Commentary: Truth blown away in sugarcoated 'Gone With the Wind'

No one claimed saint hood for Lincoln.

He was human and made mistakes.

But more often then not he was right.

In his [Lincoln's] imagination the Union was a mystical paraclete which had hovered in mid air before it descended into the lifeless bodies of the states, and gave them breath. The Union was an entity. It was once a noun, like beauty, goodness, justice. But it had achieved an existence all its own, as tangible as that of the flag. It was a soul, a body, a Messiah for whom men should fight and die, regardless of everything else. It was a precious and sacred reality to be saved even at the cost of the continuance of negro slavery. If some slaves could be freed to save the Union, that should be done. If the Union could be saved by not freeing any slave, that should be the course. What he would do about the colored race, he would do because it helped to save the Union; and what he forbore to do would be for the same purpose.

-- Edgar Lee Masters, Lincoln, The Man, p. 316

[ftD #1359] The Democratic Party split over slavery.

One good theory deserves another.

SOURCE: John Remington Graham, A Constitutional History of Secession, pp. 265; 277-83.

There had been a string of events, obviously moved by the same interests and tending in the same direction, starting with the mass marketing of Uncle Tom's Cabin, then the Kansas-Nebraska Act in 1854, which was followed by the Kansas Civil War in 1855 and 1856, and then the case of Dred Scott in 1856 and 1857, then Buchanan's recommendation of the Lecompton Constitution in 1858. It is an insult to human intelligence to insist that these events occurred because of broad forces in history, and were not the planned results of a factious conspiracy.
A few days before his death on March 31, 1850, John Calhoun spoke of the future in conversation with a friend. "The Union is doomed to dissolution," he said, "I fix its probable occurrence within twelve years." He concluded, "It will explode in a Presidential election."
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Slavery was dying more rapidly in the South upon the election of Abraham Lincoln than the feudal system was dying in England upon the accession of Henry VIII. The institution was in fact dying a natural and humane death. Yet only two years before William Seward had wildly exclaimed that there was an "irrepressible conflict" over this lingering quasi-feudal anachronism, which, he claimed, was about to overwhelm the United States. Hysterically he warned that "the rye fields of Massachusetts and the wheat fields of New York must again be surrendered by their farmers to slave culture and to the production of slaves, and Boston and New York must become once more markets for trade in the bodies and souls of men!"
In hearing or reading such bizarre comments by Yankee demagogues, the people of the Southern States reckoned the growing weakness of their position within the Union. Even abolitionists among them feared turbulent upheaval in their society at the hands of uncomprehending fanatics from the North. Slavery was a delicate and difficult problem to address, and, as John Randolph of Roanoke and countless others learned, freedom sometimes created more problems than it solved. Therefore, Southerners made tentative plans to escape from the Union. It was not reality, but falsehood which induced the fulfillment of Calhoun's forecast.
On May 24, 1860, the United States Senate adopted seven resolutions which had been introduced by Jefferson Davis of Mississippi. The first of these resolutions read,

"Resolved, That, in the adoption of the Federal Constitution, the States adopting the same acted severally as free and independent Sovereignties, delegating a portion of their powers to be exercised by the Federal Government for the increased security of each against dangers, domestic and as well as foreign; and that any intermeddling by any one or more States, or by a combination of their citizens, with the domestic institutions of the others, on any pretext whatever, political, moral, or religious, with a view to their disturbance or subversion, is in violation of the Constitution, insulting to the States so interfered with, endangers their peace and tranquility -- objects for which the Constitution was formed --, and, by necessary consequence, tends to weaken and destroy the Union itself."

