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

Based on Margaret Mitchell's hugely popular novel, producer David O. Selznick's four-hour epic tale of the American South during slavery, the Civil War and Reconstruction is the all-time box-office champion.

Considering its financial success and critical acclaim, "Gone With the Wind" may be the most famous movie ever made.

Along with D.W. Griffith's technically innovative but ethically reprehensible "The Birth of a Nation" (from 1915), which portrayed the Ku Klux Klan as heroic, "GWTW" presents a picture of the pre-Civil War South in which slavery is a noble institution and slaves are content with their status.

Furthermore, it puts forth an image of Reconstruction as one in which freed blacks, the occupying Union army, Southern "scalawags" and Northern "carpetbaggers" inflict great harm on the defeated South, which is saved - along with the honor of Southern womanhood - by the bravery of KKK-like vigilantes.

To his credit, Selznick did eliminate some of the most egregious racism in Mitchell's novel, including the frequent use of the N-word, and downplayed the role of the KKK, compared with "Birth of a Nation," by showing no hooded vigilantes.

One can say that "GWTW" was a product of its times, when racial segregation was still the law of the South and a common practice in the North, and shouldn't be judged by today's political and moral standards. And it's true that most historical scholarship prior to the 1950s, like the movie, also portrayed slavery as a relatively benign institution and Reconstruction as unequivocally evil.

Or as William L. Patterson of the Chicago Defender succinctly wrote: "('Gone With the Wind' is a) weapon of terror against black America."

[ftD] If Congress had disapproved he would have been impeached.

Your argument is B.S.

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. ~

[capitan_kerryfugio] Wrong. The indemnity clause in the Habeas Corpus Act of 1863 was designed to protect Union military officers from lawsuits brought by disaffected, defeated southerners in southern courts.

Quite obviously your insane hatred of all things Southern has warped your mind. The bill was clearly "passed" in 1863 to protect the Lincoln administration officials from lawsuits resulting from the arrest and imprisonment of political opponents. The actions were coming from courts in the NORTH as the only courts in the South were Confederate courts whose jurisdiction did not reach the North.

Moreover, it was not Southerners in the South who were being arrested and unlawfully imprisoned as a result of Lincoln's rape of the Constitution. It was Union citizens, in the North, being made political prisoners in Lincoln's bastille.

SOURCE: James G. Randall, Constitutional Problems Under Lincoln, p. 186

Our attention has been called in preceding chapters to summary arrests and other arbitrary acts consequent upon the suspension of the habeas corpus privilege. the essential irregularity of such a situation in American law becomes especially conspicuous when one considers its inevitable sequel -- namely, the protection of military and civil officers from such prosecution as would normally follow invasion of private rights and actual injury of persons and property. such protection was afforded by a bill of indemnity passed in 1863; and this law, with its amendment of 1866, forms a significant chapter in our legal history.
By the ordinary application of the principles of American administrative law, officers guilty of trespasses (such as false imprisonment and unwarranted seizures) would stand unprotected, though the trespass might be in strict keeping with executive orders.

SOURCE: James G. Randall, Constitutional Problems Under Lincoln, p. 188-9.

Before the war had proceeded far in the United States it became evident that Federal officers, even of Cabinet rank, were being attacked in State courts for acts done in the performance of duty. One of the earliest cases of this sort was that of Pierce Butler of Philadelphia against Simon Cameron, Secretary of War. Butler was arrested by order of Cameron in August, 1861, on suspicion of having received a commission from the Confederacy, and was confined for about a month in Fort Lafayette, after which he was released by order of Secretary Seward on giving pledge of loyalty. On Butler's petition the Supreme Court of Pennsylvania issued a writ which was served upon Cameron when he was about to sail as minister to Russia, the charge being assault and battery and false imprisonment. The official concern occasioned by this suit may be judged by the fact that the President adopted the act of the Secretary of War as his own, and directed that the suit should "be fully defended as a matter which deeply concerns the public welfare as well as the safety of the individual officers of the Government." To this end the Federal district attorney at Philadelphia was instructed to give particular attention to the defense of Cameron. As a result, the case was dropped in its preliminary stages.
In 1863 Secretary Seward was subjected to a similar action for false imprisonment in a New York court by G. W. Jones, former minister to Bogota, who was arrested in a New York hotel and kept prisoner in Fort Lafayette for four months. The effort of Governor Seymour and the judicial authorities of New York to prosecute General Dix for his suppression of the New York World is an example of the same disposition on the part of local courts to enforce judicial remedies at the expense of highly placed officials.6 Secretary Stan ton is said to have remarked that if such prosecutions held, he would be imprisoned a thousand years, at least. These instances will suffice to show that the need of protection for Federal officers was real.
To supply such protection was the purpose of the act of March 3, 1863, which was at once a bill of indemnity and an authorization to suspend the habeas corpus privilege. It is only the fourth and subsequent sections that

Of course, there was much opposition to the bill and its passage was quite irregular. At about 5 a.m., Illinois Senator Lyman Trumbull called a voice vote, said the bill passed, denied any taking of yeas and nays, and adjourned the session of Congress. There is no recorded vote other than Trumbull saying it passed.

