Posted on 09/06/2003 9:14:08 AM PDT by quidnunc
Abraham Lincoln is thought of by many as not only the greatest American statesman but as a great conservative. He was neither. Understanding this is a necessary condition for any genuinely American conservatism. When Lincoln took office, the American polity was regarded as a compact between sovereign states which had created a central government as their agent, hedging it in by a doctrine of enumerated powers. Since the compact between the states was voluntary, secession was considered an option by public leaders in every section of the Union during the antebellum period. Given this tradition — deeply rooted in the Declaration of Independence — a great statesman in 1860 would have negotiated a settlement with the disaffected states, even if it meant the withdrawal of some from the Union. But Lincoln refused even to accept Confederate commissioners, much less negotiate with them. Most of the Union could have been kept together. Virginia, North Carolina, Tennessee, and Arkansas voted to remain in the Union even after the Confederacy was formed; they reversed themselves only when Lincoln decided on a war of coercion. A great statesman does not seduce his people into a needless war; he keeps them out of it.
When the Soviet Union dissolved by peaceful secession, it was only 70 years old — the same age as the United States when it dissolved in 1860. Did Gorbachev fail as a statesman because he negotiated a peaceful dissolution of the U.S.S.R.? Likewise, if all states west of the Mississippi were to secede tomorrow, would we praise, as a great statesman, a president who refused to negotiate and launched total war against the civilian population merely to preserve the Union? The number of Southerners who died as a result of Lincoln’s invasion was greater than the total of all Americans killed by Hitler and Tojo. By the end of the war, nearly one half of the white male population of military age was either dead or mutilated. No country in World War II suffered casualties of that magnitude.
Not only would Lincoln not receive Confederate commissioners, he refused, for three crucial months, to call Congress. Alone, he illegally raised money, illegally raised troops, and started the war. To crush Northern opposition, he suspended the writ of habeas corpus for the duration of the war and rounded up some 20,000 political prisoners. (Mussolini arrested some 12,000 but convicted only 1,624.) When the chief justice of the Supreme Court declared the suspension blatantly unconstitutional and ordered the prisoners released, Lincoln ordered his arrest. This American Caesar shut down over 300 newspapers, arrested editors, and smashed presses. He broke up state legislatures; arrested Democratic candidates who urged an armistice; and used the military to elect Republicans (including himself, in 1864, by a margin of around 38,000 popular votes). He illegally created a “state” in West Virginia and imported a large army of foreign mercenaries. B.H. Liddell Hart traces the origin of modern total war to Lincoln’s decision to direct war against the civilian population. Sherman acknowledged that, by the rules of war taught at West Point, he was guilty of war crimes punishable by death. But who was to enforce those rules?
These actions are justified by nationalist historians as the energetic and extraordinary efforts of a great helmsman rising to the painful duty of preserving an indivisible Union. But Lincoln had inherited no such Union from the Framers. Rather, like Bismarck, he created one with a policy of blood and iron. What we call the “Civil War” was in fact America’s French Revolution, and Lincoln was the first Jacobin president. He claimed legitimacy for his actions with a “conservative” rhetoric, rooted in an historically false theory of the Constitution which held that the states had never been sovereign. The Union created the states, he said, not the states the Union. In time, this corrupt and corrupting doctrine would suck nearly every reserved power of the states into the central government. Lincoln seared into the American mind an ideological style of politics which, through a sort of alchemy, transmuted a federative “union” of states into a French revolutionary “nation” launched on an unending global mission of achieving equality. Lincoln’s corrupt constitutionalism and his ideological style of politics have, over time, led to the hollowing out of traditional American society and the obscene concentration of power in the central government that the Constitution was explicitly designed to prevent.
A genuinely American conservatism, then, must adopt the project of preserving and restoring the decentralized federative polity of the Framers rooted in state and local sovereignty. The central government has no constitutional authority to do most of what it does today. The first question posed by an authentic American conservative politics is not whether a policy is good or bad, but what agency (the states or the central government — if either) has the authority to enact it. This is the principle of subsidiarity: that as much as possible should be done by the smallest political unit.
The Democratic and Republican parties are Lincolnian parties. Neither honestly questions the limits of federal authority to do this or that. In 1861, the central government broke free from what Jefferson called “the chains of the Constitution,” and we have, consequently, inherited a fractured historical memory. There are now two Americanisms: pre-Lincolnian and post-Lincolnian. The latter is Jacobinism by other means. Only the former can lay claim to being the primordial American conservatism.
David W. Livingston is a professor of philosophy at Emory University and the author of Philosophical Melancholy and Delirium (University of Chicago Press).
Lambert Milligan for one. He was never charged in a civil court, was held for years...
I don't know who Lambert Milligan is, but Lambdin Milligan was arrested on October 5, 1864. That would make it hard for him to have served "years" in jail during the ACW since the war ended @ 8 months later.
He -did- advocate the violent overthrow of the government. Why is it exactly that you are stickng up for him?
Now, Ex parte Milligan came to the Supreme Court in April, 1866. I don't know, but I don't think Milligan was incarcerated the whole time any way, but even -that- time from 10/64 to 4/66 is not "years".
You don't seem very familiar with the history.
Walt
I'm saying the so-called CSA had internal passports just like the Soviet Union.
Walt
On November 22, 1862 an order was very publically issued by the War Department, signed by E.D. Townsend, AAG by order of the Secretary of War, Edwin Stanton. That very public order purported to release all prisoners arrested for specified alleged offenses from further military restraint.
