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
[A] proper examination of this subject will show, that the United States never held any municipal sovereignty, jurisdiction, or right of soil in and to the territory, of which Alabama, or any of the new states were formed.
Justice McKinley, Pollard v Hagan, 44 US. 212, 221 (1845)
[I]t could have no effect to restrict the new state in any of its necessary attributes as an independent sovereign government, nor to inhibit or diminish its perfect equality with the other members of the Confederacy with which it was to be associated.
Justice Daneil, Withers v. Buckley, 61 U.S. 84 (1857)
otoh, he IS the Minister of Damnyankee Propaganda.
that is what a PROPAGANDIST does;it's his job.
free dixie,sw
Your entire post is nothing more than an ad hominem smear. You don't refute the substance of what has been quoted, but rather, you attack the people who made the observations. Meanwhile, some of the other stooges are polluting FR with Hitler quotations - apparently to your satisfaction. It is easy to see where you guys stand.
And you don't read very well, because you continue to mischaracterize what I said. Case in point, you stated, "In your #226 you repeated the known falsehood that the Act of August 1861 ratified Lincoln's habeas corpus violations." My #226 says nothing of the sort. It say that in August 1861 and March 1863 Congress retrospectively ratified Lincoln's emergency actions taken early in the war. This is a true statement. The
Prize Cases upheld the validity of the August 6, 1861 Act which, at the very least, upheld and ratified Lincoln's actions with regard to the Army and the Navy, as well as his conduct of the war. It is an historical fact that the Lincoln was satisfied with that legislation, as far as it went. The Habeas Corpus Act of 1863 specifically provided the missing authorization with regard to the suspension of the writ. (They is other rationale to suggest that he could have continued even without the authoriztion, but that is fodder for another post.) Your misinterpretation of my statement is yet another example of your limited intellectual faculties.
Most people consider anything on the Circuit Court and up, of which there were three against Lincoln - Merryman, Murphy, and a case on the Boston circuit court. Also, cases directly involving a major national official in the government (i.e. a president, senator, congressman, or cabinet official) tend to qualify as being of major importance all the way down to the district court level for obvious reasons of their high profile.
What is a minor federal court ruling?
Normally your average district court ruling, exempting of course the aforementioned cases.
And how do you come to your conclusion on "major" or some other ranking?
On the basis that (1) 3 out of the 5 were circuit court and (2) 5 out of the 5 involved a high level national official.
Just for the record, they were ...?
Vallandigham and a congressman from Maryland (i'll have to look up his name) detained in 1861.
The "Long Convention" of Missouri citizens tossed the rascals out, because the rump legislature were traitors, and abdicated their positions.
Unsubstantiated garbage. The claim that the second convention was a continuation of the first is wholly specious as a substantial part of the membership of the first, including its president, were in Neosho.
You are certainly reaching on this one! If an income tax lowers your take home pay, it is not to say that it diminished your compensation. Your gross pay remained the same.
Mindless sophistry to justify government enforced robbery. If compensation after a new tax is less than compensation before that tax then compensation has diminished, especially if it is the dispenser of compensation itself that is retaining the tax.
Taney had a prepared opinion on that issue too, in the event a case ever came his way!
So I take it you believe that judges are not allowed to do legal writings? You are incorrect, BTW, as to having a "prepared" opinion. Taney voiced the issue in a letter to Congress.
Sherman's march through the deep south was a military offensive designed to break the back of the confederate war-making capability and destroy the will of the people of the CSA to resist superior moral and military force.
Mindless sophistry to justify a tyrant. The fact still remains that Sherman's troops robbed and plundered from the civilian population.
I would agree that if the secessionists and the Union came to blows, the federal armies would have invaded through Virginia. You need to provide a little bit more proof than your gratuitous accusation.
Nothing gratuitous about it. You know as well as anyone about the 75,000-whatever man army that Lincoln raised in April. He called them to Washington for a prepared assault on Virginia even though Virginia did not secede for another month.
The good people of western Virginia wanted nothing to do with their traitorous eastern brethren.
Wrong. A small rump convention of people concentrated in half a dozen or so counties around Wheeling wanted nothing to do with the confederacy. They claimed themselves to represent the government of Virginia then voted their own separation, taking a third of the rest of the state with them unwillingly.