SOURCE: James G. Randall, Constitutional Problems Under Lincoln, p. 191

Finally, at about five o,clock in the morning, the presiding officer unexpectedly put a vote, announced that the bill was passed, denied the floor to opposing Senators who insisted that the measure had not passed, refused to entertain a montion to reconsider, and, against the protest of the filibusterers, declared the Senate adjourned.
(Cong. Globe, 37 Cong., 3 sess., p. 1477)

[capitan_kerryfugio] You, of all people, should realized that a military order need not be in writing to be valid.

A military order to suspend habeas corpus could never be valid. There is no record of any oral order. The military tends to document such things.

[capitan_kerryfugio] The supposed "lack of documentation" does not preclude that, in the month since the President, as Commander-in-chief, gave the authorization to General Scott and any subordinate officers, as needed, that the order was propogated to every commander in the theater affected.

The Official Record proves beyond a doubt and to a moral certainty that GENERAL CADWALLADER had not been authorized to suspend habeas corpus prior to May 28, 1861.

The Official Record proves beyond a doubt that the authorization was signed by an assistant adjutant-general, and there is not one hope in hell that said assistant adjutant-general had the authority to either suspend habeas corpus or delegate the authority he did not have pursuant to the terms of Lincoln's authorization to General Scott.

The Official Record proves beyond a doubt that General Keim in Pennsylvania could not possibly have held even apparent authority to suspend habeas corpus in Maryland.

Lincolns (unconstitutional) authorization to General Scott was,

"You are engaged in repressing an insurrection against the laws of the United States. If at any point on or in the vicinity of the military line which is now used between the city of Philadelphia, via Perryville, Annapolis City, and Annapolis Junction, you find resistance which renders it necessary to suspend the writ of habeas corpus for the public safety, you personally, or through the officer in command at the point where resistance occurs, are authorized to suspend that writ.

[capitan_kerryfugio] The authorization to arrest suspected traitors and subversives is quite apart from suspending the privilege of the writ of habeas corpus.

As Chief Justice Taney patiently explained to the Great Usurper:

A military officer has no right to arrest and detain a person not subject to the rules and articles of war, for an offence against the laws of the United States, except in aid of the judicial authority, and subject to its control; and if the party be arrested by the military, it is the duty of the officer to deliver him over immediately to the civil authority, to be dealt with according to law.

[capitan_kerryfugio] It was known through the chain of command that the privilege of the writ could be suspended. Indeed, General Cadwalader stated his authorization came from the President.

Then by now you should know that such authority could only be delegated to "the officer in command at the point where resisistance occurs."

WHO was the OFFICER IN COMMAND of the AREA where resistance was purportedly occurring??? Wasn't GENERAL PATTERSON in command of the Department of Pennsylvania, Delaware and Maryland???

As already quoted to you once, on May 27, 1861, General Cadwallader explained to HQ that he had been ordered to appear in court and did not know why the hell the prisoner was being held.

I directed the officers named who brought the prisoner here to have more specific charges and specifications furnished against the accused with the names of witnesses by which it was expected to prove them and the nature of their testimony, which then it was my intention to forward to you for the instruction of the general-in-chief.
I regret to say that I have not as yet been furnished with this information. I was yesterday evening served with a writ of habeas corpus issued by the Honorable Roger B. Taney, Chief Justice of the Supreme Court of the United States, commanding me to be and appear at the U. S. court-room in the city of Baltimore on Monday (this day), the 27th day of May, 1861, at 11 o'clock in the morning, and that I have with me the body of John Merryman of Baltimore County now in my custody, and that I certify and make known the day and cause of the capture and detention of the said John Merryman and that I do submit to and receive whatsoever the said court shall determine upon concerning me in this behalf.

[capitan_kerryfugio] Taney was notified that Merryman was being held (and rightly so) for treasonable activities and that Taney had no habeas corpus jurisdiction.

Link and quote the Official Record where anybody told Chief Justice Taney that he had no habeas corpus jurisdiction. It never happened. As usual, you INVENT your NON-FACTS. What General Cadwallader had his aide read to Chief Justice Taney is a matter of official record and is not in dispute, except by the capitan_kerryfugio attempt to revise it.

He has further inform you that he is duly authorized by the President of the United States in such cases to suspend the writ of habeas corpus for the public safety. This is a high and delicate trust and it has been enjoined upon him that it should be executed with judgment and discretion but he is neverthelesss also instructed that in times of civil strife errors if any should be on the side of safety to the country. He most respectfully submits for your consideration that those who should co-operate in the present trying and painful position in which our country is placed should not by reason of any unnecessary want of confidence in each other increase our embarrassments. He therefore respectfully requests that you will postpone further action upon this case until he can receive instructions from the President of the United States when you shall hear further from him.

Quite clearly, it does NOT say that General Cadwallader HAD suspended habeas corpus. An aide to the General was sent to the court to tell the Chief Justice that the General had been authorized to suspend the writ. He then asked for time to receive instructions on what the heck he should do because he obviously did not know what to do. Nobody told the Chief Justice that he had no habeas corpus jurisdiction.

Even in cases where the privilege of the writ is lawfully suspended, the Court retains jurisdiction and the writ issues as a matter of course. The agent of the Government is still required to make a return of the writ. A return of the writ with proper evidence that the privilege of the writ has been suspended will cause the Court to take no further action. It is the privilege of the writ which is suspended, and not the writ itself.

The suspension of the privilege of the writ of habeas corpus does not suspend the writ itself. The writ issues as a matter of course; and on the return made to it the court decides whether the party applying is denied the right of proceeding any further with it.

