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

In using the name "Indemnity Act" to designate the law of March 3, 1863, contemporary usage has been followed. Senator Trumbull and others referred to the measure while under debate as the "Indemnity Bill," and the same designation appeared in the heading of the record, as well as in many other places. Cong. Globe, 37 Cong., 3 sess., pp. 1459, 1479.)

Source: James G. Randall, Constitutional Problems Under Lincoln, Revised Edition, 1951, Chapter 11, "The Indemnity Act of 1863," p. 189, footnote 8.

If you look at HR 591, as recorded on Dec 9, 1862, the working title was "An Act to indemnify the President and other Persons for suspending the privilege of the writ of Habeas Corpus and acts done in pursuance thereof." It also came with a preamble which explained the reasons for the proposed Act:

The Indemnity Bill was passed on March 3, 1863.

In the House:

March 2, 1863.
THE CONGRESSIONAL GLOBE.
INDEMNITY BILL.
The SPEAKER. The hour of one o'clock having arrived the vote will now be taken, by previous order of the House, on agreeing to the report of the committee of conference on the indemnity bill
Mr. ALLEN, of Ohio, called for the yeas and nays.
The yeas and nays were ordered.
The question, was taken; and it was decided in the affirmative-yeas 99, nays 44; as follows:
* * *

Source: Congressional Globe, 37th Congress, 3rd Session, March 2, 1863. (Page 1479)

IMAGE p. 1479, CG, 2 Mar 1863

In the Senate:

Journal of the Senate of the United States of America, 1789-1873
MONDAY, March 2, 1863.

Monday, March 2, 1863

TEXT

Page 380

IMAGE p380

Mr. President: The House of Representatives has agreed to the report of the committee of conference on the disagreeing votes of the two houses on the bill (H. R. 591) to indemnify the President and other persons for suspending the privilege of the writ of habeas corpus, and acts done in pursuance thereof; and

Page 382

IMAGE p382

Mr. Trumbull, from the committee of conference on the disagreeing votes of the two houses on the bill (H. R. 591) to indemnify the President and other persons for suspending the privilege of the writ of habeas corpus, and acts done in pursuance thereof, submitted the following report:

The committee of conference on the disagreeing votes of the two houses on the bill (H. R. 591) to indemnify the President and other persons for suspending the privilege of the writ of habeas corpus, and acts done in pursuance thereof, and the Senate's amendment thereto, having met, after full and free conference have agreed to recommend, and do recommend, to their respective houses that the Senate recede from their said amendment, and agree to the said House bill, amended to read as follows, to wit:

AN ACT relating to habeas corpus, and regulating judicial proceedings in certain cases.

Page 397

IMAGE p397

The Senate resumed the consideration of the report of the committee of conference on the disagreeing votes of the two houses on the bill (H. R. 591) to indemnify the President and other persons for suspending the privilege of the writ of habeas corpus, and acts done in pursuance thereof; and

Page 399

IMAGE p399

A message from the House of Representatives, by Mr. Etheridge, its Clerk:

Mr. President: The House of Representatives has agreed to the report of the committee of conference on the disagreeing votes of the two houses on the bill (H. R. 591) to indemnify the President and other persons for suspending the privilege of the writ of habeas corpus, and acts done in pursuance thereof; and....

Journal of the Senate of the United States of America, 1789-1873
TUESDAY, March 3, 1863.

TEXT

Page 400

IMAGE p400

Mr. President: The House of Representatives has passed the following bills, in which it requests the concurrence of the Senate:

* * *

The Speaker of the House of Representatives having signed sixteen enrolled bills (S. 435, S. 483, S. 526, S. 534, S. 536, S. 537, S. 540, S. 543, S. 548, S. 557, S. 562, S. 564, S. 565, H. R. 226, H. R. 523, and H. R. 591) and two enrolled resolutions, (S. 129 and S. 133,) I am directed to bring them to the Senate for the signature of its President.

Mr. Howe reported from the committee that they had examined and found duly enrolled the following bills:

-- H. R. 226. An act to amend "An act to establish a court for the investigation of claims against the United States," approved February 24, 1855.

