Chief Justice William Rehnquist, All the Laws But One, pg 35, quoting the New York Times of 29 May 1861.
"BZZZT! Wrong. The judiciary is not required to abide by an illegal act purporting to remove its jurisdiction."
The privilege of the writ of habeas corpus had been constitutionally suspended for the purposes outlined in the Suspension Clause. Once Taney had been apprised of its suspension, his ability to issue the writ was terminated. (Farber, Lincoln's Constitution)
"Jaffa has no legal credentials and by all accounts has his degree in english literature."
You continually mis-state the case and have been unable to prove otherwise. You were given Prof. Jaffa's e-mail to verify your claims, and yet you apparently have not engaged the Professor on the subject. Prof. Jaffa is a recognized authority on the subject and has been for more that 40 years.
However, please state your credentials in the legal field, or the legal authorities you reference.
BRRRRRAAPPPPPP!
That! for your "authorities" and your stuffed shirt, bullyboy-without-a-club.
Using the passive voice to try to lie about Lincoln's unconstitutional acts doesn't work around here, stuffed shirt. You've already been called on that one so often, you deserve your own cell down at FReeper Jail.
Can you quote the New York Times article for us?
The privilege of the writ of habeas corpus had been constitutionally suspended for the purposes outlined in the Suspension Clause. Once Taney had been apprised of its suspension, his ability to issue the writ was terminated.
BZZZT! Wrong. You are affirming the consequent of a false and circular argument. The underlying premise - that the writ had been constitutionally suspended - is unsupported. Rather, a president who was not authorized by the constitution to suspend it purported to do so. The court, when faced with that claim, evaluated the standing of its jurisdiction under the law and, finding the Judicial Act of 1789 still in place, discovered its jurisdiction intact.
You continually mis-state the case and have been unable to prove otherwise.
Wrong again. I simply state what his own website at Claremont claims - that he's got a degree in English. Since you are citing him as an authority the burden is also upon you to establish his credentials. Yet you have done nothing of the sort, nor do you seem to dispute the fact that he is trained in English rather than the law.
Prof. Jaffa is a recognized authority on the subject and has been for more that 40 years.
No. Professor Jaffa wrote a single notable book on the subject of Lincoln 40 years ago and has been riding its fame ever since without contributing anything more of note or distinction to the record (though he has provided no deficit of low-quality panegyrics and historically incorrect garbage)
However, please state your credentials in the legal field, or the legal authorities you reference.
Happily. Though I am not a lawyer nor do I profess to be one, my credentials in the field include formal academic training in American constitutional law, authorship of academic case briefs on a dozen or more supreme court rulings, and employment at a law firm during college. The authorities a cite for my position are John Marshall, Thomas Jefferson, Benjamin Robbin Curtis, Richard Henry Lee, Robert Yates, St. George Tucker, Joseph Story, William Rawle, and Antonin Scalia. And yes, I'll pit those guys against the Cult of Harry any day.
http://www.csulb.edu/~crsmith/lincoln.html
Conclusion
Following in the ideological footsteps of Daniel Webster, one of his Whig mentors, Lincoln was forced by the circumstances he inherited to place survival of the Union above some civil liberties guaranteed by the Constitution. Though Lincoln had often been a defender of the Constitution during his career, he was also a critic of some of its consequences, as in his opposition to the Dred Scott decision. In fact, by the time of the Gettysburg Address, Lincoln had concluded that the principles of the Declaration of Independence were more important than a strict construction of the Constitution. He ended that address echoing a phrase from Webster's Reply to Hayne when he pledge a new birth of liberty from a government of, by, and for the people.
That stance had serious implications for freedom of expression during the Civil War. It led to the suspension of habeas corpus, the use of extra-constitutional measures to quiet both his external and internal opposition, and the censoring of newspapers which opposed his war policies. Lincoln's transgressions were forgiven because of the dire situation and because Lincoln used his powers judiciously and politically to keep his opponents at bay. Perhaps the boldest stroke being the signing of the Emancipation Proclamation after the war turned in the North's favor. That event placated Lincoln's Radical rivals in the Republican Party and, combined with the victory at Gettysburg, assured his re-election in 1864.