This language was adopted on vote of thirty-six against nineteen in the United States Senate. Voting in favor, as might be expected, were both senators from most of the Southern States, but also both senators from California, Indiana, Minnesota, Oregon, and Pennsylvania, as well as one senator from Ohio and one from New Jersey. Both senators from Delaware and both senators from Illinois abstained.
The first resolution began with an affirmation that the Union is a confederacy of free, sovereign, and independent States. From this premise, viewed in light of constitutional history, the right of secession ineluctably follows. The vote adopting this resolution was a posthumous tribute to John Calhoun's view of the Union as expressed in his debate with Daniel Webster in 1833. It was a view that was about to be trashed by politicians resembling the crusaders who took Constantinople, and thereby caused the final decline of the Byzantine Empire, but in the end failed to reach the Holy Land.
As Davis' resolutions were considered in the United States Senate, the nominating conventions of the major political parties began to meet. The democratic party was then an alliance of conservatives in the North and the South. The alliance had no clear objective except to maintain stability in unsettled times. The party may have been bland and uninspiring, yet it had long controlled Congress and the White House, and it offered the only electable alternative to unrest and calamity within the Union, which was a humble but inestimable virtue in politics.
The leading candidate for nomination by the democratic party as President was Stephen Douglas of Illinois. By this time, many informed Southern politicians were wise to Douglas. They knew that he had sold out the transcontinental railroad route through Louisiana and Texas for worthless concessions in the Kansas-Nebraska Act. They knew that Douglas preached a program desired by financiers in Philadelphia and New York. Such was the main bone of contention which this faction of Southern politicians had with Douglas.
It was increasingly obvious to thinking men in the South that geography barred their peculiar institution in the Federal territories. No amount of argument can change the unanswerable reality that, outside of Kansas where they were doomed before they started, planters from the Dixie States had made no serious effort to import slaves into the huge land mass affected by Compromise of 1850 and the repeal of the Missouri Compromise in 1854. They made no serious effort, because there was nothing attractive to them in those vast stretches. And the proof of this stubborn fact is that in 1860 there were no slaves at all in the New Mexico, Utah, and Washington Territories, none in the Indian or Oklahoma Territory, none in the Dakota Territory, virtually none in the Kansas Territory which entered the Union as a free State in 1861, and barely more than a dozen in the Nebraska Territory, nor was there a prospect that more would ever arrive.
[nc note: the 1860 census indicates there were 29 slaves in Utah, 15 in Nebraska, 44 total slaves in the territories. In addition, there were 303 free blacks in the territories -- CO, NE, NV, NM, UT, WA]
The burning issue for Southern democrats was the transcontinental railroad, because it would have been of great value to their region of the United States as a stimulus to modernize their economy and society, and thereby to help phase out slavery.
The old party met in Charleston on April 23, 1860, to nominate candidates for President and Vice President. Compromised by railroad and allied financial interests Douglas was. But he was the front runner. And he was a practical man: -- he would pick a Southerner to run with him for Vice President; moreover, he would be indebted to the South for his election, and so would be obliged to repay with a political quid pro quo. The lesson on the nature of politics to be learned from this episode is augmented by an additional fact: -- nobody knew it at the time, but Douglas had only months to live, for he died on June 3, 1861. Which means that, if he had been elected, Douglas would not have been President very long, and the new President would have been a Southerner.
The anti-Douglas faction had a grievance, but they lacked vision. At the convention in Charleston, they prevented the nomination of Douglas after fifty-seven ballots, and thereby produced an irreparable split in the party on whose unity their best available option depended. Eight Southern delegations staged a walkout, using as their pretext the failure of a meaningless resolution denying the right of a territorial legislature to prohibit slavery. In the midst of this senseless political wreckage, the convention adjourned on May 3, 1860.
The stronger wing of the old party reconvened in Baltimore, and, on June 18, 1860, while calling themselves "union" democrats, they nominated Stephen Douglas of Illinois as President and Hershel Johnson of Georgia as Vice President. Their platform stipulated that, as to "the institution of slavery within the territories, the democratic party will abide by the decision of the Supreme Court of the United States," which sounded safe and respectable enough to limit controversy. And their platform stated further that the democratic party "will pledge such constitutional government aid as will assure the construction of a railroad to the Pacific coast at the earliest practicable period." And that was a real question, because the railroad given reference had already been planned for the central route through the Nebraska Territory.
The Southern wing of the democratic party later met, first in Richmond then in Baltimore, and calling themselves "national" democrats, they voted their nominations on June 28, 1860: -- John Breckenridge of Kentucky for President and Joseph Lane of Oregon for Vice President. Breckenridge was then Vice President of the United States, undoubtedly qualified by character, temperament, and experience to be President. His heroic career as a patriot and statesman is a story in itself. In reluctantly accepting the nomination, he hoped that he might persuade Douglas to step aside or make concessions, and thereby to help reunify the party and win the election.
The platform of the "national" democrats pledged that any territory with sufficient population should be freely admitted as a State of the Union "whether its constitution prohibits or recognizes slavery," -- an obligatory platitude without real significance, since none of the existing territories would under any circumstances seek to become a State allowing slavery. Their platform then promised support of legislation "to the extent of the constitutional authority of Congress, for the construction of a railroad from the Mississippi River to the Pacific Ocean, at the earliest practicable moment." But this railroad was understood by the "national" democrats to be along the shorter route through Louisiana and Texas, or a least a route selected as part of a compromise in which the Southern States had a real voice.
And if the split between the democrats was not bad enough, the rump of old whigs formed a constitutional union party which met in Baltimore and on May 9, 1860, nominated John Bell of Tennessee for President and Edward Everett of Massachusetts for Vice President with an empty slogan for a platform, -- "the Constitution of the country, the Union of the States, and the enforcement of the laws."
It is common belief that this splintering of conservative and moderate votes happened by misfortune or accident. But a situation characterized by two democratic tickets with seemingly identical platforms, and a similar third ticket running on a mere shibboleth, is simply too pronounced and absurd not to be suspicious. Sophisticated politicians were involved in this scenario. They foresaw the obvious consequences of their splintering, and they would not have permitted it unless they had been skillfully manipulated by the kind of money men who perennially supply the life blood of political campaigns. Three parties were manipulated, not to win, but to lose the election, because those pulling the strings had their eyes on the republican party, then the epicenter of radical politics in the United States.
Breckenridge was not able to make a deal with Douglas. Those controlling Douglas did not give him enough latitude. They had invested their capital in a central route for a transcontinental railroad, and none other was acceptable to them. It may be fairly surmised that these capitalists were in the circle of financiers who had secured repeal of the Missouri Compromise, and paid the "border ruffians" who started the Kansas Civil War.
And the money men who had induced the splintering between the two wings of the democratic party, also worked hand in glove with the money men behind the republican party. In order to swing the election their way, they weakened the conservative and moderate vote by splintering it, then supported the radical vote as a united front. The coordinated interaction between the two groups may be inferred insofar as men generally intend the foreseeable consequences of their acts, and the foreseeable consequences of events then operated to produce a crisis likely to induce the secession of Southern States.
The final element, absolutely crucial to the larger plan then unhatching, was to assure that secession, when it occurred, would erupt in a civil war. On May 16, 1860, the republican convention met in Chicago, and two days later nominated Abraham Lincoln of Illinois for President and Hannibal Hamlin of Maine for Vice President. Their platform announced, "We hold in abhorrence all schemes of Disunion, come from whatever source they may," thus assuring that, when the republicans took over the direction of the Union and the anticipated secession of Southern States occurred, military force would be used to prevent it. That would guarantee a bloody and expensive conflict.
And in order to excite passions against the people of the South -- a necessary ingredient in inducing fellow Americans to kill each other in battle --, the republican platform stated that "the new dogma that the Constitution of its own force carries slavery into any or all of the territories is a dangerous political heresy." This new dogma was a political heresy, indeed worse than a political heresy: -- it was made respectable by a judicial heresy of the United States Supreme Court which rejected the jurisprudence of the South on the emancipation of slaves. It was particularly dangerous, not because Southern planters had any realistic hope of implanting slavery in the territories, but because impassioned debate about this unreal possibility created an inflammatory atmosphere of misunderstanding and hatred.
The election of Abraham Lincoln as President was thereby assured, -- "rigged" would be a more accurate and realistic word. He carried eighteen States in the North, one county in Missouri, and one county in Kentucky, but not a single State in the South. So certain in advance was the outcome that Lincoln could afford the luxury of not giving even one campaign speech. He simply sat at home and waited for his election victory on November 6, 1860.
As was anticipated by all informed observers, there was an explosion in the Southern States when the election results became known.

