Posted on 11/26/2005 9:36:29 PM PST by Mier
While all the anti war cowards were screaming for Bush to cut and run and our willing accomplice main stream media acting like kids in a candy store. I heard someone on talk radio say that during the civil war Lincoln had his media detracters thrown in the bottom of a war ship until the war was over. But I can't find any facts on-line to back it up. Does any one know where I might go to find information on this? I mentioned this to a (left wing co-worker) and he thinks I made it up. I sure would like to prove him wrong! Any information on this would be greatly appreciated.
Not at all. The Emancipation Proclamation could not be applied to those states not in rebellion because that would have been unconstitutional. Not that the constitution means much to southron supporters.
Lincoln, however, did collide with the Constitution.
In what way?
[you]: In what way?
Surely you remember Ex Parte Milligan?
No graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole [71 U.S. 2, 119] people; for it is the birthright of every American citizen when charged with crime, to be tried and punished according to law. ... By the protection of the law human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers, or the clamor of an excited people.
... The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, [71 U.S. 2, 121] and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority.
... Another guarantee of freedom was broken when Milligan was denied a trial by jury. [rustbucket note: countless others beside Milligan were denied this right by the Lincoln administration.] The great minds of the country [71 U.S. 2, 123] have differed on the correct interpretation to be given to various provisions of the Federal Constitution; and judicial decision has been often invoked to settle their true meaning; but until recently no one ever doubted that the right of trial by jury was fortified in the organic law against the power of attack. It is now assailed; but if ideas can be expressed in words, and language has any meaning, this right-one of the most valuable in a free country-is preserved to every one accused of crime who is not attached to the army, or navy, or militia in actual service.
... In some parts of the country, during the war of 1812, our officers made arbitrary arrests and, by military tribunals, tried citizens who were not in the military service. These arrests [71 U.S. 2, 129] and trials, when brought to the notice of the courts, were uniformly condemned as illegal.
And from Ex Parte Merryman, one of the greatest documents in American history. As far as I know, it was never appealed or overturned. It is still a valid ruling from the court.
'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; until the legislative will be expressed, this court can only see its duty, and must obey the laws.' I can add nothing to these clear and emphatic words of my great predecessor [Chief Justice John Marshall].
[rustbucket note: If Lincoln had the power to suspend habeas corpus, why did Congress feel it was necessary to authorize him to do it later?]
The constitution provides, as I have before said, that 'no person shall be deprived of life, liberty or property, without due process of law.' It declares that 'the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' It provides that the party accused shall be entitled to a speedy trial in a court of justice.
These great and fundamental laws, which congress itself could not suspend, have been disregarded and suspended, like the writ of habeas corpus, by a military order, supported by force of arms. Such is the case now before me, and I can only say that if the authority which the constitution has confided to the judiciary department and judicial officers, may thus, upon any pretext or under any circumstances, be usurped by the military power, at its discretion, the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found.
There are also some pretty good summaries in the Congressional Globe. From July 16, 1861, page 150 and 151, Representative Burnett of Kentucky speaking:
I state, as a member of this House, that the President has violated the Constitution of the United States by his proclamations of the 19th and 27th of April last, declaring a blockade of southern ports. It is one of the incidents of the war-making power to declare a blockade. It is an act of war, and Congress alone has the power to declare war. ...
Article one, section nine, clause five [sic, actually clause six], of the Constitution, declares that no preference shall be given to the ports of one State, over those of another; yet the President of the United States, of his own motion, and without authority of law, shuts up ports still claimed to be within the Union, according to the theory of the Republican party and of the President himself.
As this proclamation was made by the President with full knowledge that the Congress of the United States had, at its last session, expressly refused to pass a bill conferring upon him the power to blockade southern ports and collect the revenue outside of the ports. This blockade has been extended to our interior commerce and trade; and today, sir, the ports of loyal States are closed. My own State furnishes a striking example. Her ports are to-day closed; and her principle railroad virtually under the control and management of the Federal Government. The Constitution confers upon Congress alone the "power to regulate commerce among the several States. " ...
The President of the United States has also violated the Constitution by his orders of the 27th of April and 10th of May, authorizing the Commanding General to suspend the writ of habeas corpus. ...
The President has also violated that clause of the Constitution which says that no money shall be drawn from the Treasury of the United States, except in consequence of appropriations by law. He has taken appropriations made by Congress for one purpose and applied them to another, in violation of law ...
By his proclamation of the 3rd of May, calling into the service of the United States forty-two thousand volunteers for three and five years, by his increase of the regular Army twenty two thousand seven hundred and fourteen men, and adding to the Navy eighteen thousand seamen, he not only violated the plain letter of the Constitution in article one, eighth section, and twelfth clause [actually 12th and 13th clauses], but usurped the powers of the legislative department of this Government.