On November 29, 1862 Stanton wrote in a report, "By a recent order all persons arrested for discouraging enlistments and disloyal practises in the States where the quotas of volunteers and militia are filled up, have been released. Other persons arrested by military commanders and sent from the departments where their presence was deemed dangerous to the public safety, have been discharged upon parole to be of good behavior and do no act of hostility against the Government of the United States."
On November 24, 1862, at 11:50am, a secret private order was issued to the commanders of the Bastiles not to release any political offenders under the publically issued order of November 22.
Washington, Nov. 24, 11.50 A.M.Commanding Officer, Fort ______: None of the prisoners confined at your post will be released under orders of the War Department of the 22d inst. without special instructions from the Department.
By order of the Secretary of War,
E.D. Townsend, A.A.G.
Stanton's report was somewhat less than candid.
On November 22, 1862 an order was very publically issued by the War Department, signed by E.D. Townsend, AAG by order of the Secretary of War, Edwin Stanton. That very public order purported to release all prisoners arrested for specified alleged offenses from further military restraint.
On November 29, 1862 Stanton wrote in a report, "By a recent order all persons arrested for discouraging enlistments and disloyal practises in the States where the quotas of volunteers and militia are filled up, have been released. Other persons arrested by military commanders and sent from the departments where their presence was deemed dangerous to the public safety, have been discharged upon parole to be of good behavior and do no act of hostility against the Government of the United States."
On November 24, 1862, at 11:50am, a secret private order was issued to the commanders of the Bastiles not to release any political offenders under the publically issued order of November 22.
Washington, Nov. 24, 11.50 A.M.Commanding Officer, Fort ______: None of the prisoners confined at your post will be released under orders of the War Department of the 22d inst. without special instructions from the Department.
By order of the Secretary of War,
E.D. Townsend, A.A.G.
Stanton's report was somewhat less than candid.
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.Lincoln's Constitution, by Danel Farber, 2003, page 162.
From a review of the Congressional Globe (now called the Congressional Record) it is blatantly obvious that S-72, "to increase the pay of the privates in the regular Army, and of the volunteers in the service of the United States, and for other purposes," DID NOT RATIFY HABEAS CORPUS in any case whatever.
The Act of Congress which passed was a bill (S. No. 72) "to increase the pay of the privates in the regular Army, and of the volunteers in the service of the United States, and for other purposes."
There was a proposed Joint Resolution (SR-1) "To approve and confirm certain acts of the President of the United States for suppressing insurrection and rebellion." This resolution died without a vote, and fell into such disfavor that by the end of the session its opponents were the one's clamoring for a debate on the resolution. On August 6, 1861, the last day of the special session, Illinois Senator Trumbull disposed of it before it could suffer an embarrasing vote of rejection.
On August 5, Senator Wilson attempted to introduce a new bill, S-70, with the content quoted above. Senator Wilson noted that, "The bill avoids all questions with regard to the habeas corpus and other matters, and refers simply to the military appropriations; and it is necessary we should do this in order to place that subject upon the right ground." ... "It takes but a single point, and avoids the points of debate in the joint resolution that was before the Senate, and simply legalized the action of the President which we have already indorsed, by giving him the authority. It refers merely to a point which it is very necessary for us to consider."
Senator Pearce, who had objected to the introduction of this bill because it might have applied to additional matters was assured by Senator Fessenden, "Entirely so, to those acts only."
As soon as Senator Pearce withdrew his objection, Senator Saulsbury objected.
Senator Fessenden added that, "this is a mere matter of business, and avoids all disputed points."
Senator Saulsbury commented that, "If there is anything in this bill that looks to the toleration of the suspension of the writ of habeas corpus, I never will, under any circumstances, vote for it. Sir, that is the bulwark of the freedom of the citizen. If there is nothing in the bill, except to approve the calling out of volunteers --"
Senator King responded, "If the Senator will read it, he will see that there is nothing else in it."
Senator Fessenden commented, "There is nothing in the world in it except what relates to the Army and Navy volunteers. "
Senator Saulsbury withdrew his objection, Senator Powell renewed the objection, and S-70 died.
S-69, for Pay of the Troops came up and Senator Wilson proffered the quoted material as an amendment to that bill. This amendment was agreed to, the yeas and nays being 33-5.
The title of S-69 was amended to read, "A bill to increase the pay of the non-commissioned officers, musicians, and privates of the reglar Army, volunteers, marines, and seamen and ordinary seamen in the service of the United States, and for other purposes."
Senator Wilson asked "leave to introduce a new bill on the same subject, which is more restricted and guarded."
Senator Wilson then obtained leave to let S-69 lie on the table (die) and to introduce S-72 "to increase the pay of the privates in the regular Army, and of the volunteers in the service of the United States, and for other purposes."
Senator Wilson then moved to amend the bill by adding the above quoted material as an additional section of the bill. This amendment was approved with the yeas and nays being 37-5.
The bill was then reported to the Senate as amended, the amendments were concurred in, the bill was read a third time, and it passed. The yeas and nays are not shown.
It now had to go to the house, which it did on August 6, 1861.
The record in the House reads, "The bill was read a first and second time, and was ordered to a third reading. It was read the third time and passed." The yeas and nays are not shown.
Joint Resolution
To approve and confirm certain acts of the President of the United States for suppressing insurrection and rebellion.
This is the Joint Resolution which never came to a vote.
PAGE 438
PAY OF THE TROOPS [S-69]
Mr. WILSON. The Committee on Military Affairs and the militia have instructed me to report a bill (S. No. 69) to increase the pay of the non-commissioned officers, muscians, and privates of the regular Army, volunteers, marines, and seamen in the service of the United States.
