Posted on 06/12/2003 5:58:28 AM PDT by Aurelius
Some of the history I cited came from the following interesting web site: Baltimore Riot.
My memory was wrong -- the mayor of Baltimore didn't just shoot a man, he shot and killed the man to help get the troops through the city. The officer in charge of the Massachusetts troops going through the city describes that incident in his report (which is included on the "Baltimore Riot" web site).
The information in your post was titled, "First Blood in Baltimore". It might have been the first blood of the war on the East Coast, but blood was shed earlier in Texas over the Confederacy. Nine people were killed on April 15, 1861, in South Texas. Local Hispanics had threatened Texas county officials and tried to prevent them from taking the oath of allegiance to the Confederacy. They were tracked down and confronted on April 15th. See: Another First Blood.
Interestingly, there is a Captain Refugio involved in the South Texas incidents. The Hispanics taking umbrage over the Confederate oath threatened to kill a local judge named Vela, who sympathized with the Confederates. They eventually succeeded in killing the judge. They were later tracked down for this act by a Captain Refugio Benavides, a Laredo Texas Confederate. He is mentioned several times in the "Another First Blood" site.
Your history is more-or-less correct, but I think you are parsing. Lincoln wanted the trains from Philadelphia to Washington to be able to get through Maryland, specifically Baltimore. There is no doubt that when he authorized the military to suspend habeas corpus, if needed, along the train corridors, he was doing it under his authority as the Executive Officer of the United States. The responsibility rests with Lincoln rather than General Cadwallader.
John Merryman was 1st Lieutenant in the Baltimore County Horse Guards during the Civil War and under orders burned the Northern Central Railroad bridges between Cockeysville and Parkton to prevent northern troops from being brought to Baltimore. His imprisonment led to Cheif Justice Taney's masterful "ex-parte Merryman."
That is from: http://www.hayfieldscc.com/ourHistory.html. It is an odd site -- it is about the history of a country club that is on some lands earlier owned by Merryman. The site says that Merryman later was elected treasurer of Maryland.
ONE more (sigh!), there are NO neo-confederates.
there are only PALEO-Confederates from old rebel families, who have NOT forgotten our 4 years of LIBERTY.
FRee dixie,sw
like i've said numerous times, you remind everyone with a brain on FR what the rantings of a FOOL is like, each time you post.
head over to DU, where useful idiots dwell.
free dixie,sw
free dixie,sw
free dixie,sw
there is NO independent documentation of ANY such atrocity, though there is MUCH INDEPENDENT evidence of damnyankees MURDERING black & american indian CSA POWs in coldblood in several damnyankee prison camps.
also the damnyankee army sold FREE blacks into slavery in occupied New Orleans until well after March 1863. the sale records are on display at the African-American Museum in New Orleans.
MG Ben (the beast) Bultler got RICH off the sale of free blacks (& selling into slavery numerous CSA POWs).
free dixie,sw
There is no "right" of a president to simply ignore orders from the court system that he does not like. He may either abide by it or seek an appeal, but not simply ignore it no matter how wrong he may think it to be.
Had the order come from the full Supreme Court, a Constitutional crisis may have ensued.
That would first require an appeal to the full Supreme Court. Such an appeal was Lincoln's burden (it is absurd for you to suggest that Taney should appeal his own ruling to the Supreme Court).
As it was, Congress was not in session and Taney could not even get a marshal to form a posse comitatus to enforce his "ruling."
Compliance of the court's federal marshalls had not been an issue in the case as they did their duty. The formation of a posse to enforce it was deemed impractical by Taney because "the power refusing obedience was so notoriously superior to any the marshal could command." It literally would have involved calling up local law enforcement and asking them to enforce against the standing army of the united states.
The legal question of the day was, did Lincoln have the Executive authority to enforce the laws of the land, including those listed in the Constitution?
No. The legal question was did Lincoln, as the executive, have the authority to unilaterally enforce Article I, Section 9, Clause 2 of the constitution. That he had some ability to enforce the laws was not a matter of dispute. Whether that ability included the Article I suspension power was though.
Article I, Section 9, Part 2 states, "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." (It doesn't say "... unless in cases of Rebellion or Invasion, Congress may require it. Taney ruled, that because this Section is listed under Article I, it is a prerogative of the Congress.
No honest reading of the Constitution would permit anything other, per Article I, Section I's clause that powers contained within that section are legislative.