The President of the United States has, since the adjournment of the last Congress, and prior to the commencement of the present session, violated the first, second, third, fourth, fifth, and sixth amendments to the Constitution. ...
... first amendment ... Men have been arrested all over this country without process of law, upon no other charge than they had uttered seditious language. Where is your authority to arrest a man for the utterance of seditious language? ...
The president has likewise violated the second amendment, which secures people the right to keep and bear arms. ... Arms, the private property of the citizens, have, upon mere suspicion, been taken at the order of military commanders, and are now withheld from the citizens ... [A Member: Where?] [Mr. Burnett: In my own state (Kentucky)...]
The President has violated the third amendment of the Constitution, that no soldier shall in time of peace be quartered in any house without the consent of the owner, nor in time of war but in the manner prescribed by law. Repeatedly have soldiers been quartered in the houses of private citizens during war, without any authority of law, but upon the order of those who are controlling the movements of the Government.
He has violated the fourth article of that amendment to the Constitution, which is, that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search and seizure, shall not be violated; and that no warrant shall issue except upon probably cause, supported by oath or affirmation, particularly describing the place to be searched, and the person or thing to be seized. ...
The [fifth] amendment to the Constitution also declares that no person shall be held for a capital or otherwise infamous crime -- the highest crimes known to your law -- except upon the presentment and indictment of a grand jury; and yet, sir, citizens are now being deprived of their liberty, incarcerated in your fortresses and jails, and deprived of even the right of a preliminary examination, upon the mere order of the President of the United States.
No person shall be deprived of life liberty, or property without due process of law [fifth amendment]. That is another of the rights locked up in the Constitution secured to us by our fathers, and yet the President of the United States has violated that right; and the plea upon which a justification is sought is that of necessity. ... if it was necessary to exercise these high powers, then the President of the United States could have called congress together, and asked that the powers be conferred upon him, and that laws be made providing for cases in which he has acted.
[rustbucket comment: Ex Parte Milligan pretty much destroyed the 'necessity' argument. Also, Congress alone does not have the power to confer on the President the right to violate the Constitution.]
Men are now arrested in Maryland, and they have been in other portions of the country, upon warrants issued by the Secretary of State alone, and confined in the jail of the District of Columbia. They have not been able to be reached by a writ of habeas corpus; and after they have been kept there for weeks, they have been dismissed without a statement of the charge against them [sixth amendment].
From Senator Breckenridge, former Vice President of the United States [Congressional Globe, July 16, 1861, page 138 and 139], who makes the same point about military service, but perhaps a bit clearer:
It is proposed, sir, to approve and make valid the act of the President in enlisting men for three and five years. I ask you by what authority of the Constitution or law has he done this act? The power is not conferred in the Constitution; it has not been granted by law. It is therefore an unconstitutional and illegal act of executive power. ...
From page 2070 of the Congressional Globe May 12, 1862, remarks by Mr. Shellabarger of Ohio, a Lincoln supporter:
Mr. Chairman, in England and America, in this House and in the Senate, by the British minister residing at this Government, and by the London Times, by Jefferson Davis and my colleage [Mr. Vallandigham,] the President of the United States has been denounced as a tyrant and despot, because he ordered certain conspirators engaged in attempts to overthrow the Government to be arrested and detained in military custody. And my colleague proposes, by a bill now pending in this House, to imprison the President of the United States for not exceeding two years if he shall repeat the conduct of which he has been guilty in the imprisonment of Merryman and his confederates. And sir, within a few days of the time I speak, in this House, this conduct has been declared to be, in the opinion of most distinguished members, illegal and arbitrary.
Here are some statements showing the kind of logic used by Lincoln supporters. Senator Lane of Indiana, in answer to accusations of suppression of newspapers, stated the following [Congressional Globe, July 16, 1861, page 143]:
Another count in this indictment against the Administration is, that they have put down treasonable newspapers [first amendment]. The Administration have shown a forebearance beyond all parallel in history. There is no government of constituted authority upon earth that would have tolerated either the treasonable utterance or publications of the traitors. I say that I not only approve of the destruction of that St. Louis paper, but I rejoice at it, as evidence of returning to common sense in those who are to defend the Government of the country.
Mr. Thomas of Maryland [a Lincoln supporter] defending the Government wanting to take arms from all people in Maryland [Congressional Globe, July 18, 1861, page 202]:
... the Legislature ... passed a law which goes very far to secure arms in the hands of individuals. Why? If the citizens of Maryland are for warring against the Government, they should not be permitted to have arms. If they are for peace they do not need them, for the arm of the United States protects them ...
With supporters like these in Congress, it is little wonder that Congress took no formal action against Lincoln.