He would then be able to move to a more conciliatory approach to the South. But in fairness to Lincoln, we need to remember that the scene far different when he first became president. Even before Lincoln took his oath in March, 1861, seven southern states had seceded from the Union. He deemed that a full scale rebellion and suspended habeascorpus in military jurisdictions and where marshall law had been imposed. Nonetheless, Lincoln anguished over these cases, particularly those of Congressman Vallandigham and the Chicago Times. Once Salmon Chase replaced Roger Taney as Chief Justice, the Supreme Court supported Lincoln's actions, as did the Republican Congress after Antietam. It is clear from the documents available that Lincoln's leniency with regard to the South would have extended to Copperheads in the North. But Lincoln's assassination opened the door on an era of vengeful reconstruction where further violation of rights occurred and the Constitution was significantly amended to guarantee that the people would take primacy over the states when it came to civil liberties.
[cr] Chief Justice William Rehnquist, All the Laws But One, pg 35, quoting the New York Times of 29 May 1861.
SOURCE: William H. Rehnquist, All the Laws But One, pp. 34-5.
One may readily observe that, in quoting the New York Times of May 29, 1861 and several other newspapers, Rehnquist EXPLICITLY states that, NORTHERN OPINION, as might have been expected, was critical of Taney's decision.
EXPLICITLY, Rehnquist was demonstrating NORTHERN OPINION at the time.
Moreover, by May 29, 1861, the Taney opinion being reported upon by newspapers had obviously already been issued.
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 action of Chief Justice Taney in this case is probably in accordance with the strict letter of the law.... Nevertheless, it exhibits a determination on his part palpably to ignore the existing state of the country, which signally justified the action of General Cadwalader with respect to Merriman [sic] -- an individual whose conduct has proved him to be eminently dangerous to the cause of the maintenance of the Union.... Under these circumstances, there can be no doubt that public opinion will justify the refusal of General Cadwalader, in times like these, to deny to a man notoriously striving to overthrow the Constitution, Union and Government of the United States, the advantage of the writ of habeas corpus.The New York Times in its issue of the same day said:
In the case of John Merriman [sic], the interposition of Chief Justice Taney can only be regarded as at once officious and improper.... Judge Taney presents the ungracious spectacle of a judicial and the military authority of the United States at variance, the soldier eager to punish, and the jurist to exculpate a traitor. The antithesis might have been very easily avoided; and an impression that the zeal of the Justice might have been less fervent, had not the prisoner been a citizen of his own State, a neighbor, and a personal friend, would not have countenanced.The Baltimore Daily Republican was more sympathetic, in its May 28 issue, giving this report of the proceedings which had taken place that morning:
Shortly before the hour named, the doors of the courtroom were thrown open, when the crowd, which by this time had increased to several hundred, rushed in pell mell, until the room had become densely packed to such an extent as to render it exceedingly uncomfortable. Every nook and corner was occupied, and a general scrambling for positions progressed for some time, large numbers being unable to effect an entrance into the roomThe decision of the venerable Chief Justice was received by those assembled, many of whom were members of the bar, with heartfelt exclamations of approbation, such as "Thank God for such a man," "God grant that he may live many years to protect us," and many similar remarks.
The official records PROVE that the privilege of the writ had NOT been suspended by ANYONE when Taney issued his opinion. Authorization, signed by E.D. Townsend, Assistant-Adjutant General was not sent to General Cadwalader until a letter was issued on May 28, 1861. The military had no lawful authority to suspend the privilege of the writ, and Assistant-Adjutant General Townsend had no authority is sign such a letter even if General Scott did have such authority. The UNLAWFUL authorization to suspend the privilege of the writ was issued AFTER Taney acted.
Assuming arguendo that the order of Lincoln was valid and authorized General Scott to suspend habeas corpus, it was restricted to General Scott personally, or "the officer in command at the point where resistance occurs."
As the official record documents quoted below demonstrate, General Keim directed Colonel Yohe to effect the arrest and Colonel Yohe directed Captain Heckman to make the arrest. General Keim was in Pennsylvania and could not be authorized to suspend habeas corpus in Maryland.
General Cadwalader was ordered to appear in court at 11 a.m., May 27, 1861.