The Bill was read a first and second time. It provides that the pay of non-commissioned officers, musicians, and privates of the regular Army and Volunteers, and of the marines, seamen, and ordinary seamen in the service of the United States, be increased by the addition thereto of two dollars per month for three years from and after the passage of this act, and until otherwise provided by law.
The PRESIDENT pro tempore. If there be no objection, the bill will be considered at the present time.
MR. KING. For the purpose of giving the Senator from Massachusetts an opportunity to propose an amendment, I move that it be laid over informally; and the Senator from Connecticut can then proceed with his report.
The PRESIDENT pro tempore. The Senator from New York objecting, the bill cannot be considered at the present time.
The bill was laid over.
PAGE 441
ARMY AND VOLUNTEER MILITIA [S-70]
Mr. WILSON. I ask leave to introduce a bill of which, no previous notice has been given; and I should like to have it considered now, for it is very important that it should be acted upon.
The bill (S. No. 70) in relation to the Army and volunteer militia of the United States was read a first time by its title.
The PRESIDENT pro tempore. The bill will now receive its second reading, if there be no objection.
Mr. PEARCE. I should like to hear the bill read at length before I consent that it shall have its second reading now. I do not think it is treating the Senate with proper consideration to have a bill read twice in one day before we know what it is. Let us see what it is; and if it be not objectionable, of course there will be no opposition to it.
The PRESIDENT pro tempore. The bill will be read at length for the information of the Senate.
PAGE 442
The Secretary read it as follows:
Be it enacted &c, That all the acts, proclamations and orders of the President of the United States, after the 4th of March 1861, respecting the Army and Navy of the United States, and calling out, or relating to the militia, or volunteers from the States, are hereby approved, and in all respect legalized and made valid, to the same intent and with the same effect as if they had been done under the previous express authority and direction of the Congress of the United States.
Mr. PEARCE. I must object to its second reading to-day.
Mr. FESSENDEN. I hope my friend from Maryland will hear what I have to say before he objects. This bill takes up a single point only in the resolution that was introduced into the Senate, and upon which there has been considerable debate. It refers simply to the proclamations that were made for, and the employment of volunteers. We have since authorized the employment of the volunteers. But some of the volunteers now make a point that although they have enlisted for three years, yet the President having had no authority at that time, and no legal authority having been conferred upon him by Congress, they are discharged, and cannot be held under that enlistment. That idea will occasion considerable difficulty, and it is necessary that we should, so far as we have the power, legalize the acts of the President upon that particular point. The bill avoids all questions with regard to the habeas corpus and other matters, and refers simply to the military appropriations; and it is necessary we should do this in order to place that subject upon the right ground.
Now, sir, with regard to this bill, there can certainly be no objection that Senators can raise to it, unless they are desirous that a difficulty -- I will no say that --- but unless they fail to see the force of the position in which we are placed with reference to many of these volunteers. I hope, therefore, the Senator from Maryland will withdraw his objection. It takes but a single point, and avoids the points of debate in the joint resolution that was before the Senate, and simply legalized the action of the President which we have already indorsed, by giving him the authority. It refers merely to a point which it is very necessary for us to consider.
Mr. PEARCE. If it refers purely and solely to the volunteers, which I did not exactly understand at first, I withdraw the objection.
Mr. FESSENDEN. Entirely so; to those acts only.
Mr. SAULSBURY. I renew the objection.
Mr. WILSON. The objection is renewed, and that settles it.
The PRESIDENT pro tempore. The Senator from Delaware interposes objection, and the bill cannot have its second reading.
Mr. FESSENDEN. I hope the Senator from Delaware will withdraw his objection. It is a matter of importance to pass the bill today.
Mr. SHERMAN. I will state, if it is in order, to the Senator from Delaware, that it is very easy to for the chairman of the Comittee on Military Affairs to get at what he desires in a more objectionable way, by taking up the resolution that we have been discussing, which contains this and other propositions. I am very glad this proposition has come up in this way, and I take it as a matter of course, that if this bill is passed, the other joint resolution will not be called up. It is much better to pass a bill of this kind upon which everybody can vote in the affirmative, that to take up that joint resolution, about which there is so much difference of opinion.
Mr. FESSENDEN. I will add that this is a mere matter of business, and avoids all disputed points.
Mr. SAULSBURY. My objection to the bill is that I have not seen it. In regard to the joint resolution originally submitted by the chairman of the Committee on Military Affairs, there were acts of the President of the United States that I approved. For instance: the proclamation calling out seventy-five thousand men, if it was necessary, to defend this capital, or to defend any portion of the territory of the United States. I was in favor of that. But I have not seen this bill; and I objected to it with a view --
Mr. KING. If the Senator from Delaware will allow me to make a single statement, he will perceive that his objection is not necessary to sustain any principle of his own; nor can it prevent the passage of this proposition.
The PRESIDENT pro tempore. The Senator from Delaware objecting to the second reading of this bill, it lies over under the rule of the Senate, and is not now before the Senate for consideration.
Mr. KING. I desire to state to the Senator from Delaware, which he had permitted me to do, that there is a bill on the table, which is intentionally there, which will be taken up, and which will be in order, to which this proposition will be moved as an amendment if this bill is not passed; but it is better that this single isolated proposition should go through by itself, disconnected with any other matter; and it will undoubtedly be agreed to by the House. I hope, therefore, the Senator from Delaware will not persist in his objection. This proposition will be placed on the other bill as an amendment, in a moment, if the objection is persisted in; but it is better that it should be passed as a separate, isolated proposition.
Mr. SAULSBURY. I should like to accomodate my friend from New York; certainly he is very accommodating himself; but if gentlemen on the other side will indulge me a moment, I will say why it was that interposed the objection.
