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
Whatever form of abuse you prefer, try handling the concept.
Don't let him retail that lumpen People of the Amalgamated Nation-State of America stuff.
"We the People" is a Hamiltonian formula written into the Preamble in the hope of realizing an amalgamation through rewriting the relationship of States to federal Union so as to abolish the States (and provide business a transparent continuum in which to operate), a principal goal of the business interests that Hamilton and Jay represented.
The method by which each State separately and autonomously ratified the Constitution, rather than in a mass, refutes the amalgamation propaganda. The ratification of the Ninth and Tenth Amendments seals it.
During the Constitutional Convention, Governeur Morris suggested mass-plebiscitary ratification by the undifferentiated Peoples of the confounded States. His motion failed for want of a second. (Elliott's Debates, vol. V, p. 356, cite courtesy of 4ConservativeJustices, here.)
Capitan is going through a course of trying us on with every refuted argument of the last two years, trying to challenge us, to see if we can't recover that damning post and that comprehensively refutational document.
The fact that Governeur Morris suggested what capitan_refugio insists happened, and that he was not at all sustained by the Constitutional Convention, is elenchus on this point.
For you, capitan, "elenchus" is the five-dollar rhetorician's word for "the perfection of refutation". As it, "it's all over, don't bring that shabby crap back in here again!"
"The state governments did not derive their powers from the general government; but each government derived its powers from the people, and each was to act according to the powers given it. Would any gentleman deny this? He demanded if powers not given were retained by implication. Could any man say so? Could any man say that this power was not retained by the states, as they had not given it away? For, says he, does not a power remain till it is given away?" "All the restraints intended to be laid on the state governments (besides where an exclusive power is expressly given to Congress) are contained in the 10th section of the 1st article."[Emphasis added.]
http://www.freerepublic.com/focus/news/911986/posts?page=145#145
Yassuh, boss.
If the shoe fits...
If you say so, boss.
Lincoln sought to enforce the laws, protect the Constitution, and to save the country.
As Lincoln made clear in his 1st Inaugural Address, he was not going to strike the first blow. He hoped for a political solution - even for the first year of the war. In the face of many southern provocations, and eventually armed insurrection, Lincoln hoped to avoid the conflict which many, on both sides, felt was inevitable.
"The Declaration, expressing the principle of 'liberty to all,' was the 'apple of gold' within the Constitution's 'picture of silver.' 'The picture was made not to conceal, or destroy the apple; but to adorn, and preserve it. The picture was made for the apple - not the apple for the picture. So let us act, that neither the picture, ro the apple shall ever be blurred, or bruised, or broken.'"
Lincoln had no intention to "enthrall" the South. (Why is it, when I hear the word "thrall," I think of scantily clad women and Capt. Kirk in chains?)
It is a point which you have not yet made, nor have you provided any evidence. The record shows, that even in Unionist Louisiana during late 1862, Lincoln entertained the idea of reconstituting pre-war government in return for a pledge not to make war against the Union. As it was, the war continued.
I appreciate your comments, but argue a point I did not make. Let me requote from Dennis J. Mahoney:
"Throughout American history a favorite rhetorical device had been to identify one level of government - usually the state - as sovereign. The success of this device depends on the ambiguity of the term. That a political body exercises jurisdiction, is supreme within its sphere, and is autonomous within its internal affairs does not mean that it, its government, or its legislature is immune to the sanctions of the law or is free of the constraints of higher law. To speak of 'sovereign states' is not entirely inaccurate if the speaker refers to their autonomy within their own sphere, but it derives its force by evoking the notion of indivisibility and illimitability drawn from the other sense of the term. The rhetoric seemingly denies that the sovereign states are comprised within a sovereign Union."
But the test of your interpretation of this clause in the Declaration is what, exactly, did they do independent of one another? The answer is that the Continental Congress conducted the revolutionary war, established to diplomacy, and concluded the peace. The thirteen former colonies acted as one nation, as an independent nation-state would do.
