Posted on 06/12/2003 5:58:28 AM PDT by Aurelius
Over the years I've heard many rail at the South for seceding from the 'glorious Union.' They claim that Jeff Davis and all Southerners were really nothing but traitors - and some of these people were born and raised in the South and should know better, but don't, thanks to their government school 'education.'
Frank Conner, in his excellent book The South Under Siege 1830-2000 deals in some detail with the question of Davis' alleged 'treason.' In referring to the Northern leaders he noted: "They believed the most logical means of justifying the North's war would be to have the federal government convict Davis of treason against the United States. Such a conviction must presuppose that the Confederate States could not have seceded from the Union; so convicting Davis would validate the war and make it morally legitimate."
Although this was the way the federal government planned to proceed, that prolific South-hater, Thaddeus Stevens, couldn't keep his mouth shut and he let the cat out of the bag. Stevens said: "The Southerners should be treated as a conquered alien enemy...This can be done without violence to the established principles only on the theory that the Southern states were severed from the Union and were an independent government de facto and an alien enemy to be dealt with according to the laws of war...No reform can be effected in the Southern States if they have never left the Union..." And, although he did not plainly say it, what Stevens really desired was that the Christian culture of the Old South be 'reformed' into something more compatible with his beliefs. No matter how you look at it, the feds tried to have it both ways - they claimed the South was in rebellion and had never been out of the Union, but then it had to do certain things to 'get back' into the Union it had never been out of. Strange, is it not, that the 'history' books never seem to pick up on this?
At any rate, the Northern government prepared to try President Davis for treason while it had him in prison. Mr. Conner has observed that: "The War Department presented its evidence for a treason trial against Davis to a famed jurist, Francis Lieber, for his analysis. Lieber pronounced 'Davis will not be found guilty and we shall stand there completely beaten'." According to Mr. Conner, U.S. Attorney General James Speed appointed a renowned attorney, John J. Clifford, as his chief prosecutor. Clifford, after studying the government's evidence against Davis, withdrew from the case. He said he had 'grave doubts' about it. Not to be undone, Speed then appointed Richard Henry Dana, a prominent maritime lawyer, to the case. Mr. Dana also withdrew. He said basically, that as long as the North had won a military victory over the South, they should just be satisfied with that. In other words - "you won the war, boys, so don't push your luck beyond that."
Mr. Conner tells us that: "In 1866 President Johnson appointed a new U.S. attorney general, Henry Stanburg. But Stanburg wouldn't touch the case either. Thus had spoken the North's best and brightest jurists re the legitimacy of the War of Northern Aggression - even though the Jefferson Davis case offered blinding fame to the prosecutor who could prove that the South had seceded unconstitutionally." None of these bright lights from the North would touch this case with a ten-foot pole. It's not that they were dumb, in fact the reverse is true. These men knew a dead horse when they saw it and were not about to climb aboard and attempt to ride it across the treacherous stream of illegal secession. They knew better. In fact, a Northerner from New York, Charles O'Connor, became the legal counsel for Jeff Davis - without charge. That, plus the celebrity jurists from the North that refused to touch the case, told the federal government that they really had no case against Davis or secession and that Davis was merely being held as a political prisoner.
Author Richard Street, writing in The Civil War back in the 1950s said exactly the same thing. Referring to Jeff Davis, Street wrote: "He was imprisoned after the war, was never brought to trial. The North didn't dare give him a trial, knowing that a trial would establish that secession was not unconstitutional, that there had been no 'rebellion' and that the South had got a raw deal." At one point the government intimated that it would be willing to offer Davis a pardon, should he ask for one. Davis refused that and he demanded that the government either give him a pardon or give him a trial, or admit that they had dealt unjustly with him. Mr. Street said: "He died 'unpardoned' by a government that was leery of giving him a public hearing." If Davis was as guilty as they claimed, why no trial???
Had the federal government had any possible chance to convict Davis and therefore declare secession unconstitutional they would have done so in a New York minute. The fact that they diddled around and finally released him without benefit of the trial he wanted proves that the North had no real case against secession. Over 600,000 boys, both North and South, were killed or maimed so the North could fight a war of conquest over something that the South did that was neither illegal or wrong. Yet they claim the moral high ground because the 'freed' the slaves, a farce at best.
Really?
Was secession not "a wholly unilateral activity by individual states"?
Did Madison -not- indicate that the "convention had some colorable claim to be operating under the authority of the existing government"?