Mr. President, in the earlier state of this session, a joint resolution was introduced approving, in general terms, the acts of the President of the United States. For one, had not such a resolution been introduced, I never would have attacked the President of the United States for his course. I am one of those men who stand in a peculiar position on this point. I am one of those who approve of certain acts of the President, and disapprove of others. As this bill seemed to be only a mode of getting rid of a direct vote upon that joint resolution, by way of substitute, without knowing what was contained in the bill. I felt it incumbent on me to object to its consideration. If there is anything in this bill that looks to the toleration of the suspension of the writ of habeas corpus, I never will, under any circumstances, vote for it. Sir, that is the bulwark of the freedom of the citizen. If there is nothing in the bill, except to approve the calling out of volunteers --
Mr. KING. If the Senator will read it, he will see that there is nothing else in it.
Mr. FESSENDEN. There is nothing in the world in it except what relates to the Army and Navy volunteers. The Senator from Maryland has just read it, and says he is perfectly satisfied.
Mr. SAULSBURY. Then on the assurance of the Senator from Maine, I will withdraw the objection.
Mr. POWELL. I renew the objection.
PAY OF THE TROOPS [S-69]
Mr. WILSON. I move to take up the bill I submitted a short time ago increasing the pay of the troops.
The motion was agreed to; and the Senate, as in Comittee of the Whole, proceeded to consider the bill (S. No. 69) to increase the pay of the non-commissioned officers, musicians, and privates of the regular Army, and volunteers, and marines, and seamen, and ordinary seamen, in the service of the United States.
* * *
Mr. WILSON. I now move to amend the bill by adding to it, as an additional section, the bill I sent to the chair a few moments ago:
And be it further enacted, That all the acts, proclamations, and orders of the President of the United States, after the 4th of March, 1861, respecting the Army and Navy of the United States, and calling out or relating to the militia or volunteers from the States, are hereby approved, and in all respects legalized and made valid to the same intent, and with the same effect as if they had been issued and done under the previous express authority and direction of the Congress of the United States.
Mr. BRECKINRIDGE. That sounds a little like our joint resolution to ratify and approve and make valid and legal all the acts of the President since the 4th of March; but one or two features of it are left out. If I may so speak, I observe the absence of one or two features.
Mr. WILSON. I will say to the Senator from Kentucky, if he will allow me, that there is an absence of one or two features of the joint resolution; but as soon as we get the vote on this proposition, I will gratify him if he desires it, by moving to take up the joint resolution for the purpose of having it voted on. I should like to have it acted on to-day.
Mr. BRECKINRIDGE. I was afraid that, in the condition of the public business, with the hurry which exists towards the close of the season, we might lose the opportunity to put our opinions on record upon that resolution. With his promise, however, to call it up for the vote of the Senate, I shall waive any observations on this amendment.
The amendment was agreed to.
The bill was reported to the Senate as amended, and the amendments were concurred in. The bill was ordered to be engrossed for a third reading, and was read the third time.
Mr. POWELL. I ask for the yeas and nays on the passage of the bill.
The yeas and the nays were ordered.
Mr. SAULSBURY. When substantially the same question was up before, I interposed an objection to its present consideration; but on the assurance of the Senator from Maine, I waived the objection. This amendment covers one thing that I cannot possibly vote for; and that is to legalize the act of the President in reference to the increase of the Army and Navy of the United States. I honestly think that that act was not legal, and that we cannot make it legal. Therefore, I shall be compelled to vote against this proposition.
The question being on the yeas and nays, resulted -- yeas 33, nays 5, as follows:
[Yeas and Nays are listed here in the record]
So the bill was passed.
[nc note: Passed as amended by the Senate. It still needed House approval of this amended version.]
On motion of Mr. WILSON, its title was amended by adding the words: "and for other purposes;" so as to make it read: "A bill to increase the pay of the non-commissioned officers, musicians, and privates of the reglar Army, volunteers, marines, and seamen and ordinary seamen in the service of the United States, and for other purposes."
PAGE 443
PAY OF THE TROOPS [S-69] [S-72]
Mr. WILSON moved to reconsider the vote by which the Senate concurred in the amendment of the House of Representatives to the bill (S. No. 69) to increase the pay of the non-commissioned officers, musicians, and privates of the regular Army, volunteers, marines, and seamen and ordinary seamen in the service of the United States, and for other purposes; and the motion was agreed to.
Mr. WILSON. I now move that the House amendment and the bill be ordered to lie on the table.
The motion was agreed to.
Mr. WILSON. I now ask leave to introduce a new bill on the same subject, which is more restricted and guarded.
Leave was granted to introduce the bill (S. No. 72) to increase the pay of the privates in the regular Army, and of the volunteers in the service of the United States, and for other purposes; which was read twice, and considered as in committee of the Whole. The bill proposes to increase the pay of the privates to thirteen dollars a month; and also extends the provisions of the act "for the relief of the Ohio and other volunteers" to all volunteers, no matter for what term of service they may have been accepted.
Mr. WILSON. I move to amend the bill by adding the following as an additional section:
Sec. 3. And be it further enacted, That all the acts, proclamations, and orders of the President of the United States, after the 4th of March, 1861, respecting the Army and Navy of the United States, and calling out or relating to the militia or volunteers from the States, are hereby approved, and in all respects legalized and made valid to the same intent, and with the same effect as if they had been issued and done under the previous express authority and direction of the Congress of the United States.
Mr. BRECKINRIDGE called for the yeas and nays, and they were ordered; and being taken, resulted -- yeas 37, nays 5; as follows:
[Yeas and Nays are listed here in the record]
So the amendment was agreed to.
