Posted on 06/12/2003 5:58:28 AM PDT by Aurelius
There is no mention of Merryman or habeas corpus in either the Tennessee or Missouri resolutions to withdraw from the Union. The so-called Missouri secession was proposed by a rump legislature called by a powerless Gov. Jackson.
To my knowledge, the only "secession" document that actually made mention of the suspension of habeas corpus was the so-called Russellville, Kentucky, convention declaration. Besides the habeas corpus issue, the conventioneers in Russellville also claimed they were seceding because of " ... despotism founded on the ignorant prejudices of the masses of Northern Society (which have) turned loose upon (the South) the unrestrained and raging passions of mobs and fanatics."
Have you been using the Russellville declaration as source material?
"Outraged" ex-justices and a few newspaper editorials, do not in my mind, constitute the people rising up against Lincoln. I think they were later pissed off more by the draft. I do not hesitate to say that most people at that time had never heard of Merryman.
If -anything- can be held as fact, it is that unilateral state secession is outside the law.
From the majority opinion in the Prize Cases:
"By the Constitution, Congress alone has the power to declare a national or foreign war. It cannot declare was against a State, or any number of States, by virtue of any clause in the Constitution. The Constitution confers on the President the whole Executive power. He is bound to take care that the laws be faithfully executed. He is Commander-in-chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States. He has no power to initiate or declare a war either against a foreign nation or a domestic State. But by the Acts of Congress of February 28th, 1795 [the Militia Act], and 3d of March, 1807, he is authorized to called out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, and to suppress insurrection against the government of a State or of the United States."
The Supreme Court held -unanimously- that the Militia Act gives the power to the president to put down insurrection and rebellion.
No, claiming to not be a state in the Union doesn't count.
Walt
"But with what sense of right can we subdue them by arms to obey the Constitution as the supreme law of their part of the land, if we have ceased to obey it, or failed to preserve it, as the supreme law of our part of the land.
Executive Power, Benjamin Robbins Curtis, 1862
It all depends on your point of view, doesn't it? The British often referred to the Revolutionary War as "The American Question."
In your example, that of naval blockade, the act of war is by one sovereign country on another sovereign county. It both cases, the American Revolution and Southern Secession, the conflict was an "internal" matter. The British Crown had not recognized American independence, despite John Hancock's large signature! Nor had the Federal Government recognized the legality of unilateral secession.
There are about 50 different synonymous terms for the American Civil War. The one I think is most correct is "The War for Southern Independence." In the 1770's and 1780's, the American Revolution suceeeded. In the 1860's, the Southern Revolution did not.
Shelby Foote, the great Southern historian once wrote, "Before the war it was "the United States are" and after, it was "the United States is." For the South, assimilation was the price of failure.
Maryland, at the time, was strongly secessionist, and basically was strong-armed into staying in the Union. As I noted in a prior post, Maryland supplied many soldiers to armies on both sides of the Civil War.
Curtis, and others of his ilk, are welcome to their opinions on Lincoln's application and execution of the law. The Constitution was never designed to be a suicide pact. Preserving the nation, instead of humoring others notion of rights and wrongs, was Lincoln's choice. In retrospect, I am glad he made it.
"The Confederate Senate April 30, 1863 passed a resolution that white officers of American black troops, or any white person involved at all in preparing them to be soldiers, should be put to death if captured. They also resolved that black troops captured should be sold into slavery, regardless whether they had been free or formerly slaves. In actuality captured black troops were frequently massacred by Confederate troops and this part of the resolution was a dead letter. On May 1, 1863 the Confederate House of Representatives passed the same resolution."
"In both resolutions of the Confederate Senate on April 30, 1863 and the Confederate House on May 1st, condemn "to employ negroes in war against the Confederate States" as "inconsistent with the spirit of those usages which in modern warfare prevail among civilized nations," and a "violation of the laws or usages of war among civilized nations." In short to use black troops was a war crime in the minds of the members of the Confederate congress. This is an accusation that can be made only if you are not using black troops yourself."
"The Journal of the Confederate Congress makes it quite clear that what Afro-Confederate troops that might have existed where in existence only briefly in the last few weeks of a Confederacy forced out of utter desperation and facing imminent defeat."
Hard to believe that the records of the Confederate Congress are "damn yankee wartime propoganda."