In his message to Lt. Col. E.D. Townsend, General Cadwalader explicitly states that he had asked for specific charges and specifications and the names of witnesses and had not yet received it. He then adverts to his response to the writ to be filed that morning at 11 a.m., documenting that it was filed without knowing specific charges and specifications nor the identity of witnesses, two of which would be Constitutionally required for a charge of treason.
In his return to the writ, General Cadwalader had his aide-de-camp tell the Chief Justice of the Supreme Court that "He [General Cadwalader] 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."
Note that there is no clear statement that anybody actually had suspended the writ. Through an aide, General Cadwalader only asserted second-hand, without documentation, that he had been authorized to do so.
The following day, on May 28, 1861, Lt. Col. Townsend sends a message to General Cadwalader stating, "The general-in-chief directs me to say under authority conferred upon him by the President of the United States and fully transferred to you that you will hold in secure confinement all persons implicated in treasonable practices unless you should become satisfied that the arrest in any particular case was made without sufficient evidence of guilt."
On August 20, 1861, HQ Division of the Potomac issued this: "When there is good reason to suppose that persons are giving aid and comfort to the enemy they should be arrested even when there is a want of positive proof of their guilt."
It appears clear that habeas had not been suspended by anyone prior to Taney's issuance of the writ. The record also indicates that habeas had not been suspended when General Cadwalader refused to appear in court in response to the writ. It appears that General Cadwalader was stalling for time as, by his own admission, he neither knew the specific charges or specifications, nor the names of any legally required witnesses.
It appears that General Cadwalader defied the lawfully issued writ on May 27th, and there is no record of anybody suspending the writ prior to May 28th.
Even then, the supposed authorization consists of a letter from Lt. Col. E.D. Townsend saying that the general-in-chief directed him to tell General Cadwalader that he had been authorized to suspend the writ. Even assuming arguendo that General Scott had the power to delegate authorization to suspend habeas it is highly doubtful that it could be lawfully delegated in such manner. The letter should have been signed and issued by General Scott personally.
It is certain that President Lincoln did not personally suspend habeas regarding Merryman. Congress has never authorized any President to delegate the authority to suspend habeas to any military officer. And, of course, Congress has never authorized any military officer to further delegate the authority to suspend habeas down the chain of command.
http://www.ehistory.com/uscw/library/or/107/0337.cfm
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.
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.
THE MARYLAND ARRESTS -- OFFICIAL RECORD
OFFICIAL RECORDS: Series 2, vol 1, Part 1 (Prisoners of War)
Page 574 PRISONERS OF WAR, ETC.
HEADQUARTERS DEPARTMENT OF ANNAPOLIS,
Baltimore, May 27, 1861.
Lieutenant Colonel E. D. TOWNSEND,
Asst. Adjt. General, Hdqrs. of the Army, Washington, D. C.
COLONEL: On the 25th instant Mr. John Merryman was arrested near Cockeysville to the northward of the city of Baltimore, by the order of Colonel Yohe acting under instructions from Major General William H. Keim. I inclose a copy of the instructions given by Colonel Yohe to Captain Heckman under which the arrest was made and also a copy of the written statement made by Adjt. James Miltimore and Lieutenant William H. Abel of the circumstances attending the arrest which was made on their arrival at Fort McHenry with the prisoner. You are aware that neither Colonel Yohe nor General Keim are within the limits of the department under my command. I donot know the address of Colonel Yohe. General Keim is I think in the neighborhood of Harrisburg.
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 hen 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.
I have the honor to inclose herewith a copy of said writ together with a copy of my reply thereto which will be handed to the court at 11 o'clock this day, the hour named in said writ.
Requesting to be furnished with further instructions as to the course I am to pursue in this case,
I have the honor to be, very respectfully, yours,
GEO. CADWALADER,
Brevet Major-General, Commanding.
======================
Page 575 THE MARYLAND ARRESTS.
[Inclosure Numbers 1.]
HEADQUARTERS,
May 21, 1861.
Captain HECKMAN, Company D.