Ex Parte Milligan

LINK
Page 337 Chapter LXIII. CORRESPONDENCE, ETC. - UNION.
HEADQUARTERS OF THE ARMY,
Washington, April 27, 1861.
The undersigned, General-in-Chief, of the Army, has received from the President of the United States the following communication:
COMMANDING GENERAL ARMY OF THE UNITED STATES:
You are engaged in repressing an insurrection against the laws of the United States. If at any point on or in the vicinity of the military line which is now used between the city of Philadelphia, via Perryville, Annapolis City, and Annapolis Junction, you find resistance which renders it necessary to suspend the writ of habeas corpus for the public safety, you personally, or through the officer in command at the point where resistance occurs, are authorized to suspend that writ.
ABRAHAM LINCOLN.

And, as one can readily observe, after the megalomaniacal fuhrer had delegated the authority to suspend habeas to his chief storm trooper, that officer delegated the authority to Brigadier-General Beast Butler, Major-General Patterson, and Colonel Mansfield. Major-General Patterson is identified as commanding the Department of Pennsylvania, Delaware, and Maryland, not General Keim and not General Cadwalader.

In accordance with the foregoing warrant, the undersigned devolves on Major-General Patterson, commanding the Department of Pennsylvania, Delaware, and Maryland; Brigadier-General Butler, commanding the Department of Annapolis, and Colonel Mansfield, commanding the Washington Department, a like authority, each within the limits of his command to execute in all proper cases the instructions of the President.
WINFIELD SCOTT.

As clearly and calmly explained by the Honorable Chief Justice, Roger B. Taney, to the evil dictator:

'I ordered this attachment yesterday, because, upon the face of the return, the detention of the prisoner was unlawful, upon the grounds:
1. That the president, under the constitution of the United States, cannot suspend the privilege of the writ of habeas corpus, nor authorize a military officer to do it.
2. A military officer has no right to arrest and detain a person not subject to the rules and articles of war, for an offence against the laws of the United States, except in aid of the judicial authority, and subject to its control; and if the party be arrested by the military, it is the duty of the officer to deliver him over immediately to the civil authority, to be dealt with according to law. It is, therefore, very clear that John Merryman, the petitioner, is entitled to be set at liberty and discharged immediately from imprisonment.

And the Honorable Chief Justice Roger B. Taney clearly and calmly explained the issue of the case to the evil dictator:

The case, then, is simply this: a military officer, residing in Pennsylvania, issues an order to arrest a citizen of Maryland, upon vague and indefinite charges, without any proof, so far as appears; under this order, his house is entered in the night, he is seized as a prisoner, and conveyed to Fort McHenry, and there kept in close confinement; and when a habeas corpus is served on the commanding officer, requiring him to produce the prisoner before a justice of the supreme court, in order that he may examine into the legality of the imprisonment, the answer of the officer, is that he is authorized by the president to suspend the writ of habeas corpus at his discretion, and in the exercise of that discretion, suspends it in this case, and on that ground refuses obedience to the writ.
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. And I certainly listened to it with some surprise, for I had supposed it to be one of those points of constitutional law upon which there was no difference of opinion, and that it was admitted on all hands, that the privilege of the writ could not be suspended, except by act of congress.

The Great Usurper proceeded to usurp. Indeed, the Great Usurper did not personally suspend habeas until September 24, 1861.

There is no indication prior to May 28, 1861, that General Scott delegated authority to General Cadwalader to suspend habeas. There is no indication that General Cadwalader was then commanding the Department of Pennsylvania, Delaware, and Maryland, or that he was eligible to be delegated such authority pursuant to the Lincoln authorization of April 27, 1861.

[cr] Mistaken citations are not lies. To call them "lies" is a tried and true "Big Lie" technique.

There is nothing "mistaken" about false citations and false documentation when it occurs over and over. If you make that many mistakes in a row by accident, you are so incompetent that you must have in IQ bordering on that of fortheDeclaration or some other mental midget.

You have been caught so many times that you might as well resign yourself to having your credibility laughed at.

I do not know any of the folks on FR other than a few I met one day while freeping the Hillary book tour, and I know them by handle only from that one day.

You cannot prove you are not a liar because it has been proven over and over.

A million bucks, coward. If you need to do something to get the money, get off the government teat.

Write a book.

We do not need ancient history here.

From 11/24/2004: (5) It was indeed a footnote in the web article quoted from the Hamdi documentation.

From 11/25/2004: From a 'reply brief" we find this statement: "In a footnote, Respondents distinguish this Court’s opinions in Mitchell v. Harmony, 54 U.S. (13 How.) 115 (1851), Sterling v. Constantin, 287 U.S. 378 (1932), and prize cases by explaining that they 'do not support the type of factual development that petitioners have in mind with respect to the challenged enemy-combatant determination in this case.'" Her is the web article:

More lies to cover previous lies. It is not a "mistake" after you have been shown for months precisely what you did, and it was no footnote, and it was not from the Hamdi decision, and the footnote referred to on 11/25/2004 is from a completely different filing by the Solicitor General for Donald Rumsfeld, rather than what you quoted by a public defender.

