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
Well, let me rephrase, then -- "the matter of who could suspend habeas corpus" was a red herring, for purposes of understanding what the case was about.
And yes, our friends are correct -- and not just because John Marshall concurred, but because it's in the black letters of the Constitution -- that Congress may suspend the "privilege" of habeas corpus.
But I still don't care about Ex Parte Bollman! Why should I care, when I have the plain English of the Constitution before me?
Lincoln hadn't even been inaugurated when that first 13th Amendment passed. It was proposed by Buchanan. And more than evidence of racism, it's evidence of how far attempts went to prevent a war by giving the south everything she wanted. The closest Lincoln came to supporting it that I can find is his statement in his first inaugural, ""holding such a provision to now be implied constitutional law, I have no objection to its being made express and irrevocable." In other words, since this looks like it's going to pass and become part of the Constitution, I accept it.
On the other hand, you ignore that Lincoln worked to ensure that the real 13th Amendment was part of the Republican platform in 1864.
More Taney-bashing.
Admit it. For a nest-feathering, wheeler-dealer Albany Regency political-lawyer hack, Roger Taney at least tried to do a conscientious job as a federal judge.
You missed that part of the movie, where we determined that that quote was a classic example of Honest Abe being slicker than fresh duck-droppings. Lincoln was up to his elbows in that amendment. He practically wrote it!
That quote is pure Clintonspeak.
Oh, the answer to your challenge is "Article I, Section 2".
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.
I don't own anything by Foner, either. Nor am I trying to demonize "southern conservatives." However, those who hold the principles of the confederacy near and dear to their hearts ought to have ther heads examined. There is nothing "wrong" with southern culture, or southern heritage, or even pride in the accomplishments of southern ancestors. What is wrong is the hard-headed insistance that the "south was right" when the basis of the confederacy was so thoroughly flawed - legally and morally.
"Nevertheless, in the thread from which I quoted you, it wasn't just the quote, it was the metaphysical argument for the complete and total destruction of the South that you were championing. It was an important argument, which is why I remembered it, and I remembered your making it."
I think the thong you are wearing is cutting off your circulation. I advocating the destruction of the confederacy. I still do. It was based upon the greatest evil of its time.
"Same one the USA was based on, bub."
Wrong again. The Founders and Framers recognized the political problems related to the sudden demise of slavery. It is a common theme throughout the compromises made in the Constitutional Convention. The enduring hope of the Framers, however, was that slavery was on the road to extinction.
The CSA was propositioned on the ideal that slavery was a "positive good" and "that domestic slavery, regulated as ours is, produces the highest toned, the purest, best organization of society that ever existed on the face of the earth." And of course, their "constitution" made it legal forever.
Why?
Regardless, it still appears to be more a desperate attempt to give the south anything she wants than any kind of explicit statement of racism. Look, of course Lincoln was a racist. Almost everyone was a racist in the 19th Century. History is replete with examples a lot more egregious than Lincoln's statements. The fact is, however, that Lincoln did work to pass the real 13th Amendment, which didn't only end slavery in the rebelling states but in the loyal border states as well. And if you're going to argue, as some have, that Lincoln only worked to pass that amendment because it had become politically impossible not to only proves that, even if it hadn't been at the beginning, by 1864 the war was seen in the north to be about slavery, among other things.
As has already been explained to you through extensive quotation from the case and in great detail, it was necessary to determine where the court got its authority to issue writs, if that authority was constitutional, and if that authority was presently in place for the case. The answer to all these questions derives from the Habeas Corpus clause in Article I, which the court found to apply to congress.
Found in the Declaration and the Constitution, and especially the 13th and 14th Amendments. Where's yours?
"You're wallowing in elite-led, mass totalitarianism, credere obeddere combattere, popular fronts, tides of history, syntheses and antitheses and all that crap. Smell the coffee, man."
You are fanticizing. There are few issues in this world that "black or white." The issue of the ethical nature of slavery is one of them. It doesn't matter if you have a turd floating in your swimming pool, or water in your cesspool, they are still both polluted. If slavery was the turd in the southern pool, then they should have done something about it.
Lawrence Keitt, January 1860: "African slavery is the cornerstone of the industrial, social, and political fabric of the South; and whatever wars against it, wars against her very existence. Strike down the institution of African slavery and you reduce the South to depopulation and barbaraism .... The anti-slavery party contend that slavery is wrong in itself, and the Government is a consolidated national democracy. We of the South contend slavery is right, and that this is a confederate Republic of sovereign States."
Alexander Stephens, March 1861: "[The confederate Government's] foundations are laid, its cornerstone rest, upon the great truth that the negro is not equal to the white man; that slavery ... is his natural and normal condition."
Robert Hunter: "There is not a respectable system of civilization known to history whose foundations were not laid in the institution of slavery."
It seems to me that I am not the one wallowing in the cesspool of discarded political theories.
You are in error. Buchanan had his own set of competing proposals that he was trying to pitch. He recruited Gen. Duff Green to try and get Lincoln on board with him, but Lincoln refused.
