdiction of England. Our authorities demanded the value of the slaves of the British government. The claim was based upon the property alleged to exist in the negroes. After years of nego­tiations with Great Britain redress was obtained in the two first cases-the full value of the slaves being paid to the United States to be paid to their owners. England refused payment in the case of the negroes taken from the Enterprise, because she said slavery was illegal in her territory -- her emancipation law having taken ef­fect in the island of Bermuda before the time the slaves from the Enterprise were carried there. Hence, having touched free soil, she claimed they became free, and insisted that they no longer remained property. The matter was brought before the Senate, and in a series of resolutions the Senate declared the slaves to be property, and that the property rights "as established by the laws of the State to which they belonged" were not affected by their being upon Ber­muda Island free soil. Then the declaration continued thus: "Re­solved, That the brig Enterprise which was forced unavoidably by stress of weather into Port Hamilton, Bermuda Island, while on a lawful voyage on the high seas from one part of the Union to an­other, comes within the principles embraced in the foregoing reso­lutions, and that the seizure and detention of the negroes on board by the local authority of the island was an act in violation of the laws of nations and highly unjust to our own citizens to whom they belonged." Every member of the Senate voted for this plain decla­ration of a violation of the property rights pertaining to the slaves.

As late as March 9, 1853, pursuant to act of Congress approved March 3, 1853, the grandson of Major William Hazzard Wiggs, "a gallant officer of the Revolutionary War," so the record tells us, was paid by the Treasurer of the United States $41,691.21 for the loss of negro slave property sustained by the grandfather at the hands of the British during the Revolution.

[cr #2005] (2) Taney did rewrite and materially change the Dred Scott decision, after delivering it orally, in an attempt to blunt the immediate criticism it had received. The proof for this is manifest, but includes multiple copies of printers proofs, with significant changes and edits, in the National Archives, as well as contemporary accounts of the oral decision which are at odds with the published version.

The proof that there were no "material" changes is provided by Taney and the action, or rather inaction, of the other six concurring justices.

[cr #2005] (3) A simple textural analysis of the published version shows clear evidence of the addition of rebuttal - rebuttal written after the fact. A comparative analysis of the published version versus the documentation from the other justices (dissents, letters, etc), shows that Taney changed the decision.

What does the texture of the paper have to do with anything? Or did you mean textual? Before you use long words, educate yourself to the point where you can fully enjoy a bowl of alphabet soup.

You cannot show a "material" change. You cannot show a change to the holding. As usual, you defecate meaningless blather.

[cr #2005] (4) With his revised Dred Scott opinion, Taney created a monstrosity of a legal problem, because some of his opinion did not have the support of the majority of the Court and few or none of the other justices had the opportunity to review and comment on the revisions. Taney even refused to make a transcription of the oral decision available to another justice.

You have a monstrosity of a factual problem. There is no evidence whatsoever that the holding of the Taney opinion ever lacked the support of the majority. You blather, but cite no statement from any of the six concurring justices.

[cr #2005] As Fehrenbacher notes, "As a matter of historical reality, the Court decided what Taney declared that it decided. The places only the stamp of legitimacy on his opinion however. Whether it was based on sound law, accurate history, and valid logic is another question, still to be considered [in the following chapters of the book] and not absolutely separable from the moral problem inherent in the enslavement of men." (Chapter 14 of 23, last paragraph).

Taney was not the Chief Justice of the Supreme Court of Morality in the United States. His job, and the job of the other justices, was to interpret Federal law, including the Constitution, as it was, not as they or anyone else felt it should be. It is not the function of the court to strike down a law, or any part of the Constitution as immoral. If the law is wrong, then the law should be changed.

As a historical matter, 7 justices concurred in the holding in Scott v. Sandford.

As a historical matter, when capitan_refugio is challenged to argue on the merits, he cannot or will not do it.

[nolu chan]

[Non-Seq] To the case before it. But since habeas corpus had not been suspended then it was not a matter before the court, and your answer is incorrect. As usual.

How did the Court determine it had the authority to issue the writ without determining if said authority had been suspended pursuant to the Constitution?

How did the Court determine that its authority to issue the writ had not been suspended without determining who had the authority to suspend said authority pursuant to the Constitution?

[Non-Sequitur]

How did the Court determine it had the authority to issue the writ without determining if said authority had been suspended pursuant to the Constitution?

The case before the court was not whether their power to issue the writ had been suspended. That implies that they did have the power but it was denied in this instance. No, the case was that they lacked the authority to issue the writ in the first place under any circumstances. And the court ruled that they did. Since habeas corpus had not been suspended then that wasn't an issue before the court. And since habeas corpus had not been suspended then the question of who may suspend it was certainly not an issue before the court.

[snopercod]

...that words on paper in a document called the Constitution have never had any finite meaning.

You make a persuasive argument for mob rule, but those sacred "words on paper" are - dare I say it? - seared into the minds of a dwindling few of us, and may prompt us into action someday.