The great irony about the secessionist gripes concerning the creation of West Virgina is that they hypocritically would have denied those people the "right to unilateral secession" they divined for themselves.
Bullsh*t. Many in Virginia would have been happy to let Wheeling go. The gripe came from the fact that the Wheeling radicals weren't content to take care of themselves. Instead they reached down south and claimed two or three dozen other counties for themselves. Substantial majorities in several of the counties they claimed were supportive of the confederacy and had voted with the rest of the state to secede.
Inaccurate and baseless. The treasonable Governor and his fellow travelers skedaddled in the face of moral authority.
Oh, so now it was a "moral authority"? Cause I'm virtually certain that those legislators looked out over the hills and saw a large hostile army.
You do agree with the sentiments he expressed, do you not? Your statements sure suggest that you do. That being the case, LG's reference to nazism is substantiated well beyond what you let on.
I'm sure that would come as news to them. There's a famous headline in the Charleston Mercury a few days after South Carolina seceded. It declares that the "REVOLUTION of 1861" is underway
Must be some newfangled metaphysical "natural wellness" health remedy he picked up last week at the Californy Psychic Depot and Massage Parlor.
Thanks for this article. It is very interesting.
It would if the grader knew his history and was honest about it. Perhaps not in the public schools where they "teach" you that George Washington was a violent militaristic slaveowning WASP who took his vengeance against mother nature out on innocent cherry trees, but that is of no fault in my history - rather the school system itself.
I also noticed that you neglected to addres virtually all of the Declaration's points about suspending the civil authority, using the military outside of the oversight of law, abusing judges and the sort. Why is that?
The Charleston Mercury was the mouthpiece of the fire-eater Robert Barnwell Rhett. He was among the most radical of the southern disunionists.
The rub is, you don't quote Hitler's writings because of some perverse intellectual curiosity; you do it to smear those with whom you disagree. I would not be the least bit surprised if you had the swastika decal right beside the stars and bars decal in the rear window of your pickup.
Sorry, neither you, LG, 4CJ, or NC are going to bait me into discuss your racist, bigoted, Nazi views. I have already declined to discuss your Klan views, if you will remember.
Incorrect. The founding fathers declared their independence in three successive waves - the first being when a couple of colonies (and even some counties) asserted it for themselves in early 1776, followed by a majority declaration of the colonies as a whole on July 2, adopted July 4th, followed by a unanimous publication of the July 4th document in August upon the return of enough members from New York's declaration to sign the copy that appears today in the National Archives. The CSA followed the path of the first wave, with each state individually declaring its independence from the US. But since, unlike in 1776, they were splitting away from other states on the continent itself with the remainder choosing to stay put, a joint majority declaration of the states was unnecessary and a unanimous one would not have applied to the situation.
The Charleston Mercury was the mouthpiece of the fire-eater Robert Barnwell Rhett.
Yes, and as such it carried the secessionist message in its most direct form. Contrary to your claim, that message was revolutionary.
The tone was already well degraded when you began parroting a line indistinguishable from Hitler's several dozen posts back.
But if you insist, why don't you also post Hitler's views, in the same chapter, on the inferiority Jews
Are you agreeing with them as well just like you agree with that passage about the union? If so, perhaps you should join your neo-nazi buddy and former Wlat Brigadier #3fan on another forum that permits that kind of garbage.
The rub is, you don't quote Hitler's writings because of some perverse intellectual curiosity; you do it to smear those with whom you disagree.
Don't be silly, capitan. You pitched a hissy fit when others likened your arguments to the nazi political philosophy of the fuehrerprinzip over their common and shared themes. You vehemently denied it and blasted another poster for implicating your position for its similarity to the nazi one. Now you're embarassed because, as I have shown, Hitler ascribed to a position that was not only similar but in fact VIRTUALLY IDENTICAL to your own on this subject. So rather than wipe the egg from your face you once again stand there letting it drip all over the carpet while projecting the negative implications of your newly shown shared subscription to Hitler's view of the union onto those who caught you in the act.
I would not be the least bit surprised if you had the swastika decal
Sorry projection boy, but unlike persons who regularly quote and praise Jacobin radicals like Rakove, Farber, and Finkelman, I have nothing but disdain and contempt for the symbols and ideologies of the socialist world.