And it would have been a simple matter to physically block the narrrow passage into Charleston harbor to prevent any resupply effort. A string of rafts connnected by a heavy chain sufficed to keep the British from sailing up the Hudson in 1778. A similar arrangement in Charleston would have passively changed the burden of taking the first hostile action onto the Union. Anderson would then have had no choice but to leave the fort on the 15th, as he'd earlier told Beauregard.
A claim could also be made that the South (see, I capitalized it) backed Lincoln into a corner just as effectively, and in the short term got more out of it since Lincoln's inevitable reaction to Sumter--calling for volunteers--had the effect of pushing the upper South to secede, something that most of Lincoln's actions up to that point had been designed to avoid.
The power of ships was much greater in 1861 than it was in the Revolutionary War. Here is General Beauregard's Oct 8, 1862, opinion:
I have applied for fifty-one additional pieces of ordnance of the heaviest calibers to arm the inner line of forts and batteries. I consider them indispensable, for my reliance in the boom and other obstructions now being laid across the channel between Fort Sumter and the new batteries on Sullivan's Island is but very limited, except for their moral effect.
Jefferson Davis had the following opinion:
The main advantage of the obstructions across the harbor of Charleston is that they may prevent the enemy's gunboats from running rapidly by during the darkness or at other times. If they are sufficiently strong to detain the vessels for a considerable time under the fire of our forts and batteries, and the guns are well served, we should be able to sink or drive away any boats that might attempt to pass.
The Feds had sunk old whaling vessels containing stone in the main cannel at Charleston in December 1861 and 14 vessels in one of the other channels leading into Charleston harbor in 1862 (the "Stone Fleet"). These proved ineffective. "... in a short time not a vestige of any of the stone fleet could be found; it sank slowly in the mud, where it still lies." [Source: The Siege of Charleston 1861-1865 by E. Milby Burton, page 89, paperback version] Also, currents quickly reformed channels to the harbor.
Blocking the main channel with sunken ships full of stone had been tried by the Governor of South Carolina after the Star of the West incident and before the firing on Fort Sumter. "On the 11th [of January, 1861] he [Governor Pickens] had four ship hulks loaded with stone towed out and sunk to block the main channel at the harbor entrance." [Source: "Days of Defiance," by Maury Klein, page 261 paperback version]
In April 1861 the Confederates launched quite an effort to develop mines and floating contact torpedoes to block Federal ships. A torpedo station was later located at Charleston.
After Sumter, the Charleston harbor obstructions used by the Confederate included contact mines, electrically controlled mines that could be detonated from shore, booms extending across the channel, ropes in the water to foul the propellers of Federal vessels, piling placed in the shallower parts of the harbor. [Source, Burton's book cited above, page 269] These obstructions keep the Federal fleet at bay for over three years, so it sounds like Davis was right.
All the while blockade runners were able to make it into and out of Charleston despite Federal picket vessels and obstructions.
While Maryand was in the balance, Lincoln was pretty ruthless.
Welles, for one.
State governments/governors/legislatures of Florida and South Carolina (sending spies into Pickens and Sumter).
His deception was so spread that he redirected Powhatan in the midst of her deployment to Sumter (or was it purposeful sabotage of his own mission, which initself constitutes an attempt at deceit???)
Yankees in Missouri? If you are referring to the Pro-Union Missourians that is one thing, but Yankees are from New England, Yankee was a dutch term for the English in New York (from John Cheese, or Jan Kees). I can't fathom who you are referring to Grant? Sherman? Both of whom I believe were from the Midwest. Being a border state there was plenty of opposition and support for the Union to go around.
Cheers,
CSG
Who were in the process of rioting and attempting to take over the capitol of the state at the time. They were committing seditious acts, and were killed after they did not disband.
How do I know all of this? I grew up there, and my university (Saint Louis University) now exists where ground zero of the riot was. Missouri was never the Balkans of the U.S. Your history is evidently biased from the "Ozark" point of view.
Cheers,
CSG
Is it your contention that the Army arrested and tried Milligan already knowing that their actions were illegal? The Army acted in the manner that they believed was legal. The fact that the case was taken to the Supreme Court and that the court ruled otherwise is to be seen as a victory for the system and a credit to the administration. Unlike in some other countries, those arrested for supporting the rebellion still had protection under the law, and could have their case taken up by the Supreme Court. And it should be noted that once the court had ruled the matter was dead. Milligan was free. The system worked.
As far as I know, it was never appealed or overturned. It is still a valid ruling from the court.
From an appellate court. The Supreme Court has never ruled on the matter so the constitutionality or unconstitutionality of the action has never been decided.
It appeared that several members of one of the German companies, on being pressed by the crowd and receiving some blows from them, turned and discharged their pieces. Fortunately no one was injured, and the soldiers who had done the act were at once placed under arrest. Hardly, however, had tranquility been restored when volley after volley of rifle reports were suddenly heard from the extreme rear ranks, and men women, and children were beheld running wildly and frantically away from the scene. Many, while running, were suddenly struck to the sod, and the wounded and dying made the late beautiful field look like a battle ground.