[nolu chan]

[capitan_refugio #2042]

"Catron to Samuel Treat, May 31, 1857, Treat Papers, MHS. Concerning Taney's argument [regarding Negro citizenship], which he label (sic - labeled) a "dictum," Catron declared, "It cannot stand a moment in face of the dissenting opinions on this point."

Fehrenbacher, pg 329, FN 20.

Perhaps this is why Taney rewrote it after the fact.

The incomplete, misleading quote is, of course, from the footnote on pages 672-3, and not the text on page 329.

The text on page 329-30 reads:

The Chief Justice devoted some twenty-four pages of his opinion to the question of Negro citizenship, all of which was extrajudicial if he had not carried a majority with him on the plea in abatement. And yet the cry of has seldom been raised against those twenty-four pages. Among the justices, only Catron did so, and in a private letter 5rather than in his official opinion. [Note 20]

But for the confusion caused by the plea in abatement, Taney probably would have had little trouble getting the support of a clear-cut majority for his ruling against Negro citizenship. As it was, only two justices (Wayne and Daniel) expressly endorsed the ruling, and two others (McLean and Curtis) expressly dissented from it. The four remaining justices offered no opinions on the issue of Negro citizenship itself.

* * *

In summary, the opinion of the Court declared that Negroes were not citizens; this ruling was neither expressly endorsed nor expressly challenged by a majority of justices; but a majority did apparently regard the ruling as authoritative. Thus, on balance, the evidence seems to support the unorthodox view that Taney's ruling was indeed the Court's decision on the subject of Negro citizenship.

The concurring justices concur with the holdings of the court except where they express differently within their concurring opinions.

And now for the complete footnote as it appears on pages 672-3. What capitan_refugio chose to include in his version is in blue.

Catron to Samuel Treat, May 31, 1857, Treat Papers, MHS. Concerning Taney's argument [regarding Negro citizenship], which he labeled a "dictum," Catron declared, "It cannot stand a moment in face of the dissenting opinions on this point." Catron insisted that five other justices agreed with him on the plea in abatement. However, he was counting not only Nelson, Grier, and Campbell, but also Curtis, which was certainly a mistake and shows how much confusion there was among the justices themselves. Catron, it should be noted, was alone in insisting that Taney's argument on Negro citizenship, rather than his argument on the Missouri Compromise, was obiter dictum.

[nolu chan]

[Non-Seq #2050] The case before the court was not whether their power to issue the writ had been suspended.

Without knowing if their power had been suspended, how could they proceed? In every case, it is absolutely essential to establish jurisdiction to hear the case.

[Non-Seq #2050] That implies that they did have the power but it was denied in this instance.

There is no implication whatever. The court must determine jurisdiction to hear the case. To do so, they must determine if their jurisdiction obtained or had been suspended. The court cannot assume is has jurisdiction.

The court stated, "As preliminary to any investigation of the merits of this motion, this court deems it proper to declare that it disclaims all jurisdiction not given by the constitution, or by the laws of the United States."

[Non-Seq #2050] No, the case was that they lacked the authority to issue the writ in the first place under any circumstances. And the court ruled that they did.

Whatever that says is ambiguous. The court found that it could only have authority to issue a writ of habeas corpus if said authority had been granted by an Act of Congress. It further found that such an Act of Congress existed and gave them such authority.

The court stated, "To enable the court to decide on such question, the power to determine it must he given by written law. The inquiry therefore on this motion will be, whether by any statute, compatible with the constitution of the United States, the power to award a writ of habeas corpus, in such a case as that of Erick Bollman and Samuel Swartwout, has been given to this court. The 14th section of the judicial act (Laws U. S. vol. 1. p. 58.) has been considered as containing a substantive grant of this power."

The court stated, "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. Until the legislative will be expressed, this court can only see its duty, and must obey the laws. The motion, therefore, must be granted."

[Non-Seq #2050] Since habeas corpus had not been suspended then that wasn't an issue before the court.

Who had the suspension authority and how did you legally determine, for the court, that it had not been suspended?

[Non-Seq #2050] And since habeas corpus had not been suspended then the question of who may suspend it was certainly not an issue before the court.

Who had the suspension authority and how did you legally determine, for the court, that it had not been suspended?

After the court judicially determined (here for the very first time) that only the Legislature could suspend their power, the court could take judicial notice of the fact that no such Act of Suspension by the Congress had been proclaimed. All such laws by Congress must be publicly proclaimed.

In the absence of a judicial determination of WHO could suspend their power, the Court could not take such judicial notice. For example, if a president or military officer could suspend their power, taking judicial notice would be impossible.

[Non-Sequitur]

Without knowing if their power had been suspended, how could they proceed?

The court was not investigating if their power had been suspended, they were ruling if they had the power to issue the writ in the first place. As the Chief Justice framed it, "The inquiry therefore on this motion will be, whether by any statute, compatible with the constitution of the United States, the power to award a writ of habeas corpus, in such a case as that of Erick Bollman and Samuel Swartwout, has been given to this court." The Chief justice pointed out the the judicial act laid out which courts could issue the writ of habeas corpus. The question then became was the Supreme Court included in that list? The Chief Justice ruled that it was. The final question was the act of Congress that gave the court the power to issue the writ compatible with the Constitution. And in this, too, Chief Justice Marshall ruled that it was. So none of these three questions addressed the issue of who may suspend habeas corpus because habeas corpus had not been suspended.

