Posted on 11/13/2004 11:12:00 AM PST by LouAvul
Prove it.
The directive to General Scott was a month old. It is to be expected that other generals could have been made aware of its existence.
[capitan_kerryfugio] The lack of documentation in the record does not prove than none had existed, or that the authorization had not been made. It is a nice story, though.
The PRESENCE of documention dated May 28, 1861 granting authorization IN RESPONSE TO A LETTER FROM GENERAL CADWALLADER provides PROOF that A PRIOR AUTHORIZATION DID NOT EXIST. Had it existed, it would have been presented to the court. It was not.
Assuming your phantom "authorization" existed, it was withheld from the court and has no legal significance to the case.
It remains that General Cadwallader was NOT the officer in command of the AREA and could not be delegated suspension authority, not even pursuant to the terms specified by the Great Usurper.
"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 offense 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] Here Taney was factually mistaken. Merryman was an officer of a Maryland Militia unit engaged in sabotage.
As usual, you have your head firmly planted in your butt. Merryman was not subject to the articles of war. Did you have a war in Baltimore at that time?
An officer of the Maryland Militia acting under orders is not guilty of committing sabotage.
An officer of the Maryland Militia acting on his own, in his home state, not in uniform, is not subject to the laws of war.
The only attempt at litigation was in the CIVILIAN courts.
"Then by now you should know that such authority could only be delegated to 'the officer in command at the point where resisistance occurs.'"
[capitan_kerryfugio] I believe the term is "the chain of custody."
You idiot, "chain of custody" relates to evidence.
The authorization of the Great Usurper specifically and explicitly limited delegation authority.
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.
It was unlawful for any military officer to exercise such authority, but Cadwallader could not even properly claim "apparent" authority.
[capitan_kerryfugio] Lincoln seemed not to have a problem with Cadwalader's actions.
The Great Usurper did not have a problem with committing serial rape of the Constitution.
"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."
[capitan_kerryfugio] You are quibbling about semantics. Cadwalader's message to Taney was clear enough to Taney. Taney knew exactly what Cadwalader meant, even if you don't.
Taney understood perfectly and explained it quite clearly to the Great Usurper:
These great and fundamental laws, which congress itself could not suspend, have been disregarded and suspended, like the writ of habeas corpus, by a military order, supported by force of arms. Such is the case now before me, and I can only say that if the authority which the constitution has confided to the judiciary department and judicial officers, may thus, upon any pretext or under any circumstances, be usurped by the military power, at its discretion, the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found.
"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."
[capitan_kerryfugio] Now that you have descended into delusional babble, I don't think any more of your post is worth a reply.
LINKPage 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.
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.
More to the point, did Louallier ever get his writ of habeas corpus?
At the risk of overstating the obvious, that was 130 years after the rebellion. Surely you have a more applicable example? Or not?
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 to the end of the session. 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 not 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 love 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, which 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; for he 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. ~
That is quite impossible. See my #1605. Among others, the Secretary of War was sued via a Pennsylvania court and the Secretary of State was sued via a New York court.
Disingenuous. Treaties are negotiated by the executive and ratified by Congress. You're just buzzing about to be an annoyance, but since you're at least around, maybe you could give us some firsthand insight - what interest does a Kansan hold in a fort built on a manmade rockpile in Charleston harbor?
Untrue. Foreign ships engaged in the slave trade often flew the Stars and Stripes because the US refused to allow foreign ships to board and search.
Treaties are also negotiated between countries, something that in the eyes of the Lincoln Administration the southern states was not.
You're just buzzing about to be an annoyance...
Well far be it from me to be an annoyance to the likes of you.
So, lentulusgracchus and GOPcapitalist, you job description has apparently changed again. If you want to be critical of Hamilton (or is his name Titan? Colossus? come on!), you need find firsthand authority. (New rule #1292:) Such firsthand authority can not have been openly critical of Hamilton, or else he is automatically discredited.
And don't forget rule #1175: Any evidence of real-world failures concerning economic interventionism or successes of it's opposite may be dismissed out of hand.
Imperialism a la manifest destiny never existed?
Next you'll be demanding a 'Thank you' and a handshake from the plains indians, I suppose, for America's generosity in the non-tyrannical way in which they were slaughtered men, women, and children.
Starting with, and including
Northern opinion, as might have been expected, was critical of Taney's decision. The Washington Evening Star opined in its issue of May 29:
the entirety is a block quote of Rehnquist's book.