It is a further matter of fact that Taney's ruling was directly consistent with the intentions of the founding fathers, who did not dispute that the power to suspend was legislative:
"The privileges and benefit of the writ of Habeas Corpus shall be enjoyed in this Government, in the most expeditious and ample manner; and shall not be suspended by the Legislature, except upon the most urgent and pressing occasions, and for a limited time not exceeding months." - Charles Pickney, announcing the proposal to limit the suspension of habeas corpus, Constitutional Convention, 1787
"The people by adopting the federal constitution, give congress general powers to institute a distinct and new judiciary, new courts, and to regulate all proceedings in them, under the eight limitations mentioned in a former letter; and the further one, that the benefits of the habeas corpus act shall be enjoyed by individuals." - Richard Henry Lee, Anti-Federalist #16, "Federal Farmer"
"In the same section it is provided, that "the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion and invasion, the public safety may require it." This clause limits the power of the legislature to deprive a citizen of the right of habeas corpus, to particular cases viz. those of rebellion and invasion; the reason is plain, because in no other cases can this power be exercised for the general good." - Robert Yates, delegate to the Constitutional Convetion, Anti-Federalist #9, "Brutus"
"The safest and best restriction, therefore, arises from the nature of the cases in which Congress are authorized to exercise that power [of suspending habeas corpus] at all, namely, in those of rebellion or invasion. These are clear and certain terms, facts of public notoriety, and whenever these shall cease to exist, the suspension of the writ must necessarily cease also." - Judge Francis Dana, presenting the Constitution to the Massachusetts Ratification Convention
"Those respecting the press, religion, & juries, with several others, of great value, were accordingly made; but the Habeas corpus was left to the discretion of Congress, and the amendment against the reeligibility of the President was not proposed by that body." - Thomas Jefferson, Autobiography, 1821
Taney's ruling was also consistent with the major scholarly works on the Constitution from the founding era:
"In the United States, it can be suspended, only, by the authority of congress; but not whenever congress may think proper; for it cannot be suspended, unless in cases of actual rebellion, or invasion. A suspension under any other circumstances, whatever might be the pretext, would be unconstitutional, and consequently must be disregarded by those whose duty it is to grant the writ." - St. George Tucker, Commentaries, 1803
"The Constitution seems to have secured this benefit [habeas corpus] to the citizen by the description of the writ, and in an unqualified manner admitting its efficacy, while it declares that it shall not he suspended unless when, in case of rebellion or invasion, the public safety shall require it. This writ is believed to be known only in countries governed by the common law, as it is established in England; but in that country the benefit of it may at any time be withheld by the authority of parliament, whereas we see that in this country it cannot be suspended even in cases of rebellion or invasion, unless the public safety shall require it. Of this necessity the Constitution probably intends, that the legislature of the United States shall be the judges. Charged as they are with the preservation of the United States from both those evils, and superseding the powers of the several states in the prosecution of the measures they may find it expedient to adopt, it seems not unreasonable that this control over the writ of habeas corpus, which ought only to be exercised on extraordinary occasions, should rest with them. It is at any rate certain, that congress, which has authorized the courts and judges of the United States to issue writs of habeas corpus in cases within their jurisdiction, can alone suspend their power" - William Rawle, "A View of the Constitution of the United States of America," 1826
It was also consistent with what the Supreme Court and is prominent jurists had said on the matter up to the time:
"It would seem, as the power is given to congress to suspend the writ of habeas corpus in cases of rebellion or invasion, that the right to judge, whether exigency had arisen, must exclusively belong to that body." - Justice Joseph Story, "Commentaries on the Constitution of the United States," Book 3, Chapter XXXII, § 1336, 1833
"The decision that the individual shall be imprisoned must always precede the application for a writ of habeas corpus, and this writ must always be for the purpose of revising that decision, and therefore appellate in its nature. But this point also is decided in Hamilton's case and in Burford's case. If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so. That question depends on political considerations, on which the legislature is to decide." - Justice John Marshall, writing for the majority in Ex Parte Bollman and Swartwout, 1807
And it was consistent with what the jurists of Taney's own day thought:
"There has been much discussion concerning the question whether the power to suspend the "privilege of the writ of habeas corpus" is conferred by the Constitution on Congress, or on the President. The only judicial decisions which have been made upon this question have been adverse to the power of the President.Still, very able lawyers have endeavored to maintain -- perhaps to the satisfaction of others -- have maintained, that the power to deprive a particular person of the "privilege of the writ," is an executive power. For while it has been generally, and, so far as I know, universally admitted, that Congress alone can suspend a law, or render it inoperative, and consequently that Congress alone can prohibit the courts from issuing the writ, yet that the executive might, in particular cases, suspend or deny the privilege which the writ was designed to secure. I am not aware that any one has attempted to show that under this grant of power to suspend "the privilege of the writ of habeas corpus," the President may annul the laws of States, create new offences unknown to the laws of the United States, erect military commissions to try and punish them, and then, by a sweeping decree, suspend the writ of habeas corpus as to all persons who shall be "arrested by any military authority." I think he would make a more bold than wise experiment on the credulity of the people, who should attempt to convince them that this power is found in the habeas corpus clause of the Constitution." - Justice Benjamin R. Curtis, retired, also author of the dissenting opinion in Dred Scott v. Sanford, "Executive Power," 1862
But Congress was not in session and a crisis of epic proportion existed.