The "Who Said It: Walt or Karl Marx?" Quiz
DIRECTIONS: The following quotations are statements made either by Karl Marx, the father of communism and big government thuggery, or by Walt in his pro-Lincoln postings on Free Republic. Without consulting outside sources, identify who you believe to be the author of each quote by indicating so. Each correct answer will be worth 1 point.. Answers will be displayed shortly after ample time has been allowed for response. Yankees are welcome to give it a try as well.
1. "Part of Lincoln's genius was in knowing what the country would accept, and another part was helping to guide it where it needed to go."
2. "[Abraham Lincoln was] one of the rare men who succeed in becoming great, without ceasing to be good. Such, indeed, was the modesty of this great and good man, that the world only discovered him a hero after he had fallen a martyr."
3. "In accordance with the principle that any further extension of slave territories was to be prohibited by law, the Republicans therefore attacked the rule of the slaveholders at its root. The Republican election victory was...bound to lead to open struggle between North and South."
4. "[Lincoln] was firm "as with a chain of steel" on there being no expansion of slavery from where it already existed. That alone was enough to cause the war, because the slave owners knew that their "futures" in slaves and slave breeding would be compromised unless slavery were allowed to expand."
5. "This geographical barrier [containing slavery] was thrown down in 1854 by the so-called Kansas-Nebraska Bill...[which] placed slavery and freedom on the same footing, commanded the Union government to treat them both with equal indifference"
6. " Lincoln was alarmed by the Kansas-Nebraska Act into becoming more politically active -- because he had a personal abhorance of slavery...he had a solution to at least begin the ending of slavery. And that is what the secessionists found so repugnant."
7. "Lincoln was a very pracical man. He did discover a way to begin to end slavery in the United States. If slavery were confined to areas in which it already existed, it would die"
8. "The whole movement was...based, as one sees, on the slave question. Not in the sense of whether the slaves within the existing slave states should be emancipated outright or not, but whether the twenty million free men of the North should submit any longer to an oligarchy of...slaveholders; whether the vast territories of the republic should be nurseries for free states or for slavery...whether the national policy of the Union should take armed spreading of slavery in Mexico, Central and South America as its device."
9. "[Lincoln] knew that if slavery was limited to areas where it was currently legal, it would die. The slave holders knew it too. That is why slave holders were continually trying to expand territory favorable to gang-labor slavery. That was why the Mexican War was fought and that is why the federal government tried to buy Cuba and that is why slave holders sent expeditions to disrupt Nicaraugua and other Central American locations."
10. "Lincoln bent over backwards to avoid war in his first inaugural. But Jeffeson Davis couldn't allow secession fever to cool. So he fired on Fort Sumter."
11. "It is above all to be remembered that the war did not originate with the North, but with the South...For months [the North] had quietly looked on while the secessionists appropriated the Union's forts, arsenals, shipyards, customs houses, pay offices, ships and supplies of arms, insulted its flag and took prisoner bodies of its troops. Finally the secessionists resolved to force the Union government out of its passive attitude by a blatant act of war, and solely for this reason proceeded to the bombardment of Fort Sumter near Charleston."
12. "[F]rom 1846 to 1861 a free trade system prevailed...Representative Morrill carried his protectionist tariff through Congress only in 1861, after the rebellion had already broken out. Secession, therefore, did not take place because the Morrill tariff had gone through Congress"
13. "[We are fortunate] that it fell to the lot of Abraham Lincoln...to lead his country through the matchless struggle for the rescue of an enchained race and the reconstruction of a social world."
14. "Lincoln's words show what a great and good man he was, and his actions show [his critics] for a fool or poltroon."
BONUS QUESTION:
Identify the author of this quote denying the sovereignty of the states and advocating the union just like Lincoln did. It could be Walt. It could be Marx. Or it could be somebody else. Take a guess!
"[In America] it is impossible to speak of original sovereignty in regard to the majority of the states. Many of them were not included in the federal complex until long after it had been established. The states that make up the American Union are mostly in the nature of territories, more or less, formed for technical administrative purposes, their boundaries having in many cases been fixed in the mapping office. Originally these states did not and could not possess sovereign rights of their own. Because it was the Union that created most of the so-called states."
