Posted on 04/12/2007 9:34:54 AM PDT by TexConfederate1861
On March 5, 1861, the day after his inauguration as president of the United States, Abraham Lincoln received a message from Maj. Robert Anderson, commander of the U.S. troops holding Fort Sumter in Charleston Harbor. The message stated that there was less than a six week supply of food left in the fort.
Attempts by the Confederate government to settle its differences with the Union were spurned by Lincoln, and the Confederacy felt it could no longer tolerate the presense of a foreign force in its territory. Believing a conflict to be inevitable, Lincoln ingeniously devised a plan that would cause the Confederates to fire the first shot and thus, he hoped, inspire the states that had not yet seceded to unite in the effort to restore the Union.
On April 8, Lincoln notified Gov. Francis Pickens of South Carolina that he would attempt to resupply the fort. The Confederate commander at Charleston, Gen.P.G.T. Beauregard, was ordered by the Confederate government to demand the evacuation of the fort and if refused, to force its evacuation. On April 11, General Beauregard delivered the ultimatum to Anderson, who replied, "Gentlemen, if you do not batter the fort to pieces about us, we shall be starved out in a few days." On direction of the Confederate government in Montgomery, Beauregard notified Anderson that if he would state the time of his evacuation, the Southern forces would hold their fire. Anderson replied that he would evacuate by noon on April 15 unless he received other instructions or additional supplies from his government. (The supply ships were expected before that time.) Told that his answer was unacceptable and that Beauregard would open fire in one hour, Anderson shook the hands of the messengers and said in parting, "If we do not meet again in this world, I hope we may meet in the better one." At 4:30 A.M. on April 12, 1861, 43 Confederate guns in a ring around Fort Sumter began the bombardment that initiated the bloodiest war in American history.
In her Charleston hotel room, diarist Mary Chesnet heard the opening shot. "I sprang out of bed." she wrote. "And on my knees--prostrate--I prayed as I never prayed before." The shelling of Fort Sumter from the batteries ringing the harbor awakened Charleston's residents, who rushed out into the predawn darkness to watch the shells arc over the water and burst inside the fort. Mary Chesnut went to the roof of her hotel, where the men were cheering the batteries and the women were praying and crying. Her husband, Col. James Chesnut, had delivered Beauregard's message to the fort. "I knew my husband was rowing around in a boat somewhere in that dark bay," she wrote, "and who could tell what each volley accomplished of death and destruction?"
Inside the fort, no effort was made to return the fire for more than two hours. The fort's supply of ammunition was ill-suited for the task at hand, and because there were no fuses for their explosive shells, only solid shot could be used against the Rebel batteries. The fort's biggest guns, heavy Columbiads and eight-inch howitzers, were on the top tier of the fort and there were no masonry casemates to protect the gunners, so Anderson opted to use only the casemated guns on the lower tier. About 7:00 A.M., Capt. Abner Doubleday, the fort's second in command, was given the honor of firing the first shot in defense of the fort. The firing continued all day, the federals firing slowly to conserve ammunition. At night the fire from the fort stopped, but the confederates still lobbed an occasional shell in Sumter.
Although they had been confined inside Fort Sumter for more than three months, unsupplied and poorly nourished, the men of the Union garrison vigorously defended their post from the Confederate bombardment that began on the morning of April 12, 1861. Several times, red-hod cannonballs had lodged in the fort's wooden barracks and started fires. But each time, the Yankee soldiers, with a little help from an evening rainstorm, had extinguished the flames. The Union garrison managed to return fire all day long, but because of a shortage of cloth gunpowder cartridges, they used just six of their cannon and fired slowly.
The men got little sleep that night as the Confederate fire continued, and guards kept a sharp lookout for a Confederate attack or relief boats. Union supply ships just outside the harbor had been spotted by the garrison, and the men were disappointed that the ships made no attempt to come to their relief.
After another breakfast of rice and salt pork on the morning of April 13, the exhausted Union garrison again began returning cannon fire, but only one round every 10 minutes. Soon the barracks again caught fire from the Rebel hot shot, and despite the men's efforts to douse the flames, by 10:00 A.M. the barracks were burning out of control. Shortly thereafter, every wooden structure in the fort was ablaze, and a magazine containing 300 pounds of gunpowder was in danger of exploding. "We came very near being stifled with the dense livid smoke from the burning buildings," recalled one officer. "The men lay prostrate on the ground, with wet hankerchiefs over their mouths and eyes, gasping for breath."
The Confederate gunners saw the smoke and were well aware of the wild uproar they were causing in the island fort. They openly showed their admiration for the bravery of the Union garrison by cheering and applauding when, after a prolonged stillness, the garrison sent a solid shot screaming in their direction.