We went over the grove immediately after the occurrence, and a more fearful and ghastly sight is seldom seen. Men lay gasping in the agony of death, and staining the green grass with their blood, as it flowed from their wounds. Children of eight and ten years were pale and motionless as if asleep under the trees, and women cried in pain as they lay upon the ground. One, a girl of fourteen, presented a mournful picture, as she reclined against a stump, her face cold and white from the sudden touch of death. We counted fifteen dead persons and half as many wounded lying around. ...
... It was reported that the arsenal troops were attacked with stones, and a couple of shots discharged at them by the crowd before they fired. Whether this be true or not, a more reckless act has never been committed than an armed body of troops discharging those terrible instruments of war -- minie rifles -- among a crowd of defenseless spectators.
The most of the people exposed to the fire of the soldiers, were citizens with their wives and children, who were merely spectators, and took no part in any demonstration whatever. The firing was said to have been done by Boernstein's company, and at the command of an officer.
Not the American Balkans hey? Gee, I guess my source (the US War Department) is a fictional one.
Here, read a few thousand pages on the Missouri Civil War years. Or can you concentrate on the facts for that long?
http://cdl.library.cornell.edu/moa/browse.monographs/waro.html
Author: United States. War Dept.
Title: The War of the Rebellion: a Compilation of the Official Records of the Union and Confederate Armies
Other Title: Official records of the Union and Confederate armies
Publisher: Govt. Print. Off.
"Please be aware that some of these texts are as long as 1,000 pages and will take a long time to download, particularly over a modem. Such a large download may also crash your Web browser."
Volume III. 1881. (Vol. 3, Chap. 10)
Chapter X - Operations in Missouri, Arkansas, Kansas and Indian Territory. May 10-Nov. 19, 1861.
Volume VIII. 1883. (Vol. 8, Chap. 18)
Chapter XVIII - Operations in Missouri, Arkansas, Kansas, and Indian Territory. Nov. 19, 1861-Apr 10, 1862
Volume XXII - in Two Parts. 1888. (Vol. 22, Chap. 34)
Chapter XXXIV - Operations in Missouri, Arkansas, Kansas, the Indian Territory, and the Department of the Northwest. Nov. 20, 1862-Dec. 31, 1863.
Part I - Reports
Part II - Correspondence, etc.
You and I have gone round and round on this. You've stated to me before that you agree with John Marshall that the power to suspend habeas corpus belongs to Congress but you believe it has not been definitively decided by the Supreme Court.
Supreme Courts can turn previous rulings upside down and/or void the original intent of the framers. So there is no telling what a Supreme Court might rule on habeas corpus. I was surprised when the Supreme Court ruled that CFR is constitutional when it is clearly not, so what do I know. I fear Justices who feel free to make the Constitution whatever they wish.
I'll not rehash our past arguments, but I will repost something that the great researcher nolu chan once posted to me about what the founders and others had to say about which branch of government had the power to suspend the writ. It is a long read, but an informative one:
OTHER AUTHORITIES AND PROOFS TO SHOW THAT THE RIGHTFUL POWER IS NOT IN THE PRESIDENT TO SUSPEND THE PRIVILEGES OF THE WRIT OF HABEAS CORPUS, OR TO ARREST A CITIZEN OTHERWISE THAN AS THE LAWS PRESCRIBE.
Under ordinary circumstances it would not be necessary to add any weight to the decision of the Chief Justice of the United States in a question between him and Abraham Lincoln involving a principle of constitutional law, but as unfortunately the American public mind is as much if not more affected in these times by the mere acts of will of the President as it is by the judgment of a learned, enlightened and illustrious jurist, I have thought it becoming the object in view to add the weight of historical facts, and the opinions of other eminent jurists, to the decision of Judge Taney.
English authorities, legal and historical, Blackstone and Hallam have been quoted by the Chief Justice in support of his decision. Other British authorities might be cited confirming the same views and doctrines, but I will content myself with stating a fact which is in itself proof incontrovertible that even in Great Britain where the prerogatives of the crown are certainly more extensive in relation to the liberties of the subject than the Constitutional authority of the President is over citizens of the United States, it is not conceded to be the right of the crown to suspend the privilege of the writ of habeas corpus, and during the long period of time intervening between the dethronement and execution of Charles the First and the present day, no British monarch has dared to assume the prerogative of power which has been arrogantly and defiantly seized and exercised by Abraham Lincoln and subordinates under his command. During the period referred to England and Ireland were convulsed on several occasions with insurrections and rebellion; yet it was only when Parliament thought it proper to be done that the privilege of the writ of habeas corpus was suspended. This fact is both significant of the sacred regard entertained both in the public mind of Great Britain for the sanctity of private rights, and of the respect which the British crown is obliged to pay to these constitutionally recognized rights of British subjects.