Scroll down for answers
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ANSWERS:
1. Walt, http://www.freerepublic.com/focus/news/703308/posts?page=2#2
2. Karl Marx, Address of the International Working Men's Association to President Johnson, 1865
3. Karl Marx, On the North American Civil War, October 20, 1861
4. Walt, http://www.freerepublic.com/focus/news/700651/posts?page=88#88
5. Karl Marx, On the North American Civil War, October 20, 1861
6. Walt, http://www.freerepublic.com/focus/news/688238/posts?page=62#62
7. Walt, http://www.freerepublic.com/focus/news/688238/posts?page=42#42
8. Karl Marx, On the North American Civil War, October 20, 1861
9. Walt, http://www.freerepublic.com/focus/news/688238/posts?page=42#42
10. Walt, http://www.freerepublic.com/focus/chat/662922/posts?page=85#85
11. Karl Marx, On the North American Civil War, October 20, 1861
12. Karl Marx, On the North American Civil War, October 20, 1861
13. Karl Marx, letter to Abraham Lincoln congratulating him on reelection as President of the United States, January 28, 1865
14. Walt, http://www.freerepublic.com/focus/chat/664750/posts?page=51#51
BONUS: Adolph Hitler, Mein Kampf volume II, 1926
Nazi views? ROTFL!!!! Sorry to disappoint, but to me ALL men are children of God - all descended from Adam and Eve. All equal.
It was #3Idiot, a poster on your side, that espoused a separatist/white supremacist position.
You might oughta communicate that to your hero Harry Jaffa. He's quite fond of branding the confederacy with a nazi label even though the record clearly and irrefutably shows that Hitler adhered to a Lincolnian position about the union.
It's funny how quickly and conveniently he "forgets" that his former buddy, with whom he was actively conversing and lavishing support not two weeks ago, was just outed as a neo-nazi aryan nation type.
These Wlat Brigade types have been outing themselves as adherents to all sorts of bizarre, bigotted, and insidious ideologies in the last couple of months. First Wlat shows himself as a marxist. Next #3 shows his neo-nazi roots. And of course, all along capitan is sitting here spouting passages upon passages from books by Berkeleyite nuts and slavery reparationists. So forgive me for being just a little bit concerned when he also starts spouting the Hitler line on the union and espousing the Fuehrerprinzip view of executive governance.
GOPc - "Vallandigham and a congressman from Maryland (i'll have to look up his name) detained in 1861."
Vallandigham had not been re-elected in 1862. He was no longer a sitting congressman when he was arrested by order of Gen. Burnside in May 1863. Vallandigham was a candidate for the Democrat nomination for Governor at the time. His campaign was not going so well and he courted arrest for the publicity. It seems he forgot the old saying, "Be careful what you ask for. You may get it."
"The claim that the second convention was a continuation of the first is wholly specious as a substantial part of the membership of the first, including its president, were in Neosho."
The second meeting of the Missouri convention had a quorum of the members who attended the first session. When the Convention met on July 22, it declared the renegade government null and void. The renegade legislature would not meet in Neosho until October, and, even if they could claim legitimacy, never achieve quorum (at least, no official records exist to show that was the case, nor that the special session was lawfully called by the Governor).
"Mindless sophistry to justify government enforced robbery. If compensation after a new tax is less than compensation before that tax then compensation has diminished, especially if it is the dispenser of compensation itself that is retaining the tax."
If your ... uhhhh ... "reasoning" were valid, then it could be concluded that Federal judges don't have to pay income taxes, or tax increases, because it would decrease their "compensation." Sorry, "that dawg don't hunt."
"So I take it you believe that judges are not allowed to do legal writings? You are incorrect, BTW, as to having a "prepared" opinion. Taney voiced the issue in a letter to Congress."
Taney had prepared several opinions during the war dealing with issues ranging from the legality of income tax to conscription. They were all designed to thwart the Lincoln Administration, because Taney was, fundamentally, a disloyal southerner.
"Nothing gratuitous about it. You know as well as anyone about the 75,000-whatever man army that Lincoln raised in April. He called them to Washington for a prepared assault on Virginia even though Virginia did not secede for another month."
Still, no substantiation on your part.
Lincoln called for the raising of troops on April 15, 1861. They were to be stationed and utilized all over the Union, not just in Washington, D.C. or Virginia. On April 17, the Virginia legislature passed a secession ordinance, subject to a popular referendum. On April 18, Virginia militia under the direction of secessionist former Virginia Governor Wise unlawfully seized the arsenal at Harper's Ferry. On April 19th, secessionist forces attacked the Gosport naval yard.