"The crasing of the shot, the bursting of the shells, the falling of the walls, and the roar of the flames, made a pandemonium of the fort," wrote Capt. Abner Doubleday on the afternoon of April 13, 1861. He was one of the Union garrison inside Fort Sumter in the middle of South Carolina's Charleston harbor. The fort's large flag staff was hit by fire from the surrounding Confederate batteries, and the colors fell to the ground. Lt. Norman J. Hall braved shot and shell to race across the parade ground to retrieve the flag. Then he and two others found a substitute flagpole and raised the Stars and Stripes once more above the fort.
Once the flag came down, Gen. P.G.T. Beaugregard, who commanded the Confederate forces, sent three of his aides to offer the fort's commander, Union Maj. Robert Anderson, assistance in extinguishing the fires. Before they arrived they saw the garrison's flag raised again, and then it was replaced with a white flag. Arriving at the fort, Beaugregard's aides were informed that the garrison had just surrendered to Louis T. Wigfall, a former U.S. senator from Texas. Wigfall, completely unauthorized, had rowed out to the fort from Morris Island, where he was serving as a volunteer aide, and received the surrender of the fort. The terms were soon worked out, and Fort Sumter, after having braved 33 hours of bombardment, its food and ammunition nearly exhausted, fell on April 13, 1861, to the curshing fire power of the Rebels. Miraculously, no one on either side had been killed or seriously wounded.
The generous terms of surrender allowed Anderson to run up his flag for a hunderd-gun salute before he and his men evacuated the fort the next day. The salute began at 2:00 P.M. on April 14, but was cut short to 50 guns after an accidental explosion killed one of the gunners and mortally wounded another. Carrying their tattered banner, the men marched out of the fort and boarded a boat that ferried them to the Union ships outside the harbor. They were greeted as heroes on their return to the North.
Thank you for the source then. Hamdi v. Rumsfeld was decided in 2004 though. Being the later of the two, Rehnquist's views expressed there trump any earlier claims.
But in his address he was correctly pointing out that the matter had never been before the entire Supreme Court for a ruling and in that he's right as well.
Except that he himself signed a ruling to that effect only 4 years later.
That's the court's point - nobody but Congress can suspend it, therefore habeas must have been in effect.
Hamdi was a split decision that answered 3 or 4 different questions. The plurality decision was written by O'Connor with Rehnquist, Kennedy, and Breyer. Scalia was joined by Stevens in writing a concurrence on some points and dissent on others, giving the plurality a majority. Souter was joined by Ginsberg for a similar concurrence/dissent that gave the plurality a majority on other points. Thomas was the only full dissent on all points.
On the matter of who could suspend habeas corpus, both the plurality by O'Connor and the Scalia opinion agreed that it was only Congress.
That gives them 6 justices on this point: Scalia, Stevens, O'Connor, Kennedy, Rehnquist, and Breyer.
From Justice O'Conner's majority decision:
"All agree that, absent suspension, the writ of habeas corpus remains available to every individual detained within the United States. Only in the rarest of circumstances has Congress seen fit to suspend the writ. At all other times, it has remained a critical check on the Executive, ensuring that it does not detain individuals except in accordance with law. All agree suspension of the writ has not occurred here."
If suspension of the writ had not occured then how could it be a matter for the court to decide who could suspend it? And if it was not a matter for the court to decide then statements that only Congress can suspend the writ are made in dicta.
It's clear from both the majority and minority opinions that had the question of who may suspend habeas corpus been a part of the case then the Court would have come down on the side of only Congress having that power. So should Bush ever suspend it on his own we're pretty sure how the court would vote. But until he does, or some future president does, then the question remains unresolved. Regardless of how you feel about it.
I believe that if you checked the Chief Justice's writings you would find he's been pretty consistent in his belief that only Congress can suspend habeas corpus. Chief Justice Marshall believed it, Chief Justice Taney believed it, deep down I think that Chief Justice Chase probably believed it, Chief Justice Rehnquist believed it, I believe it, you believe it, most people would agree with it. But unfortunately the Constitution isn't specific on who may suspend it. Chase touched on the ambiguity in his Milligan decision, and the matter of whether the president can suspend the writ has never been ruled on by the entire court. I doubt it ever will be for three reasons. The first is that current presidents aren't faced with situation Lincoln had where Congress is in recess from March until December. The second is that the President probably knows where the Court would come down on the matter if they ever had the chance to rule on it. The third is that the chance of invasion or rebellion is pretty remote.