Sell your load of crap to someone else.

http://www.freerepublic.com/focus/backroom/1195393/posts?q=1&&page=1279#1279

From the Hamdi v Rumsfeld decision, comes this short review of Mitchell. I saw the case referenced several times, but I have not taken time to look it up yet, so I will limit my comments.
"The Fourth Circuit’s ruling also is entirely inconsistent with this Court’s long experience with the review of Executive branch seizures. In Mitchell v. Harmony, this Court reviewed and rejected the military’s seizure of a citizen’s property in Mexico during the Mexican-American war. 54 U.S. (13 How.) at 128-29. The plaintiff, a naturalized American businessman, filed an action against a U.S. colonel to recover the value of his property seized by the military. The government responded that the businessman had a “design” to trade with the enemy, and that the decision of the military commander to seize the property “must be entitled to some respect.” Id. at 118, 120.
"Rejecting these arguments, Chief Justice Taney’s opinion for the Court found the government’s defense to be based on “rumors which reached the commanding officer.” Id. at 133. “Mere suspicions of an illegal intention,” the Court stated, “will not authorize a military officer to seize and detain the property of an American citizen. The fact that such an intention existed must be shown; and of that there is no evidence.” Id. If an Article III court, consistent with separation of powers principles, can inquire into the seizure of a citizen’s property by the military within a country at war with the United States as in Harmony, these same principles surely pose no barrier to an inquiry into the seizure of the citizen himself."
It seems that Mitchell is not applicable to the situation of the South in the ACW. By their insurrection, the southern rebels forsook their claim to United States citizenship. I do not see how they could assert legal protections, if those protections were even applicable, from the document and country they renounced.
1,279 posted on 09/16/2004 11:39:32 PM CDT by capitan_refugio
[ Post Reply | Private Reply | To 1277 | View Replies | Report Abuse ]

WAS IT FROM THE HAMDI v. RUMSFELD DECISION??? NO!!!

NEXT LIE COMING UP

----------------------------------------------

http://www.freerepublic.com/focus/backroom/1195393/posts?q=1&&page=1370#1370

HERE is what you wrote WAY BACK WHEN on 9/18/2004

I have not read Mitchell, but the description in the Hamdi footnote is that the plantiff was a US citizen. As such, it is not applicable to the southerners in the ACW. After perusing your post, I hope you are wearing your Depends, as you have probably blown a sphincter.

WAS IT A HAMDI FOOTNOTE??? NO!!!!

NEXT LIE COMING UP

-----------------------------------------------

http://www.freerepublic.com/focus/f-backroom/1279209/posts?page=1086#1086

(5) It was indeed a footnote in the web article quoted from the Hamdi documentation.
1,086 posted on 11/24/2004 11:20:41 AM CST by capitan_refugio

WAS IT FROM A WEB ARTICLE??? NO!!!

WAS IT A FOOTNOTE??? NO!!!

NEXT LIE COMING UP

--------------------------------------------------

http://www.freerepublic.com/focus/f-backroom/1279209/posts?page=1195#1195

[capitan_kerryfugio full of crap again]

From a 'reply brief" we find this statement: "In a footnote, Respondents distinguish this Court’s opinions in Mitchell v. Harmony, 54 U.S. (13 How.) 115 (1851), Sterling v. Constantin, 287 U.S. 378 (1932), and prize cases by explaining that they 'do not support the type of factual development that petitioners have in mind with respect to the challenged enemy-combatant determination in this case.'" Her is the web article:
http://www.abanet.org/publiced/preview/briefs/pdfs_03/03-6696PetReply.pdf
1,195 posted on 11/25/2004 3:49:22 AM CST by capitan_refugio
[ Post Reply | Private Reply | To 1164 | View Replies | Report Abuse ]

DOES THE LINK GO TO AN ARTICLE??? NO!!!

DOES IT REFER TO THE FOOTNOTE PREVIOUSLY QUOTED BY CAPITAN_KERRYFUGIO??? NO!!!

DO IT CONTAIN A LINK TO THE FOOTNOTE IN QUESTION??? NO!!!

Apparently you are either:

being deliberately deceptive, or
too dumb, stupid, or lazy to realize you are now referring to a filing submitted by Solicitor General Ted Olson on behalf of Respondents, Donald Rumsfeld, Secretary of Defense, et. al.

That is not a " web article" but a copy of the "Reply Brief for Petitioners, Yaser Esam Hamdi and Esam Fouad Hamdi as next friend of Yaser Esam Hamdi." (Eser Hamdi is Yaser Hamdi's father.) Indeed it says that RESPONDENTS distinguish this Court's opinions in "Mitchell v. Harmony, 54 U.S. (13 How.) 115 (1851), Sterling v. Constantin, 287 U.S. 378 (1932), and prize cases," citing "Resp. Br. 49-50 n.24." RESPONDENTS did that. The RESPONDENTS were Donald Rumsfeld, Secretary of Defense, et al.

AS I SAID, what you quoted was submitted by a public defender on behalf of Yaser Hamdi. What you are now attempting to lie your way out with is a reference by Petitioner (Hamdi) to a footnote by Respondent (Donald Rumsfeld) submitted by Solicitor General Ted Olson.

http://news.findlaw.com/hdocs/docs/hamdi/hamdirums100103pet.pdf

The quote spans the width of the page ending page 24 and beginning page 25.

SOURCE: Petition for Writ of Certiorari on behalf of Yaser Esam Hamdi and Eser Fouad Hamdi as next friend of Yaser Esam Hamdi, submitted by Frank W. Dunham, Jr., Federal Public Defender, Eastern District of Virginia, Counsel of Record; and Geremy C. Kamens, Assistant Federal Public Defender, Office of the Federal Public Defender, Eastern District of Virginia.