The bill was reported to the Senate as amended, and the amendments were concurred in. The bill was ordered to be engrossed for a third reading; and was read the third time, and passed.
[nc note: This is passage by the Senate; it still needed to go to the House.]
PAGE 456
INCREASE OF PRIVATES' PAY [S-72]
Mr. STEVENS. I move to take from the speaker's table Senate bill No. 72, to increase the pay of the privates in the regular Army, and in the volunteers in the service of the United States, and for other purposes.
Mr. CRISFIELD. I object to the consideration of that bill.
Mr. STEVENS. I hope gentlemen will not object. If the bill cannot be passed now, there will be a called session within twenty-four hours.
Mr. VALLANDIGHAM. I desire to ask the chairman of the Committee of Ways and Means a question in reference to this bill. I desire to know how this bill comes back here, after the House passed it yesterday?
Mr. STEVENS. This is a new bill.
The SPEAKER. This is an original Senate bill.
Mr. VALLANDIGHAM. We concurred in a similar bill yesterday.
Mr. MORRILL, of Vermont. I will inform the gentleman, by leave of the House. I believe this is identically the bill that passed the House, with this exception: that, instead of increasing the pay of privates four dollars per month, this bill increases it but two dollars per month. I suppose that if this bill should not pass, congress would be called back.
Mr. VALLANDIGHAM. It is very easy for the House to recde from its amendment to the bill passed yesterday; and that will leave it all right.
Mr. STEVENS. That bill, with the amendments, was lost in the Senate.
The SPEAKER. Is there any objction to taking up the bill?
Mr. CRISFIELD. I have objected to it.
PAGE 457
INCREASED PAY OF PRIVATES, ETC. [S-72]
Mr. STEVENS. I again appeal to the gentleman who objected to the consideration of the bill for increasing the pay of privates in the regular Army and of volunteers, to withdraw that objection. I understand the bill passed by this House was laid on the table in the Senate. This is a new bill which has passed the senate, and if we adjourn without passing it, it will cause very great inconvenience, and perhaps create the necessity of our being called back in antoher extra session.
Mr. CRISFIELD. I withdraw my objection.
Mr. JOHNSON. I object.
Mr. STEVENS. I move to suspend the rules.
The question was taken; and the rules were suspended, (two thirds having voted therefor.)
The bill was thereupon taken up for consideration. It proposes to increase the pay of the privates to thirteen dollars a month; and also extends the provisions of the act "for the relief of the Ohio and other volunteers": to all volunteers, no matter for what term of service they may have been accepted. It also directs that all the acts, proclamations, and orders, of the President of the United States, after the 4th of March, 1861, respecting the Army and Navy of the United States, and calling out or relating to the militia or volunteers from the States, are hereby approved and in all respects legalized and made valid to the same intent and with the same effect as if they had been issued and done under the previous express authority and direction of the Congress of the United States.
The bill was read a first and second time, and was ordered to a third reading. It was read the third time and passed.
Mr. STEVENS moved to reconsider the vote by which the bill was passed; and also moved to lay the motion to reconsider on the table.
The latter motion was agreed to.
[nc note: This was passage of the bill, S-72]
The United States Supreme Court dissenting.
"THE PRIZE CASES"
U.S. Supreme Court
THE AMY WARWICK, 67 U.S. 635 (1862)
67 U.S. 635 (Black)
THE BRIG AMY WARWICK.
THE SCHOONER CRENSHAW.
THE BARQUE HIAWATHA.
THE SCHOONER BRILLIANTE.
December Term, 1862
* * *
Mr. Justice GRIER.
There are certain propositions of law which must necessarily affect the ultimate decision of these cases, and many others, which it will be proper to discuss and decide before we notice the special facts peculiar to each.
They are, 1st. Had the President a right to institute a blockade of ports in possession of persons in armed rebellion against the Government, on the principles of international law, as known and acknowledged among civilized States?
2d. Was the property of persons domiciled or residing within those States a proper subject of capture on the sea as 'enemies' property?'
I. Neutrals have a right to challenge the existence of a blockade de facto, and also the authority of the party exercising the right to institute it. They have a right to enter the ports [67 U.S. 635, 666] of a friendly nation for the purposes of trade and commerce, but are bound to recognize the rights of a belligerent engaged in actual war, to use this mode of coercion, for the purpose of subduing the enemy.
That a blockade de facto actually existed, and was formally declared and notified by the President on the 27th and 30th of April, 1861, is an admitted fact in these cases.
That the President, as the Executive Chief of the Government and Commander-in-chief of the Army and Navy, was the proper person to make such notification, has not been, and cannot be disputed. The right of prize and capture has its origin in the 'jus belli,' and is goverend and adjudged under the law of nations. To legitimate the capture of a neutral vessel or property on the high seas, a war must exist de facto, and the neutral must have knowledge or notice of the intention of one of the parties belligerent to use this mode of coercion against a port, city, or territory, in possession of the other.
Let us enquire whether, at the time this blockade was instituted, a state of war existed which would justify a resort to these means of subduing the hostile force.
War has been well defined to be, 'That state in which a nation prosecutes its right by force.'
The parties belligerent in a public war are independent nations. But it is not necessary to constitute war, that both parties should be acknowledged as independent nations or sovereign States. A war may exist where one of the belligerents, claims sovereign rights as against the other.
No, others have done that job far better than I can. Read Mark Neely's "Southern Rights: Political Prisoners and the Myth of Confederate Constitutionalism". Your boy Jeff was a tyrant of the first order.