The history of the Writ of habeas corpus in our own country dates properly for its origin in the Convention which formed the Constitution of the United States.
This Convention met in May, 1787, in Philadelphia. On the 29th of May, Mr. Charles Pinckney, of South Carolina, laid before the House a draft of a plan of a Federal Constitution, the VIth Article of which provided, "The Legislature of the United States shall pass no law on the subject of religion, nor touching or abridging the liberty of the press; nor shall the privilege of the writ of habeas corpus ever be suspended, except in the case of rebellion or invasion."
On the 6th of August the Committee of Detail, consisting of Rutledge, Randolph, Gorham, Ellsworth, and Wilson, reported a draft of a Constitution, but it contained no provision on the subject of the writ of habeas corpus.
On the 20th of August Mr. Pinckney submitted to the House, in order to be referred to the Committee of Detail, the following proposition, among others: "The privileges and benefits 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."
On the 28th of the same month, "Mr. Pinckney, urging the propriety of securing the benefit of the habeas corpus in the most ample manner, moved that it should not be suspended but on the most urgent occasions, and then only for a limited time, not exceeding twelve months."
"Mr. Rutledge was for declaring the habeas corpus inviolate. He did not conceive that a suspension could ever be necessary at the same time through all the States."
"Mr. Gouverneur Morris moved that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it."
"Mr. Wilson doubted whether in any case a suspension could be necessary, as the discretion now exists with judges in most important cases to keep in gaol, or admit to bail."
"The first part of Mr. Gouverneur Morris's motion, to the word 'unless,' was agreed to nem. con. On the remaining part the vote stood: Aye -- New Hampshire, Massachusetts, Connecticut, Pennsylvania, Delaware, Maryland and Virginia -- 7. Nay -- North Carolina, South Carolina, Georgia -- 3." (Elliott's Debates, Vol. V., pp. 131, 376, 445, 484.)
It will be seen from this original draft of the proposition to incorporate the habeas corpus clause in the Constitution that it was manifestly the design to restrain the Federal Legislature from suspending the privileges of the writ except in the prescribed contingency. There was no thought that the Executive would either possess that right by virtue of office or by any implication whatever, and therefore no reference was thought to be necessary to the executive in this connection. Without this qualified restraint proposed by Mr. Pinckney upon the power of the Legislature, it would perhaps be inferred that as Congress would hold nearly the same relation as the law-making power in the United States that Parliament held to Great Britain, Congress, unless restricted by constitutional inhibition, might assume to exercise the same power in the suspension of the writ of habeas corpus, and in passing laws in relation to the religious worship. -- And as there is no restraint upon the British Parliament nor contingency prescribed to it when it may or may not suspend the privilege of the writ of habeas corpus, it was obviously Mr. Pinckney's object to restrain Congress from suspending the privilege of this great writ of right at its own discretion. Hence the restriction on its power to the contingency of rebellion or invasion.
But some sophist might say just as Mr. Lincoln has assumed the right to do, this restriction upon the power of the Legislature only proves the greater power in the President, for the power must be lodged somewhere. According to this theory, which is not merely a theory now-a-days, any power of government withheld from Congress is by implication vested in the President, so, it should be concluded, according to this, that whenever the Constitution says Congress shall not do a thing the President has a right to do the act inhibited; and where Congress is permitted to do an act under certain prescribed contingencies, the President may act in such cases, his own discretion only being the rule and limit of his power.
Absurd as this theory is to common sense, it is nevertheless made the rule of action by Mr. Lincoln in his administration of the Federal Government. Legislative powers denied by the Constitution to the Legislative Department are assumed by him as if it were a matter of course that what the Constitution withheld from Congress it vested in the President. Still more absurd is Mr. Lincoln's assumption that the power not vested in him as President belongs to him by virtue of his being Commander-in-Chief of the Army and Navy, a position which he holds only by virtue of his being the President, an ex-officio position which derives no power or authority from any other source than the Constitution of the United States and through no other means than that of the Presidency. But as Mr. Lincoln is more used to illustrations than he is to arguments to guide or influence his actions, he might better appreciate the force of an attempt to hold himself up by the seat of his breeches, an experiment it is suggested to him to make, than of any argument, however conclusive in reason or law which might be made for him from common sense, historical facts and judicial authority to prove to him the absurdity of the pretensions he makes to a right of Betting aside the Constitution, and existing nevertheless as President of the United States. He forgets that the act of his which destroys the Constitution puts him out of existence as Chief Magistrate of this Republic, and that if he continues in power after his destruction of the Constitution and his subversion of the government, he does so only as an usurper. But let us continue our historical proofs. I quote from Bullitt's compilation of such facts.