THIS IS WHAT YOU QUOTED

3. The Fourth Circuit's ruling also is entirely inconsistent with this Court's long experience with the review of Executive branch seizures. In Mitchell v. Harmony, this Court reviewed and rejected the military's seizure of a citizen's property in Mexico during the Mexican-American war. 54 U.S. (13 How.) at 128-29. The plaintiff, a naturalized American businessman, filed an action against a U.S. colonel to recover the value of his property seized by the military. The government responded that the businessman had a "design" to trade with the enemy, and that the decision of the military commander to seize the property "must be entitled to some respect." Id. 118,120.

24
Rejecting these arguments, Chief Justice Taney's opinion for the Court found the government's defense to be based on "rumors which reached the commanding officer." Id. at 133. "Mere suspicions of an illegal intention," the Court stated, "will not authorize a military officer to seize and detain the property of an American citizen. The fact that such an intention existed must be shown; and of that there is no evidence." Id. If an Article III court, consistent with separation of powers principles, can inquire into the seizure of a citizen's property by the military within a country at war with the United States as in Harmony, these same principles surely pose no barrier to an inquiry into the seizure of the citizen himself.

THIS IS FOOTNOTE 24 FROM THE BRIEF FOR RESPONDENTS, RUMSFELD ET. AL.

SOURCE: Brief for the Respondents in Opposition filed by Solicitor General Ted Olson; Deputy Solicitor General Paul D. Clement; Assistant to the Solicitor General Gregory G. Garre; and Attorney John A. Drennan on behalf of Respondent Donald Rumsfeld, Secretary of Defense, et. al.

http://supreme.lp.findlaw.com/supreme_court/briefs/03-6696/03-6696.mer.resp.html
Supreme Court Briefs
No. 03-6996
In the Supreme Court of the United States
YASER ESAM HAMDI AND ESAM FOUAD HAMDI,
AS NEXT FRIEND OF YASER ESAM HAMDI, PETITIONERS
v.
DONALD RUMSFELD, SECRETARY OF DEFENSE, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE RESPONDENTS
THEODORE B. OLSON Solicitor General
Counsel of Record
PAUL D. CLEMENT
Deputy Solicitor General
GREGORY G. GARRE
Assistant to the Solicitor
General JOHN A. DRENNAN
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether the court of appeals erred in holding that respondents have established the legality of the military's detention of Yaser Esam Hamdi, a presumed American citizen who was captured in Afghanistan during the combat operations in late 2001, and was determined by the military to bean enemy combatant who should be detained in connection with the ongoing hostilities in Afghanistan.
In the Supreme Court of the United States No. 03-6696 YASER ESAM HAMDI AND ESAM FOUAD HAMDI,
AS NEXT FRIEND OF YASER ESAM HAMDI, PETITIONERS
v.
DONALD RUMSFELD, SECRETARY OF DEFENSE, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE RESPONDENTS

This next-friend habeas action challenges the authority of the Commander in Chief and the armedforces under his command to detain an individual, Yaser Esam Hamdi, who was captured by coalition forces in Afghanistan in late 2001 when he surrendered with a Taliban unit while armed with an AK-47 assault rifle. The U.S. armed forces in Afghanistan determined that Hamdi is an enemy combatant who should be detained in connection with the ongoing hostilities. The military later obtained records indicating that Hamdi, a Saudi national, was born in the United States. Hamdi is now detained at the Naval Consolidated Brig in Charleston, South Carolina. The court of appeals correctly held that respondents have demonstrated the legality of Hamdi's wartime detention, and that this habeas action should be dismissed.
* * *
More fundamentally, the evidentiary inquiry ordered by the district court is incompatible with the conduct of war-and the constitutional commitment of the war power to the political branches. When the Commander in Chief has dispatched the armed forces to repel a foreign attack on this country, the military's duty is to subdue the enemy and not to prepare to defend its judgments in a federal courtroom. As Judge Wilkinson observed, subjecting the military's battlefield determination that Hamdi is an enemy combatant to further fact-finding "would ignore the fundamentals of Article I and II-namely that they entrust to our armed forces the capacity to make the necessary and traditional judgments attendant to armed warfare, and that among these judgments is the capture and detention of prisoners of war." J.A. 461 (concurring in the denial of rehearing) (citing The Prize Cases, 67 U.S. (2 Black) at 670)). [24]
CONCLUSION
The judgment of the court of appeals should be affirmed.
Respectfully submitted.
THEODORE B. OLSON
Solicitor General
PAUL D. CLEMENT
Deputy Solicitor General
GREGORY G. GARRE
Assistant to the Solicitor
General
JOHN A. DRENNAN
Attorney
MARCH 2004
* * *
24 Petitioners point (Br. 27) to Mitchell v. Harmony, 54 U.S. (13 How.) 115 (1851), and Sterling v. Constantin, 287 U.S. 378 (1932). However, those cases do not support the type of factual development that petitioners have in mind with respect to the challenged enemy-combatant determination in this case. See Br. in Opp. 30-32. Moreover, those cases predate the far more relevant observations that this Court made in Eisentrager, discussed above. Petitioners' analogy (Br. 27) to the law of prize is also inapt. Discovery in prize proceedings was typically limited in scope to evidence taken from the captured vessel, see, e.g., The Springbok, 72 U.S. (5 Wall.) 1, 9- 10 (1866), and usually occurred after hostilities had ended.