-- H. R. 591. An act relating to habeas corpus, and regulating judicial proceedings in certain cases.

-- H. R. 523. An act to promote the efficiency of the corps of engineers, of the ordnance department, and for other purposes.

The President pro tempore signed the enrolled bills (S. 435, S. 483, S. 526, S. 534, S. 536, S. 537, S. 540, S. 543, S. 548, S. 557, S. 562, S. 564, S. 565) and the enrolled joint resolutions (S. 129 and S. 133) yesterday reported to have been examined, and the enrolled bills (H. R. 226, H. R. 523, and H. R. 591) last reported to have been examined, and they were delivered to the committee to be presented to the President of the United States.

[cr] Another case of telling a partial truth. His AB was in English. What about his PhD from the New School?

[GOPcap] It doesn't state what subject it's in or even what his focus or dissertation topics were. Thus all we know for certain about his specific credentialed field of expertise is that he's got an English degree.

The New School (in Manhattan) recently shortened its name from the prior New School for Social Research. It has no law school. It is impossible for the New School to have given Harry Jaffa a law degree.

During the period he worked for his doctorate, Jaffa studied under Leo Strauss.

Until you post a source, your rant must stand on your own credibility. Nothing can stand on your credibility.

[cr] They were meeting to hear an issue in which they had no jurisdiction. They were attempting to act as a rogue court. This is precisely why the Suspension Clause was proposed and exists.

This is the new capitan_kerryfugio legal doctrine. The Executive decides whether the Judicial branch has jurisdiction. They enforce their legal opinion with soldiers and guns. Judges who defy the Executive are pistol-whipped off the bench and dragged away.

[cr] That was not Lincoln's obligation. His obligation was to see that the laws were faithfully executed and that the Constitutional Union was protected. In a wartime situation, the suspension of the writ was both correct and necessary.

It is never correct and proper for a MILITARY officer to suspend the privilege of the writ of habeas corpus on his own authority and at his own discretion.

In Merryman, there was no suspension by anybody. General Keim ordered the arrest, but he was in Pennsylvania and could not assume lawful authority to suspend the writ in Maryland, not even according to the authorization given by Lincoln to General Scott.

General Cadwalader did not know a thing about it until after the fact. The letter purporting to give suspension authority to General Cadwalader was sent after the proceedings in court had already concluded.

Most assuredly, Lincoln did not suspend the privilege of the writ himself in the Merryman case.

[cr] That was not Lincoln's obligation.

[GOPcap] If he was purporting to suspend it, it was!

It is not even alleged that Lincoln personally suspended habeas corpus in the Merryman case. He authorized military officers to do so.

As the case comes before me, therefore, I understand that the president not only claims the right to suspend the writ of habeas corpus himself, at his discretion, but to delegate that discretionary power to a military officer, and to leave it to him to determine whether he will or will not obey judicial process that may be served upon him. No official notice has been given to the courts of justice, or to the public, by proclamation or otherwise, that the president claimed this power, and had exercised it in the manner stated in the return.

Ex Parte Merryman

Now what dead horse are you beating?

Keep it up and we will have to file animal abuse charges on you!

What is all this talk about convening congress?

Do you think that Congress would have not given him the powers to raise troops?

I don't think they would have looked favorably on his sending an armed force to Fort Sumter. Some in Congress would have, but many would recognize it as an act of war to send an armed fleet into South Carolina's territorial waters. Prior to the adjournment of the Senate, the Administration had been putting out the story to the Southern Commissioners in Washington and the Governor of South Carolina that Fort Sumter would be evacuated. As soon as the Senate left, Lincoln took action counter to that. The Southern Commissioners denounced the perfidy of the Administration when they found they had been lied to.

Lincoln felt the Constitution gave him the right to do what needed to be done first and then give Congress the opportunity to support or reject what he had done.

In other words, he snookered Congress. Some of the things he and his Administration did were things that Congress did not have the authority to bless.

You have continually questioned my conservative values and dedication to Republican causes

The Rebel Cartel is questioning your loyalty?

