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
Now my friends I wish you to attend for a little while to one or two other things in that Springfield speech. My main object was to show, so far as my humble ability was capable of showing to the people of this country, what I believed was the truth -- that there was a tendency, if not a conspiracy among those who have engineered this slavery question for the last four or five years, to make slavery perpetual and universal in this nation. Having made that speech principally for that object, after arranging the evidences that I thought tended to prove my proposition, I concluded with this bit of comment:We cannot absolutely know that these exact adaptations are the result of pre-concert, but when we see a lot of framed timbers, different portions of which we know have been gotten out at different times and places, and by different workmen -- Stephen, Franklin, Roger and James, for instance -- and when we see these timbers joined together, and see they exactly make the frame of a house or a mill, all the tenons and mortices exactly fitting and all the lengths and proportions of the different pieces exactly adapted to their respective places and not a piece too many or too few -- not omitting even the scaffolding -- or if a single piece be lacking we see the place in the frame exactly fitted and prepared yet to bring such piece in -- in such a case we fell it impossible not to believe that Stephen and Franklin, and Roger and James, all understood one another from the beginning, and all worked upon a common plan or draft drawn before the first blow was struck. [Great cheers.]
-- Abraham Lincoln, August 21, 1858, Ottawa, Illinois, Lincoln-Douglas debate
What a breathtaking display of ignorance. Can you please cite your source for this display of ignorance?
Lincoln goofed. However unintentionally, he proclaimed the international act of a blockade. The international community responded with a chorus of declarations of neutrality. By definition, a declaration of neutrality applies to the relations of the declaring state relative to two or more other states. In this case, the two states were the USA and the CSA.
Lincoln declared "a blockade of the ports" and referred to "the blockading vessels." The British government immediately declared neutrality. These proclamations were performed under international law as it existed at the time of declaration. By definition, a declaration of neutrality does not apply to purely internal conflicts (civil wars) but only between states.
Belligerency. In international law, the status of de facto statehood attributed to a body of insurgents, by which their hostilities are legalized. The international status assumed by a state (i.e. nation) which wages war against another state. Quality of being belligerent; status of a belligerent; act or state of waging war; warfare.Belligerent. In international law, as an adjective, it means engaged in lawful war. As a noun, it designates either of two nations which are actually in a state of war with each other, as well as their allies actively co-operating, as distinguished from a nation which takes no part in the war and maintains a strict indifference as between the contending parties, called a "neutral."
Black's Law Dictionary, 6 Ed., 1990.
NEUTRALITY, international law. The state of a nation which takes no part between two or more other nations at war with each other.Bouvier's Law Dictionary, 1856 Edition
Now observe how that internationally accepted definition of "neutrality" changed duiring the century and a half following the release of that edition of Bouvier's Law Dictionary.
NEUTRALITY, The state of a nation which takes no part between two or more other nations at war.Black's Law Dictionary, 6th Ed., 1990
And here is an up-to-date source on International Law and Neutrality
http://www.eda.admin.ch/sub_dipl/e/home/thema/intlaw/neutr.html1. Definition and characteristics
The term "neutrality" is defined by the international community as non-participation in armed conflicts between other states. A distinction must be made however between the law of neutrality and the policy of neutrality.
The law of neutrality is the area of international law that contains the provisions that must be observed by the neutral states in times of international armed conflict and the provisions that the parties of the conflict must observe in the same context. For the most part these concern the right of the neutral states to be left undisturbed during such conflicts and their obligations of impartiality and non-participation. In practice such obligations do not interfere greatly with the freedom of action of neutral states. The sources of the international law of neutrality are customary international law on the one hand, and the 1907 neutrality agreements of the Hague on the other (SR 0.515.21). The law of neutrality is applicable only in conflicts between states, and not in purely internal conflicts (e.g. civil wars). Neither does the law of neutrality apply when the United Nations decide on coercive measures against a lawbreaker in order to maintain international peace and security.
"The law of neutrality is applicable only in conflicts between states, and not in purely internal conflicts (e.g. civil wars)." That just about sums up what Secretary of the Navy Gideon Welles said in 1861.
When the war was almost over, the U.S. Government essentially admitted its diplomatic error and corrected it by announcing a closing of the ports -- on April 11, 1865. At the time of this proclamation, Secretary of the Navy Gideon Welles said: "This was a step which I had earnestly pressed at the beginning of the rebellion, as a domestic measure, and more legitimate than a blockade, which was international, and an admission that we were two nations."
The British declaration of neutrality (and all other such declarations of neutrality declared by other nations) recognized the CSA as an independent nation, flowing from Lincoln's proclamation of a blockade which proclaimed to the world that the CSA was a separate nation. In international parlance, a nation can close its own ports but cannot blockade itself.
Really? Over 40% of the Taney opinion was spent on the issue of Negro citizenship.