Here is a little more and Merryman and the ramifications, or lack thereof, of the case:
"On May 25th, 1861 state legislator John Merryman was arrested and denied a writ of habeas corpus for his involvement in the destruction of railroad bridges after the April 19th riot in Baltimore. In his final decision, U.S. Supreme Court Chief Justice and Maryland Circuit Court Judge, Roger B. Taney narrowly interpreted Article I of the Constitution in the Merryman case (one of the more celebrated cases during the Civil War) when he wrote that the President did not have the authority to suspend the privilege of the writ of habeas corpus – only Congress had such power. In addition he narrowly interpreted Article II ruling that no implied authority of the President existed in regard to habeas corpus under presidential “war powers.” Lincoln’s response to Taney was to ignore him. The public barely winced at Lincoln’s snub.[5] In his address to Congress on July 4th, Lincoln defended his order to Scott and the action against Merryman by asserting that the Constitution was “silent” regarding which branch of government had the authority to suspend the writ of habeas corpus, and he claimed that since Congress had not been in session during the outbreak of the crisis, he, as President, was authorized to do so.[6] And in referring specifically to the Merryman decisions he said:
" ...are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated? Even in such a case, would not the official oath be broken, if the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it?"
While he had made bold statements justifying his policies to Congress (scattered as they were), by early 1862 Lincoln ordered “all political prisoners still in military custody be released upon taking an oath not to give aid and comfort to the enemy.”[7] He explained that the prisoners were to be freed because the problems he had faced early in the war (the threat of treason, public apprehension, and military reversals) causing him to adopt “extraordinary powers which the Constitution confides to him in cases of insurrection,” could now be better handled by a better-prepared administration. When the U.S. Congress finally passed the Habeas Corpus Act of March 3rd, 1863 it was quite ambiguous as to whether Lincoln’s suspension was only just then legal or had been legal since its inception.[8]"
Not at all. Missouri's ordinance directly alluded to it's use in the state, noting as a grievance that the federal government was "attacking and making prisoners the militia while legally assembled under the State laws." The rump secession ordinance from Kentucky similarly complained that the federal government had "seen the writ of habeas corpus suspended without an effort for its preservation"
Go back and read Tenn. Gov. Isham Harris' messages to the Tennessee Assembly. They are all about protecting slavery and Tennessee was well on it way out before Lincoln became President in March 1861.
A speech back in January does not determine events in June. Circumstances changed and Tennessee put secession to a popular vote that month.
The so-called Missouri secession was proposed by a rump legislature called by a powerless Gov. Jackson.
Actually, the neosho secession ordinance was passed by the lawfully elected members of the state legislature and government that had been literally run out of the capital by military force several months earlier. Jackson was not alone there and in fact every single state officer save two (the Attorney General and State Treasurer) fled for their lives with him. The State Treasurer resigned his position in protest of the federal occupation of the capital a few months later, and the Attorney General, a staunch unionist, was thrown into prison for refusing to sign papers to the occupation government. The sitting Speaker of the House presided over the secession ordinance in Neosho and, per the existing reports of it, quorums existed to pass the measure.
To my knowledge, the only "secession" document that actually made mention of the suspension of habeas corpus was the so-called Russellville, Kentucky, convention declaration.
The Cherokee nation also denounced it specifically in their ordinance: "The right to the writ of habeas corpus, guaranteed by the Constitution, disappeared at the nod of a Secretary of State or a general of the lowest grade. The mandate of the Chief Justice of the Supreme Court was set at naught by the military power, and this outrage on common right approved by a President sworn to support the Constitution." If I recall correctly, so did some of the local resolutions drafted out of Tennessee that helped to prompt the state's secession, though I will have to research them to find the exact texts.
Besides the habeas corpus issue, the conventioneers in Russellville also claimed they were seceding because of " ... despotism founded on the ignorant prejudices of the masses of Northern Society (which have) turned loose upon (the South) the unrestrained and raging passions of mobs and fanatics."
"Outraged" ex-justices and a few newspaper editorials, do not in my mind, constitute the people rising up against Lincoln.
Benjamin R. Curtis was, at the time of the war's outbreak, one of the leading legal minds in the nation. He was also a well known slavery opponent who authored a widely celebrated dissent to Dred Scott. To dismiss his condemnation of Lincoln's act out of hand as a matter of little relevance is absurd and willfully exclusive on your part. As for the newspaper editorials the southerners were indisputably outraged by the act:
"He raises armies -- orders their number and terms of service, builds ships of war, enlists seamen, declares war blockades, martial law, lays off States into military districts, suspends the habeas corpus act, seize persons and papers, abolishes trial by jury, takes from the people their arms, and, in fact, has abolished the Constitution of the United States. Yet, it is this man -- this foul usurper and despot -- who daily orders men to swear to support the Constitution of the United States!" - Charleston Mercury, June 5, 1861
I do not hesitate to say that most people at that time had never heard of Merryman.
A brief glance at the major newspapers of the day from both regions (NY Times, NY Herald, Charleston Mercury) indicates that the case was indeed reported when Taney issued his ruling.
In other words, you cannot refute the evidences I have offered so instead you dismiss them by calling me names. I'll take that as a concession of defeat on your part.
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