I think that in a crises the Lincoln felt he had an obligation to defend the Constitution.

As for Fort Sumter, Congress had nothing to do with that.

That was U.S.property and Lincoln was in his right as President to send the fleet to protect it.

[cr] If Congress, who you claim had sole authority to suspend the privilege of the writ (regardless of the situation), had objected to Lincoln's action, they could have made it known.

[GOPcap] They did by killing his bill in 1861.

THE SAD HISTORY OF JOINT RESOLUTION SR-1 OF 1861

In 1861, Senator Wilson brought a proposed Joint Resolution to the Senate, SR-1. It was batted around throughout the special session called by Ayotollah Abe.

It read as follows:

Be it resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That all of the extraordinary acts, proclamations, and orders hereinbefore mentioned, be, and the same are hereby, approved and declared to be in all respects legal and valid, to the same intent, and with the same effect, as if they had been issued and done under the previous express authority and direction of the Congress of the United States.

The items "hereinbefore mentioned" were:

First. He did, on the fifteenth day of April last, issue his proclamation calling upon the several States for seventy-five thousand men to suppress such insurrectionary combinations, and to cause the laws to be faithfully executed.

Secondly. He did, on the nineteenth day of April last, issue a proclamation setting on foot a blockade of the ports within the States of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas.

Thirdly. He did, on the twenty-seventh day of April last, issue a proclamation establishing a blockade of the ports within the States of Virginia and North Carolina.

Fourthly. He did, by an order of the twenty-seventh day of April last, addressed to the commanding general of the army of the United States, authorize that officer to suspend the writ of habeas corpus at any point on or in the vicinity of any military line between the city of Philadelphia and the city of Washington.

Fifthly. He did, on the third day of May last, issue a proclamation calling into the service of the United States forty-two thousand and thirty-four volunteers, increasing the regular army by the addition of twenty-two thousand seven hundred and fourteen men, and the navy by an addition of eighteen thousand seamen.

Sixthly. He did, on the tenth day of May last, issue a proclamation authorizing the commander of the forces of the United States on the coast of Florida to suspend the writ of habeas corpus, if necessary.

This pertained to Lincoln authorizing Scott to suspend habeas corpus and was shot down in flames. It never even attempted to justify Scott authorizing other military officers to suspend habeas corpus.

The battle continued down to the final day of the session, August 5, 1861. During the session, which started in July, the tide turned against this attempted rape of the Constitution.

Right near the end of the session, Mr. Wilson rose and implored the body one more time, "Let us have a vote."

A brave Senator, a true Patriot, a common-sense lover of the Law and the Constitution, rose up to smite the usurping infidel and told Mr. Wilson for the last time, NO! You may not defile and rape our beloved Constitution.

OK, what he really said was more polite and went like this, "Now, my friend is clamorous. He cannot keep still. He says, 'let us have a vote.' I am not disposed to vote upon the resolution. I will tell the Senator from Kentucky I am not prepared to vote for the resolution, and it is not going to pass without consideration. It is not going to pass in the shape it is by my approbation."

Yea, verily, that brave Senator, that true Patriot, that common-sense lover of the Law and the Constitution who rose up so bravely to slam-dunk infidel Senator Wilson and his bill into eternity was none other than ILLINOIS SENATOR LYMAN TRUMBULL.

QUOTES FROM THE SENATE RECORD REGARDING SR-1

Pages : [64] , [137] , [138] , [139] , [140] , [141] , [142]

[333] , [334] , [392] , [395] , [453]

Mr. President, in the State of Missouri, there was no "Law of the United States opposed, or the execution thereof obstructed by combinations of men too powerful to be suppressed by the ordinary course of judicial proceedings." Indeed, sir, there was no resistance of any United States law. Yet Missouri, peaceful and law abiding, without cause, against law and in defiance of the Constitution , was invaded by United States troops, by troops from Illinois, by troops from Iowa, and by troops from Kansas. Indeed, sir, it seems that from the very moment in which the administration resolved upon this policy of coercion, the State of Missouri was marked as a victim for sacrifice, for invation, and subjugation.
~ Mr. Polk, July 11, 1861, page 64 ~

