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
More teleology and appeal to force: history is the chronicle of applications of brute force. And the chronicles of the Supreme Court too often record the tacky victories of factions.
And I just explained to you that the Supreme Court cannot sit in judgment of the People exercising their sovereignty.
Oh brother, yourself. Read the Treaty, here:
The text of the Treaty of Paris.
Notice in particular, the particularly relevant first article, which says,
Article 1st:
His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and independent states, that he treats with them as such, and for himself, his heirs, and successors, relinquishes all claims to the government, propriety, and territorial rights of the same and every part thereof. [Emphasis added.]
This is the essential document finally establishing U.S. sovereignty, since it contains the capitulation of the former sovereign to American liberty and independence, and the King's essential relinquishment of his own claim of sovereignty, which is a final and irrevocable grant of same to the States he lists in his capitulation.
I call this the essential document because, without it, the United States might have been called to arms repeatedly to preserve what we had won at Yorktown, and our independence would have been no better than the outcome of our last battle with the British, if the Crown were still claiming sovereignty over America and sending armies and ministers hither to make the Crown's will, law.
This treaty put a stop to all that.
The sovereignty of the newly independent people of the United States was a denial of the sovereignty of the British Crown, or the "King in Parliament."
But without the Crown capitulation, that denial would last only until the next campaign or the next battle.
In the context of the Founding Era debate on sovereignty, the concept revolved around the "ultimate locus of political authority." The early American view of the concept of sovereignty was that it was an authority derived from nature; a function of one's humanity.
If sovereignty derives from nature and one's humanity, then two things are true:
1. The "mystical Union", being an abstract concept, had neither humanity nor, therefore, sovereignty.
2. The People, being intrisically human, are the locus of sovereignty and authority, by the operation of natural law.
[You, being a wag] According to lentulusgracchus King George made 'em one.
In a sense, he did. The parts of the colonies that had expelled the British power by arms did not extend to the whole of America. The British securely occupied many towns, cities, and districts in America even after Yorktown. I think Rhode Island may have been one of the occupied areas, or at least Newport. But a Rhode Islander will correct me.
It took the British acceptance of American freedom and their relinquishment and grant of sovereignty to make us secure and whole, and to turn the military situation into a new political and legal reality.
And since we're going back, I answered you, here:
If you now contend that a "supraconsitutional" right, or in other words, a natural law right, exists to "dissolve the political bonds that have connected them with another," I agree with you.
But you want a pony -- a crib. You want the right to say that, if the revolutionists fail on the battlefield, they never had the right. You want to assert a teleological argument and renew your appeal to force again.
The fact of the matter is, the Southern States had a legal right, recognized in American constitutional law, to resume their sovereign powers and leave the Union in an orderly manner for reasons they deemed sufficient -- which were not the "light and transitory" reasons you keep polemically and dishonestly asserting they were.
You keep trying to justify Lincoln's war of conquest with legal fictions and talk of penumbras and violent revolution. You speak of the insulted majesty of the warmakers, and of contracts violated by an insouciant South.
But that's all rhetoric -- you're still trying to justify Lincoln and his war to enthrall the South. Your basic problem is that he was wrong to do so, and you are wrong to applaud him.
At the end of the day, Lincoln's war to end slavery is all the more ironic, because it made more bondmen than it ever emancipated.
Well I'll bet the Founding Fathers heaved a huge sigh of relief at that. Here they had been referring to themselves as states for some time prior to the signing of the Treaty of Paris. But finally it had the royal stamp of approval to use that term.
Gianni posed the question. Give credit where credit is due.
But that begs the question of WHY? Why prematurely transport wounded persons who will obviously have trouble making the journey and certainly could not do it on their own feet? Why not simply let them heal at the only civilized location in hundreds of miles, especially when that location is indisputably within your own borders? That the yankees sent them to san antonio by cart also proves that the yankees forced several of them to cross the desert prematurely, and given the options were either go to san antonio or be shipped off to prison in Illinois, they chose the former.
Sibley's forces faced about 2,500 troops under Canby in New Mexico (1,200 regulars and 1,300 volunteers) and about 1,400 of the California column (down from the 1,500 that had reached Tucson). From The Battle of Glorieta by Don E. Alberts:
The decision [to depart El Paso] was emphasized by news that a completely separate Federal force was rapidly nearing the Rio Grande to reinforce Colonel Canby's units in New Mexico. The knowledge that Canby was already organizing his men in Fort Craig for another push against the Confederates, and that this additional California column would soon arrive, convinced the Texans to evacuate New Mexico and West Texas by July, 1862.
At this time there were about 1,500 Texas soldiers left out of the original force Sibley had gathered. They were in generally poor shape. I read somewhere that they fought most of the New Mexico campaign on half rations while the Federal troops and volunteers they faced were well fed.