As for abuses on civil liberty, the South had it own share of problems in that area, starting with the worst one, having men in chains for no crime other then being the wrong race.

Tu quoque! Tu quoque! Squaaaack!

The Great Tuquoque Bird makes his overdue reappearance.

And what was that snark about "now that the fighting was over"? That your way of suggesting that the Supreme Court was just being a bunch of buttinskis? That they crawled out from under a rock? Would you rather leave matters in the hands of War Department hangmen?

Yeah, I can tell how moderate you are.

[ftD #1361] Certainly the language of Milligan allows the courts to interpose themselves between the citizenry on the one hand, and Congress, the president and the armed forces on the other.

The reference to Congress is simply FALSE, as proven below. SCOTUS is not a common law court, it is a statutory court. At any time Congress can change the number of Supreme Court justices or abolish all Federal courts except the Supreme Court. Specifically relevant to cases such as Ex Parte Milligan, Congress had the power to take away the jurisdiction of the Supreme Court to hear such cases. That is precisely what those power-crazed lunatics did.

In Merryman, Lincoln demonstrated that one unprincipled president plus one U.S. Army need not bow to any paper issuing from the U.S. Supreme Court.

[ftD #1361] The Court's rebuff, however, came late, and its primary value was as a precedent for future governmental action.

It was not enough for the lunatics who were in power back then. When SCOTUS heard another case similar to Ex Parte Milligan, before it could render its decision Congress acted to take away the jurisdiction of the Supreme Court to hear such cases.

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/mccardle.html

U.S. Supreme Court
EX PARTE MCCARDLE
74 U.S. 506 (1868)

APPEAL from the Circuit Court for the Southern District of Mississippi.

The Constitution of the United States ordains as follows:

' 1. The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.'
' 2. The judicial power shall extend to all cases in law or equity arising under this Constitution, the laws of the United States,' &c.

And in these last cases the Constitution ordains that,

'The Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make.'

With these constitutional provisions in existence, Congress, on the 5th February, 1867, by 'An act to amend an act to establish the judicial courts of the United States, approved September 24, 1789,' provided that the several courts of the United States, and the several justices and judges of such courts, within their respective jurisdiction, in addition to the authority already conferred by law, should have power to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the Constitution, or of any treaty or law of the United States. And that, from the final decision of any judge, justice, or court inferior to the Circuit Court, appeal might be taken to the Circuit Court of the United States for the district in which the cause was heard, and from the judgment of the said Circuit Court to the Supreme Court of the United States.

This statute being in force, one McCardle, alleging unlawful restraint by military force, preferred a petition in the court below, for the writ of habeas corpus. The writ was issued, and a return was made by the military commander, admitting the restraint, but denying that it was unlawful.

It appeared that the petitioner was not in the military service of the United States, but was held in custody by military authority for trial before a military commission, upon charges founded upon the publication of articles alleged to be incendiary and libellous, in a newspaper of which he was editor. The custody was alleged to be under the authority of certain acts of Congress.

Upon the hearing, the petitioner was remanded to the military custody; but, upon his prayer, an appeal was allowed him to this court, and upon filing the usual appealbond, for costs, he was admitted to bail upon recognizance, with sureties, conditioned for his future appearance in the Circuit Court, to abide by and perform the final judgment of this court. The appeal was taken under the above-mentioned act of February 5, 1867

A motion to dismiss this appeal was made at the last term, and, after argument, was denied.

Subsequently, on the 2d, 3d, 4th, and 9th March, the case was argued very thoroughly and ably upon the merits, and was taken under advisement. While it was thus held, and before conference in regard to the decision proper to be made, an act was passed by Congress, returned with objections by the President, and, on the 27th March, repassed by the constitutional majority, the second section of which was as follows:

'And be it further enacted, That so much of the act approved February 5, 1867, entitled 'An act to amend an act to establish the judicial courts of the United States, approved September 24, 1789,' as authorized an appeal from the judgment of the Circuit Court to the Supreme Court of the United States, or the exercise of any such jurisdiction by said Supreme Court, on appeals which have been, or may hereafter be taken, be, and the same is hereby repealed.'- The attention of the court was directed to this statute at the last term, but counsel having expressed a desire to be heard in argument upon its effect, and the Chief Justice being detained from his place here, by his duties in the Court of Impeachment, the cause was continued under advisement. Argument was now heard upon the effect of the repealing act.