[lg] That said, it would certainly appear that the article in question -- from your quotation of it -- has prejudged Merryman on political grounds, and based its opinion of Taney's action on what The New York Times thinks would be a better outcome (Merryman stays in prison, evidently on any pretext, evidently without any sort of relief regardless of its legality). Of course, Taney couldn't base his actions on lifting the blindfold of justice to say -- "oh, I'm sorry, I had mistaken you for an honest person", and then throwing him back in prison for 99 years.
It is the NEWSPAPER doing the pre-judging. Rehnquist did not present it for the truth of the content, but to provide what Northern opinion was expressed at the time. Rehnquist accurately provides what several Northern newspapers said.
As someone else had suggested, if Lincoln thought there was a problem with people opposed to his war politically being allowed to run around free as if they were real people, he should have called the Congress back into session to deal with his "emergency" war measures on that basis.
A review of the article by Gideon Welles about the last cabinet meeting of Lincoln on April 14, 1865, shows that operating in the absence of Congress was Lincoln's modus operandi.
He thought it providential that this great rebellion was crushed just as Congress had adjourned, and there were none of the disturbing elements of that body to hinder and embarrass us. If we were wise and discreet, we should reanimate the States and get their governments in successful operation, with order prevailing the the Union reestablished, before Congress came together in December. This he thought important. We could do better; accomplish more without than with them.
-- Gideon Welles, Lincoln and Johnson, Their Plan of Reconstruction and the Resumption of National Authority First Paper, Galaxy Magazine, April 1872, p. 526.
[lg] He obviously didn't want Congress involved, because he apparently didn't take up the subject of suspending the writ with Congress for nearly two years -- or is that incorrect?
The subject was brought up in 1861 and 1862 but got nowhere in Congress. The Act of 1863 went through the Senate at 5 a.m. with Senator Trumbull calling a voice vote, saying the bill passed, and adjourning the Senate for the session. Opposition senators were left protesting, and there was no recorded vote.
The Act of 1863 imposed many restrictions. In Ex Parte Milligan the Court was presented with irrefutable and admitted evidence that the requirements of the Act of 1863 had not been complied with. Also, specifically, ONLY the President could suspend the writ, NOT military officers.
The Act of 1863 required the provision of "a list of the names of all persons, citizens of States in which the administration of the laws has continued unimpaired in the said federal courts, who are now, or may hereafter be, held as prisoners of the United States, by order or authority of the President of the United States or either of said Secretaries ...."
The Administration ignored this specific provision of the Act. There is no authoritative complete list of who was imprisoned, or the particulars of the imprisonment. In his Fate of Liberty, Mark E. Neely, Jr., wrote "Gratiot Street prison would account for 4,770 political prisoners." James G. Randall was informed by Adjutant General Davis, "I do not believe that it will ever be possible for any one to gather from any source an approximately definite estimate of the total number of such prisoners held by Federal authorities during the Civil War."
AN ACT relating to habeas corpus, and regulating judicial proceedings in certain cases.
Monday, March 2, 1863
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. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That, during the present rebellion, the President of the United States, whenever, in his judgment, the public safety may require it, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United States, or any part thereof. And whenever and wherever the said privilege shall be suspended, as aforesaid, no military or other officer shall be compelled, in answer to any writ of habeas corpus, to return the body of any person or persons detained by him by authority of the President; but upon a certificate, under oath, of the officer having charge of any one so detained, that such person is detained by him as a prisoner under authority of the President, further proceedings under the writ of habeas corpus shall be suspended by the judge or court having issued the said writ so long as said suspension by the President shall remain in force and said rebellion continue.