[capitan_kerryfugio #1458] Taney was acting in his capacity as a judge in the circuit court. There was another judge who could have heard Merryman's petition.

As usual, capitan_refugio simply lies. The caption says it is an in-chambers opinion of the Chief Justice of the Supreme Court. capitan's favorite source, Daniel Farber says it is an in-chambers opinion of the Chief Justice of the Supreme Court. General Cadwalder was summoned, "Greeting: You are hereby commanded to be and appear before the Honorable Roger B. Taney, chief justice of the supreme court of the United States, at the United States courtroom, in the Masonic Hall, in the city of Baltimore, on Monday, the 27th day of May 1861, at eleven o'clock in the morning...." Better yet, Chief Justice Taney announced from the bench that Judge Giles was not there because he, Taney, was sitting not as a member of the circuit court, but as Chief Justice of the United States.

Obviously capitan_refugio presumes he knows better than the Chief Justice who announced that he was sitting as Chief Justice and not as circuit justice.

"Technically he did not issue it in his capacity as a judge 'on circuit' but rather as an 'inchambers' opinion of the chief justice."
-- Daniel Farber, Lincoln's Constitution, p. 17

As he took his place he announced that he acted alone rather than with Judge Giles because of the fact that he was sitting not as a member of the circuit court, but as Chief Justice of the United States. One reason for the distinction, undoubtedly, was the belief that it would lend added weight to the decision.
-- Carl Brent Swisher, Roger B. Taney, The MacMillan Company, published October 1935, reprint June 1936, pp. 551.

Carl Brent Swisher, Roger B. Taney, The MacMillan Company, published October 1935, reprint June 1936, pp. 548-555.

See especially, pp. 550 and 551. "As he [Taney] took his place he announced that he acted alone rather than with Judge Giles because of the fact that he was sitting not as a member of the circuit court, but as Chief Justice of the United States."

Sabotage on the part of disloyal persons became so general and so dangerous that on April 27, 1861, the President directed General Scott to suspend the writ of habeas corpus, either personally or through his officers, if it proved necessary for the public safety. The purpose was to make it possible to imprison persons on suspicion and hold them in confinement without the prospect of their being released by means of writs of habeas corpus from judges who might themselves be southern sympathizers. The suspension was a delicate step, particularly in view of the fact that it had no authorization from Congress. The Constitution provided that the writ should not be suspended "unless when in cases of rebellion or invasion the public safety may require it." Who might suspend it under these circumstances was not stated, but from the position of the clause in the Constitution it could be reasonably inferred that the power was with Congress, rather than with the President.

Almost immediately the issue came before Judge William F. Giles, in the United States district court in Baltimore. He issued a writ of habeas corpus for the release of a minor who had enlisted in the army without his parents' consent. A deputy marshal presented the writ to Major W. W. Morris, at Fort McHenry, who read it and handed it back declaring that he would see the court and the marshal damned before he would deliver up one of his men. [10]

The Baltimore newspapers played up the story, and Judge Giles, to prevent misunderstanding, made a statement to the press. This was the first time within his experience of thirty-three years at the bar and on the bench, he declared, that the writ of habeas corpus had failed to procure obedience in Maryland. It had not been suspended by a competent authority, and no circumstances had arisen under which it could have been legally suspended. "The court sincerely hopes," he concluded, "that in a crisis like the present wiser counsels

[10] Affidavit of U.S. Deputy Marshal James Gettings, May 2, 1861, Attorney General MSS.

[548] ----------

may prevail at the post, and that no unnecessary conflict of authority may be brought in between those owing allegiance to the same government, and bound by the same laws." [11]

Major Morris wrote to differ as to the justification for the suspension of the writ. For two weeks, he declared, Baltimore had been under the control of revolutionary authorities. Soldiers had been attacked and murdered in the streets, and no arrests had been made. Supplies intended for Fort McHenry had been stopped, and the intention to capture the fort had been boldly proclaimed. The flag over the federal offices had been cut down by a man wearing a Maryland uniform. The Maryland legislature, a body elected in defiance of the law, was debating the forms of abrogating the federal compact. "If this is not rebellion, I know not what to call it. I certainly regard it as sufficient legal cause for suspending the writ of habeas corpus."

In the hands of an unfriendly authority, he continued, the writ of habeas corpus might depopulate the fort and place it at the mercy of the "Baltimore mob" in much less time than it could be done by all the appliances of war. Furthermore, in view of the ferocious spirit of the community toward the army, he would himself be highly averse to appearing publicly and unprotected in the city to defend the interests of the body to which he belonged. If the judge had never known the writ to be disobeyed it was only because such a contingency in public affairs had not hitherto arisen. [12]

When the marshal attempted to serve Major Morris with an order to appear and show why a writ of attachment should not issue against him, he refused to receive the order. He declared that he would obey no order of any kind issued by this court or by any other court. [13] Judge Giles wrote to Morris deploring the suspension of the writ, and expressing the opinion that it could be legally suspended only by act of Congress, whatever the circumstances. [14] The ability to use force was all on the side of the Major, however, and

[11] Baltimore Exchange, May 4, 1861. [12] Morris to Giles, May 6, 1861, Attorney General MSS. [13] John W. Watkins to Giles, May 8, 1861, ibid. [14] Giles to Morris, May 7, 1861, ibid.