In Dred Scott, Taney went far beyond a simple affirmation of constitutional law, top the evident chagrin of even those who agreed with him. In his decision, Taney went to great (and dishonest) lengths to conflate Negro slaves with Negro freemen. His purpose was to stamp his racist views on the issue of Negro citizenship. His views on Negroes as "inferiors" were well established for years. Ferhenbacher notes (in The Dred Scott Case, pg 340):
"For one thing, Taney was seeking to reaffirm what he had written twenty-five years earlier about the status of Negroes in American society. As Jackson's attorney general, it will be remembered, he had prepared an official (but unpublished) opinion declaring that the African race was a "degraded class" not intended to be embraced in any provisions of the Constitution except those dealing with slavery. This doctrine went far beyond the issue raised by the Dred Scott case; for it excluded Negroes, whether free or slave, from all rights guaranteed in the Constitution (and by logical extension, presumably from all rights guaranteed in amendments to the Constitution). Yet Taney found that he could use the Dred Scott case to vindicate his extreme views at length and graft them authoritatively onto American constitutional law."
I think most of us here at FR decry the actions of liberal, activist judges. Taney not only acted as an activist in this (and other) case, he substituted his personal views for those of the collective Framers.
In Taney's own words:
"The African race in the United States even when free, are everywhere a degraded class, and exercise no political influence. The privileges they are allowed to enjoy, are accorded them as a matter of kindness and benevolence rather than right. They are the only class of persons who can be held as mere property, as slaves .... They were never regarded as a constituent portion of the sovereignty of any state.... They were not looked upon as citizens by the contracting parties who formed the Constitution. They were evidently not supposed to be included by the term citizens. And were not intended to be embraced in any of the provisions of that constitution but those which to them in terms not to be mistaken."
Your references to the mention of slavery in the Constitution (although never by that term!) are well known and have been discussed on this forum.
It is worth mentioning, too, that those "bound to service" in the American colonies were not initially African blacks. It has been documented that the first "indentured servants" were poor whites. And in the areas formerly under Spanish control, Indians were held under similar conditions.
The coining of money is not an attribute of an independent country. Under the Constitution, individual states are permitted to coin money. That argument is utterly specious.
The "Articles of Association," while an important benchmark in the development of American nationalism, does not purport to be the work of free an independent states, but rather colonies. In fact, the text begins as such:
"We, his majesty's most loyal subjects, the delegates of the several colonies of New-Hampshire, Massachusetts-Bay, Rhode-Island, Connecticut, New-York, New-Jersey, Pennsylvania, the three lower counties of Newcastle, Kent and Sussex on Delaware, Maryland, Virginia, North-Carolina, and South-Carolina, deputed to represent them in a continental Congress, held in the city of Philadelphia, on the 5th day of September, 1774, avowing our allegiance to his majesty ..."
The key development from this association was the Continental Congress (which Georgia belatedly joined). the Continental Congress would become a revolutionary body and act as the national legislature. In fact, within a few days of declaring independence, Dickinson would submit the draft Articles of Confederation, the nation's first constitution, to the Congress. The Articles captured the procedures already in place within the Congress. In it, Congress had the power to regulate foreign affairs, war, the postal service, the military officers, Indians, and monetary issues of state.
The authority granted was a "national" one, which reflected the "perpetual union."
The AoC&PU were unanimously adopted and in force by 1781, two years prior to the treaty which officially ended the Revolutionary War.
If you doubt that "union" was the goal of the Declaration and the same Continental Congress that wrote it, consider these words from the July 12, 1776 Dickinson draft of the Articles:
"The said Colonies unite themselves so as never to be divided by any Act whatever ..."
A "civil war" is fought in one country. That's why it is a "civil war."
Oh, really? According to Grier,
'The Government of the United States has recognized the existence of a civil war between Spain and her colonies, and has avowed her determination to remain neutral between the parties.'
Bingo, you're not totally clueless.
It never ceases to amaze me the lengths that Lincolnites will go to defend their god.
Wonderful post.