These, and similar acts all preceded the May 23rd referendum. Armed insurrection was present in Virgina well before it seceded. In fact, secessionist activity preceeded the arrival of the first federal troops (6th Massaachusetts) in Washington on April 19-20. If Lincoln had aimed the entirety of the new, asembling army at Virginia, he would have been wholly justified. But the fact was, he did not.
I find that you did not deny the bigotry, predjudice, and racism explicit in your position to be very revealing.
[cr #323] And you don't read very well, because you continue to mischaracterize what I said. Case in point, you stated, "In your #226 you repeated the known falsehood that the Act of August 1861 ratified Lincoln's habeas corpus violations." My #226 says nothing of the sort. It say that in August 1861 and March 1863 Congress retrospectively ratified Lincoln's emergency actions taken early in the war. This is a true statement.
[cr #226 to nc #212] The actions were lawful, and were approved of, and ratified by the Congress (in the acts of August 1861 and March 1863). End of story.
[nc #212]
To: capitan_refugio[cr] Lincoln had called Congress back into session by his proclamation in April 1861, to assemble on July 4, 1861. But events were escalating rapidly. His actions to protect the constitutional union, the enforce the laws, and to suppress the rebellion were both prudent and lawful. I realize that is unpleasant for the Lincoln-hating cabal to here, but it is a fact.
The Constitution reserves the power of authorizing suspension of the privilege of the writ of habeas corpus to the Legislative Branch. I realize this is unpleasant, but it is a fact and quoting history professors, philosophers, and specialists in metaphysics will not change that fact. Unless you can cite a LAW, rather than a Lincoln apologist, Lincoln's actions will remain UNLAWFUL. The Constitution contains no Paludan/Jaffa/Farber clause granting Lincoln the power to suspend habeas corpus. Further, nobody even pretends that a president has the power to authorize military officers to suspend the privilege of the writ at their discretion. That is what Lincoln actually caused to happen -- you might not like it, but it is a fact.
Lincoln could have convened Congress at any time. He kept them OUT of session as long as he could without losing the militia.
And Chief Justice Marshall, in delivering the opinion of the supreme court in the case of Ex parte Bollman and Swartwout, uses this decisive language, in 4 Cranch [8 U. S.] 95: 'It may be worthy of remark, that this act (speaking of the one under which I am proceeding) 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 may 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.' And again on page 101: '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.' I can add nothing to these clear and emphatic words of my great predecessor.
-- Chief Justice Roger B. Taney, Ex Parte Merryman,/i>, In Chambers Opinion of the Chief Justice of the Supreme Court."Although this provision does not state that suspension must be effected by, or authorized by, a legislative act, it has been so understood, consistent with English practice and the Clause's placement in Article I."
-- Justice Antonin Scalia, Hamdi v. Rumsfeld, No. 03-6696. Argued April 28, 2004 - Decided June 28, 2004"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."
-- Chief Justice John Marshall, writing for the majority in Ex Parte Bollman and Swartwout, United States Supreme Court, 1807"And who could hold for a moment, when the writ of habeas corpus cannot be suspended by the legislature itself, either in the general government or most of the States, without an express constitutional permission, that all other writs and laws could be suspended, and martial law substituted for them over the whole State or country, without any express constitutional license to that effect, in any emergency? Much more is this last improbable when even the mitigated measure, the suspension of the writ of habeas corpus, has never yet been found proper by Congress, and, it is believed, by neither of the States, since the Federal Constitution was adopted."
-- Justice Levi Woodbury, dissent in Luther v. Borden, United States Supreme Court, 1849--------------------
"That every person restrained of his liberty is entitled to an inquiry into the lawfulness of such restraint, and to a removal thereof, if unlawful; and that such inquiry and removal ought not to be denied or delayed, except when, on account of public danger, the Congress shall suspend the privilege of the writ of habeas corpus.