That Congress was not in session is no excuse. Lincoln had a constitutional means of calling Congress into session and could have easily done so at any time between his inauguration in March and July, when he finally got around to it. Instead he stalled and attempted to run the show for himself.
Lincoln reasoned that an exigency existed and that he had the authority to "execute" this law.
Again, blanket execution of the law does not permit the unilateral exercise and violation of a clause that, unlike the general laws, is specifically enumerated and protected in the constitution.
The issue of Presidential authority is still being debated to this day.
That it is, but general constitutional disputes do not, by simply being matters of continuous debate, draw all relevant specifics into a realm of equal vagueness.
Today, when an "inferior court" issues a controversial ruling (such as the 9th Circuits' ruling that the Pledge of Allegiance is unconstitutional), they usually suspend enforcement of the ruling until a higher court can hear the case.
That is nice and all, but seeing as Lincoln, the losing party, made no effort whatsoever to dispute or overturn Merryman (he simply ignored it), the question of the full court hearing it did not arise as an issue.
Neither Merryman nor Taney bothered to continue the legal battle to the next logical step.
It was not their burden to continue, but rather Lincoln's. To suggest that Taney should have to appeal his own decision or that Merryman should have to appeal a ruling in his favor is inherently absurd as that burden belongs to the party who seeks it overturned, not the party that has achieved a desired decision.
free dixie,sw
In April to July 1861, Lincoln had invoked the suspension of habeas corpus in several times and in several places. This was while Congress was not in session. Justice Taney had "ruled" in Ex parte Merryman, that Lincoln act was a usurpation of a congressional prerogative. Lincoln, ignored Taney's "ruling," in part because he believed his Constitutional authority to execute the laws of the land, felt that Taney, acting as a Circuit Justice, overreached in his authority. When you have this sort of battle between two co-equal branches of Government, the third branch, effectively, can act as the "tie-breaker." When Congress met again in July 1861, they utterly failed and refused to support Taney's decision. In fact, by 1863, they had codified Lincoln's position.
Although many people argue the Constitutionality of Lincoln's wartime exigencies, few ever review Taney's motivations. Indeed, Taney had been President Andrew Jackson's Atty. General when Jackson ignored and failed to enforce the Supreme Court's ruling in Worchester vs Georgia (1832). His "flip flop" then, with regard to "Merryman," is all the more astounding, because Taney had been one of the originators of the legal theory of the Executive's right of Constitutional interpretation. Taney, a Marylander, personally knew many of the key players in the Baltimore riots. He may very well have known, or known of, Merryman personally - which would have questioned his partiality in the case. Why did Taney "rush" to Baltimore in the first place? And why did Taney, when sending his order to Lincoln, purport to do so as "Chief Justice of the Supreme court," rather than in his role as Curcuit Court justice for Maryland? Why did Taney comment that during the Merryman episode, he fully expected to be arrested by the military? In my opinion, Taney was provoking an incident.
The insubordinate Capt. Adams could only reason this to be an "act of war" if the States in rebellion were considered independent countries.
That is absolute nonsense. Lincoln's refusal to abide by the Merryman ruling was a major grievance among many that incited the subsequent secession of border states that, at the time of its issuance, were still in the union. The Merryman events occurred in the last week of May 1861. Tennessee seceded on June 8th and Missouri that November. The incident helped prompt the Cherokee nation to sign an alliance with the confederacy. It also prompted outrage and objection toward Lincoln from several of the nation's leading legal scholars. Included among them was retired Supreme Court Justice Benjamin R. Curtis, a staunch northerner who authored the dissent in Dred Scott.
Just out of curiosity, does that mean that your frequent factually challenged claims about the existence of black confederates, the number of unionist southerners, and the nature of the Morrill tariff, among other things, render your book's authority unreliable?
Yes, on 12/24/62 Jefferson Davis issued a proclamation which stated (1) White officers of black troops will not be treated as POWs; (2) The black troops themselves will not be treated as POWs.(3) Union Maj. Gen. Benjamin Butler is to be hanged w/o trial immediately upon being captured; (4) No Union officers will be paroled until Butler is caught and hanged. All four of these provisions were violations of the Dix-Hill Cartel.
12/28/62:
In response to Davis's proclamation, the Federals end the exchange and parole of Confederate officers.
5/25/63:
Non-exchange and parole of Confederate officers is re-affirmed in orders from Halleck to all commanders in the field. This is done largely in response to the CS Congress passing a law implementing a small variation of Davis's 12/24/62 proclamation.
7/13/63:
Secretary of War Stanton orders an end to the exchange and parole of enlisted men. This is done largely because of increasing arguments over the parole provisions of the cartel, and the feeling that this aspect of the agreement is (unfairly) being manipulated by the Confederates to their advantage.
Fall, 1863:
Confederates return to service most of the Vicksburg garrison, an act which the Federals claim is not justified by the cartel.
-- From the ACW moderated news group.
Walt
How do you justify an American warship committing an act of war while flying a British flag?
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