The joint resolution would seem, upon the face of it, to admit that the acts of the President were no performed in obedience to the Constitution and the laws. If that be true, I should be glad to hear some reasons assigned by gentlemen showing the power of the Congress of the United States, by joint resolution, to cure a breach of the Constitution or to indemnify the President against violations of the Constitution and the laws. If, in any respect that officer has violated the laws, he has also violated the Constitution; because one clause of that instrument declares that "he shall take care that the laws be faithfully executed." It confers on him the power to see that they are executed; but no power to violate them.
~ Mr. Breckinridge, July 16, 1861, page 137 ~

I deny, Mr. President, that one branch of this Government can indemnify any other branch of the Government for a violation of the Constitution or the laws. The powers conferred upon the General Government by the people of the States are the measure of its authority. Those powers have been confided to different departments, and the boundaries of those departments determined with perfect exactitude. The President has his powers and rights conferred on him by the Constitution; the legislative authority its powers and rights; the judicial authority its powers and rights; the judicial authority its powers and rights; and I deny that either can encroach upon the other, or that either can indemnify the other for a usurpation of powers not confided to it by the Constitution. Sir, Congress, by a joint resolution, has no more right, in my opinion, to make valid a violation of the constitution and the laws by the President, than the President would have by an entry upon the executive journal to make valid a usurpation of the executive power by the legislative department. Congress has no more right to make valid an unconstitutional act of the President, than the President would have to make valid an act of the Supreme Court of the United States encroaching upon executive power; or than the Supreme Court would have the right to make valid an act of the executive encroaching upon the judicial power.
~ Mr. Breckinridge, July 16, 1861, pp. 137-8 ~

It is proposed, sir, to approve and make valid the act of the President in enlisting men for three and five years. I ask you by what authority of Constitution or law he has done this act? The power is not conferred in the constitution; it has not been granted by the law. it is, therefore an unconstitutional and illegal act of executive power. The President, of his own will -- and that is one of the acts enumerated in this joint resolution which is propowed to approve and ratify -- has added immensely to the force of the regular Army. The Constitution says that Congress shall raise armies, and a law now upon your statute book limits the number of the regular force, officers and men. Hence, sir, that is an act in derogation both of the Constitution and of the laws.
~ Mr. Breckinridge, July 16, 1861, pp. 138 ~

The President has added immensely to the Navy of the United States. The Constitution says that Congress shall provide and maintain a navy; and there is now a law upon the statute book limited the number of men to be employed in the Navy. That, like the rest, sir, will not bear argument. I doubt if an attempt will be made to defend it upon constitutional or legal grounds. I pronounce it a usurpation.
~ Mr. Breckinridge, July 16, 1861, pp. 138 ~

I need not say to the Senate that in england, whence we derive this right, the legislative power alone can suspend it. We all know, sir, that the monarch of England cannot suspend it. We all know, sir, that the monarch of england cannot suspend that writ; but transatlantic freemen seem to be eager to approve and ratify acts which a European monarch would not dare to perform. Mr. President, it needs no elaborate argument to show that the executive authority of the United States has no right to suspend the write of habeas corpus.
~ Mr. Breckinridge, July 16, 1861, pp. 138 ~

I enumerate what I regard as usurpations of the Executive to go upon the record as a protest of those of us who are not willing to see the Constitution subverted, and the public liberty trampled under foot, under whatever pretest, of necessity or otherwise.
~ Mr. Breckinridge, July 16, 1861, pp. 139 ~

: I remember to have read, not long since, a speech made by the present able Secretary of War, in this city, in which he said that the southern States must be subdued, and that at the end of this contest there would be no more Virginians as such, or Carolinians as such; but only Americans all. Sir, the name of American is a proud one, and I lvoe it; but it is the preservation of the names of Virginians and Pennsylvanians, and the distinctive existence of all these States, which alone can keep the name of American a proud one. I never want to see them blotted out. I said, sir, that in my opinion, the tendency was to change our character of government, and that the purpose, if not avowed, is acted upon to conduct those proceedings without regard to the limitation of the Constitution. these things I have enumerated go to show it. This Joint Resolution goes to show it. I call upon Senators to defend the constitutionality of these acts, or else to admit that we intend to conduct this contest without regard to the Constitution.
~ Mr. Breckinridge, July 16, 1861, pp. 140 ~