This has been the point of discussion in previous threads. You can refer to the original draft of Dickinson's Articles at Avalon Project. This clause was added as a salve to mollify a couple of intransigent southern States (even then!). And in the sense that it referred to their internal affairs, as compared to the affairs of the Perpetual Union described in the Articles, it is correct.
"Indeed, Maryland did (not) approve them for several long years, preventing the Articles from taking effect.
Correct. That is why the United States continued to function during the War under the rules of the 2nd Continental Congress - which was the de facto national government.
"If the states retained their sovereignty and independence (which they did), then this mythical preexisting Union you assert existed was a meaningless concept."
The individual states were prohibited from certain functions of government. Their sovereignty was not absolute.
"What were the colonies uniting themselves for if they were already united in the Mythical (sic) Union?"
The Declaration and the Articles began is contemporaneous documents. The second sought to codify the ideals of the first.
"From the Treaty of Paris: "There shall be a firm and perpetual peace between his Brittanic Majesty and the said states..." We saw how perpetual that was."
I don't believe we (the United States of America) were the aggressor in the War of 1812. The British notoriously violated the terms of the Treaty of Paris, from the beginning, especially by failing to remove their forts from the western frontier. I believe there is a book out now which refers to the War of 1812 as the "second" war for independence.
So? Individual states coined their own money, regulated their own commerce, raised and paid for their own troops who fought in the war. State courts, executive officers, and legislatures could and did do as they pleased. They issued land grants, etc.
Why should the thirteen states make individual peace agreements with Britain? They had more leverage as a group, and their combined forces were more of a threat to Britain than those of an individual state. It made more sense to designate a set of talented people to negotiate peace for all of them than to have representatives of thirteen states trying to work out something that all would agree to.
I am heartened to read that you consider the Constitution of 1787 to be a valid document. Not all of your cabal apparently shares that point of view.
Your error, however, by associating the Union with its form of government.
Could you explain why there are, still, several Departments of the government, institutions, and pre-constitutional laws, retained by the present government? Do you happen to know the founding date of the United States Marine Corps?
Please review the entirelty of that particular thread and you will answer your onw question.
Thanks but no thanks. Rather than dwell in the pseudo-ambiguities and word games about the "union" of Mahoney, I prefer the certitude and clarity provided by Tocqueville:
However strong a government may be, it cannot easily escape from the consequences of a principle which it has once admitted as the foundation of its constitution. The Union was formed by the voluntary agreement of the states; and these, in uniting together, have not forfeited their sovereignty, nor have they been reduced to the condition of one and the same people. If one of the states chose to withdraw its name from the contract, it would be difficult to disprove its right of doing so, and the Federal government would have no means of maintaining its claims directly, either by force or by right. In order to enable the Federal government easily to conquer the resistance that may be offered to it by any of its subjects, it would be necessary that one or more of them should be specially interested in the existence of the Union, as has frequently been the case in the history of confederations.If it be supposed that among the states that are united by the federal tie there are some which exclusively enjoy the principal advantages of union, or whose prosperity entirely depends on the duration of that union, it is unquestionable that they will always be ready to support the central government in enforcing the obedience of the others. But the government would then be exerting a force not derived from itself, but from a principle contrary to its nature. States form confederations in order to derive equal advantages from their union; and in the case just alluded to, the Federal government would derive its power from the unequal distribution of those benefits among the states.
If one of the federated states acquires a preponderance sufficiently great to enable it to take exclusive possession of the central authority, it will consider the other states as subject provinces and will cause its own supremacy to be respected under the borrowed name of the sovereignty of the Union. Great things may then be done in the name of the Federal government, but in reality that government will have ceased to exist.
I believe I posted earlier on this or another thread that the Treaty of Paris was violated by both sides, not just the British.