"But chiefly, the terms of the President's proclamation instituting [67 U.S. 635, 641] this so-called blockade, are important to be considered upon this question of intent. The condition of things was unprecedented. From the nature and structure of our peculiar system of government, it could have had no precedent. The co-existence of Federal and State sovereignties, and the double allegiance of the people of the States, which no statesman or lawyer has doubted till now, and which this Court has repeatedly recognized as lying at the foundation of some of its most important decisions; the delegation of special and limited powers to the Federal Government, with the express reservation of all other powers 'to the States and the people thereof' who created the Union and established the Constitution; the powers proposed to be granted and which were refused, and the general course of the debates on the constitution; all concurred in presenting this to the President as a case of the first impression. Assuming the power to close the ports of the seceded States, he evidently did so with doubt and hesitation. If the power be conceded to him, it cannot be denied that he might modify the strict law of blockade, and impose a qualified interruption of commerce. He might well have doubted whether, under the Constitution which he had sworn to support, a state of war could exist between a State, or States, and the Federal Union; whether, when it ceased to be insurrection, and became the formal and deliberate act of State sovereignty, his executive powers extended to such an exigency. Certainly, the words of the Acts of Congress authorizing him to use the navy did not embrace such a case. It was not quite certain that it had assumed this imposing shape. The President, so late as his message of July, was confident that it had not. He believed that the State sovereignties had been usurped by discontented leaders and a factious and inconsiderable minority. With the information laid before him, he declared that these seceded States were full of people devoted to the Union. Well, therefore, might he hesitate to exercise, even if he supposed himself to possess, the power of declaring or 'recognizing' a state of war. His powers in cases of insurrection or invasion were clear and undoubted. He had the army, the navy, and the militia of [67 U.S. 635, 642] the States (the United States having no militia except in the federal territories) confided to his command, sub modo.
"But insurrection is not war; and invasion is not war. The Constitution expressly distinguishes them, and treats them as wholly different subjects. But this belongs to a subsequent question in the argument. It is now referred to as bearing upon the construction of the proclamation, and consequently upon the question of intent to break a blockade. It is true that the proclamation calls it a blockade. But the message speaks of it as proceedings 'in the nature of a blockade.' And the proclamation itself, by its terms and provisions, substantially conforms to the latter description. It founds itself upon the existence of 'an insurrection.' It ronounces the disturbance to be by 'a combination of persons.' It proceeds upon the Acts of Congress provided for ' insurrections' by 'combinations of persons.' It declares that the executive measures are provisional and temporary only, 'until Congress shall have assembled and deliberated upon the said unlawful proceedings.' It requires the seceded States to disperse, and return peaceably 'to their respective place of abode in twenty days."
The Supreme Court finds:
(1) The rebellion is an insurrection and not a war betwenn countries,
(2) The "so-called blockade" was not a blockade under international law, and
(3) Closing the ports was a valid exercise of executive authority.
I would call you proof "sophistry" - but it isn't that good - except maybe for your fellow "true believers."
Article I § 10 states, '[n]o State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money'.
Try again.
Grier wrote, 'On this first question, therefore, we are of the opinion that the President had a right, jure belli, to institute a blockade of ports in possession of the States in rebellion which neutrals are bound to regard.'
I cited this yesterday, jure belli - from Grotius' De Iure Belli ac Pacis [On the Law of War and Peace], or International law.
Ctrl-Alt-Del. You are citing from the argument of Mr. Carlisle. Justice Grier's opinion starts at 665.
"Iraq is not a nation. It cannot defend its borders."
The community of nations recently recognized the return to Iraq of its sovereignty. Its borders are well-defined, and at present, defended and defensible.
"Is the Vatican a nation? Can it defend its borders?"
The Vatican is not a "nation." It is best described as a principalitConcilliation between the Holy See and Italy (its only neighbor) establishes the Vatican as an independent state. Its borders are fixed and guarded.
"If we withdraw our recognition of Canada, will they cease to be a nation?"
In that event we will not recognize the validity of the state, but Canada would undoubtedly still be recognized by other neighbor and historic partners. A better discussion about withdrawn recognition might be directed to the situation in the former Yugoslavia.
"If the CSA had no functioning national government, who the heck was killing all those Yankees?
Insurrectionist armies, often under the direction of a governor or department head. The point is that the purported government of the CAS never had control of the territory it claimed, and progressively lost control of such territory until it collapsed. Ignobly collapsed, I might add.
"The CSA seemed to defend its borders against the biggest army in the world for about 4 years.
Talk about breath-taking displays of ignorance! The CSA successively lost Missouri, lost Kentucky, lost west Virgina, and lost Tennessee by mid-1862. Texas and Arkansas were soon thereafter cut off and left in control of the virtual dictator, Kirby Smith. At the same time, control of the Gulf Coast was lost, from Florida, to Louisiana, to Texas. Then Sherman's offensive further dissected the mouldering remains of the Confederacy. Defended for 4 years! They weren't defended for 4 months!!
"Against Germany in WW2, France and Poland lasted weeks. Were France or Poland nations?"
They effectively ceased to be after the Germans got done with them. Fortunately, for them, they had help within a few years.
I am beginning to seriously question your thought processes.
We did, in time, establish relations with other powers of the day, including France and Spain.
I am providing further documentation.
The point being, a nation can go from point a - no diplomatic relations - to point b - having diplomatic relations. Yes or No?
A preamble which contains a statement of intent (much like the demised Articles of Confederation & Perpetual Union which were abandoned) and NO Powers, and another Declaration of Secession.
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