In the course of the same speech to which I have referred, that eminent Senator declared that not only must that country be ravaged by armies, but that unless the people of those States paid willing and loyal obedience to the Federal Government, their State form must be changed, and they must be reduced to the condition of Territories; to be governed by Governors sent from Massachusetts and Illinois. This was said seriously; and afterwards, when referred to by my colleague on a subsequent day, reaffirmed by that eminent Senator. If necessary, reduced to the condition of Territories! Is there authority in the Constitution to do it?
~ Mr. Breckinridge, July 16, 1861, pp. 140-1 ~

We can only hope that this flash of frenzy may not assume the form of chronic madness, and that in any event Divine providence may preserve for us and for posterity, out of the wreck of a broken Union, the priceless principles of constitutional liberty and of self-government. [Applause in the galleries.]
~ Mr. Breckinridge, July 16, 1861, pp. 142 ~

The suspension of the privilege of the habeas corpus by executive authority is a violation of the principles of public freedom which have been consecrated for centuries. These principles were dear to our Anglo-Saxon forefathers before the period of Magna Charta. From the days of Magna Charta, which, seeking to restore ancient rights, provided that no freeman should be taken or imprisoned without the lawful judgment of his peers, or the law of the land, down to the declaration of our independence, that principle has been dear to the freemen of England and America.
~ Mr. Pearce, July 30, 1861, page 333 ~

If necessity, whichg is an odious plea, known for hundreds of years as "the tyrant's plea" -- a plea by which you may overthrow all constitutional provisions -- if that plea is efficient here; if that is a justification for a violation of one provision of the Constitution, it is equally a justification for any and all violations of it.
~ Mr. Pearce, July 30, 1861, page 333 ~

So too, sir, these domiciliary visits, which are equally in violation of a provision of the Constitution, are sought to be justified by necessity. Now, let us see where these things are done. Nowhere, so far as I am informed, except in the State of Maryland, unless there be some exceptions in the State of Missouri.
~ Mr. Pearce, July 30, 1861, page 334 ~

My objection to taking up this resolution I will state in a word. I believe it is in order to state briefly the objection. This resolution which the Senator from Massachusetts seeks to take up is germane to the bill which is the unfinished business. The resolution proposed to declare legal the acts which have been done by the President in the recess of Congress. Will our declaration make them legal if they are not legal? Will it make them so if they were unconstitutional and void?
~ Mr. TRUMBULL, August 2, 1861, page 392 ~

The Senator from Maine evidently entertains a very sincere conviction that the action of the President has not been in violation of the constitution or the laws; because he has asserted it six or seven times in the ocurse of the brief speech he has made to the Senate. His convictions are evidently deep and sincere. All I have to say in reply to that is, that it will be a very great comfort to the President to be assured of that fact; forhe himself has been under the impression that he has been transcending both; and, indeed, he admits it in his message, and puts it expressly on the ground of a popular demand and what he deemed to be a public necessity. It has also been admitted by many Senators on the other side of the chamber. I have not believed, all along, that the resolution was going to be voted by the Senate. I do not believe it now. It may be; but I think not. My deliberate judgment is, that in some mode the Senate will avoid putting itself on record in favor of the principles contained in this resolution. It is indifferent to me whether it does or not. Of course, every Senator will vote his own convictions if brought to a vote; but I do not think there are many Senators who want their names to go upon history in favor of this resolution.
~ Mr. Breckinridge, August 2, 1861, page 392 ~

The President issued a proclamation calling into the service of the United States forty-two thousand and thirty-four volunteers. It was clearly illegal; I am not satisfied it was necessary. I am inclined to think it was not.
~ Mr. Howe, August 2, 1861, page 395 ~