SIR: I have been directed by Major-General Keim to seize the arms of the company near you and arrest the captain if in arms against the Government. You will be cautious in your movements and be well satisfied that the captain or any of them are spreading secession sentiments and using their infleunce in favor of the Southern Confederacy. By all means get the arms. Do not make it known until you are ready and be sure that you accompalish your purpose. If you think you need any assistance you can call upon Company E, at Cockeysville. If you arrest the captain take him to General Cadwalader's department. Do not be precipitate. Act cooly and deliberately but determinedly.
Yours, &c.,
SAM'L YOHE,
Colonel First Regiment Pennsylvania Volunteers.
[Inclosure Numbers 2.]
This is certify that Mr. John Merryman was arrested by orders of Colonel Yoheas first lieutenant of a secession company who have in their possession arms belonging to the United States Gopvernment for the purpose of using the same against the Government. The prisoner acknowledged being lieutenant of said company in the presence of Adjutant Miltimore, of First Regiment of Pennsylvania Volunteers, and Lieutenant Abel, Company D, First Regiment. It can also be proven that the prisoner has been drilling with his company and has uttered and advanced secession doctrines. The prisoner was arrested on the morning of May 25 at his residence about two miles from Cockeysville.
JAMES MILTIMORE, Adjutant,
WILLIAM H. ABEL, Lieutenant,
First Regiment Pennsylvania Volunteers.
[Inclosure Numbers 3.]
THE UNITED STATES OF AMERICA,
District of Maryland, to wit:
To GEORGE CADWALADER, 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 U. S. court room in the Masonic Hal in the city of Baltimore on Monday, the 27th day of May, 1861, at 11 o'clock in the morning, and that you have with you the body of John Merryman, of Baltimore County, and now in your custody, and that you certify and make known the dayand cause of the capture and detention of the said John Merryman, and that you then and there do submit to and receive whatsoaccording to law, and have you then and there this writ.
Witness, the Honorable R. B. Taney, Chief Justice of our Supreme Court, the first Monday in December, in the year of our Lord 1861.
[SEAL.]
THOS. SPICER,
Circuit Clerk.
============================
Page 576 PRISONERS OF WAR, ETC.
Inclosure Numbers 4.]
HEADQUARTERS DEPARTMENT OF ANNAPOLIS,
Fort McHenry, May 26, 1861.
Honorable ROGER B. TANEY,
Chief Justice of the Supreme Court of the United States,
Baltimore, Md.
SIR: The undersigned to whom the annexed writ of this date signed by Thomas Spicer, clerk of the Supreme Court of the United States, is directed most respectfully states that the arrest of Mr. John Merryman in the said writ named was not made with his knowledge or by his order or direction but was made by Colonel Samuel Yohe acting under the orders of Major General William H. Keim, both of said officers being in the military service of the United States but not within the limits of his command. The prisoner was brought to this post on the 25th instant by Adjt. James Miltimore and Lieutenant William H. Abel by order of Colonel Yohe, and is charged with various acts of treason and with being publicly associated with and holding a commission as lieutenant in a company having in their possession arms belonging to the United States and avowing his purpose of armed hostility against the Government. He is also informed that it can be clarly established that the prisoner has made open and unreserved declarations of his association with this organized force; as being in avowed hostility to the Goverment and in readiness to co-operate with those engaged in the present rebellion against the Government of the United States.
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.
I have the honor to be, with high respect, your obedient servant,
GEO. CADWALADER,
Brevet Major-General, U. S. Army, Commanding.
HEADQUARTERS OF THE ARMY,
Washington, May 28, 1861.
Bvt. Major General G. CADWALADER, U. S. Army,
Commanding Department of Annapolis, Baltimore, Md.
GENERAL: Your letter of the 27th instant with inclosures reporting the arrest of John Merryman and the issue by Chief Justice Taney of a writ of habeas corpus in his case has been received.
The general-in-chief directs me to say under authority conferred upon him by the President of the United States and fully transferred to you that you will hold in secure confinement all persons implicated in treasonable practices unless you should become satisfied that the arrest in any particular case was made without sufficient evidence of guilt.
Page 577 THE MARYLAND ARRESTS.
In returns to writs of habeas corpus by whomsoever issued you will most respectfully decline for the time to produce the prisoners but will say that when the present unhappy difficulties are at an end you will duly respond to the writs in question.
I am, sir, very respectfully, your obedient servant,
E. D. TOWNSEND,
Assistant Adjutant-General.