First Inaugural Address Monday, March 4, 1861
Descending from these general principles, we find the proposition that in legal contemplation the Union is perpetual confirmed by the history of the Union itself. The Union is much older than the Constitution. It was formed, in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured, and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And finally, in 1787, one of the declared objects for ordaining and establishing the Constitution was "to form a more perfect Union." 14
The Articles of Association which Lincoln claims formed the Union. Apparently, Lincoln's Union was formed by "We, his majesty's most loyal subjects ... avowing our allegiance to his majesty...."
July 4, 1861
We, his majesty's most loyal subjects, the delegates of the several colonies of New-Hampshire, Massachusetts-Bay, Rhode-Island, Connecticut, New-York, New-Jersey, Pennsylvania, the three lower counties of Newcastle, Kent and Sussex on Delaware, Maryland, Virginia, North-Carolina, and South-Carolina, deputed to represent them in a continental Congress, held in the city of Philadelphia, on the 5th day of September, 1774, avowing our allegiance to his majesty, our affection and regard for our fellow-subjects in Great-Britain and elsewhere, affected with the deepest anxiety, and most alarming apprehensions, at those grievances and distresses, with which his Majesty's American subjects are oppressed; and having taken under our most serious deliberation, the state of the whole continent, find, that the present unhappy situation of our affairs is occasioned by a ruinous system of colony administration, adopted by the British ministry about the year 1763, evidently calculated for enslaving these colonies, and, with them, the British Empire. In prosecution of which system, various acts of parliament have been passed, for raising a revenue in America, for depriving the American subjects, in many instances, of the constitutional trial by jury, exposing their lives to danger, by directing a new and illegal trial beyond the seas, for crimes alleged to have been committed in America: And in prosecution of the same system, several late, cruel, and oppressive acts have been passed, respecting the town of Boston and the Massachusetts-Bay, and also an act for extending the province of Quebec, so as to border on the western frontiers of these colonies, establishing an arbitrary government therein, and discouraging the settlement of British subjects in that wide extended country; thus, by the influence of civil principles and ancient prejudices, to dispose the inhabitants to act with hostility against the free Protestant colonies, whenever a wicked ministry shall chuse so to direct them.
To obtain redress of these grievances, which threaten destruction to the lives liberty, and property of his majesty's subjects, in North-America, we are of opinion, that a non-importation, non-consumption, and non-exportation agreement, faithfully adhered to, will prove the most speedy, effectual, and peaceable measure: And, therefore, we do, for ourselves, and the inhabitants of the several colonies, whom we represent, firmly agree and associate, under the sacred ties of virtue, honour and love of our country, as follows:
1. That from and after the first day of December next, we will not import, into British America, from Great-Britain or Ireland, any goods, wares, or merchandise whatsoever, or from any other place, any such goods, wares, or merchandise, as shall have been exported from Great-Britain or Ireland; nor will we, after that day, import any East-India tea from any part of the world; nor any molasses, syrups, paneles, coffee, or pimento, from the British plantations or from Dominica; nor wines from Madeira, or the Western Islands; nor foreign indigo.
2. We will neither import nor purchase, any slave imported after the first day of December next; after which time, we will wholly discontinue the slave trade, and will neither be concerned in it ourselves, nor will we hire our vessels, nor sell our commodities or manufactures to those who are concerned in it.
3. As a non-consumption agreement, strictly adhered to, will be an effectual security for the observation of the non-importation, we, as above, solemnly agree and associate, that from this day, we will not purchase or use any tea, imported on account of the East-India company, or any on which a duty bath been or shall be paid; and from and after the first day of March next, we will not purchase or use any East-India tea whatever; nor will we, nor shall any person for or under us, purchase or use any of those goods, wares, or merchandise, we have agreed not to import, which we shall know, or have cause to suspect, were imported after the first day of December, except such as come under the rules and directions of the tenth article hereafter mentioned.
4. The earnest desire we have not to injure our fellow-subjects in Great-Britain, Ireland, or the West-Indies, induces us to suspend a non-exportation, until the tenth day of September, 1775; at which time, if the said acts and parts of acts of the British parliament herein after mentioned, ate not repealed, we will not directly or indirectly, export any merchandise or commodity whatsoever to Great-Britain, Ireland, or the West-Indies, except rice to Europe.
5. Such as are merchants, and use the British and Irish trade, will give orders, as soon as possible, to their factors, agents and correspondents, in Great-Britain and Ireland, not to ship any goods to them, on any pretence whatsoever, as they cannot be received in America; and if any merchant, residing in Great-Britain or Ireland, shall directly or indirectly ship any goods, wares or merchandize, for America, in order to break the said non-importation agreement, or in any manner contravene the same, on such unworthy conduct being well attested, it ought to be made public; and, on the same being so done, we will not, from thenceforth, have any commercial connexion with such merchant.
6. That such as are owners of vessels will give positive orders to their captains, or masters, not to receive on board their vessels any goods prohibited by the said non-importation agreement, on pain of immediate dismission from their service.
7. We will use our utmost endeavours to improve the breed of sheep, and increase their number to the greatest extent; and to that end, we will kill them as seldom as may be, especially those of the most profitable kind; nor will we export any to the West-Indies or elsewhere; and those of us, who are or may become overstocked with, or can conveniently spare any sheep, will dispose of them to our neighbours, especially to the poorer sort, on moderate terms.
