If Secession Was Illegal - then How Come...?

The Patriotist ^ | 2003 | Al Benson, Jr.

[Grand Old Partisan]

The Radical Republicans are grossly maligned in history books. That the GOP today largely believes the lies about them is why the party is so ineffective even todat.

[WhiskeyPapa]

The Court has ruled, in several cases, that the president -can- suspend the Writ.

Quote them.

“We begin our analysis with the use of martial law in contested territory, whether in the border states or the South. Such use of martial law was not unprecedented. During the American revolution, the Continental Congress reacted to threatened British attacks in Pennsylvania and Delaware by authorizing a form of martial law: “[W]hereas, principles of policy and self-preservation require all persons who may be reasonably suspected of aiding or abetting the cause of the enemy may be prevented from pursuing measures injurious to the public weal,” Congress authorized state governors to arrest and confine disloyal residents. Similarly, General Jackson imposed martial law in New Orleans when the city was threatened by the British during the war of 1812. He took martial law to extraordinary lengths, expelling the French consul (though France was a friendly power), arresting the author of a letter to the editor for repeating rumors that peace had arrived (which turned out to be true), and ultimately arresting a federal judge and district attorney for interfering with these actions.

In a third pre-civil war instance of martial law, the issue ultimately reached the Supreme Court. In Luther v. Borden, the Supreme Court resoundingly upheld the use of martial law, in an opinion by none other than Chief Justice Taney. The case involved a dispute over the legitimacy of the state government in Rhode Island, a dispute that had been resolved in favor of the existing government. In putting down an effort to displace the government by a rival group, the governor had declared martial law. “[U]nquestionably,” Taney pronounced, “a State may use its military power to put down an armed insurrection, too strong to be controlled by the civil authority.” The power to do so “is essential to the existence of every government, essential to the preservation of order and free institutions, and is necessary to the State of this Union as to any other government.” “Thus “[I]f the government of Rhode Island deemed the armed opposition so formidable, and so ramified throughout the State, as to require the use of military force and the declaration of martial law, we see no ground upon which this court can question its authority.” The case involved “a state of war, and the established government rights and useages of war to maintain itself, and to overcome unlawful opposition.” Hence, the military could arrest suspected supporters of the insurrection and could break into houses where such individuals might be hidden, all without a warrant. Without power to do this, martial law and the military array of the government would be mere parade, and rather encourage attack rather than repel it.”

...Luther was later strongly reaffirmed in Justice Holmes’s opinion in Moyer v. Peabody. In response to a violent miner’s strike, the governor had declared the affected county to be in a state of insurrection and called out the national guard. He arrested the union’s president and held him for several months without trial. Justice Holmes saw no constitutional difficulty. “Of course,” Holmes said, the “plaintiff’s position is that he had been deprived of his liberty without due process of law.” But due process depends on the circumstances. Under federal law, the governor was authorized to call out the national guard in response to invasion or insurrection.”That means that he shall make the ordinary use of the soldiers to that end; that he may kill persons who resist, and, of course, that he may use the milder measure of seizing the bodies of those whom he considers to stand in the way of restoring peace.”

-- Lincoln’s Constitution” pp 148-49 by Daniel Farber

“In any event, if prior congressional authorization was needed, it probably did exist. In the special secession called by Lincoln, Congress ratified all of his orders relating to the militia or armed forces. Since Lincoln’s suspension directive took the form of an authorization to General Scott, this may well have ratified at least past suspension in cases like Merryman. But, even before the special session, Lincoln already probably had whatever congressional authorization he needed, at least for the initial emergency suspension in Merryman. This source of authority was the militia act. This theory was adopted in Ex parte Field, where the federal circuit held that the statutes empowering Lincoln to call out the militia also implicitly authorized him to declare martial law and hence to suspend habeas.”

Ibid, p 162

Walt

[WhiskeyPapa]

Re # 608.

None of that means squat. See the Prize Cases ruling.

Walt

[WhiskeyPapa]

The truth is, this idea of the existence of any necessity for clothing the President with the war power, under the Act of 1795, is simply a monstrous exaggeration; for, besides having the command of the whole of the army and navy, Congress can be assembled within any thirty days, if the safety of the country requires that the war power shall be brought into operation.

But as the majority opinion noted, the entire executive power rests with the president.

President Lincoln did not -have- to call a special session. He called Congress in 4 months early at least, before it was scheduled to meet.

You neo-confederates, in your haste to smear President Lincoln, would take him to task for not calling Congress faster than he did.

You should contemplate a time when he had NO intention of calling the new Congress early -- in 1865. Some members of that Congress had blood in their eye, and he meant to forestall them.

When President Lincoln met with Sherman and Grant early in April, 1865, he urged them to go easy with the soon to be surrendered rebel armies in their fronts, and they did. He expected to have many of the difficulties with establishing the rebel states back in their proper relation with the national government ironed out by December, when the new Congress would meet. He probably would have too, but he was called away.

What it really comes down to, as always, is "mean old Lincoln kicked our butts!"

You can't let the facts or a reasonable interpretation get in the way of smearing a great and good man.

Walt

[4CJ]

He would have made a good "talking head" on some of the Sunday news/opinion shows.

LOL - I would have to agree. He was a strange man, many today despise him.