Mr. Sharkey, for the appellant:

The prisoner alleged an illegal imprisonment. The imprisonment was justified under certain acts of Congress. The question then presents a case arising under 'the laws of the United States;' and by the very words of the Constitution the judicial power of the United States extends to it. By words of the Constitution, equally plain, that judicial power is vested in one Supreme Court. This court, then, has its jurisdiction directly from the Constitution, nor from Congress. The jurisdiction being vested by the Constitution alone, Congress cannot abridge or take it away. The argument which would look to Congressional legislation as a necessity to enable this court to exercise 'the judicial power' (any and every judicial power) 'of the United States,' renders a power, expressly given by the Constitution, liable to be made of no effect by the inaction of Congress. Suppose that Congress never made any exceptions or any regulations in the matter. What, under a supposition that Congress must define when, and where, and how, the Supreme Court shall exercise it, becomes of this 'judicial power of the United States,' so expressly, by the Constitution, given to this court? It would cease to exist. But this court is coexistent and co-ordinate with Congress, and must be able to exercise the whole judicial power of the United States, though Congress passed no act on the subject. The Judiciary Act of 1789 has been frequently changed. Suppose it were repealed. Would the court lose, wholly or at all, the power to pass on every case to which the judicial power of the United States extended? This act of March 27th, 1868, does take away the whole appellate power of this court in cases of habeas corpus. Can such results be produced? We submit that they cannot, and this court, then, we further submit, may still go on and pronounce judgment on the merits, as it would have done, had not the act of 27th March been passed.

But however these general positions may be, the case may be rested on more special grounds. This case had been argued in this court, fully. Passing then from the domain of the bar, it was delivered into the sacred hands of the judges; and was in the custody of the court. For aught that was known by Congress, it was passed upon the decided by them. Then comes, on the 27th of March, this act of Congress. Its language is general, but, as was universally known, its purpose was specific. If Congress had specifically enacted 'that the Supreme Court of the United States shall never publicly give judgment in the case of McCardle, already argued, and on which we anticipate that it will soon deliver judgment, contrary to the views of the majority in Congress, of what it ought to decide,' its purpose to interfere specifically with and prevent the judgment in this very case would not have been more real or, as a fact, more universally known.

Now, can Congress thus interfere with cases on which this high tribunal has passed, or is passing, judgment? Is not legislation like this an exercise by the Congress of judicial power? Lanier v. Gallatas is much in point. There a motion was made to dismiss an appeal, because by law the return day was the 4th Monday in February, while in the case before the court the transcript had been filed before that time. On the 15th of March, and while the case was under advisement, the legislature passed an act making the 20th of March a return day for the case; and a motion was now made to reinstate the case and hear it. The court say:

'The case had been submitted to us before the passage of that act, and was beyond the legislative control. Our respect for the General Assembly and Executive forbids the inference that they intended to instruct this court what to do or not to do whilst passing on the legal rights of parties in a special case already under advisement. The utmost that we can suppose is,' &c.

In De Chastellux v. Fairchild, the legislature of Pennsylvania directed that a new trial should be granted in a case already decided. Gibson, C. J., in behalf of the court, resented the interference strongly. He said:

'It has become the duty of the court to temporize no longer. The power to order new trials is judicial. But the power of the legislature is not judicial.'

In The State v. Fleming, where the legislature of Tennessee directed two persons under indictment to be discharged, the Supreme Court of the State, declaring that 'the legislature has no power to interfere with the administration of justice in the courts,' treated the direction as void. In Lewis v. Webb, the Supreme Court of Maine declare that the legislature cannot dispense with any general law in favor of a particular case.

Messrs L. Trumbull and M. H. Carpenter, contra:

1. The Constitution gives to this court appellate jurisdiction in any case like the present one was, only with such exceptions and under such regulations as Congress makes.

2. It is clear, then, that this court had no jurisdiction of this proceeding-an appeal from the Circuit Court-except under the act of February 5th, 1867; and so this court held on the motion to dismiss made by us at the last term.

3. The act conferring the jurisdiction having been repealed, the jurisdiction ceased; and the court had thereafter no authority to pronounce any opinion or render any judgment in this cause. No court can do any act in any case, without jurisdiction of the subject-matter. It can make no difference at what point, in the progress of a cause, the jurisdiction ceases. After it has ceased, no judicial act can be performed. In Insurance Company v. Ritchie, the Chief Justice, delivering the opinion of the court, says:

'It is clear, that when the jurisdiction of a cause depends upon the statute, the repeal of the statute takes away the jurisdiction.'

And in that case the repealing statute, which was passed during the pendency of the cause, was held to deprive the court of all further jurisdiction. The causes which were pending in this court against States, were all dismissed by the amendment of the Constitution denying the jurisdiction; and no further proceedings were had in those causes. In Norris v. Crocker, this court affirmed and acted upon the same principle; and the exhaustive argument of the present Chief Justice, then at the bar, reported in that case, and the numerous authorities there cited, render any further argument or citation of cases unnecessary.

4. The assumption that the act of March, 1868, was aimed specially at this case, is gratuitous and unwarrantable. Certainly the language of the act embraces all cases in all time; and its effect is just as broad as its language.

The question of merits cannot now, therefore, be passed upon. The case must fall.

The CHIEF JUSTICE delivered the opinion of the court.

The first question necessarily is that of jurisdiction; for, if the act of March, 1868, takes away the jurisdiction defined by the act of February, 1867, it is useless, if not improper, to enter into any discussion of other questions.

It is quite true, as was argued by the counsel for the petitioner, that the appellate jurisdiction of this court is not derived from acts of Congress. It is, strictly speaking, conferred by the Constitution. But it is conferred 'with such exceptions and under such regulations as Congress shall make.'

It is unnecessary to consider whether, if Congress had made no exceptions and no regulations, this court might not have exercised general appellate jurisdiction under rules prescribed by itself. For among the earliest acts of the first Congress, at its first session, was the act of September 24th, 1789, to establish the judicial courts of the United States. That act provided for the organization of this court, and prescribed regulations for the exercise of its jurisdiction.

The source of that jurisdiction, and the limitations of it by the Constitution and by statute, have been on several occasions subjects of consideration here. In the case of Durousseau v. The United States, particularly, the whole matter was carefully examined, and the court held, that while 'the appellate powers of this court are not given by the judicial act, but are given by the Constitution,' they are, nevertheless, 'limited and regulated by that act, and by such other acts as have been passed on the subject.' The court said, further, that the judicial act was an exercise of the power given by the Constitution to Congress 'of making exceptions to the appellate jurisdiction of the Supreme Court.' 'They have described affirmatively,' said the court, 'its jurisdiction, and this affirmative description has been understood to imply a negation of the exercise of such appellate power as is not comprehended within it.'

