Posted on 04/16/2003 5:44:44 AM PDT by Lady Eileen
Washington, DC-area Freepers interested in Lincoln and/or the War Between the States should take note of a seminar held later today on the Fairfax campus of George Mason University:
The conventional wisdom in America is that Abraham Lincoln was a great emancipator who preserved American liberties. In recent years, new research has portrayed a less-flattering Lincoln that often behaved as a self-seeking politician who catered to special interest groups. So which is the real Lincoln?
On Wednesday, April 16, Thomas DiLorenzo, a former George Mason University professor of Economics, will host a seminar on that very topic. It will highlight his controversial but influential new book, The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War. In the Real Lincoln, DiLorenzo exposes the conventional wisdom of Lincoln as based on fallacies and myths propagated by our political leaders and public education system.
The seminar, which will be held in Rooms 3&4 of the GMU Student Union II, will start at 5:00 PM. Copies of the book will be available for sale during a brief autograph session after the seminar.
President Washington indicated that any idea that the Union can be ended should be rejected.
That pretty much includes secession too.
Walt
Madison ultimately favored a supremacy of the federal government, just as Washington did.
I haven't seen any dual sovereignty quotes from Madison. Maybe I just missed them.
The states retain some sovereignty under the Constitution, but the ultimate sovereeignty rests on the people and is expressed through the federal government.
Walt
Washington strongly supported the Alien and Sedition Acts too. Does that mean these acts were good legislation?
General Washington hoped that secession could be avoided, and hoped that rational men would think deliberately and without local prejudice, but he never came out and said that a state should never have a right to secede. And please do not confuse a state or states seceding with the end of the Union. Those are two different events.
WhiskeyPapa: I am glad you finally added the word "explicit". The laws of the United States clearly preclude unilateral state secession.
Would those be the laws that aren't written? Either its written in the Constitution or in the Federal codes or its not a Federal law.
He -never- said that. How do you know?
Show me.
But the thing is, no one is denying a right to secession --which is just another word for revolution. I have never denied such a right. It clearly exists in natural law for intolerable abuse.
To say that such a right is legal under U.S. law is false. I have not seen a single quote ever, from any of the principals that such a right existed.
Walt
HenryLeeII: As far as reading and TV, I prefer reading primary source material, instead.
WhiskeyPapa: yeah, primary. Like letters from Madison to Washington.
No, I quoted them to the effect that they supported a supreme federal government to which the states were subordinate. I never said anything else.
Walt
You're asking me to prove something that never happened. No one even suggested unilateral state secession was legal during Washington's life.
He is strongly on the record that the Union not be abandoned for any reason.
If he said anything even remotely close to what -you- say, -you- need to show it.
You are really like a neo-reb crash test dummy, slamming into the wall of the historical record, over and over.
Walt
Okay, now you're getting somewhere. Typical of much of Madison's writings, this one has several thoughts held simultaneously and layers of reasoning that must be peeled and savored like a fine Vidalia onion.
The two subjects he touches upon are nullification and secession; I think we'll both agree on that. Nullification was never constitutional and I have disavowed any acceptance of it on these threads (maybe not to you, but one of your compatriots).
Secession is the trickier subject in this letter (written nearly 50 years after his participation in establishing the Federal government). In the letter he says that there are two kinds of secession ("the claim to secede at will, with the right of seceding from intolerable oppression"). I'm sure you'll agree with me to this point.
The deeper layer is his take on its justification. Secession from intolerable oppression "is another name only for revolution," but given Madison's role in our nation's founding he cannot condemn outright the concept of revolution. Therefore, not stated but logically inferred, there can be "no theoretic controversy" that secession, at times, can be justified.
Madison asserts a state’s sovereignty in Federalist No. 39:
"Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a federal, and not a national constitution."
He continues in the same document:
"In the former case [a national government], all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. In the latter [a federal government], the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere. In this relation, then, the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects."
In Federalist No. 45, Madison states:
"The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."
And finally, in 1799, he wrote:
"The Constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority of the Constitution, that it rests on this legitimate and solid foundation. The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and, consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition."
Therefore, given Madison's views on sovereignty and secession, there is no appeal to his writings that supports your claim.
The Militia Act requires that U.S. law operate in all the states, and gives the president sole discretion in when insurrection exists.
Walt
Considering the circumstances, and given that President Johnson was adamant that the trial take place in the scene of the crime, i.e. Virginia, then the government would no doubt have taken care that members of the jury were not those who supported the late rebellion. Where is the surprise in that? The trial would have been as fair as it could have been, given the location and the circumstances, and Davis would have been convicted. He would have been able to appeal his conviction to the Supreme Court if necessary, something that would not have been possible for a similar trial of, say, William Sherman,in a confederate south. But since Davis made no bones about leading the rebellion then I don't see why a conviction surprises you.
And then you say that "the evidence would have been clearly presented," but you and WhiskeyPapa have never shown any law or Constitutional passage that supports your argument. In fact, WP has admitted that he knows of no explicit prohibition against a state's withdrawal.