Sec. 2. And be it further enacted, That the Secretary of State and the Secretary of War be, and they are hereby, directed, as soon as may be practicable, to furnish to the judges of the circuit and district courts of the United States and of the District of Columbia, a list of the names of all persons, citizens of States in which the administration of the laws has continued unimpaired in the said federal courts, who are now, or may hereafter be, held as prisoners of the United States, by order or authority of the President of the United States or either of said Secretaries, in any fort, arsenal, or other place, as state or political prisoners, or otherwise than as prisoners of war; the said list to contain the names of all those who reside in the respective jurisdictions of said judges, or who may be deemed by the said Secretaries, or either of them, to have violated any law of the United States in any of said jurisdictions, and also the date of each arrest -- the Secretary of State to furnish a list of such persons as are imprisoned by the order or authority of the President, acting through the State Department, and the Secretary of War a list of such as are imprisoned by the order or authority of the President, acting through the Department of War. And in all cases where a grand jury, having attended any of said courts having jurisdiction in the premises, after the passage of this act, and after the furnishing of said list, as aforesaid, has terminated its session without finding an indictment, or presentment, or other proceeding against any such person, it shall be the duty of the judge of said court forthwith to make an order that any such prisoner desiring a discharge from said imprisonment be brought before him to be discharged; and every officer of the United States having custody of such prisoner is hereby directed immediately to obey and execute said judge's order; and in case he shall delay, or refuse so to do, he shall be subject to indictment for a misdemeanor, and be punished by a fine of not less than five hundred dollars and imprisonment in the common jail for a period not less than six months, in the discretion of the court: Provide, however, That no person shall be discharged by virtue of the provisions of this act until after he or she shall have taken an oath of allegiance to the government of the United States, and to support the Constitution thereof; and that he or she will not hereafter, in any way, encourage or give aid and comfort to the present rebellion, or the supporters thereof: And provided, also, That the judge or court before whom such person may be brought, before discharging him or her from imprisonment, shall have power, on examination of the case, and, if the public safety shall require it, shall be required to cause him or her to enter into recognizance, with or without surety, in a sum to be fixed by said judge or court, to keep the peace and be of good behavior towards the United States and its citizens, and from time to time, and at such times as such judge or court may direct, appear before said judge or court to be further dealt with, according to law, as the circumstances may require. And it shall be the duty of the district attorney of the United States to attend such examination before the judge.
Sec. 3. And be it further enacted, That in case any of such prisoners shall be under indictment or presentment for any offence against the laws of the United States, and by existing laws bail or a recognizance may be taken for the appearance for trial of such person, it shall be the duty of said judge at once to discharge such person upon bail or recognizance for trial as aforesaid. And in case the said Secretaries of State and War shall for any reason refuse or omit to furnish the said list of persons held as prisoners as aforesaid at the time of the passage of this act within twenty days thereafter, and of such persons as hereafter may be arrested within twenty days from the time of the arrest, any citizen may, after a grand jury shall have terminated its session without finding an indictment or presentment, as provided in the second section of this act, by a petition alleging the facts aforesaid touching any of the persons so as aforesaid imprisoned, supported by the oath of such petitioner or any other credible person, obtain and be entitled to have the said judge's order to discharge such prisoner on the same terms and conditions prescribed in the second section of this act: Provided, however, That the said judge shall be satisfied such allegations are true.
Sec. 4. And be it further enacted, That any order of the President, or under his authority, made at any time during the existence of the present rebellion, shall be a defence in all courts to any action or prosecution, civil or criminal, pending or to be commenced, for any search, seizure, arrest, or imprisonment, made, done, or committed, or acts omitted to be done, under and by virtue of such order, or under color of any law of Congress; and such defence may be made by special plea, or under the general issue.
Sec. 5. And be it further enacted, That if any suit or prosecution, civil or criminal, has been or shall be commenced in any State court against any officer, civil or military, or against any other person, for any arrest or imprisonment made, or other trespasses or wrongs done or committed, or any act omitted to be done, at any time during the present rebellion, by virtue or under color of any authority derived from or exercised by or under the President of the United States, or any act of Congress, and the defendant shall, at the time of entering his appearance in such court, or if such appearance shall have been entered before the passage of this act, then at the next session of the court in which such suit or prosecution is pending, file a petition, stating the facts and verified by affidavit, for the removal of the cause for trial at the next circuit court of the United States, to be holden in the district where the suit is pending, and offer good and sufficient surety for his filing in such court, on the first day of its session, copies of such process and other proceedings against him, and also for his appearing in such court and entering special