-- Act of Ratification of the Convention of the State of New York-------------
"The Constitution seems to have secured this benefit [habeas corpus] to the citizen by the description of the writ, and in an unqualified manner admitting its efficacy, while it declares that it shall not he suspended unless when, in case of rebellion or invasion, the public safety shall require it. This writ is believed to be known only in countries governed by the common law, as it is established in England; but in that country the benefit of it may at any time be withheld by the authority of parliament, whereas we see that in this country it cannot be suspended even in cases of rebellion or invasion, unless the public safety shall require it. Of this necessity the Constitution probably intends, that the legislature of the United States shall be the judges. Charged as they are with the preservation of the United States from both those evils, and superseding the powers of the several states in the prosecution of the measures they may find it expedient to adopt, it seems not unreasonable that this control over the writ of habeas corpus, which ought only to be exercised on extraordinary occasions, should rest with them. It is at any rate certain, that congress, which has authorized the courts and judges of the United States to issue writs of habeas corpus in cases within their jurisdiction, can alone suspend their power"
-- William Rawle, "A View of the Constitution of the United States of America," 1826"It would seem, as the power is given to congress to suspend the writ of habeas corpus in cases of rebellion or invasion, that the right to judge, whether exigency had arisen, must exclusively belong to that body."
-- Justice Joseph Story, "Commentaries on the Constitution of the United States," Book 3, Chapter XXXII, § 1336, 1833"In England the benefit of this important writ can only be suspended by authority of parliament. It has been done several times of late years, both in England and in Ireland, to the great oppression of the subject, as hath been said. In the United States, it can be suspended, only, by the authority of congress; but not whenever congress may think proper; for it cannot be suspended, unless in cases of actual rebellion or invasion. A suspension under any other circumstances, whatever might be the pretext, would be unconstitutional, and consequently must be disregarded by those whose duty it is to grant the writ."
-- Tucker's Blackstone, Section 12 - Restraints on Powers of Congress, paragraph 2."There has been much discussion concerning the question whether the power to suspend the "privilege of the writ of habeas corpus" is conferred by the Constitution on Congress, or on the President. The only judicial decisions which have been made upon this question have been adverse to the power of the President.Still, very able lawyers have endeavored to maintain -- perhaps to the satisfaction of others -- have maintained, that the power to deprive a particular person of the "privilege of the writ," is an executive power. For while it has been generally, and, so far as I know, universally admitted, that Congress alone can suspend a law, or render it inoperative, and consequently that Congress alone can prohibit the courts from issuing the writ, yet that the executive might, in particular cases, suspend or deny the privilege which the writ was designed to secure. I am not aware that any one has attempted to show that under this grant of power to suspend "the privilege of the writ of habeas corpus," the President may annul the laws of States, create new offences unknown to the laws of the United States, erect military commissions to try and punish them, and then, by a sweeping decree, suspend the writ of habeas corpus as to all persons who shall be "arrested by any military authority." I think he would make a more bold than wise experiment on the credulity of the people, who should attempt to convince them that this power is found in the habeas corpus clause of the Constitution. No such attempt has been, and I think none such will be made. And therefore I repeat, that no other source of this power has ever been suggested save that described by the President himself, as belonging to him as commander-in-chief."
-- Justice Benjamin R. Curtis, "Executive Power," 1862"The safest and best restriction, therefore, arises from the nature of the cases in which Congress are authorized to exercise that power [of suspending habeas corpus] at all, namely, in those of rebellion or invasion. These are clear and certain terms, facts of public notoriety, and whenever these shall cease to exist, the suspension of the writ must necessarily cease also."
-- Judge Francis Dana, presenting the Constitution to the Massachusetts Ratification Convention212 posted on 08/28/2004 1:13:46 AM CDT by nolu chan
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[nc #229]
To: capitan_refugio[cr] The actions were lawful, and were approved of, and ratified by the Congress (in the acts of August 1861 and March 1863). End of story.
Only in your imagination. This is vividly demonstrated by the Congressional record of the Act of 1861 which I have shown you many times. Apparently you have forgotten yet again, and need a reminder.
The debate of the precise language occurred on S-70. That was tabled and the precise same language, having already been debated, was placed in S-72. This all happened in the Senate on the same day.
Congress did NOT approve "all the acts of the President." What they approved was "all the acts, proclamations, and orders of the President of the United States, after the 4th of March, 1861, respecting the Army and Navy of the United States, and calling out or relating to the militia or volunteers from the States...."
The Congressional debate made the issue at hand clear. Lincoln had no authority to increase the size of the standing army without Congressional approval. Volunteers had been enlisted. Said volunteers, now facing a full-blown civil war instead of the 90-day pep rally that had induced them to join, were claiming, correctly it would seem, that Lincoln had no authority to enlist them and they should be released from military service. Congress retroactively approved Lincoln's actions with regard to increasing the size of the military and funded his actions. Had they not done so, Lincoln's army threatened to melt away.