[4CJ]

Eleven states simply left the Articles of Confederation in Perpetual Union behind, in direct violation of the terms of that compact. That compact provided that not one word of it could be changed without the consent of Rhode Island (and all the other states).

I agree my friend, but the DIMS just can't understand it. We must still be operating under the Articles in their view.

[4CJ]

It didn't really matter if Davis was tried in court or not. He was already a loser. The politics of the North were to mete out the punishments. Jefferson Davis did not have any rights. He was a rebel and had lost his citizenship.

Punishment ex post facto is unconstitutional. Jefferson Davis renounced his US citizenship by remaining with his state - his US citizenship derived from it once being part of the union. When it left, Davis went with it. No treason, and the government knew it. Davis WANTED a trial to PROVE his innocence of that charge. The government was a yellow-bellied, gutless chicken.

[4CJ]

Can't you ever admit a mistake?

Yes. In fact, I apologized to Walt yesterday re: the dissent in the Prize Cases.

The Radical Republicans were few in number and had hardly any influence at all until nearly two years after the Civil War ended ...

You need to read The Logic of History by Stephen Carpenter (a Northen editor). He blows that myth out of the water.

[Non-Sequitur]

Davis WANTED a trial to PROVE his innocence of that charge.

But then Chief Justice Chase offered the loophole of the 14th Amendment to jump through. If Davis' lawyers were so sure that he would be acquitted then why did they unanimously urge him to take the out that the Chief Justice proposed?

[reg45]

The war was fought so that 50-80 years later there would be a economic and military power house to counter balance the Isms of Europe

You are operating on the erronious opinion that the defeat of the Central Powers in WWI was a good thing. If Wilson had kept his promise to keep America out of the war - and possibly engaged in "shuttle diplomacy" to end the war, the great "..isms" of Europe may never have taken hold. WWI was the most stupid war in history and the so called victory merely planted the seeds for WWII.

[Lee'sGhost]

"So you honestly believe that the Supreme Court was incapable of making an impartial decision in this matter? "

So, in considering the SCOTUS's moranic ruling about racial preferences -- based on their partisan beliefs -- NOT an impartial decision, you still think it's hard to believe that a bunch of Lincoln-loyal yankee supremes would vote on a case involving secession impartially?

If you can believe that then you probably think OJ was innocent and BJ Clitoon never lies.

[Grand Old Partisan]

Admitting a mistake does not call for an apology.

Where Stephen Carpenter was from is not nearly as important as his political affiliation. From the following (verging on insane) excerpt (1864), it is obvious that he was a Copperhead (northern Democrat sympathizer with the rebels):

"The revolutionary doctrines espoused by the Republican party are the context without which the events of 1860 onward cannot be properly understood. The war was not begun against the South, nor was it ever carried on thereafter, with the mere emancipation of the Southern slaves in view. The shocking Republican documents, speeches, and newspaper clippings collected into this book prove that the “party of Lincoln” was bent on the dissolution of the Union from its very formation in 1854, and only abandoned this agenda in favor of “preserving the Union” when its members perceived the wealth and power to be harvested from the destruction and subjugation of a militarily inferior South."

[Non-Sequitur]

So, in considering the SCOTUS's moranic ruling about racial preferences -- based on their partisan beliefs -- NOT an impartial decision, you still think it's hard to believe that a bunch of Lincoln-loyal yankee supremes would vote on a case involving secession impartially?

Do you think that a court with a majority of southern justices could have issued an impartial decision on secession?

[nolu chan]

The day after Washington was inaugurated, what nation did NC and RI belong to?

What government held the right to tax them?

In what government did they have a right to be represented?

[Grand Old Partisan]

Which members of Congress in 1865 had blood on their hands?

[Grand Old Partisan]

CORRECTION:

Which members of Congress had blood in their eye?

[Grand Old Partisan]

JJust about every ex-rebel requested a pardon from the President, the only exception being Jefferson Davis, so the postion you and Davis share on the subject is aslo contrary to the postion of all the other ex-Confederates.

[Lee'sGhost]

NO!!!!! That's my point.

You asked me: "So you honestly believe that the Supreme Court was incapable of making an impartial decision in this matter?"

You question implies that you think they could. I have no reason to believe that Southern justices would be any less bias than the ones from the north -- that just proves my point about biasness. But all that really has nothing to do with the point -- being that it was a foregone conclusion that ANY matter related to secession voted on by the post-war SCOTUS would favor anti-secessionists. Holding court was just a formatlity, or a farse, depending on your point of view.

[Non-Sequitur]

If you want to call it a biased decision then fine. If you want to believe that the court is incapable of issuing an impartial decision then go ahead. But regardless of how you feel about a court decision, it is a valid decision and it is binding. Secession as practiced by the southern states was, and still is, unconstitutional.

[Grand Old Partisan]

Clever, but not enough. You assume, for one thing, that the inauguration of the President marked the beginning of the United States. Prior to that, Congress and the Electoral College had already met. The Constitution went into effect the instant the ninth state ratified, so your point obout North Carolina and Rhode Island applied just as much to the tenth state to ratify before it did so. None of the states yet to ratify in any way claimed to be indepdent or outside the Union, and that's what matters in countering the position that secession from the United States was equivalent to the position of the states 10-13 prior to ratification.

States 10-13 operated in the meantime under the Articles of Confederation, meaning that no federal government could tax them and that they had a right to be represented in Congress.