bail in the cause, if special bail was originally required therein, it shall then be the duty of the State court to accept the surety and proceed no further in the cause or prosecution; and the bail that shall have been originally taken shall be discharged. And such copies being filed as aforesaid in such court of the United States, the cause shall proceed therein in the same manner as if it had been brought in said court by original process, whatever may be the amount in dispute or the damages claimed, or whatever the citizenship of the parties, any former law to the contrary notwithstanding. And any attachment of the goods or estate of the defendant by the original process shall hold the goods or estate so attached to answer the final judgment in the same manner as by the laws of such State they would have been holden to answer final judgment had it been rendered in the court in which the suit or prosecution was commenced. And it shall be lawful in any such action or prosecution which may be now pending, or hereafter commenced, before any State court whatever, for any cause aforesaid, after final judgment, for either party to remove and transfer, by appeal, such case during the session or term of said court at which the same shall have taken place, from such court to the next circuit court of the United States to be held in the district in which such appeal shall be taken, in manner aforesaid. And it shall be the duty of the person taking such appeal to produce and file in the said circuit court attested copies of the process, proceedings, and judgment in such cause; and it shall also be competent for either party, within six months after the rendition of a judgment in any such cause, by writ of error or other process, to remove the same to the circuit court of the United States of that district in which such judgment shall have been rendered; and the said circuit court shall thereupon proceed to try and determine the facts and the law in such action, in the same manner as if the same had been there originally commenced, the judgment in such case notwithstanding. And any bail which may have been taken, or property attached, shall be holden on the final judgment of the said circuit court in such action, in the same manner as if no such removal and transfer had been made, as aforesaid. And the State court from which any such action, civil or criminal, may be removed and transferred as aforesaid, upon the parties giving good and sufficient security for the prosecution thereof, shall allow the same to be removed and transferred, and proceed no further in the case: Provided, however, That if the party aforesaid shall fail duly to enter the removal and transfer, as aforesaid, in the circuit court of the United States, agreeably to this act, the State court, by which judgment shall have been rendered, and from which the transfer and removal shall have been made, as aforesaid, shall be authorized, on motion for that purpose, to issue execution, and to carry into effect any such judgment, the same as if no such removal and transfer had been made: And provided, also, That no such appeal or writ of error shall be allowed in any criminal action or prosecution where final judgment shall have been rendered in favor of the defendant or respondent by the State court. And if in any suit hereafter commenced the plaintiff is nonsuited or judgment pass against him, the defendant shall recover double costs.
Sec. 6. And be it further enacted, That any suit or prosecution described in this act, in which final judgment may be rendered in the circuit court, may be carried by writ of error to the Supreme Court, whatever may be the amount of said judgment.
Sec. 7. And be it further enacted, That no suit or prosecution, civil or criminal, shall be maintained for any arrest or imprisonment made, or other trespasses or wrongs done or committed, or act omitted to be done, at any time during the present rebellion, by virtue or under color of any authority derived from or exercised by or under the President of the United States, or by or under any act of Congress, unless the same shall have been commenced within two years next after such arrest, imprisonment, trespass, or wrong may have been done or committed, or act may have been omitted to be done: Provided, That in no case shall the limitation herein provided commence to run until the passage of this act, so that no party shall, by virtue of this act, be debarred of his remedy by suit or prosecution until two years from and after the passage of this act.
LYMAN TRUMBULL, J. COLLAMER, Managers on the part of the Senate.
THADDEUS STEVENS, JNO. A. BINGHAM, Managers on the part of the House of Representatives.
Look at the casualty counts. You've truly got nothing upstairs, do you?
The price paid in blood, on both sides, primarily borne by Union men - all for the political aspirations of a few. Puff you chest, el Capitan, this is your moment of triumph.
Does this mean that the U.S. recognized the various Indian tribes as countries?
Utter buncombe, larded with sneers:
Your reference to the case is fine. It is your credential-less interpretation of it that is suspect.
In direct contradiction of your substanceless statement, herewith Justice Scalia, dissenting in Hamdi vs. Rumsfeld:
There are times when military exigency renders resort to the traditional criminal process impracticable. English law accommodated such exigencies by allowing legislative suspension of the writ of habeas corpus for brief periods. Blackstone explained:“And yet sometimes, when the state is in real danger, even this [i.e., executive detention] may be a necessary measure. But the happiness of our constitution is, that it is not left to the executive power to determine when the danger of the state is so great, as to render this measure expedient. For the parliament only, or legislative power, whenever it sees proper, can authorize the crown, by suspending the habeas corpus act for a short and limited time, to imprison suspected persons without giving any reason for so doing… . In like manner this experiment ought only to be tried in case of extreme emergency; and in these the nation parts with it[s] liberty for a while, in order to preserve it for ever.” 1 Blackstone 132.