Walt
Under the AoC, the secession was a wholly unilaterial activity by sovereign independent states. Their sovereign status is unquestionable, being explicitly written into the AoC.
Madison DID indicate that the convention had some colorable claim to be operating under the authority of the existing government.
They had expressly written instructions authorizing them to recommend revisions to the AoC.
While they had a colorable claim to operate, they had no claim to do what they did in convention.
Remember that Madison had to write his assertion anonymously under the name Publius.
What they did may have been intended for the greater good, but it was not exactly kosher. Had it all been on the up and up, he would not have felt a need to write as Publius, and they would not have sealed the record of the proceedings for 50 years until all of the actors were dead.
Joseph J. Ellis, in "Founding Brothers" noted:
"The chief reason (the new Republic did not fail) from a purely legal and institutional point of view, is that in 1787 a tiny minority of prominent political leaders from several key states conspired to draft and then ratify a document designed to accommodate republican principles to a national scale. Over the subsequent two centuries critics of the Constitutional Convention have called attention to several of its more unseemly features: the convention was extralegal, since it explicit mandate was to revise the Articles of confederation, not to replace them; its sessions were conducted in utter secrecy; the fifty-five delegates were a propertied elite hardly representative of the population as a whole; southern delegates used the procedings to obtain several assurances that slavery would not be extinguished south of the Potomac; the machinery for ratification did not require the unanimous consent dictated by the Articles themselves. There is truth in each of these accusations."
"There is also truth in the opposite claim: that the Constitutional Convention should be called "the miracle at Philadelphia," not in the customary, quasi-religious sense, whereby a gathering of demigods received divine inspiration, but in a more profane and prosaic sense that the Constitution professed what was an apparently insoluable political problem. Fot it purported to create a consolidated federal government with powers sufficient to coerce obedience to national laws - in effect, to disclipline a truly continental union - while remaining true to the republican principles of 1776. At least logically, this was an impossibility, since the core impulse of these republican principles, the original "spirit of '76," was an instinctive aversion to coersive political power of any sort and a thoroughgoing dread of the inevitable corruptions that result when unseen rulers congregate in distant places. The Antifederalist opponents of the Constitution made precisely these points, but they were outmaneuvered, outargued, and ultimately outvoted by a dedicated band of national advocates in nine of the states ratifying conventions."
I might add, that the "unanimous consent" requirement of the Articles was intentionally jettisoned. It had been a thorn in the side of those in the Continental Congresses which had functioned, so to speak, as a national government. The fact that a supermajority of state conventions (note: not state legislatures) would cause the Constitution to become the supreme law of the land, ensured that it eventually got unanimous consent. One or several states could not block ratification on purely parochial grounds - they did not have that leverage with a "less-than-unanimous" majority. The states which ratified the Constitution were willing to let the others go it on their own - none did for long.
Farbers research does not indicate what you claimed in your previous statement: "The Court has ruled, in several cases, that the president -can- suspend the Writ." Therefore a refutation of it is not necessary to address you as of yet unsubstantiated claim. Since you refuse to quote any case that supports that statement I will continue to take that as a concession that you do not have anything.
The courts DID decide the validity of that act in Ex Parte Merryman. Lincoln failed to appeal that decision as was his burden to do if he did not like it.
Openly, you seldom do. But you treat him as if he were infallable on a daily basis around here and venerate him as if he were a deity. It is impermisable in your mind to ascribe any ammount of error or wrong to him. You are presented with irrefutable evidence of his flaws yet deny and excuse away each and every one of them no matter how small. You do so because you will not permit a presentation of Lincoln that is anything less than perfect.
Do you dispute me on any of this, Walt? If so, please post an admission of any specified error or flaw in the person of Abe Lincoln. I dare you.
Openly, you seldom do.
Well, Dr. Farber's analysis, which as you can guess I respect a lot, shows that President Lincoln clearly did go outside constitutional grounds on several particulars.
Dr. Farber can find no constitutional justification for Lincoln's spending money in the treasury between March and July, 1861. The Constitution plainly says no money will be disbursed without appropriation.
President Lincoln also went further than he should have in declaring martial law throughout the country even where the courts were open. So he wasn't perfect.
Dr. Farber's book finds that the president clearly has the power to arrest and detain insurrectionists with no appeal to habeas. He finds that the Supreme Court --unanimously-- held that the Militia Act gave the president plenty of power to put down the rebellion, thus showing conclusively that unilateral state secession is outside the law.