The principle that the affirmation of appellate jurisdiction implies the negation of all such jurisdiction not affirmed having been thus established, it was an almost necessary consequence that acts of Congress, providing for the exercise of jurisdiction, should come to be spoken of as acts granting jurisdiction, and not as acts making exceptions to the constitutional grant of it.

The exception to appellate jurisdiction in the case before us, however, is not an inference from the affirmation of other appellate jurisdiction. It is made in terms. The provision of the act of 1867, affirming the appellate jurisdiction of this court in cases of habeas corpus is expressly repealed. It is hardly possible to imagine a plainer instance of positive exception.

We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.

What, then, is the effect of the repealing act upon the case before us? We cannot doubt as to this. Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. And this is not less clear upon authority than upon principle.

Several cases were cited by the counsel for the petitioner in support of the position that jurisdiction of this case is not affected by the repealing act. But none of them, in our judgment, afford any support to it. They are all cases of the exercise of judicial power by the legislature, or of legislative interference with courts in the exercising of continuing jurisdiction.

On the other hand, the general rule, supported by the best elementary writers, is, that 'when an act of the legislature is repealed, it must be considered, except as to transactions past and closed, as if it never existed.' And the effect of repealing acts upon suits under acts repealed, has been determined by the adjudications of this court. The subject was fully considered in Norris v. Crecker, and more recently in Insurance Company v. Ritchie. In both of these cases it was held that no judgment could be rendered in a suit after the repeal of the act under which it was brought and prosecuted. It is quite clear, therefore, that this court cannot proceed to pronounce judgment in this case, for it has no longer jurisdiction of the appeal; and judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer.

Counsel seem to have supposed, if effect be given to the repealing act in question, that the whole appellate power of the court, in cases of habeas corpus, is denied. But this is an error. The act of 1868 does not except from that jurisdiction any cases but appeals from Circuit Courts under the act of 1867. It does not affect the jurisdiction which was previously exercised.

The appeal of the petitioner in this case must be dismissed for want of jurisdiction.

So was the entire officer corp of the Confederacy who resigned their commissions.

Your malignity reveals your ignorance, which in turn undercuts your malignity.

Get another act. Your current one is Alpo.

And what was that snark about "now that the fighting was over"? That your way of suggesting that the Supreme Court was just being a bunch of buttinskis? That they crawled out from under a rock? Would you rather leave matters in the hands of War Department hangmen?

When was the decision handed down-in 1866!

And in the decision, it was stated that one could not always depend on having men like Washington and Lincoln as President, hence the need to make sure the nation was carefully guarded with the rule of law.

The ruling also said that there would be cases in which the military would have to take over, and the writ suspended due to extreme circumstances.

Darn. It looks like someone named White was barnstorming and making a living out of losing secession cases.

You aren't suggesting the U.S. Government is in the habit of soliciting patsies?

I happen to know that they had two very upstanding patsies in U.S. vs. Miller. One obligingly died, and the other went broke, so his attorney didn't even show up for oral arguments. His brief sat silently at the appellee's table.

The U.S. Government gives nothing but a fair show all around.

So was the entire officer corp of the Confederacy who resigned their commissions. Your malignity reveals your ignorance, which in turn undercuts your malignity. Get another act. Your current one is Alpo.

I didn't say I would have hung them all, just that they were all traitors and could have been hung.

I regard any American who fires on the troops of his nation as a traitor and I do not care what State he comes from or what he thinks his 'new'nation is.

Maybe those American Muslims who were fighting for the Taliban should not be considered traitors either.

[ftD #1364] I stated that I had very little knowledge regarding the level of involvement that the Southern leadership had in Lincolns murder. That was not the point of the article I cited.

Lack of knowledge has not stopped you from lecturing about legal opinions you have not read.

You keep serving up internet sources with no known creditials. You served up someone named Derek Alger with the following quote:

By Derek Alger
The problem of Davis, however, still remained. He was in custody, accused of guilt in the assassination conspiracy by Holt, with the judge advocate general logically maintaining that Davis should be charged with treason, tried before a military commission, and a date with the gallows the logical outcome.
According to historian William Hanchett in his book, The Lincoln Conspiracy Murders, "While it is unlikely that Holt doubted for a moment that Davis and the others were guilty, as charged, he and Stanton were too able and experienced to fail to recognize that the evidence presented at the conspiracy trial was not proof of guilt but only hearesay and that it was only as credible as the eyewitnesses who gave it."

One would think it relevant to mention that several witnesses were proven to be known army deserters who conspired with the prosecution to commit perjury. One was convicted for perjury in the case.

Derek Alger wastes many words treating Louis Weichmann as some sort of legal expert. But then, Derek Alger wastes many words thinking of himself as legally competent. The following quote will testify to the competence of Derek Alger.

A month later, John Surratt, who had been serving as a zouave in the papal guard at the Vatican before being turned over to the United States government, stood trial for murder for his alleged involvement with Booth in the plot to assassinate Lincoln. It was a trial before a civil court and in many respects a replay of the case against Mrs. Surratt, the first woman ever executed by the United States government. Her son was acquitted, with eight jurors reportedly in favor of a not guilty verdict and the other four against.

This is probably the only case in American judicial history where the defendant was ACQUITTED by an 8-4 split jury.

John Surratt was turned over by the Vatican, he was captured in Egypt.

As for "eight jurors reportedly in favor of a not guilty verdict and the other four against," such writing does not inspire confidence.

8-4 is a hung jury, not an acquittal. The government knew it could not win the case and chose not to retry it. The charges were therefore dropped.