I cannot consent to give my approval to the fourth and sixth acts enumerated in the resolution, by which the President authorized the commanding General to suspend the writ of habeas corpus. I do not rise to make a speech; but to give the reason why I cannot vote for the resolution.
~ Mr. Thomson, August 2, 1861, page 395 ~

MR. WILSON. Let us have a vote.
MR. TRUMBULL. Now, my friend is clamorous. he cannot keep still. he says "let us have a vote." I am not disposed to vote upon the resolution. I will tell the Senator from Kentucky I am not prepared to vote for the resolution, and it is not going to pass without consideration. It is not going to pass in the shape it is by my approbation.
~ Messrs. Wilson and Trumbull, August 5, 1861, page 453. ~

Oh, I am not angry at all, I am laughing as I am typing this. It's amusing how quickly a bitter accusation of being "pompous" followed by a demand to "get off your high horse" shifts into a matter of laughter on the convenience of the moment. Giggle to your heart's content, laughing boy. You've been bested yet again and that is all that matters.

Boy do you have thin skin!

You consider calling you 'pompus' and telling you 'to get off your high horse' rough?

You are a he aren't you?

That was U.S.property and Lincoln was in his right as President to send the fleet to protect it.

Not through South Carolina waters. The fort wasn't really in danger until Lincoln threatened the South Carolinians with an armed fleet. Mind you, I think the South was unwise to rise to the bait and attack the fort. They should have let Lincoln try to impose a blockade or collect the tariff on goods being imported on foreign ships, which would have been essentially international declarations of war. (Got to get that UN approval, don't ya know. LOL)

I'm out of here for a while.

[cr] Farber refutes that line of reasoning.

[cr dishonest quote of Farber ends with] Thus, a plausible argument can be made that during a suspension, the executive not only has a valid legal defense that the habeas court should accept, but he is entitled to ignore any order to appear or to produce or release the prisoner."

Farber does not call it a refutation, but, after finding the necessity defense untenable, presents this jurisdictional argument more as a last ditch "Hail Mary."

Farber wrote, "Arguably, a valid suspension of the writ does eliminate the court's very power to proceed. ... a plausible argument can be made that during a [nc - valid, let us not slickly edit the word out] suspension, the executive not only has a valid defense that the habeas court should accept, but he is entitled to ignore any order to appear or to produce or release the prisoner ... the strongest argument against the jurisdictional view of suspension isthat in practice it would leave the executive as the sole judge of whether the writ was validly suspended ... allowing the president to ignore an adverse ruling about the validity of the suspension is undoubtedly dangerous ... if this jurisdictional analysis is rejected, however, we should concede that Lincoln's action was unlawful. It is fruitless to argue for a general power of executive nullification. Lincoln himself did not even offer this defense, and history speaks strongly against it. Instead, we are thrown back on the necessity defense that he did in fact offer."

[GOPcap] He's even cooked up a multi-paragraph excerpt from Berkeleyite law prof Daniel Farber saying little more than the same in about 10 times as many words.

"Cooked" is the correct word. He has bastardized what Farber actually wrote and claimed it as a "refutation." Farber did not present it like that.

capitan_kerryfugio stopped quoting before Farber wrote: "if this jurisdictional analysis is rejected, however, we should concede that Lincoln's action was unlawful."

The Constitution cannot be defended by serial rape of the Constitution. Lincoln purported to defend "the Union" while raping the Constitution.

[ftD] Well, where else have seen a 'dream team'able to get a guilty man off?

Name someone and show your offer of proof that evidence was produced at his or her criminal trial proving beyond a doubt that he or she was guilty.

Assuming you are thinking of some case where the Government was not to freightened to present its non-case.

[ftD] As I said

Your say so is worth about as much as a sermon on sixth day creation and mud people by Brigade chaplain, and a prayer to the Lincoln bobblehead Brigade deity.

[ftD] During the war, in the case Ex parte Merryman, Chief Justice Taney ordered Lincoln to grant a writ of habeas corpus

WHERE DO YOU GET THESE LUNATIC NOTIONS?

The President does not grant writs of habeas corpus.