In the Massachusetts Convention, called to determine whether the Constitution should be ratified or not, the habeas corpus clause being under consideration on the 26th of January, 1788, "Dr. Taylor asked why this darling privilege was not expressed in the same manner as in the Constitution of Massachusetts? ...... He remarked on the difference of expression, and asked why the time was not limited?
"Judge Dana said: The answer in part to the honorable gentleman must be that the same men did not make both Constitutions; that he did not see the necessity or great benefit of limiting the time, supposing it had been as in our Constitution, 'not exceeding twelve months;' yet, as our Legislature can, so might Congress continue the suspension of the writ from year to year. The safest and best restriction, therefore, arises from the nature of the cases in which Congress are authorized to exercise that power 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. He thought the citizen had a better security for his privilege of the writ of habeas corpus under the Federal than under the State Constitution for our Legislature may suspend the writ as often as they judge, 'the most urgent and pressing occasions' call for it.
"Judge Sumner said, that this was a restriction on 'Congress, that the writ of habeas corpus should not be suspended, except in cases of rebellion or invasion. The learned Judge then explained the nature of the writ. ...... The privilege, he said, is essential to freedom, and, therefore, the power to suspend it is restricted. On the other hand the State, he said, might be involved in danger; the worst enemy may lay plans to destroy us, and so artfully as to prevent any evidence against him, and might ruin the country, without the power to suspend the writ was thus given. Congress have only power to suspend the privilege to persons committed by their authority. A person committed under the authority of the States will still have a right to the writ' " (2d Elliott's Debates, 108.)
In the act of ratification by the Convention of New York is this remarkable clause, among others, explanatory of their understanding of the Constitution: "That every person restrained of his liberty is entitled to an inquiry into the lawfulness of such restraint, and to a removal thereof, if unlawful; and that such inquiry and removal ought not to be denied or delayed, except when, on account of public danger, the Congress shall suspend the privilege of the writ of habeas corpus. *
"Under these impressions, and declaring that the rights aforesaid cannot be abridged or violated, and that the explanations aforesaid are consistent with the said Constitution,.... we, the said delegates, in the name and on behalf of the people of the State of New York, do by these presents assent to and ratify the said Constitution." (Supplement to the Journal of the Federal Convention, published in Boston in 1819, pp. 428 and 431.)
The Convention of Rhode Island also ratified the Constitution with certain explanatory declarations; among them is the following:
"VII. That all power of suspending laws, or the execution of laws, by any authority, without the consent of the representatives of the people in the Legislature, is injurious to their rights, and ought not to be exercised." (Idem, p. 455.)
In the debate in the Virginia Convention, Mr. Patrick Henry, in speaking of the 9th section, used this language:
"The design of the negative expressions in this section is to prescribe limits beyond which the powers of Congress shall not go....... The first prohibition is, that the privilege of the writ of habeas corpus shall not be suspended, but when, in case of rebellion or invasion, the public safety may require it. It results clearly that, if it had not said so, they could suspend it in all cases whatsoever.... (Elliot's Deb., Vol. III, p. 461.) See also remarks of Gov. Randolph, quoted ante, p. 9.
These were the declarations in four Conventions called for the ratification of the Constitution; and in that of New York, it will be observed, that it is expressly set forth, in their act of ratification, that the power of suspension is in Congress.
The first occasion for the consideration of the question of the suspension of the writ of habeas corpus after the Federal Government went into operation, arose in consequence of Burr's conspiracy. -- Mr. Jefferson was then President, and it is well known was not a personal friend of Burr. It ought to be presumed that Mr. Jefferson knew as much as Mr. Lincoln does of the intention, objects and designs of the framers of the Constitution, and whether he, as President, was invested by the Constitution or otherwise with, the power assumed by Mr. Lincoln. Mr. Jefferson not only recognized Congress as the depositary of this power, but requested that body to exercise it so that he might be better able to suppress the impending insurrection. The Senate passed the bill, "An act to suspend the privilege of the writ of habeas corpus for a limited time in certain cases." The vote on the passage of this bill in the Senate appears to have been unanimous. In the House the bill was rejected, so jealous was this body of the rights of the American people. --
The following extracts from the debates on the question, as collated by Mr. Bullitt in his Review of Binney's pamphlet on the suspension of the writ of habeas corpus, will show that there was no question then as to where the power was vested to suspend tin privilege of this act.
Mr. Burwell said, "If that be the case, upon what ground shall we suspend the writ of habeas corpus? ..... Nothing but the most imperious necessity would excuse us (i. e. Congress,) in confiding to the Executive, or any person under him, the power of seizing and confining a citizen, upon bare suspicion, for three months, without responsibility for the abuse of such unlimited discretion." ...