Alger writes, "In his narrative, A True History of the Assassination of Abraham Lincoln and of the Conspiracy of 1865, not published until 1976, seventy-five years after his death, Weichmann maintained that a military tribunal was justifiable under the circumstances, but added, that had the assassination occurred sixty days later, then all individuals implicated in the plot would have justifiably been tried in civil courts."

I have a 1975 first edition of Weichmann's book, published by Alfred A. Knopf. Alger should check his facts.

Weichmann was a clerk in Stanton's War Department, and may have been a conspirator or mole. Why cite his legal opinion?

[ftD] The article made mention that the only reason that Davis was not tried was because the radical republicans were going after Johnson and had lost interest in Davis.

The article was written by another of your idiot internet sources who does not know that an 8-4 jury cannot be an acquittal.

When they had to use a civilian court, it became perfectly clear that the government had little chance of winning the case, and could not afford to lose the case. Because habeas corpus had been suspended nationwide for years, for years attorneys could do nothing for clients who were locked up without charges. A dream team of defense attorneys had volunteered to defend Davis. The government attorneys had not tried a case before anything but kangaroo courts for years. They were much safer in a case such as Texas v. White where the Federal government of Texas set up a sham case. Your source is too discredited to be taken seriously.

[ftD] You do know you lost-don't you?

I thought you lost. When you serve up an idiot source, and you get slam-dunked, you lose.

[ftD] Do you consider yourself an American or a Southerner?

Do you consider yourself a human or a reptile?

Your question is based on a false assumption.

As I said, "Personal definitions invented by Lincolnpimps do not count." The one in the Constitution is the only one that counts.

Did you notice that ALL the cases had a party named WHITE???

I'm certain you have not read Milligan so I seriously doubt you have read Texas v. White.

The legal cases say secession is unlawful.

A review of Texas v. White indicates the whole case was a sham, much as was Scott v. Sandford.

States cannot commit treason. However, I have no doubt that the loons back then could have found two military deserters to perjure themselves to say they each saw a state commit the same overt act.

I regard any American who fires on the troops of his nation as a traitor and I do not care what State he comes from or what he thinks his 'new'nation is.

No, that's wrong. The change of allegiance, open and stated clearly and following their States, shields them all from charges of treason. Maybe you didn't read that post back upthread about what treason consists in, and contrasting Benedict Arnold with the Confederates. But if you persist in this line of obloquy, I'm going to start calling you names.

Now stop it. We've discussed this, you're just doing this to annoy people.

I repeat, if anyone could have been tried for treason they would have. Davis's motives were honorable and his actions all out-front. Snarking little backbiters and procured perjurers to the contrary notwithstanding, men like that will never be considered traitors who wear their hearts and their allegiances on their sleeves, no matter how badly they fall out with whoever is this week's flavor of Obergruppenfuehrer in national politics.

You couldn't polish Jeff Davis's shoe bottoms; you aren't about to sit in judgment of him.

Lies by a liar who has been caught lying repeatedly are evidence only of lying, and doing it poorly.

Supporting a liar is evidence of a proud, loyal Brigadeer.

If you see the commander, jerk his chain for me.

The murder made him one of our greatest Presidents.

No, before that he was spoken of thusly. You are invited to find positive comments by contemporaries while Lincoln was alive. I expect you can only dig up eulogies after his death.

LINCOLN VIEWED BY HIS CONTEMPORARIES

In his History of the United States, Vol. IV., page 520, Rhodes makes the sweeping assertion that --

"Lincoln's contemporaries failed to perceive his greatness."

Other Republican writers make the same statement. Yet none attempted to explain why those who best knew Mr. Lincoln failed to esteem or respect him. Chase, while in his Cabinet, had every opportuity to know Lincoln well. Tarbell says:

"Mr. Chase was never able to realize Mr. Lincoln's greatness."

McClure says:

"Chase was the most irritating fly in the Lincoln ointment."

In their voluminous life of Lincoln, Nicolay and Hay have this:

"Even to complete strangers Chase could not write without speaking slightingly of President Lincoln. He kept up this habit till the end of Lincoln's life. Chase's attitude toward the President varied between the limits of active brutality and benevolent contempt."

Of a bill to create offices in 1864, Chase wrote in his diary:

"If this bill becomes a law, Lincoln will most certainly put men in office from political considerations."

On this, page 448, Rhodes comments thus:

"A President who selected unfit generals for the reason that they represented phases of public opinion, would hardly hesitate to name postmasters and collectors who could be relied upon as a personal following."

Rhodes further says:

"In conversation, in private correspondence, in the confidence of his diary, Chase dealt censure unrestrained on Lincoln's conduct of the war."

Morse says:

"Many distinguished men of his own party distrusted Mr. Lincoln's character."

On an official trip to Washington, February 23, 1863, Richard H. Dana wrote Thomas Lathrop as follows:

"I see no hope but in the army; the lack of respect for the President in all parties is unconcealed. The most striking thing is the absence of personal loyalty to the President. It does not exist. He has no admirers. If a convention were held tomorrow he would not get the vote of a single State. He does not act or talk or feel like the ruler of an empire. He seems to be fonder of details than of principles, fonder of personal questions than of weightier matters of empire. He likes rather to talk and tell stories with all sorts of people who come to him for all sorts of purposes, than to give his mind to the many duties of his great post. This is the feeling of his Cabinet. He has a kind of shrewd common sense, slip-shod, low-leveled honesty that made him a good Western lawyer, but he is an unutterable calamity to us where he is. Only the army can save us."

According to Lamon:

"The Rev. Mr. Collier, sharing the prevailing sentiment in regard to the incapacity and inefficiency of Lincoln's government, chanced to pass through the White House grounds. ... "

Charles Francis Adams wrote:

"When Lincoln first entered upon his functions as President, he filled with dismay all those brought in contact with him."