[ftD] Nothing you have posted as disproved one thing that I have said, or what Capitan has said.

In your cavernous mind.

[ftD] Since you refuse to answer the question if you regard yourself as an American (an question no American would hesitate a moment to answer) I take your non-answer to be 'no'.

You asked me if I regarded myself as an American or a Southerner. I told you your question had a false assumption on your part. Now you are forgetting half of your question.

USN, Ret. Now go hump a camel.

As you refust to answer the question if you regard yourself as a human or a reptile, I take your non-answer to be an admission that you are a reptile.

[ftD] Those who deny freedom to others, deserve it not for themselves; and, under a just God, can not long retain it." --From the April 6, 1859 Letter to Henry Pierce et al

What did he say about draft-dodgers, draft-avoiders, and such???

SOVEREIGN STATES
Edgar Lee Masters

The Constitution was ratified by states, by sovereign states, not by the American people in mass. This is the history of the legalism of ratification. Going back of the legalism, another story emerges out of the records of those times. Beard in his work, An Economic Interpretation of the Constitution of the United States, made the following analysis: The movement for the Constitution was engineered by money, public securities, manufactures, trade and shipping. The initial steps in the forming of a new Constitution were taken by a small group of property interests. No popular vote was taken for the calling of the convention which drafted the Constitution. A very large class of persons without property had no representatives, and no voice in the convention. The delegates to the convention themselves had an economic interest in the formation of a new government. The Constitution drafted was an economic document. Three fourths of the adult males in the states failed to vote for delegates who ratified the Constitution, either positively abstaining from voting or else they were disfranchised by property qualifications. The Constitution was ratified by not to exceed one sixth of the adult males. The delegates in the state conventions represented the same economic groups which were represented in the Constitutional Convention. Beard showed that it is questionable whether the delegates in New York, Massachusetts, New Hampshire, Virginia, and South Carolina were chosen by voters who approved of the Constitution. The vote in New York has been preserved for us by the Daily Advertiser, and this vote in New York may be taken as an intrepretation of the general public will in many of the states. Albany, Ulster, Duchess, Orange, Columbia, Montgomery, Suffolk, and Washington Counties polled 11,230 Anti-Federalist votes; and 5496 Federal votes. The former thereby won 41 delegates to the state convention. New York County, Westchester, Queens, Kings, Richmond won but 25 delegates. With the apportionment against them, the Anti-Federalists thus elected twice as many delegates as the Federalists.

Returning to the Union and government under the Constitution which Lincoln said he was sworn by an oath to defend and protect, while no one had an oath registered in heaven to destroy them, there is a popular supposition that in some way the states lost their sovereignty by the ratification of the Constitution; or if they did not suffer quite so serious a deprivation that there were clauses in the Constitution which made the government under it supreme, whereas the government under the Articles was limited. In this connection much has been said of the clause in the Constitution which reads: "This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding." But by Article XIII of the Articles of Confederation it was provided: "Every state shall abide by the determinations of the United States in Congress assembled, on all questions which by this confederation is submitted to them. And the Articles of this Confederation shall be inviolably observed by every state, and the union shall be perpetual." In truth all conventions and compacts between sovereigns are the supreme law of the land. A treaty between Great Britain and the United States would be the supreme law in both realms, and binding upon the sovereignties and upon the subjects and citizens of both governments without any clause to that effect in the organic law of either government. This must be so in the nature of things; and it is so by the express law of nations. The courts of both are bound to hold a treaty to be supreme, and no constitutional clause is necessary to empower them so to hold. And it is to be observed that only laws and treaties which are made in pursuance of the Constitution are the supreme law; whence it follows that the Federal government was in this clause expressed to be one of limited powers, and that obedience to it is due only to the circumscribed extent that it legislates and makes treaties consonant to the grant of powers from the states expressed in the Constitution.