8. We will, in our several stations, encourage frugality, economy, and industry, and promote agriculture, arts and the manufactures of this country, especially that of wool; and will discountenance and discourage every species of extravagance and dissipation, especially all horse-racing, and all kinds of games, cock fighting, exhibitions of shews, plays, and other expensive diversions and entertainments; and on the death of any relation or friend, none of us, or any of our families will go into any further mourning-dress, than a black crepe or ribbon on the arm or hat, for gentlemen, and a black ribbon and necklace for ladies, and we will discontinue the giving of gloves and scarves at funerals.
9. Such as are venders of goods or merchandize will not take advantage of the scarcity of goods, that may be occasioned by this association, but will sell the same at the rates we have been respectively accustomed to do, for twelve months last past. -And if any vender of goods or merchandise shall sell such goods on higher terms, or shall, in any manner, or by any device whatsoever, violate or depart from this agreement, no person ought, nor will any of us deal with any such person, or his or her factor or agent, at any time thereafter, for any commodity whatever.
10. In case any merchant, trader, or other person, shall import any goods or merchandize, after the first day of December, and before the first day of February next, the same ought forthwith, at the election of the owner, to be either re-shipped or delivered up to the committee of the country or town, wherein they shall be imported, to be stored at the risque of the importer, until the non-importation agreement shall cease, or be sold under the direction of the committee aforesaid; and in the last-mentioned case, the owner or owners of such goods shall be reimbursed out of the sales, the first cost and charges, the profit, if any, to be applied towards relieving and employing such poor inhabitants of the town of Boston, as are immediate sufferers by the Boston port-bill; and a particular account of all goods so returned, stored, or sold, to be inserted in the public papers; and if any goods or merchandizes shall be imported after the said first day of February, the same ought forthwith to be sent back again, without breaking any of the packages thereof.
11. That a committee be chosen in every county, city, and town, by those who are qualified to vote for representatives in the legislature, whose business it shall be attentively to observe the conduct of all persons touching this association; and when it shall be made to appear, to the satisfaction of a majority of any such committee, that any person within the limits of their appointment has violated this association, that such majority do forthwith cause the truth of the case to be published in the gazette; to the end, that all such foes to the rights of British-America may be publicly known, and universally contemned as the enemies of American liberty; and thenceforth we respectively will break off all dealings with him or her.
12. That the committee of correspondence, in the respective colonies, do frequently inspect the entries of their customhouses, and inform each other, from time to time, of the true state thereof, and of every other material circumstance that may occur relative to this association.
13. That all manufactures of this country be sold at reasonable prices, so- that no undue advantage be taken of a future scarcity of goods.
14. And we do further agree and resolve that we will have no trade, commerce, dealings or intercourse whatsoever, with any colony or province, in North-America, which shall not accede to, or which shall hereafter violate this association, but will hold them as unworthy of the rights of freemen, and as inimical to the liberties of their country.
And we do solemnly bind ourselves and our constituents, under the ties aforesaid, to adhere to this association, until such parts of the several acts of parliament passed since the close of the last war, as impose or continue duties on tea, wine, molasses, syrups paneles, coffee, sugar, pimento, indigo, foreign paper, glass, and painters' colours, imported into America, and extend the powers of the admiralty courts beyond their ancient limits, deprive the American subject of trial by jury, authorize the judge's certificate to indemnify the prosecutor from damages, that he might otherwise be liable to from a trial by his peers, require oppressive security from a claimant of ships or goods seized, before he shall be allowed to defend his property, are repealed.-And until that part of the act of the 12 G. 3. ch. 24, entitled "An act for the better securing his majesty's dock-yards magazines, ships, ammunition, and stores," by which any persons charged with committing any of the offenses therein described, in America, may be tried in any shire or county within the realm, is repealed-and until the four acts, passed the last session of parliament, viz. that for stopping the port and blocking up the harbour of Boston-that for altering the charter and government of the Massachusetts-Bay-and that which is entitled "An act for the better administration of justice, &c."-and that "for extending the limits of Quebec, &c." are repealed. And we recommend it to the provincial conventions, and to the committees in the respective colonies, to establish such farther regulations as they may think proper, for carrying into execution this association.
The foregoing association being determined upon by the Congress, was ordered to be subscribed by the several members thereof; and thereupon, we have hereunto set our respective names accordingly.
IN CONGRESS, PHILADELPHIA, October 20, 1774.
PEYTON RANDOLPH, President.
Source:
Journals of the Continental Congress 1774-1779
Edited from the original records in the Library of Congress
by Worthington Chauncey Ford; Chief, Division of Manuscripts.
Washington, DC : Government Printing Office, 1905.
"Jefferson followed the classic liberal approach to the problem of emergency decisions. The executive had a moral duty to respond to grave emergencies, despite legalities, but necessity was not a legal defense for his actions. Even actions taken in good faith could result in damages or other sanctions such as impeachment, unless Congress ratified the action and shielded the executive, usually by indemnifying him from any damage award. Thus, the executive always remained answerable for his conduct to Congress, the legal system, and the people. The maxim that "necessity knows no..law" was foreign to classic liberal thought. Lincoln's defense of his arguably illegal actions fell into two parts. First, he argued that his actions "whether strictly legal or not," were taken in response to public demand and a public necessity, "trusting, then as now, that Congress would readily ratify them." Second, he argued that actions such as suspending habeas, even if illegal, were not inconsistent with his oath to "take tare that the laws be faithfully executed." Here, Lincoln argued that he lacked the ability to execute all of the laws. Instead, he was faced with the choice between violating a "single law" to a "very limited extent," or seeing every law "failing of execution, in nearly one-third of the States." Thus, his oath required him to choose the lesser of the two evils in terms of observance of the law; It is here that he posed the famous question, "[A]re all the laws, but one) to go unexecuted, and the government itself, go to pieces, lest that one be violated?" He continued with another question: "[W]ould 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?