I've presented my case against unilateral secession on a number of occasions and you pooh-pooh it. You insist that your interpretation is the only correct one and I believe that you are deluding yourself. I'm damned if I can see how we will ever get past this loggerhead.
Is it possible that the appeal to the Supreme Court was a major concern?
On November 30, 1868, Davis' lawyers filed a motion to quash the indictment. A hearing was held before Chase and Underwood on Dec 3-4, and on Dec 5, they announced that they had split, with Chase wanting to set aside the indictment, and Underwood, who had overseen the grand jury responsible for the indictment, wanting the case to be tried. Chase stated for the record that he believed the 14th Amendment exempted Davis from further prosecution.
The certificate of division between Chase and Underwood was forwarded to the Supreme Court, and the indictment technically remained pending, but no more action was taken. The Davis case remained on the circuit court docket for February 15, 1869, but the government indicated at that time that it would not prosecute (nolle prosequi).
It would seem that Chase was clearly indicating he would favor overturning a guilty verdict and that could have made the government hesitant to proceed.
The government could not claim an automatic win in the Supreme Court. They must have learned that from Ex Parte Milligan.
Now, perhaps you will answer the question I asked of you a number of days ago. Is it your contention that the government knew it was acting illegally when military tribunals were set up in states like Indiana? Obviously the court ruled in Milligan that such tribunals were not needed in states like Indiana where the court system operated. But are you suggesting that the administration knew it was illegal when they initiated them?
Thanks for sharing that original research on the origin of the Chase quote from Epperson. How long do you think you'll have to wait for 4CJ to acknowlege that his impeccable source on the matter [Burke Davis] is compromised?
YES, THE GOVERNMENT KNEW IT WAS ACTING ILLEGALLY WHEN MILITARY TRIBUNALS WERE SET UP IN STATES LIKE INDIANA WHERE THE CIVILIAN COURTS WERE FUNCTIONING.
The question you actually asked, at 747, was: Is it your contention that the administration knew it was acting illegally when the arrest of Milligan was made?
My response was at 748, quoted here in part:
QUOTE
To directly address your question, I did not make the point that the administration acted illegally when it arrested Milligan. It most certainly acted illegally when it subjected him, as a civilian, to a military tribunal while the civilian courts were open and functioning.
In addition to violating the Constitution, the administration violated just about every requirement of the Congressional Act under which it acted as well. The four concurring Supreme Court justices reached their conclusion on this basis.
The Administration most certainly knew, or should have known, that it was in violation of the clear and explicit requirements of the Act of Congress under which it proceeded.
The four concurring justices explained it as follows:
[CLOSE QUOTE] [bold-face added]
See my 748 for the quote from the SC decision detailing the specific requirements of the Congressional Act under which the administration was purporting to act, and how it ignored and broke the requirements of the Act.
Under the Act, it was impossible to lawfully submit civilians to military tribunals in states such as Indiana while the civilian courts were open and functioning, as shown by the following brief extract from the SC decision previously quoted in my 748:
Indeed, the act seems to have been framed on purpose to secure the trial of all offences of citizens by civil tribunals, in states where these tribunals were not interrupted in the regular exercise of their functions.
Under it, in such states, the privilege of the writ might be suspended. Any person regarded as dangerous to the public safety might be arrested and detained until after the session of a grand jury. Until after such session no person arrested could have the benefit of the writ; and even then no such person could be discharged except on such terms, as to future appearance, as the court might impose. These provisions obviously contemplate no other trial or sentence than that of a civil court, and we could not assert the legality of a trial and sentence by a military commission, under the circumstances specified in the act and described in the petition, without disregarding the plain directions of Congress.
Why should it be? The Chief Justice's desire to set aside the indictment in 1868 was due to his opinion that the passage of the 14th Amendment made any conviction of Davis an unconstitutional violation of his 5th Amendment rights.
Had the trial been held in 1866 then Supreme Court review was nothing to fear. Since the administration was insisting on a trial by federal court instead of military tribunal then the problems uncovered by the Milligan decision wouldn't be an issue.
I paraphrased rather than quoted.
Your interpretation is incompatible with what I said. I indicated that Chase held the stated opinion that by the passage of 14th Amendment, Federal punishment for Davis and others had been legislated, and he/they could not be punished again for the same offenses. This indicates that the 5th Amendment objection was viewing the 14th Amendment as having raised a double-jeopardy issue.
I now quote from the original source material below:
http://jeffersondavis.rice.edu/faqs.cfm
In an unusual twist, Chase made known to Davis' attorneys, a distinguished group of northern and southern litigators, his opinion that the third section of the 14th Amendment nullified the indictment against Davis. His contention was that by stripping the right to vote from high Confederate officials, a punishment for treasonable activities had been legislated, so Davis could not be punished again for the same crime.
* * *
Chase's anger with Underwood was obvious, and he stated for the record why he believed the 14th Amendment exempted Davis from further prosecution.
http://odur.let.rug.nl/~usa/B/spchase/chase05.htm
When Chase finally sat at the Davis trial in November 1868 he approved Davis' lawyer's argument that the 14th Amendment that had recently gone into effect applied to Davis.
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