"When Lincoln entered upon his duties as President he displayed moral, intellectual and executive incompetency."

On August 1, 1862, Wendell Phillips said to his audience:

"As long as you keep the present turtle (Lincoln) at the head of affairs you make a pit with one hand and fill it with the other. I know Mr. Lincoln. I have been to Washington and taken his measure. He is a first-rate second-rate man; that is all of him. He is a mere convenience and is waiting, like any other broomstick, to be used."

In a speech made at Music Hall, New Haven, 1863, Phillips said:

"Lincoln was badgered into emancipation. After he issued it he said it was the greatest folly of his life. It was like the Pope's bull against the comet."

In Tremont Temple, Boston, Phillips said:

"With a man for President we should have put down the rebellion in ninety days."

At a Republican meeting in Boston, Phillips said:

"President Lincoln, with senile, lick-spittle haste, runs before his is bidden, to revoke the Hunter proclamation. The President and the Cabinet are treasonable. The President and the Secretary of War should be impeached."

In 1864, at Cooper Institute, Phillips said:

"I judge Mr. Lincoln by his acts, his violation of the law, his overthrow of liberty in the Northern States. I judge Mr. Lincoln by his words and deeds, and so judging, I am unwilling to trust Abraham Lincoln with the future of this country. Mr. Lincoln is a politician; politicians are like the bones of a horse's fore shoulder; not a straight one in it. I am a citizen watchful of constitutional liberty. Are you willing to sacrifice the constitutional rights of seventy years? A man in the field (the army) said: 'The re-election of Lincoln will be a national disaster.' Another said: 'The re-election of Lincoln will be national destruction.' I want free speech. Let Abraham Lincoln know that we are stronger than Abraham Lincoln; that he is the servant to obey us."

August 5, 1864, Henry Winter Davis and Senator Wade of Ohio issued this:

"A more studied outrage on the legislative authority of the people than was ever before perpetrated."

When Lincoln was asked if he had seen a speech of Phillips and the Winter Davis-Wade manifesto against him, he replied:

"I have seen enough to satisfy me that I am a failure, not only in the opinion of the people in the rebellion, but of many distinguished politicans of my own party." -- Lamon's Recollections, page 187.

In McClellan's Life, a number of letters to his wife are published, in which McClellan speaks of Stanton's visits.

McClellans writes:

"The most disagreeable thing about Stanton is the extreme virulence of his abuse of President Lincoln, his whole administration, as well of all the Republican party. I am often shocked."

McClellan writes:

"Stanton never speaks of the President in any way other than as "that original gorilla." he often says: "Du Chaillie was a fool to wander all the way to Africa in search of what he could have found in Springfield, Illinois."

McClellan writes:

Nothing can be more bitter than Stanton's words and manner when speaking of the President and his administration. He gives them no credit or honesty of purpose or patriotism, and very seldom for ability. He often advised the propriety of my seizing the government and taking power in my own hands."

McClellan writes:

"Stanton often speaks of the painful imbecility of the President."

In McClure's Life of Lincoln, page 150, is this:

"Before Stanton was appointed Secretary of War he was an open and malignant opponent of the Lincoln administration. He often spoke to public men, military and civil, with withering sneers of Lincoln. I have hard him speak thus of Lincoln, and several times to him in the same way."

Hapgood's Lincoln, page 164 tells of Stanton saying:

"I met Lincoln at the bar and found him a low, cunning clown."

A.K. McClure says (Lincoln and Men of the War Time, p. 51) of Lincoln:

"If he could only have commanded the hearty co-operation of the leaders of his own party, his task would have been greatly lessened, but it is due to the truth of history to say that few, very few, of the Republicans of national fame had faith in Lincoln's ability for the trust assigned to him. I could name a dozen men, now [1892] idols of the nation, whose open distrust of Lincoln not only seriously embarrassed, but grievously pained and humiliated him."

Ida Tarbell in McClures Magazine, July 1899, calls Senator Sumner, Ben Wade, Henry Winter Davis, and Secretary Chase "Malicious foes of Lincoln," and makes the remarkable and comprehensive concession that "about all the most prominent leaders . . . were actively opposed to Lincoln," and mentions Greeley as their chief."

"Fremont, who eight years before had received every Republican vote for President, charged Lincoln (Holland's Abraham Lincoln, p. 259, p. 469, and p 471) with "incapacity and selfishness," with "disregard of personal rights," with "violation of personal liberty and liberty of the press," with "feebleness and want of principle"; and says, "The ordinary rights under the Constitution and laws of the country have been violated," and he further accuses Lincoln of "managing the war for personal ends."

Dr. Holland shows (Abraham Lincoln, p. 469, et seq.) that Fremont, Wendell Phillips, Fred Douglass, and Greeley were leaders in a very nearly successful effort to defeat Lincoln's second nomination, and quotes as follows, action of the convention for that purpose held in Cleveland, May 21, 1864, that "the public liberty was in danger"; that its object was to arouse the people, "and bring them to realize that, while we are saturating Southern soil with the best blood of the country in the name of liberty, we have really parted with it at home."

Colonel Theodore Roosevelt, in a speech at Grand Rapids, September 8, 1900, said that in 1864, "on every hand Lincoln was denounced as a tyrant, a shedder of blood, a foe to liberty, a would-be dictator, a founder of an empire...."

Ida Tarbell, McClure's Magazine, March 1899, recorded the opinion of Secretary of State Seward:

"[Seward] believed, as many Republicans did, that Lincoln was unfit for the presidency, and that some one of his associates would be obliged to assume leadership...."