Where the Executive has not pursued the usual course of charge, committal, and conviction, it has historically secured the Legislature’s explicit approval of a suspension. In England, Parliament on numerous occasions passed temporary suspensions in times of threatened invasion or rebellion. E.g., 1 W. & M., c. 7 (1688) (threatened return of James II); 7 & 8 Will. 3, c. 11 (1696) (same); 17 Geo. 2, c. 6 (1744) (threatened French invasion); 19 Geo. 2, c. 1 (1746) (threatened rebellion in Scotland); 17 Geo. 3, c. 9 (1777) (the American Revolution). Not long after Massachusetts had adopted a clause in its constitution explicitly providing for habeas corpus, see Mass. Const. pt. 2, ch. 6, art. VII (1780), reprinted in 3 Federal and State Constitutions, Colonial Charters and Other Organic Laws 1888, 1910 (F. Thorpe ed. 1909), it suspended the writ in order to deal with Shay’s Rebellion, see Act for Suspending the Privilege of the Writ of Habeas Corpus, ch. 10, 1786 Mass. Acts 510.
Our Federal Constitution contains a provision explicitly permitting suspension, but limiting the situations in which it may be invoked: “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Art. I, §9, cl. 2. Although this provision does not state that suspension must be effected by, or authorized by, a legislative act, it has been so understood, consistent with English practice and the Clause’s placement in Article I. See Ex parte Bollman, 4 Cranch 75, 101 (1807); Ex parte Merryman, 17 F. Cas. 144, 151—152 (CD Md. 1861) (Taney, C. J., rejecting Lincoln’s unauthorized suspension); 3 Story §1336, at 208—209. [Emphasis added -- "lg".]
The Suspension Clause was by design a safety valve, the Constitution’s only “express provision for exercise of extraordinary authority because of a crisis,” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 650 (1952) (Jackson, J., concurring). Very early in the Nation’s history, President Jefferson unsuccessfully sought a suspension of habeas corpus to deal with Aaron Burr’s conspiracy to overthrow the Government. See 16 Annals of Congress 402—425 (1807). During the Civil War, Congress passed its first Act authorizing Executive suspension of the writ of habeas corpus, see Act of Mar. 3, 1863, 12 Stat. 755, to the relief of those many who thought President Lincoln’s unauthorized proclamations of suspension (e.g., Proclamation No. 1, 13 Stat. 730 (1862)) unconstitutional. Later Presidential proclamations of suspension relied upon the congressional authorization, e.g., Proclamation No. 7, 13 Stat. 734 (1863). During Reconstruction, Congress passed the Ku Klux Klan Act, which included a provision authorizing suspension of the writ, invoked by President Grant in quelling a rebellion in nine South Carolina counties. See Act of Apr. 20, 1871, ch. 22, §4, 17 Stat. 14; A Proclamation [of Oct. 17, 1871], 7 Compilation of the Messages and Papers of the Presidents 136—138 (J. Richardson ed. 1899) (hereinafter Messages and Papers); id., at 138—139.
Link: Hamdi vs. Rumsfeld, 2004.
You make stuff up, capitan, and you lie like a rug.
As a matter of fact, however, he does.
Fanatical hatred of Jeffersonianism and the spirit of republic, of the South and its defenders, and a panoply of useful lies and sand-in-the-eyes tricks.
In short, he's a typical Hamiltonian.
Lincoln's successors gave the Indians the same thing Lincoln gave the South: bullets and buckets of blood.
Only Lincoln wouldn't even give the Southerners a treaty to go along with the canister and gunpowder.
At least he didn't try to spread smallpox in the South.
No, it recognizes them as 'domestic dependent nations', a quasi-sovereign status which means that they exercise control over their reservations but have no international legal status. Constitutionally only the federal government can deal with Indian tribes and treaties signed with them are placed on the same level as international treaties.
Yes, I understood that.
By the way, I've challenged capitan to back up the claims of The New York Times that Taney was too close to Merryman and should have recused himself. We'll see. It wouldn't be the first time the Grey Lady lied.
The subject was brought up in 1861 and 1862 but got nowhere in Congress. The Act of 1863 went through the Senate at 5 a.m. with Senator Trumbull calling a voice vote, saying the bill passed, and adjourning the Senate for the session. Opposition senators were left protesting, and there was no recorded vote.
That's pretty rich. Sounds like something Slick Willie would do.
...the Court was presented with irrefutable and admitted evidence that the requirements of the Act of 1863 had not been complied with. Also, specifically, ONLY the President could suspend the writ, NOT military officers.
IMHO Congress couldn't confer authority to suspend, though -- it still fell to Congress to suspend the writ themselves, if there was need, not simply to give the Executive blanket authority. They couldn't authorize the President to suspend habeas corpus -- they had to suspend it. That's how (as Justice Scalia did, in his Hamdi dissent posted and linked above) I read the placement of the suspension power in the Constitution.
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