This has been the point of discussion in previous threads. You can refer to the original draft of Dickinson's Articles at Avalon Project. This clause was added as a salve to mollify a couple of intransigent southern States (even then!). And in the sense that it referred to their internal affairs, as compared to the affairs of the Perpetual Union described in the Articles, it is correct.
Sorry I missed the earlier debate. Did you perchance come across the following (paragraph breaks for readability and emphasis mine)?
"At present, nothing but executive business is done, except the Confederation, and on mere executive business there are seldom any debates; (and still more seldom any worth remembering.)
We have agreed to three articles: one containing the name: the second a declaration of the sovereignty of the States, and an express provision that they be considered as retaining every power not expressly delegated; and the third an agreement mutually to assist each other against every enemy.
The first and latter passed without opposition or dissent, the second occasioned two days debate. It stood originally the third article; and expressed only a reservation of the power of regulating the internal police, and consequently resigned every other power.
It appeared to me that this was not what the States expected, and, I thought, it left it in the power of the future Congress or General Council to explain away every right belonging to the States and to make their own power as unlimited as they please. I proposed, therefore an amendment, which held up the principle, that all sovereign power was in the States separately, and that particular acts of it, which should be expressly enumerated, would be exercised in conjunction, and not otherwise; but that in all things else each State would exercise all the rights and power of sovereignty, uncontrolled.
This was at first so little understood that it was some time before it was seconded, and South Carolina first took it up. The opposition was made by Mr. Wilson of Pennsylvania, and Mr. R. H. Lee of Virginia: in the end, however, the question was carried for my proposition, eleven ayes, one no, and one divided. The no was Virginia; the divided, New Hampshire.
I was much pleased to find the opinion of accumulating powers to Congress so little supported, and I promise myself, in the whole business I shall find my ideas relative thereto nearly similar to those of most of the States. In a word, Sir, I am of opinion, the Congress should have power enough to call out and apply the common strength for the common defense: but not for the partial purposes of ambition.
We shall next proceed to the structure of the common Councils; and here, I think, we shall meet with difficulties of the most arduous nature. The inequality of the States, and yet the necessity of maintaining their separate independence, will occasion dilemmas almost inextricable. You shall, Sir, know the whole progress of the matter if I can conceive and convey it with sufficient clearness."
Thomas Burke to Governor Caswell, 29 April, 1777. North Carolina Colonial Records, XI, 461.
The Union of the States became a legal entity with the Declaration. But did it spring into existence from nothingness? No, it had antecedents. Lincoln, a lawyer, expressed the idea that the Union began with the 1774 Articles of Association.
I take the issue back somewhat further. The United States, as a nation-state, contains an essential attribute, a "sense of nationality." This is just one aspect of nationhood, but an important one. It is comprised of, among other thing, shared experiences and tribulations. Well before the Revolutionary War for independence, the colonists were being referred to, and referring to themselves, as "Americans." (Take for instance, the references in Swift's "A Modest Proposal" (1729) wherein Swift uses both "America" and "Irish" in a nationalistic, but derogatory sense.) A sense of an American nationality is one building block upon which the Union of the peoples of the colonies developed, and culminated with the Declaration and there own definition of nationality.
The Union of the States can certainly be dated to a specific act, in this case the Declaration, but union, like sovereignty, nationhood, freedom, independence, and rights, are all conceptual.
"Then, who and what existed to vote themselves “into” the Union? Logically, this statement is impossible since it is impossible to “Prove a Negative.”"
The act that made subject into citizens, and colonies into states, simultaneously established the union of the state. To the extent that you accept that act as a valid for one, then it is valid for all.
"Mr. [James] Wilson, could not admit the doctrine that when the Colonies became independent of G. Britain, they became independent also of each other. He read the declaration of Independence, observing thereon that the United Colonies were declared to be free & independent States; and inferring that they were independent, not Individually but Unitedly and that they were confederated as they were independent, States." - Madison, Notes
One might say the British did exactly that for the next 38 years.
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