Mr. Elliott said, "We can suspend the writ of habeas corpus only in a case of extreme emergency. ...... But we shall be told that the Constitution has contemplated cases of this kind, and, in reference to them, invested us with unlimited discretion. When any gentleman shall advance such a position, we shall meet him upon that ground, and put the point at issue."
Mr. Eppes said, "By this bill we are called on to exercise one of the most important powers vested in Congress by the Constitution of the United States....... The words of the Constitution are, '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.' The wording of this clause of the Constitution deserves peculiar attention. It is not in every case of invasion, nor in every case of rebellion, that the exercise of this power by Congress can be justified under the words of the Constitution. ...... The Constitution, however, having vested this power in Congress, and a branch of the Legislature having thought its exercise necessary, it remains for us to inquire, whether the present situation of our country authorizes, on our part, a resort to this extraordinary measure."
Mr. Varnum said, " I consider the country, in a degree, in a state of insecurity; and if so, the power is vested in Congress, under the Constitution, to suspend the writ of habeas corpus ......
Mr. Smilie said, "A suspension of the privilege of the writ of habeas corpus is, in all respects, equivalent to repealing that essential part of the Constitution which secures that principle which has been called the palladium of 'personal liberty.' If we recur to England, we shall find that the writ of habeas corpus in that country has been frequently suspended. But under what circumstances?. ...... We have taken from the statute of this country (England) this most valuable part of our Constitution. The Convention who framed that instrument, believing that there might be cases when it would be necessary to vest a discretionary power in the Executive, have constituted the Legislature the judges of this necessity; and the only question to be determined now is, does this necessity exist?" (3d vol. Benton's Deb., 504-514.) On the 17th of February, 1807, the House of Representatives proceeded to consider the motion of Mr. Broom, to wit: "Resolved, that it is expedient to make further provision by law for securing the privilege of the writ of habeas corpus to persons in custody, under or by color of the authority of the United States."
Mr. Broom said, "This privilege of the writ of habeas corpus has been deemed so important that by the ninth section of the first Article of the Constitution it is declared that it shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.' Such is the value of this privilege that even the highest legislative body of the union -- the legitimate representatives of the nation -- are not intrusted with the guardianship of it, or suffered to lay their hands upon it, unless when, in cases of extreme danger, the public safety shall make it necessary. This constitutional provision was intended only as a check upon the power of Congress in abridging the privilege, but was never intended to prevent them from intrenching it around with sound and wholesome laws; on the contrary, it was expected that Congress were prohibited from impairing at their pleasure this privilege, -- that they would regard it as of high importance, and, by coercive laws, insure its operation."
Mr. Bidwell said, "The Constitution, by restricting the Legislature from suspending it, except when, in cases of rebellion or invasion, the public safety may require a suspension, had recognized it as a writ of right, and our statutes had authorized certain courts and magistrates to grant it."
Mr. G. W. Campbell said, "This provision evidently relates to Congress, and was intended to prevent that body from suspending by law the Writ of habeas corpus, except in the cases stated, and has no relation whatever to the act of an individual in refusing to obey the writ, -- such refusal or disobedience would not certainly suspend the privilege of that Writ, and must be considered in the same point of view as the. violation of any other public law made to protect the liberty of the citizen."
Mr. Holland said, "But, sir, so far as respects the habeas corpus, the suspension of it applies to the Legislature, and not to persons. The Constitution says, it shall not be suspended but in case of rebellion, or when the public safety requires it. This prohibition manifestly applies to the Legislature, and not to persons in their individual capacity."
Mr. J. Randolph said, "The Writ of habeas corpus is the only Writ sanctioned by the Constitution. It is guarded from every approach, except by the two Houses of Congress." (3d vol. Benton's Debates, pp. 520-540.)
In 1842, in the debate on the bill to idemnify Gen. Jackson for the fine imposed on him by Judge Hall, at New Orleans, Mr. Bayard said, "Congress may indeed suspend the privilege of the Writ of habeas corpus, but cannot declare martial law to be the law of the United States, or any part of them...... The Constitution says, Congress shall have power to declare war, to raise armies, to provide a navy, to provide arms and munitions of war, and to make rules for the government of the land and naval forces. On these limited and specific powers it has been inferred that Congress may declare martial law. To avoid this very conclusion there is an express provision in the very next section, among the restrictions on the powers of Congress, declaring that the remedy of the Writ of habeas corpus shall not be suspended, unless in cases of rebellion or invasion All Congress can do, even in cases of rebellion or invasion, is to suspend the privilege of the Writ of habeas corpus; and that can be done by Congress only -- not by an officer of the Government -- without its authority." (Vol. XIV Benton's Debates, pp. 627.)
On January 14, 1843, the same subject was discussed in the House of Representatives.