Incorrect. Sibley retreated from Canby's forces, whose already existing ranks were bolstered by Carlton. Save for a minor skirmish outside of Tuscon, ARIZONA on April 15, Sibley's forces seem to have never even encountered Carlton
Cool fronts and warm fronts often clash in Central Texas in April and May and in October. This results in more rain and increased water levels in the rivers and streams. It was the increased river flow rates (for canoeing) and the more moderate temperatures that took me to the Hill Country at those times of years.
bump
I believe the number you quotes would have been called "effectives," but that figure is about right. I have not been able to locate on the web the confederate documentation or correspondence from San Antonio circa October 1862, but I have not gone through all two thousand pages of the O.R. for the Pacific theater or the Trans-Mississippi yet. When time allows, I might get to it. My overall impression was that Sibley fled because the "threat was greater than the execution."
With regard to Canby, he evidently stayed put when word was returned from Carleton that the forts and posts along the Rio Grande had been abandoned. Carleton soon thereafter replaced Canby. Canby went to a new assignment, and, I believe was involved in taking the surrender of confederate troops in Alabama (Taylor?).
Also, if this applies only to the context of state attempting to secede, then it is nonsense as originally used. There is no general rule applicable to any specific instance.
In capitan's newly-discovered minimalist context, it applies to nothing but entry and exit of states. As demonstrated, the statement fails in other contexts. And so we have the proposition that as Congress can approve entry of a new state, Congress can undo the entry of a state. However, just because Congress can do anything else does not mean that it can undo that other thing.
Why this capitan_refugio discovery applies only in the case of entry and exit of states has not been explained. Apparently it is a metaphysical thing, and he simply wills it to be so.
In support of that, the United States sent one ambassador to the Court of St. James's - not thirteen. The United States sent only one ambassador to France - not thirteen.
I understand you point concerning the "transferal" of sovereignty, but I contend the Americans had made sovereign claims some years before, based to the principle of natural rights. What George conveyed was diplomatic recognition and other rights.
One can also argue that sovereignty, in Great Britain at the time, did not soley rest with the Crown, but rather with the Parliament (comprised of the Crown, the House of Commons, and the House of Lords)> Sovereignty was not George's alone to "transfer."
Suppose for a moment, that George III did convey sovereignty. Where did George get it? From George II. And where did George II get it? And so on. Eventually one must ask themselves where did the sovereignty of the British Crown begin? And how was it established? At some distant point, you will find it claimed as a "divine right" - which is not dissimilar in concept from a natural right (from a metaphysical standpoint!).
The nonsense is the connection that you made between this case and the impeachment of a cabinet official. Impeachement of cabinet officials was not a matter before the court at that time. But then again, since when has the fact that the Supreme Court can't rule on something that hasn't happened ever interfered with your unique legal interpretations in the past?
Here's an odd fact. Canby was Sibley's brother-in-law.
From The Confederate Invasion of New Mexico and Arizona by Robert Lee Kerbey:
Ugly rumors spread that Canby's relations with Sibley, his brother-in-law, were too close to be "proper" under the circumstances of war; the men were disappointed at Canby's tactics and castigated him unmercifully ...
Another quote from the book:
After leaving Fort Davis the Confederates found the Indians more friendly, and it became easier to negotiate for buffalo and antelope meat. Later, wagons of provisions started coming from San Antonio, and then, as the 1,200 -1,500 exhausted troops approached the historic town, its whole population came out on the road to offer succor and look for relatives.
A contested claim of revolutionary rights must either be supported by force or abandoned.
"The fact of the matter is, the Southern States had a legal right, recognized in American constitutional law, to resume their sovereign powers and leave the Union in an orderly manner for reasons they deemed sufficient -- which were not the "light and transitory" reasons you keep polemically and dishonestly asserting they were."
No such legal right existed, especially in the 10th Amendment - a reservation and limitation on the powers to provided proper government. Secession is the antithesis of providing government. And we both know that when put to the test, the "right" of secession was denied by the Courts.
"But that's all rhetoric -- you're still trying to justify Lincoln and his war to enthrall the South."
The war was not about enslaving southerners. From the Southern perspective the war was about the justification and expansion of slavery. It is so stated in the CSA's organic documents, and in the speeches and letters of its leadership.
"Your basic problem is that he was wrong to do so, and you are wrong to applaud him."
Your statement refers to something Lincoln did not try to do. With respect to the war, Lincoln was right, and obligated by the duties of his office, to conduct it. Had Lincoln not conducted it successfully, or at all, is a matter of speculation.
How can you imply that the Brigade wants for a pony?
Surely, if a Brigade member wants a pony, a pony can be found for him.
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