Who had the suspension authority and how did you legally determine, for the court, that it had not been suspended?

If habeas corpus has not been suspended then why should the court be ruling on who may suspend it?

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.

And had habeas corpus been suspended then this would certainly be a definitive ruling on who may suspend it. But habeas corpus had not been suspended, so this falls under the category of an obiter dictum. Something that a future judge could quote in support of a future ruling if habeas corpus ever was suspended, but not in and of itself a binding legal decision.

[Common Tator]

Like many people who refuse to realistically study the situaion, you believe what your leaders tell you. Your leaders know the score... they also know you will not take the effort to find the truth.

Chief Justice Marshall in the Marbury Vs. Madison decision established that the words in the constitution mean what ever 5 justices say they mean... today. They reserve the right to say the same words mean something else tomorrow. Justice Marshall and his fellow justices took away the real meaning of the constitution over 200 years ago. It is interesting to note that the Madsion in Marbury VS. Madison... was the man who wrote the constition. Madison lost the case. The court ruled that the author of the Constitution did not know what it meant. They ruled it did not matter what the actual author of the constitution said the constitution contained. The only important thing was what the Justices ruled Madison meant when he wrote it.

You have to close your eyes and believe that the constitutino fairy is real. No one who is not a supreme court justice can believe the words in the constitution mean anything with any degree of certainty.

To play with the brains of idiots, the supreme court even claims that words that are not in the constitution are really there. The word abortion is not in the constitution.... Abortion wasn't in the constitution until the supreme court found them in what they called the Penumbra of the Constituion. The supreme court ruled that he word Abortion was in the penumbra of the constitution, but only supreme court justices can see it. The justices imagined abortion was in the constitution and now it is.

I defy you to find in the constitution where is says blacks are only 3/5 of a human being. But that is what the Dupreme court in 1857 ruled the constitution said. Justices have always seen things no one else can see. The law is what the Justices say it is.

The constituion does say that there are to be three separate parts of government... the executive, legislative and judical. Yet in a decision approving of the Food and Drug Administration, the court ruled that just one group of 7 members could pass laws, accuse citizens of breaking those laws, then try those accused, convict them and issue punishments. You can't show me in the constitution how quasi Judicial agencies can be legal.... It is in the constitution because the supreme court says it is. The Supreme court nearly 100 years ago ruled the separation of powers clause in the constitution did not exist for regulatory agencies.

I could give you a hundred examples of the Courts violating the clear words of the constitution by saying the words did not mean what they clearly mean or that the words did not exist, or that words that don't exist do exist.

The only thing that counts IN THE REAL WORLD is not what the constitution says, but WHO GETS TO SAY WHAT IT SAYS. Only someone who has never read supreme court decisions and read the constitution could believe as you believe. If you took even a few mintues to study the real world, you might just see that for well over 200 years the actual words in the constitution have no finite meaning to the only people that count... Supreme Court Justices. What the justices say those words mean.. is all that matters.

[nolu chan]

[nc] Who had the suspension authority and how did you legally [judicially] determine, for the court, that it had not been suspended?

[ns] If habeas corpus has not been suspended then why should the court be ruling on who may suspend it?

If it has been suspended, the court cannot proceed to hear the case. Most courts consider jurisdiction an important issue. In Texas v. White the court ruled on secession to determine jurisdiction. By your logic, if secession had not occurred, then the issue was not before the court. That ruling must have been dictum.

Again, how are you determining, for judicial purposes, whether the power had been suspended or not?

To determine whether it has been suspended, how do you make a determination without determining WHO may suspend it?

The court concluded:

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.

The motion, therefore, must be granted.

[Non-Sequitur]

Who had suspended habeas corpus in this case?

[stand watie]

you KNOW that i'm talking about NORTHERN hypocrisy.

the damnyankees SAID they were "concerned with freeing the slaves" in the southland, BUT they didn't want them IN their states. NOR did they free THEIR SLAVES!

it's EXACTLY the same thing as in the 1950-60s period when damnyankees were "OH SO CONCERNED" about desegregating schools in southern states BUT still in 2004 have NOT desegregated MOST northern schools.

fyi, according to the DC Committee of Concerned Black Women 2003 report, there are more SEGREGATED schools in new england NOW than there was in all of the southland in 1950.

damnyankees are nothing if not CONSISTENT. CONSISTENTLY HYPOCRITICAL!

free dixie,sw

[Non-Sequitur]

you KNOW that i'm talking about NORTHERN hypocrisy.

Well, while you're doing that you don't mind if I point out your southern hypocrisy at the same time, do you?

[stand watie]

nope i don't.

HYPOCRITES are HYPOCRITES, wherever they are located.

aren't you the least bit EMBARRASSED about all the SEGREGATED schools in the north, when ya'll made "such a big deal" out of segregated southern schools 40+ YEARS ago AND the north still hasn't DESEGREGATED in 2004????

free dixie,sw