[549] ----------

the district judge had not sufficient prestige to make a serious public issue of the disobedience of the orders of the court.

It was with this case in the background that another case arose involving the same legal problems, when Taney was called upon to take action, presumably chiefly because of the additional prestige which his decision would give to arguments of the type which Judge Giles had advanced. General Keim, of Pennsylvania, had been ordered to put a stop to secessionist activities between Philadelphia and Baltimore. Among other things he called for the arrest of the captain of a secessionist company operating in Maryland. The result was the arrest of John Merryman, a country gentleman, the president of the state agricultural society, and an active secessionist. He was confined in Fort McHenry. On the same day, May 25, 1861, he petitioned for a writ of habeas corpus partly on the ground that he was not the captain of any company—which technically was true, although he was lieutenant in a company of cavalry, and had supervised the destruction of a number of railroad bridges. The petition was presented to Taney, who, it seems probable, went to Baltimore chiefly for the purpose of receiving it.

On May 26 Taney issued a writ of habeas corpus, directing General George Cadwalader to bring Merryman before the Chief Justice of the United States on the following day at the circuit court room in the Masonic Hall. The order added to the already intense excitement. A reporter, phrasing well the vindictive attitude of extreme abolitionists toward Taney, declared that his purpose was "to bring on a collision between the judicial and military departments of the government, and if possible to throw the weight of the judiciary against the United States and in favor of the rebels." Taney was at heart a rebel himself, the reporter continued. He had recently expressed the wish that "the Virginians would wade to their waists in northern blood." The fact that he volunteered to go to Baltimore to issue a writ in favor of a rebel showed the alacrity with which he served the cause of the rebellion. [15]

With the mind of the North prepared for Taney's decision by this

[15] New York Times, May 29, 1861.

[550] ----------

kind of propaganda, and with southern sympathizers eagerly hoping that Taney could and would curb the growing power of the military forces of the Union, the case was called, on the morning of March 27. Instead of appearing in court, and bringing Merryman with him, General Cadwalader sent a statement to be read by his aide-decamp, Colonel Lee, an officer decked out in full uniform with a red sash and wearing a sword. The statement reviewed the facts of the case, called attention to the President's order for the suspension of the writ of habeas corpus, and requested the postponement of the case until the President could be consulted.

In effect, although it was done in courteous language, the military authorities told the court they would obey a court order only if the President saw fit to direct them to do so. Taney countered with a stern reply. "General Cadwalader was commanded to produce the body of Mr. Merryman before me this morning," he declared, "that the case might be heard, and the petitioner be either remanded to custody or set at liberty if held on insufficient grounds; but he has acted in disobedience to the writ, and I therefore direct that an attachment be at once issued against him, returnable before me here at twelve o'clock tomorrow, at the room of the circuit court." [16]

An audience of some two thousand people assembled on the following day to witness the outcome of the struggle between the Chief Justice and the military authorities. Leaving the Campbell home in the company of his grandson, Taney remarked that he might be imprisoned in Fort McHenry before night, but he was going to court to do his duty. As he took his place he announced that he acted alone rather than with Judge Giles because of the fact that he was sitting not as a member of the circuit court, but as Chief Justice of the United States. One reason for the distinction, undoubtedly, was the belief that it would lend added weight to the decision.

When Taney called for the return upon the writ of attachment the marshal replied in writing that he had not been allowed to enter Fort McHenry to serve the writ, and that he had sent in his card but

[16] The proceedings appear at length in the contemporary newspapers and other records of the period, and are presented and discussed in the Tyler and Steiner biographies.

[551] ----------

had received no reply. "It is a plain case, gentlemen," Taney declared, "and I shall feel it my duty to enforce the process of the court." He had ordered the writ of attachment because the detention of the prisoner was unlawful on two grounds. First, the President could not constitutionally suspend the writ of habeas corpus nor authorize any military officer to do so. Second, if a military officer arrested a person not subject to the rules and articles of war the prisoner must be turned over to the civil authorities. He would write out his opinion at length, and file it in the office of the clerk of the circuit court.

It would have been well for his reputation for judicial calmness had Taney stopped with the reading of his prepared statement. Unfortunately he forgot himself in the excitement of the moment, and made additional comments. Because the military force was superior to any force the marshal could summon, the court would not be able to seize General Cadwalader. If he were before the court it would inflict punishment of fine and imprisonment. Under the circumstances he would write out the reasons for his opinion, and "report them with these proceedings to the President of the United States, and call upon him to perform his constitutional duty and enforce the laws. In other words, to enforce the process of this court." [17]

It is hardly surprising, therefore, that reporters wrote "sensation" after this notice that the Chief Justice would carry war into the camp of the Executive. It was "sensation" of enthusiastic approval on the part of the crowd, and was similarly pleasing to most Baltimore papers and to some few Democratic papers elsewhere. Union presses, however, stormed wrathfully at the "hoary apologist for treason," and were not less abusive than they had been after the Dred Scott decision. The New York Tribune, for instance, continued day after day to rearrange the stock of expletives in Horace Greeley's vocabulary into varied scorching characterizations, and other papers differed only in matters of vocabulary and figures of speech.

Taney had been too much and too often abused to be greatly dis-

[17] As quoted in the Baltimore American, May 29, 1861.