Like the vast majority of Americans' he finds that President Lincoln was a great and good man.
It's a great book. You should read it.
Walt
Farbers research does not indicate what you claimed in your previous statement: "The Court has ruled, in several cases, that the president -can- suspend the Writ." Therefore a refutation of it is not necessary to address you as of yet unsubstantiated claim. Since you refuse to quote any case that supports that statement I will continue to take that as a concession that you do not have anything.
I should have been more careful in my choice of words.
Dr. Farber's research shows that on balance, there was plenty of precedent for suspending the Writ by the president, at least in emergency situations.
I mean, it would be absurd to suggest that the president can call out the war power against insurrectionists -- kill them, if need be -- but not allow that he could arrest and detain them.
Right?
Walt
The courts DID decide the validity of that act in Ex Parte Merryman. Lincoln failed to appeal that decision as was his burden to do if he did not like it.
Obviously not. The government pretty much went on to prosecute the war, didn't it? People were still detained with no recourse to habeas, weren't they?
The very careful plans of the insurrectionists were thrown down, weren't they?
Gee whiz. President Lincoln was re-elected in a landslide, wasn't he?
President Lincoln wrote a lengthy defense of his actions in June, 1863. Taney had ensured that his Merryman ruling had wide distribution. Who's interpretation did people find more compelling back then, Lincoln's or Taney's?
You are asking that we give credence to Taney, who openly wished for a dissolution of the Union, over President Lincoln, who knew that democratic government -- that government brought forth on this continent by "our fathers" -- was the last, best hope of earth.
That says a lot more about you than it does President Lincoln.
You must hate the United States. How do you stand it here?
Walt
Oh, I have absoulutely no doubt that the federalists started strengthening national power at the expense of the states from day one.
They got passed the Judicuary Act of 1789, that requires that controversies of a civil nature between the states be submitted to the Supreme Court. Of course they got passed the Militia Act of 1792. They were busy little bees.
They didn't push too hard to make an explict statement in the Constitution of permanent Union, the way the AoC did. They knew that getting the COnstitution ratified would be tough. That is why they bypassed the state legislatures and that is why they soft-peddled what they could.
But there is no doubt that they built a national edifice that men were willing to fight and die for.
You know, we always hear about how the noble southern yeoman could fight for hearth and home, and how noble he was, and all that.
Look at the Loyal Union men -- they could --leave-- their homes and families and fight for something bigger and grander than their own local concerns -- they could fight for all men, everywhere. They are the true heroes of the war.
Walt
The ruling is on the books for everyone to see. Look it up.
The government pretty much went on to prosecute the war, didn't it? People were still detained with no recourse to habeas, weren't they?
Yeah, cause Lincoln violated the law and ignored the proper constitutionally obligated role of the judicial system. If he didn't like Merryman, he alone had the burden of appeal. He did not do so.
The very careful plans of the insurrectionists were thrown down, weren't they?
Argumentum ad baculum. That's a fraudulent form of argument. Try again.
Gee whiz. President Lincoln was re-elected in a landslide, wasn't he?
Argumentum ad populum. That's a fraudulent form of argument. Try again.
Who's interpretation did people find more compelling back then, Lincoln's or Taney's?
Among the legal community Taney's was accepted. Just ask Justice Curtis.
Yes you should have.
Dr. Farber's research shows that on balance, there was plenty of precedent for suspending the Writ by the president, at least in emergency situations.
No it doesn't. Like you he was unable to quote one single case precedent that specifically allows the president to suspend habeas corpus. Absent that, his argument is strictly inference and speculation, hence it cannot overcome the thoroughly documented remarks of the founders that explicitly state the power to belong to the legislature alone.
"The very careful plans of the insurrectionists were thrown down, weren't they?"
...and then only a line later comes the next one...
"Gee whiz. President Lincoln was re-elected in a landslide, wasn't he?"
...an appeal to popularity.