Lincoln refused because he had his own plot in the works - the Corwin amendment. The Corwin amendment was first proposed by William Seward, NOT Buchanan. Seward introduced its full text in the Committee of Thirteen just before Christmas in 1860. Seward did this after meeting with Thurlow Weed, who had come straight from Springfield carrying a message from Lincoln to introduce it.
When Lincoln arrived in Washington in February the measure was on the verge of coming up for a vote - so he went to work immediately lobbying for the thing as reported openly in the newspapers and recorded to history by Henry Adams, whose father - another loyal Lincolnite - was one of the House sponsors. Lincoln even slipped into the senate gallery while they were debating it to catch a glimpse of the events. Thus, when he claimed the next day that he had not seen the amendment yet, he was lying. He had not only seen it - he helped write the thing!
And your constant inclusion of opinion masquerading as fact is asinine, though consistent. Why was the question of who may suspend it material to the case? The question before the court was whether it had the authority to issue a writ of habeas corpus at all, noth whether or not it could be suspended.
Marshall did just that, finding the habeas corpus clause to be the basis upon which Congress could constitutionally authorize the courts to issue writs and thus, necessarily, the only way that authority could be withdrawn from the courts.
Nonsense. Marshall found that the basis for the court's power to issue the writ were the 14th Section of the judicial acts.
Yes, and he also worked to pass the other 13th amendment, which permanently enshrined and protected slavery. Thus it may be said with full accuracy that Lincoln's position toward slavery included a constitutional amendment to permanently protect it, a constitutional amendment to permanently ban it, and virtually everything in between.
Put another way, If Lincoln were alive today he would be voting for the $87 billion then voting against it.
Jaffa contends that where the suspension clause is located is not nearly as important as why it is in the document at all.
You stick with professor/historian Fehrenbacher. I'll stick with the opinion of the court - issued by Chief Justice Taney. Originally Nelson's opinion was to be the "court" opinion, but upon a motion by Justice Wayne the justices re-voted to accept Taney's version as that of the court (see Fehrenbacher p. 166). If they disagreed on any issues, it was up to them to state such objections (concurring in part and dissenting in part).
Taney interpreted the Constitution to support his own extreme racial opinions, setting aside all state and federal legislation on the subject which was at variance with his views.
Utter nonsense. Federal citizenship could be granted to black ALIENS via naturalization.
Deflection, obfuscation, and unsubstantiated tu quoquery all in the same sentence. Congrats on the new record, non-seq!
Why was the question of who may suspend it material to the case?
Once again, because determining the source of the court's authority to issue the writ was the purpose of the case. Marshall found that authority in a law of congress under the habeas corpus clause. If congress is the source of the court's power to issue the writ only congress may take away that power, and then only under certain circumstances.
The question before the court was whether it had the authority to issue a writ of habeas corpus at all, noth whether or not it could be suspended.
Red herring. The question of whether or not it could be suspended was not in dispute - only that of whether the court could issue it. The question of WHO could suspend it was material to the issue of from where the power to issue it came from, which is how Marshall determined that the court had the authority to issue a writ.
Nonsense. Marshall found that the basis for the court's power to issue the writ were the 14th Section of the judicial acts.
...which he found to have been enacted in fulfillment of the habeas corpus clause. A law is nothing if it is not constitutional, and that clause made the judicial act constitutional:
It may be worthy of remark, that this act 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 might 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.
It is from this that we get the holding of the case:
Until the legislative will be expressed, this court can only see its duty, and must obey the laws. The motion, therefore, must be granted.
And what was this "legislative will" he spoke of? He identified it a sentence earlier as a question that "depends on political considerations, on which the legislature is to decide," that question being on the suspension of the writ from the court's jurisdiction.
Yes it does. Article I, Section 1 states "All legislative Powers herein granted shall be vested in a Congress of the United States"
So tell me, Dan, exactly what is so difficult to understand about the phrase "SHALL BE VESTED IN A CONGRESS OF THE UNITED STATES"?
In 1863 Lincoln told a group of free blacks in attendance at the White House that the best thing for them was to leave the country - this continent wasn't big enough for both races. All through 1864, Lincoln had his Commisioner of Emmigration working to deport blacks, and fought for him to be retined on the federal dole. In April 1865, Lincoln conferred with Gen. Butler about "rewarding" black union soldiers with a free, all expense paid relocation to Panama, to dig a canal.
Today we would call it judicial activism. Then, it was a precursor to civil war.
All of which confirms what Lincoln himself said, that his highest aim was to preserve the Union.
"My paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery. If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that. What I do about slavery, and the colored race, I do because I believe it helps to save the Union; and what I forbear, I forbear because I do not believe it would help to save the Union. I shall do less whenever I shall believe what I am doing hurts the cause, and I shall do more whenever I shall believe doing more will help the cause. I shall try to correct errors when shown to be errors; and I shall adopt new views so fast as they shall appear to be true views."
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