In short,' on careful reading, Lincoln was not arguing for the legal power to take emergency actions contrary to statutory or constitutional mandates. Instead, his argument fit well within the classic liberal view of emergency power. While unlawful, his actions could be ratified by Congress if it chose to do so ("trusting, then as now, that Congress would readily ratify them"). The actions were also morally consistent with his oath of office ("would not the official oath be broken.. . . ?"). Congress did respond with legislation ratifying the president's military actions. Later, it augmented its support of the president with an immunity statute. An 1863 statute provided that "any order of the president, or under his authority, made at any time during the existence of the present rebellion, shall be a defense in all courts to any action or prosecution....for any search, seizure, arrest, or imprisonment" The statute also gave the defendant the power to remove state litigation to federal court and provided a two year statute of limitations, (even if the case remained in state court) for any"action brought against an officer acting "under color of" presidential or congressional authority.
The Supreme Court upheld this statute in Mitchell v. Clark. When the Civil War began, the Court explained, no legal authority had existed to deal with dangerous, disloyal individuals, thus requiring officials to take extralegal action. "For most of these acts there was constitutional power in congress to have authorized them, if it had acted in the matter in advance." In addition, perhaps "in a few cases, for acts performed in haste and in the presence of an overpowering emergency, there was no constitutional power anywhere to make them good." The Court had no doubt about the validity of the statute: "That an act passed after the event, which, in effect, ratifies what has been done, and declares that no suit shall be sustained against the party acting under color of authority" is valid, so far as congress could have conferred such authority before, admits of no reasonable doubt." For "[t]hese are ordinary acts of indemnity passed by all governrnments when the occasion requires it.
This immunity covered most of Lincoln's actions. The transfer of money to private hands, the expansion of the military, and the suspension of habeas, all were well within the power of Congress. Congress did not, however, have power to authorize military trials of civilians in the North in cases such as Milligan. Here, however, the officers responsible could rely for protection on the statute of limitations and the opportunity to remove any suit against them to federal court. Thus, in the end, Congress ratified as much of the executive's actions as it could, excusing the lack of prior authorization, and tried to ensure a fair legal procedure for dealing with the remaining cases. Nowhere was there any thought that necessity alone gave the president an exemption from the legal consequences of violating statutory or constitutional requirements. Lincoln does not seem to have claimed such legal immunity. Nor did he claim that pressing circumstances overrode the "take care" duty to follow the law. He merely observed that he was faced with the utter impossibility of full compliance and had to choose the lesser of two evils. We tend to read his statements differently, as if they claimed more, only because we no longer see them in their original context." -- "Lincoln's Constitution" by Daniel Farber, pp.193-95
Walt
Yes, no one was executed in the north by federal officials for treason at all. Keep in mind that Merryman was a citizen of Maryland, which gives not even the fig leaf of secession. And he did burn bridges and he did raise troops to overthrow the United States government. That is treason. After he was released he was a serving officer in the insurgent army.
This fact that no one was executed by federal authorties makes a striking contrast with rebel actions, where hundreds of loyal southerners were executed simply for standing by the old flag.
Walt
The fact that the United States was the only government in the world with judicial review since Carthage makes your statement a tautology.
You're like a kid who keeps calling over and over, "look at my new bicycle. You don't have a new bicycle, do you?" The fact is overshadowed by its general irrelevance and the annoying maladjustment of its proponent.
The fact that the Confederate government spent practically every month of its existence in extremis, and that the liberty and property of the people it attempted to protect suffered while the country was being invaded and dismembered by a hostile army numbering in the millions is a fact that you repeatedly overlook in order to taunt Southerners for having lost the war. It's akin to pulling the wings off flies: easy work no doubt, but it reflects no credit of accomplishment on you to have pointed it out.
Neely is a hostile, South-bashing wonk who plays the wonk game of "let's pile up the paper, and whoever piles up the most paper wins, and everyone else has to shut up".
He's playing to back up Foner and McPherson's play on driving the South into the sea historiographically.
Complain, complain, complain.
The fact that the Confederate government spent practically every month of its existence in extremis, and that the liberty and property of the people it attempted to protect suffered while the country was being invaded and dismembered by a hostile army numbering in the millions is a fact that you repeatedly overlook in order to taunt Southerners for having lost the war.
Yet had the confederate government had any interest in all in protecting individual rights then they would have had plenty of time to do so. After all, they had time to start a war, establish an army, institute a tariff, create a cabinet, all in the first three months. But not establish a judiciary. During the course of the war they had time to suspend habeas corpus, declare martial law, staff thousands of habeas corpus commissioners. But not establish a judiciary to oversee them. Well, it's all a matter of priorities, I guess.
That pile of paper is called evidence, and you're playing the sothron game of "let's ignore our own faults and call everyone who brings them up biased and tell them to shut up." Have you won yet?
Nice try. Point denied. Lincoln started the war, the evidence is becoming overwhelming.
See above. To which you haven't replied. Need help? Ping rustbucket and nolu chan. They'll be happy to guide you around what they've found.
No, I'm not. I'm interested in dissecting the politically-motivated, ideologically-driven, pseudohistorical claims of McPherson et al., who are trying to rewrite history to drive a point that the South was evil and that its (white) people deserve to be stigmatized as evil people, shunned and politically driven down. Precisely because so few Southerners are susceptible of the mega-lies of Marxism-Leninism and are, within the context of American politics, the Main Enemy of the Left.
Sure it is. You deny southern trampling of civil rights, too. All that paper piled all over the place.
See above. To which you haven't replied.
See what above?
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