A.K. McClure writes:

"After Stanton's retirement from the Buchanan cabinet, when Lincoln was inaugurated, he maintained the closest confidential relations with Buchanan, and wrote him many letters expressing the utmost contempt for Lincoln ... These letters, ... given to the public in Curtis's Life of Buchanan, speak freely of the painful imbecility of Lincoln, the venality and corruption which ran riot in the government," and McClure goes on: "It is an open secret that Stanton advised the revolutionary overthorw of the Lincoln government, to be replaced by General McClellan as Military Dictator."

Schouler says of Stanton (History of the United States, Vol VI, p. 159)

"He denounced Lincoln in confidential speeches and letters as a coward and a fool."

The Lincoln monument was unveiled on April 14, 1876. Frederick Douglass said:

Truth is proper and beautiful at all times and in all places, and it is never more proper and beautiful in any case than when speaking of a great public man whose example is likely to be commended for honor and imitation long after his departure to the solemn shades, the silent continent of eternity. It must be admitted, truth compels me to admit, even here in the presence of the monument we have erected to his memory, Abraham Lincoln was not, in the fullest sense of the word, either our man or our model. In his interests, in his associations, in his habits of thought, and his prejudices, he was a white man. He was preeminently the white man's President, entirely devoted to the welfare of white men (FD 4:312, italics added)

Donn Piatt travelled with Lincoln when he was making his campaign speeches and knew him intimately.

Donn Piatt said:

"When a leader dies all good men go to lying about him. From the moment that covers his remains to the last echo of the rural press, in speeces, in sermons, eulogies, reminiscences, we hear nothing but pious lies."

Donn Piatt continues:

"Abraham Lincoln has almost disappears from human knowledge. I hear of him, I read of him in eulogies and biographies but I fail to recognize the man I knew in life."

"It is usual today, [says George Fort Milton in his Age of Hate], to depict the death of Lincoln as having occasioned an universal outburst of grief throughout the North and particularly amoung the leaders of the Republican party, by whom "the Great Emancipator" has since been made a party god. When a searcher for the truth examines the private records of the time, he can scrace repress a feeling of surprise, for the fact is that the Radical leadership of the Republican party, while not pleased with the sacrifice of Lincoln, the individual, almost rejoiced that Lincoln, the merciful executive, had been removed from the helm of state."

Julian, one of these Radical leaders, boldly stated that the accession of Andrew Johnson to the presidency would prove a blessing to the country. In this sentiment he was not alone. On April 15, only a few hours after Lincoln's death, a caucus of Republican leaders was held, at which the tragedy was described as a gift from Heaven, and it was decided to get rid of Lincolnism. Ben Butler was chosen to be Secretary of State. Unfortunately for that plan, Seward's injuries were not fatal, and his position did not become vacant. Blunt Senator Wade told the new President, "Johnson, we have faith in you. By the gods, there will be no trouble now in running the government!" Johnson had been ranting for weeks past that secession was treason, that treason must be made odious, and that all Confederates should be hanged.

From the pulpit, the Radical sentiments poured forth with astounding frankness. "I accept God's action as an indication that Lincoln's work as an instrument of Providence ended here," said the Reverend Martin R. Vincent, in the First Presbyterian church of Troy, New York, "and that the work of retribution belonged to other and doubtless fitter instruments. I will not positively assert that his policy toward traitors was so much too lenient that God replaced him by a man, who, we have good reasons to think, will not err in this direction. Yet I say this may be and it looks like it."

The Reverend Warren E. Cudsworth, in Boston, also expressed his satisfaction, "His [Lincoln's] death under God will do as much for the cause he had at heart as did his life. We know that already several of the leading supporters of his administration had taken issue with him on Reconstruction in the rebel states."

The Reverend Mr. Crane was convinced that the assassination was the work of Providence. "Abraham Lincoln's work is done," he stated solemnly. "From the fourteenth of this April his work was done. From that time God had no further use for him ..."

It is remarkable how closely the wishes of the Radicals and the ways of Providence chanced to meet on "the fourteenth of this April." ... An attempt had also been made on the life of Seward, the only other prominent Republican who was lenient and conciliatory.

Maybe those American Muslims who were fighting for the Taliban should not be considered traitors either

Your comparison of American Confederates to the Taliban is just low mudslinging. Americans caught in Afghanistan were unlawful combatants and had not renounced their citizenship. Completely different circumstances, and you know it.

What a putz. What a boor. Were you born this way, or have you been on a course of independent study?

You consistently use make-believe fantasy legal arguments to absolve him of all legal sins.

Get another act. Your current one is Alpo.

More like Old Roy, the Wal-Mart house brand.

Well now.....a little poultry with a side of plantation pandering by a presstitute on pay day.......priceless.

Davis'suspension of the writ was under different circumstances, his congress was in session. Lincoln's wasn't.

Why do you think the Constitution gives the president the power to reconvene congress in an emergency? The supreme court has said it twice now: there's only one way to suspend the writ and that is through Congress.

Moreover, Davis was still critized for his use of that power, who felt he was overreaching the authority of his office.

Criticized or not, Davis' suspension was legally authorized while Lincoln's was not.

Take the legal double talk somewhere else.

I'd invite you to look into the mirror and repeat the same. Your arguments on this subject have devolved into habitual tu quoquery of the lowest order.

Presidents have to make decisions to protect the Constitution that stretch the limits of what the Consitution may have intended, but that is the responsiblity of the President has.

Presidents have an obligation to uphold the constitution. It is logically impossible to uphold the constitution by raping its key provisions, tearing down its specific processes, and running roughshod over the other two CO-EQUAL branches of the government whenever they get in your way. Congress did not authorize Lincoln to suspend the writ for TWO YEARS and killed his bill to do so, yet he did it anyway. The Judicial Branch issued five separate rulings telling him to stop suspending the writ, yet he did it anyway and used his henchmen to harass and detain a judge that ruled against him.

Lincoln defense of his actions was a sound one, based on the practial demands of the time.

Quod gratis asseritur, gratis negatur.