This discussion of Lincoln's theories of the Union and the Constitution, naturally leads to a consideration of the right of secession which the Southern states asserted, and which Lincoln resisted by the waging of one of the most cruel and bloody wars of history. If the right or wrong of slavery was in his opinion not sufficiently clear to warrant him in denouncing those who had slaves, as he said, the right or wrong of secession was certainly not clear enough to justify the killing of thousands of men for the purpose of demonstrating by arms its wrong. The truth is Lincoln did not know the Constitution and its history sufficiently well to have a well based opinion on this subject. It is perhaps true that he was not aware of the fact that Webster, whom he followed, had modified his views on the nature of the Union, and the rights of states under it. As we have seen, Webster in 1830 had debated these vexed questions with Hayne, and in 1833 with Calhoun. In 1839 he expressed himself very differently from what he had done on those prior occasions. In January of the latter year he argued the case of The Bank of Augusta against Earle in the Supreme Court, when he used this language in addressing the Court: "But it is argued, that though this law of comity exists as between independent nations, it does not exist between the states of this Union.... In respect to this law of comity, it is said, states are not nations; a sort of residuum of sovereignty is all that remains to them. The National sovereignty, it is said, is conferred on this government, and part of the municipal sovereignty.... Suppose that this Constitution had said, in terms after the language of the court below-all national sovereignty shall belong to the United States; all municipal sovereignty to the several states. I will say, that however clear, however distinct, such a definition may appear to those who use it, the employment of it, in the Constitution, could only have led to utter confusion and uncertainty. I am not prepared to say that the states have no national sovereignty. The laws of some of the states, Maryland and Virginia, for instance, provide punishment for treason. The power thus exercised is certainly not municipal.... The term sovereignty does not occur in the Constitution at all. The Constitution treats states as states and the United States as the United States; and by a careful enumeration, declares all the powers that are granted to the United States, and all the rest are reserved to the states.... The states of this Union, as states, are subject to all the voluntary and customary laws of nations." The Supreme Court, in passing on the case which Webster had thus argued, said: "It has, however, been supposed that the rules of comity between foreign nations do not apply to the states of this Union; that they extend to one another no other rights than those which are given by the Constitution... and that the courts are not at liberty to presume, in the absence of all legislation on the subject, that a state has adopted the comity of nations toward the other states.... The Court thinks otherwise. The intimate union of these states, as members of the same great political family; the deep and vital interests which bind them so closely together; should lead us, in the absence of proof to the contrary, to presume a greater degree of comity and friendship and kindness towards one another, than we should be authorized to presume between foreign nations. And when (as without doubt must occasionally happen) the interest or policy of any state requires it to restrict the rule, it has but to declare its will, and the legal presumption is at once at an end. But until this is done, upon what grounds could this court refuse to administer the law of international comity between these states? They are sovereign states.... We think it is well settled that by the law of comity among nations, a corporation created by one sovereignty is permitted to make contracts in another, and to sue in its courts; and that the same law of comity prevails among the several sovereignties of this Union."

Was Lincoln familiar with the letter which Webster wrote to the Barings in London in the year 1839? They had asked him for a legal opinion as to whether the legislature of one of the states had the legal and constitutional power to contract loans at home and abroad. "To this I answer," wrote Webster, "that the legislature of a state has such power; and how any doubt could have arisen on this point it is difficult for me to conceive. Every state is an independent, sovereign, political community, except in so far as certain powers, which it might otherwise have exercised, have been conferred on a General Government, established under a written Constitution, and exerting its authority over the people of all the states. This general government is a limited government. Its powers are specific and enumerated. All powers not conferred upon it still remain with the states and with the people. The state legislatures on the other hand, possess all usual and extraordinary powers of government, subject to any limitations which may be imposed by their own constitutions, and with the exception, as I have said, of the operation of those powers of the Constitution of the United States." If Lincoln had read this and absorbed its truth he never would have delivered the Cooper Institute Speech.

SOURCE: Edgar Lee Masters, Lincoln, The Man, Copr 1931, Reprint 1997, pp. 332-6.

[ftD] Now what part of the Declaration are you against?

I am fortheConstitution. The Constitution is the law of the land.

You prefer to justify violations of the Constitution with citations to the Declaration.

I am against some jerk invoking the Declaration, or his personal arcane interpretation thereof, as the law of the land.