[552] ----------

turbed by the outburst. Indeed, in defending the writ of habeas corpus, one of the great traditional bulwarks of individual liberty, and in resisting military encroachments on the rights of southern sympathizers, he seems to have acted from a profound sense of mission. "Mr. Brown, I am an old man, a very old man," he replied to the Baltimore mayor's congratulations on his decision, "but perhaps I was preserved for this occasion." He believed, indeed, that the government had considered the possibility of imprisoning him. Although that danger seemed to have passed, he warned Mayor Brown, a southern sympathizer, in what proved to be an accurate prediction, that the time of the latter would yet come. [18]

Taney immediately wrote out his opinion in the case, filed it with the clerk of the circuit court, and directed that a copy be sent to the President. "It will then remain for that high officer," he concluded, "in the fulfillment of his constitutional obligation, to 'take care that the laws be faithfully executed,5 to determine what measures he will take to cause the civil process of the United States to be respected and enforced." [19] He elaborated his argument that only Congress, and not the President, could suspend the writ of habeas corpus. He contended that the civil administration of justice in Maryland was unobstructed save by the military authority itself, and that under these circumstances the military had no right to supersede the performance of civil functions.

This document, prepared in defense of the reign of law as against arbitrary military rule, has after the calmer appraisal of more remote periods been hailed as a masterpiece of its kind. Indeed, although it was not specifically mentioned, many of its principles were sanctioned by the Supreme Court shortly after the close of the war, with the personal and political friend of President Lincoln as its spokesman. [20] Immediately contemporary reactions, however, were those which were to be expected. The opinion was loudly praised by friends of the South, and heartily denounced by the friends of the administration.

[18] George W. Brown, Baltimore and the 19th of April 1861, pp. 90-91. [19] Ex parte Merryman, Federal Cases, No. 9487. [20] See Ex parte Milligan, 4 Wallace 1 (1866), opinion by Justice David Davis.

[553] ----------

A few days after Taney's altercation with the commander at Fort McHenry, Judge Samuel Treat, of St. Louis, had a similar experience in a federal district court, when an officer refused to produce a man for whom a writ of habeas corpus had been issued. [21] Treat sent a copy of his opinion to Taney, and Taney replied by sending Treat a copy of his own opinion in the Merryman case. "It exhibits a sad and alarming condition of the public mind," he wrote to Treat, "when such a question can be regarded as open to discussion 5 and no one can see to what disastrous results the inflamed passions of the present day may lead. It is however most gratifying to one trained in the belief that a government of laws is essential to the preservation of liberty to see the judiciary firmly performing its duty and resisting all attempts to substitute military power in the place of the judicial authorities." [22]

Replying in similar fashion to a congratulatory letter from Franklin Pierce, Taney added that the "paroxysm of passion into which the country has suddenly been thrown appears to me to amount almost to delirium. I hope that it is too violent to last long, and that calmer and more sober thoughts will soon take its place: and that the North, as well as the South, will see that a peaceful separation, with free institutions in each section, is far better than the union of all the present states under a military government, and a reign of terror preceded too by a civil war with all its horrors, and which end as it may will prove ruinous to the victors as well as the vanquished. But at present I grieve to say passion and hate sweep everything before them." [23]

If it was true, as reported, [24] that Taney received a letter from the President concerning the Merryman case, neither party made the fact public. On July 4, however, in his message to the special session of Congress, the President made an official though indirect reply to Taney. He stated that the legality and propriety of authorizing the suspension of the privilege of the writ of habeas corpus had been

[21] In re McDonald, Federal Cases, No. 8751. [22] Taney to Treat, June 5, 1861, Treat MSS., Missouri Historical Society. [23] Taney to Pierce, June 12, 1861, Pierce MSS. [24] New York Herald, June 2, 1861.

[554] ----------

questioned. The attention of the country had been called to the proposition that one who was sworn to "take care that the laws be faithfully executed" should not himself violate them. His answer and his justification lay in the fact that all the laws were being resisted in nearly one-third of the states. "Must they be allowed to finally fail of execution," he asked, "even had it been perfectly clear that by the use of the means necessary to their execution some single law, made in such extreme tenderness of the citizen's liberty that practically it relieves more of the guilty than of the innocent, should to a very limited extent be violated? To state the question more directly, are all the laws but one to go unexecuted, and the government itself go to pieces lest that one be violated?" He did not, however, believe that the Constitution had been violated. He suggested a brief argument to that effect, leaving a more extended argument to be presented on the following day in an official opinion by the Attorney General. [25]

It is futile to argue whether the President or the Chief Justice was right in the matter, for back of their legal differences were fundamental differences of opinion on matters of public policy. Lincoln preferred to interpret the Constitution so as to avoid the appearance of violating it, but he preferred violating it in one particular to permitting the Union to be destroyed. Taney regarded the dissolution of the Union as less disastrous than the reign of coercion which would be necessary to save and maintain it. Lincoln won, and the Union was saved. Men who are the products of the surviving culture, the culture of the North, are not inclined to question that the saving was worth the cost. Yet no one familiar with the destructiveness of the war and with the subsequent decay of the finer aspects of the culture of the old South will deny the greatness of the cost, or wonder that Taney, farseeing as he was, was appalled by it.

[25] Messages and Papers of the Presidents, VI, 25. For the Bates opinion see 10 Official Opinions of the Attorneys General 74.

[555] ----------

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