Mr. Hunt said (after quoting the ninth section of the first Article of the Constitution, which provides that 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), "Who was to be the judge of that necessity? Was it the President of the United States, or any subordinate officer in command? No; it was the Legislature of the country that was the judge, and the only judge of that necessity. He supported the position by citing the practice of Mr. Jefferson, who, in 1807, as President of the United States, applied to Congress for a temporary suspension of the writ of habeas corpus for three months; which, however, was refused by the House of Representatives, where the bill was defeated, which had passed the Senate for that purpose."
In the House of Representatives, in the debate on the bill to indemnify General Jackson, January 2, 1844, Mr. Barnard said, " The Constitution gave Congress authority to pass laws for the regulation of the army and navy of the United States, and under that, Congress have passed laws for the government of the army and navy and the militia. That code was applicable to the officers and soldiers, and to the militia, when in service; but it was not applicable to any other human being. Congress itself could not proclaim martial law. It might suspend the habeas corpus act, but it could not suspend the Constitution. A proclamation of martial law by the Congress of the United States would, of itself, be a violation of the Constitution." (Vol. XIV. Benton's Debates, p. 657.)
In an opinion delivered by Mr. Attorney-General Cushing, upon the subject of martial law, and the suspension of the habeas corpus, in February, 1857, growing out of a proclamation of martial law by the Governor of Washington Territory, in order to suspend the habeas corpus, this language is used : "The opinion is expressed by commentators on the Constitution, that the right to suspend the writ of habeas corpus, and also that of judging when the exigency has arisen, belongs exclusively to Congress. It may be assumed, as a general doctrine of constitutional jurisprudence in all the United States, that the power to suspend laws, whether those granting the writ of habeas corpus, or any other, is vested exclusively in the Legislature of the particular State." (Opinions of Attorneys-General, Vol. VIII, p. 365.)
So much for historical proofs embracing also the opinions of the statesmen, patriots and jurists of the better days of the Republic.
Judge Taney having already quoted the opinion of his illustrious predecessor, Chief Justice Marshal, I shall not repeat the opinion of that eminent jurist as given in the case, ex-parte Bollman and Swartwout, but refer the reader to it as quoted by Judge Taney. I will only add one quotation from Judge Story, who in his commentaries on the Constitution, says: Sec. 1336, "Hitherto, no suspension of the writ has been authorized by Congress since the establishment of the Constitution. It would seem, as the power is given to Congress to suspend the writ of habeas corpus in case of rebellion or invasion, that the right to judge whether the exigency had arisen, must exclusively belong to that body."
To the understanding and judgment of the reader, these facts, historical proofs, decisions of illustrious judges, and opinions of eminent jurists are committed in contrast with the act of will of Abraham Lincoln; and unless the interested motive of the partisan has usurped the place in the American mind which was once occupied by patriotism, it wrll not be in vain for our country's well being that history, common sense and the judgment of our most illustrious ancestors have been cited to prove how utterly absurd are the pretensions to power of Abraham Lincoln, how unwarrantable has been his assumptions of right to set aside the Constitution, to subvert the government, and to deprive individual citizens of their rights of person; and how dangerous to liberty it is to permit these assumptions of power to pass unrebuked, and to be exercised unrestrained.
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* No proof can be more conclusive than this is as to the understanding and intention of the framers of the Constitution. This action of the Convention is in itself a complete corroboration of the argument under consideration. No ingenuity can mystify it. No controversal skill can weaken or destroy its force.
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SOURCE: Dennis A. Mahony, Prisoner of State, (1863), pp. 75-88.
2,703 posted on 07/15/2004 4:40:06 PM CDT by nolu chan [ Post Reply | Private Reply | To 2700 | View Replies | Report Abuse ]
Next time, barf alert please.
Your copy is obviously different. Haavard Version perhaps?
Men lay gasping in the agony of death, and staining the green grass with their blood, as it flowed from their wounds. Children of eight and ten years were pale and motionless as if asleep under the trees, and women cried in pain as they lay upon the ground. One, a girl of fourteen, presented a mournful picture, as she reclined against a stump, her face cold and white from the sudden touch of death.
Undoubtedly, another credit to the administration.
I have to dispute your idea. Do you have any idea how WIDE the entrance to Charleston Harbor is? NO WAY would they have been able to block entrance to the harbor. I know from personal experience on this one. I was in the Navy, and my sub passed that way everytime we went out to sea.
I have to know...what is the cause of your rabid hatred for the South... Do you not like the song "Dixie." Did Robert E. Lee personally shoot your relative? Please provide insight because reading your post is like listening to James Carville discuss Republicans... all p*ss and vinegar and very little objectivity.
Nope. The difference might be that I actually read it.
Why do you equate trying to present the truth with 'rabid hatred for the South'? Since when if fact equal to hatred? Wouldn't the rabid hatred be on your side since it's obvious that no lie is too big to be presented by the southron contingent? Or are you just uncomfortable with your heroes and their actions?
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