The Senate debate makes clear in unmistakeable, explicit terms that habeas corpus was NOT included. A proponent of the bill, Senator Fessenden explained it as follows: "The bill avoids all questions with regard to the habeas corpus and other matters, and refers simply to the military appropriations; and it is necessary we should do this in order to place that subject upon the right ground.
Below is an extract from the Senate debate.
The bill (S. No. 70) in relation to the Army and volunteer militia of the United States was read a first time by its title.
The PRESIDENT pro tempore. The bill will now receive its second reading, if there be no objection.
Mr. PEARCE. I should like to hear the bill read at length before I consent that it shall have its second reading now. I do not think it is treating the Senate with proper consideration to have a bill read twice in one day before we know what it is. Let us see what it is; and if it be not objectionable, of course there will be no opposition to it.
The PRESIDENT pro tempore. The bill will be read at length for the information of the Senate.
PAGE 442
The Secretary read it as follows:
Be it enacted &c, That all the acts, proclamations and orders of the President of the United States, after the 4th of March 1861, respecting the Army and Navy of the United States, and calling out, or relating to the militia, or volunteers from the States, are hereby approved, and in all respect legalized and made valid, to the same intent and with the same effect as if they had been done under the previous express authority and direction of the Congress of the United States. Mr. PEARCE. I must object to its second reading to-day.
Mr. FESSENDEN. I hope my friend from Maryland will hear what I have to say before he objects. This bill takes up a single point only in the resolution that was introduced into the Senate, and upon which there has been considerable debate. It refers simply to the proclamations that were made for, and the employment of volunteers. We have since authorized the employment of the volunteers. But some of the volunteers now make a point that although they have enlisted for three years, yet the President having had no authority at that time, and no legal authority having been conferred upon him by Congress, they are discharged, and cannot be held under that enlistment. That idea will occasion considerable difficulty, and it is necessary that we should, so far as we have the power, legalize the acts of the President upon that particular point. The bill avoids all questions with regard to the habeas corpus and other matters, and refers simply to the military appropriations; and it is necessary we should do this in order to place that subject upon the right ground.
Now, sir, with regard to this bill, there can certainly be no objection that Senators can raise to it, unless they are desirous that a difficulty -- I will no say that --- but unless they fail to see the force of the position in which we are placed with reference to many of these volunteers. I hope, therefore, the Senator from Maryland will withdraw his objection. It takes but a single point, and avoids the points of debate in the joint resolution that was before the Senate, and simply legalized the action of the President which we have already indorsed, by giving him the authority. It refers merely to a point which it is very necessary for us to consider.
Mr. PEARCE. If it refers purely and solely to the volunteers, which I did not exactly understand at first, I withdraw the objection.
Mr. FESSENDEN. Entirely so; to those acts only.
* * *
Mr. SAULSBURY. I should like to accomodate my friend from New York; certainly he is very accommodating himself; but if gentlemen on the other side will indulge me a moment, I will say why it was that interposed the objection.
Mr. President, in the earlier state of this session, a joint resolution was introduced approving, in general terms, the acts of the President of the United States. For one, had not such a resolution been introduced, I never would have attacked the President of the United States for his course. I am one of those men who stand in a peculiar position on this point. I am one of those who approve of certain acts of the President, and disapprove of others. As this bill seemed to be only a mode of getting rid of a direct vote upon that joint resolution, by way of substitute, without knowing what was contained in the bill. I felt it incumbent on me to object to its consideration. If there is anything in this bill that looks to the toleration of the suspension of the writ of habeas corpus, I never will, under any circumstances, vote for it. Sir, that is the bulwark of the freedom of the citizen. If there is nothing in the bill, except to approve the calling out of volunteers --
Mr. KING. If the Senator will read it, he will see that there is nothing else in it.
Mr. FESSENDEN. There is nothing in the world in it except what relates to the Army and Navy volunteers. The Senator from Maryland has just read it, and says he is perfectly satisfied.
Mr. SAULSBURY. Then on the assurance of the Senator from Maine, I will withdraw the objection.
* * *
229 posted on 08/28/2004 5:51:10 AM CDT by nolu chan
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