That charge lacks any credibility coming from the same guy who made the following statements:
"All these deaths of U.S. citizens --the death of EVERY U.S. citizen killed by Arab terror in the United States, can be laid directly at the feet of George Bush I." - WhiskeyPapa, 11/15/02
SOURCE: http://www.freerepublic.com/focus/f-chat/786927/posts?q=1&&page=401#448
"As you doubtless know, the separation of powers in that Pact with the Devil we call our Constitution, gives only Congress the right to raise and spend money." - WhiskeyPapa, 11/15/02
SOURCE: http://www.freerepublic.com/focus/f-chat/786927/posts?q=1&&page=401#432
"If you non-U.S. citizens are wondering what the electoral college is and what bunch of ninnies thought it up: The US Constitution was written by rich white men like Washington, Madison, Hamilton, Randolph, and others. They wrote it for the benefit of rich white men like themselves." - Walt, aka WhiskeyPapa, explaining the electoral college to Europeans, 11/12/00
"George Bush Jr. sounds like a retard to me. Listen to his sentence structure and his word choice. Sophomoric. You don't think so, fine." - WhiskeyPapa, 5/4/03
SOURCE: http://www.freerepublic.com/focus/news/895504/posts?page=245#245
Why do they NEED to cite precedence? Either they have the Constitutionally delegated power or they don't. Approving his actions after the fact is ex post facto legislation.
President Lincoln went through a mine field of military, legal and political problems and he rightly is regarded as a great president and great man.
No, and no again. He had no problems - he ignored the decisions of the courts, shut down all dissident newspapers, had tens of thousands of American citizens incarcerated at will, and held without trial, he prevented several state legislatures from meeting for fear that they were planning to secede, he had censored all battlefield media reports, and with the absence of Southern representatives, had his way almost at will in the Federal Legislature.
The following legislative acts occurring under the terms of Lincoln and the radical Republicans (1861-1877) have been struck down in whole or part:
Act of 25 Feb 1862 (12 Stat. 345, Sec. 1)
Act of 11 Jul 1862 (12 Stat. 532, Sec. 1)
Act of 20 May 1862 (12 Stat. 394, Sec. 35)
Act of 21 May 1862 (12 Stat. 407)
Act of 3 Mar 1863 (12 Stat. 711, Sec. 3)
Act of 3 Mar 1863 (12 Stat. 756, Sec. 5)
Act of 25 Jun 1864 (13 Stat. 187)
Act of 30 Jun 1864 (13 Stat. 311, Sec. 13)
Act of 24 Jan 1865 (13 Stat. 424) (requirement of test oath disavowing hostile actions to the United States)
Act of 23 Jul 1866 (14 Stat. 216)
Act of 2 Mar 1867 (14 Stat. 539)
Act of 31 May 1870 (16 Stat. 140, Sec. 3, 4)
Act of 31 May 1870 (16 Stat. 144)
Act of 17 Jun 1870 (16 Stat. 154, Sec. 3)
Act of 8 Jul 1870 (16 Stat. 210)
Act of 12 Jul 1870 (16 Stat. 235)
Act of 31 May 1870 (16 Stat. 141, Sec. 4)
Act of 20 Apr 1871 (17 Stat. 13, Sec. 2)
Act of 22 Jun 1874 (18 Stat. 2, Sec. 281, 282, 294, 304) Struck down sections of law requiring racial separation in schools of the District of Columbia.
Act of 22 Jun 1874 (18 Stat. 1878, Sec. 4)
Act of 1 Mar 1875 (18 Stat. 336, Sec. Sec. 1, 2)
Act of 3 Mar 1875 (18 Stat. 479, Sec. 2)
Act of 12 Jul 1876 (19 Stat. 80, Sec. 6, in part)
Act of 14 Aug 1876 (19 Stat. 141)
24 federal laws overturned in whole or part 1862-1876. To give you some comparision, only 3 were overturned from 1789-1860.
It was only after his death that the mythmakers have made Lincoln a great man. He barely won re-election in 1864 (and even that is contested: In Hapgood's Life of Lincoln 'Charles A. Dana testifies that the whole power of the War Department was used to secure Lincoln's re-election in 1864'). The majortity of the citizens of the united States voted for someone other than Lincoln. Richard Dana, wrote on 23 Feb 1863:
'I see no hope but in the army; the lack of repect for the President in all parties is unconcealed. He has no admirers.'Dana, in a letter to C. F. Adams, Sr., wrote again that Lincoln was 'an unspeakable calamity to us [Republicans]' in Mar 1863.
Lincoln & the Radical Republicans were the harbinger & author of the federal leviathan we have today:
'[T]he nature of federal-state relations changed fundamentally after the Civil War. That conflict produced in its wake a tremendous expansion in the scope of the Federal Government's lawmaking authority, so much so that the persons who helped to found the Republic would scarcely have recognized the many added roles the National Government assumed for itself.'
Justice White, [dissenting opinion] New York v. United States, 505 U.S. 144 (1992)
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.