Very easily. In order to make the determination that the writ has not been suspended it is first necessary to know under what conditions a suspension may occur and whether those conditions are currently established. Not only is this a necessary determination - it is one that is plainly required by precedent. In a widely quoted and widely affirmed holding, Ex Parte Bollman says "the power to award the writ by any of the courts of the United States, must be given by written law." If the writ is given to the courts by written law then it is not in suspense, and can only come into suspense when that written law is taken away from the courts. I know of no other way in our system of government to alter the written law than by a bill of Congress. It necessarily follows from this, as Marshall concluded, that a bill of Congress must be passed in order to suspend the writ of habeas corpus.
And if it was not a matter for the court to decide then statements that only Congress can suspend the writ are made in dicta.
Your understanding of obiter dictum is both amateurish and wrong. Obiter dictum refers to that which is external to the opinion's ratio decidendi - the component principles of law used to construct the rationale of the decision. A judicial dictum is inserted as a corrollary device of the case, often to illustrate or speculate on a point of law. If the text in question comprises a part of the decision rationale though, it is not dictum. In Ex Parte Bollman the source and nature of authority conferred by Suspension Clause was overriding rationale of the decision.
It matters not whether the court determines a suspension had occurred (which would be an absurd criterion analogous to asserting that a court cannot try a person for murder whose guilt is not already known, because a suspension by definition must be constitutionally permitted or otherwise it is not a suspension but an unconstitutional arrest of the writ's execution), but rather only whether the legislative origins of the suspension clause comprise a part of the rationale upon which the case is decided. Per Marshall's repeated and explicit language referencing this legislative origin, it clearly did comprise the case's ratio decidendi - a fact that has been repeatedly confirmed by subsequent federal court treatment of the case as a settled matter of precedent.
The Constitution is not specific on the power of judicial review either. Judicial review is nonetheless accepted as a settled matter of precedent from Marbury v. Madison. The same goes for the Suspension Clause from Ex Parte Bollman, hence the recent reaffirmation by a 6 member majority of the Supreme Court that only Congress may suspend habeas corpus in Hamdi v. Rumsfeld.
Chase touched on the ambiguity in his Milligan decision
Justice Chase did not write Ex Parte Milligan. Justice Davis did. You also incorrectly attributed the following statement to the Milligan ruling back in #423, which I presume to be what you are referring to here:
While we do not admit that any legislation of Congress was needed to sustain this proclamation of the President, it being clearly within his power, as commander-in-chief, to issue it; yet, if it is asserted that legislative action is necessary to give validity to it, Congress has seen fit to expressly ratify the proclamation by the act of March 3d, 1863, by declaring that the President, whenever in his judgment the public safety may require it, is authorized to suspend the writ of habeas corpus in any case throughout the United States, and in any part thereof.
In yet another stunning display of your ineptness on this matter, the passage above that you quoted above and attributed to Ex Parte Milligan does NOT in fact come from the Supreme Court ruling, but rather the opening statement of the Attorney General's office when it was arguing the case! The court, of course, ruled against the Attorney General's position.
...except for one problem. That passage is NOT from the ruling of Ex Parte Milligan. It is from the Attorney General's argument before the Supreme Court. The Supreme Court soundly rejected the Attorney General's position in Milligan. Nice try though.
I don’t think Calhoun thought there WAS a guarantee of a balance, but felt that there NEEDED to be one. Under the circumstances, I think he was proven right. This country could have avoided a bloody war, etc.
I think that guilt would not have been an issue. You must remember that there were close friendships on both sides, and that settling the issue peacefully was a preference. If Lincoln had given way on the point of secession, I think that things would have smoothed out quickly.
The South only took posession of public property within their territory. They didn’t STEAL anything.
Just want to keep clearly in mind exactly what "state's right" was in question.
They took property which didn't belong to them. That's a definition of stealing in any book.
I feel guilty if I've done something wrong. If I haven't done anything wrong then I don't feel guilty. Are you suggesting the South had something to feel guilty about?
Or they can just look and see that nobody has suspended the writ. Wouldn't that be easier? Justice O'Conner apparently had no problems recognizing that. Chief Justice Marshall didn't find that the writ had been suspended. The only one who seems to have a problem realizing that the writ hadn't been suspended seems to be you. And since the court cannot rule on something had hadn't happened then they can't rule on who may suspend the writ.
Obiter dictum refers to that which is external to the opinion's ratio decidendi - the component principles of law used to construct the rationale of the decision.
Then apparently the entire legal community is wrong as well. They all seem to think that it refers to comments made by a judge on a point that didn't arise in the case. The question of who may suspend habeas corpus didn't arise in Bollman because nobody had suspended it. It didn't arise in Hamadi because nobody had suspended it then either. Comments made in both cases concerning suspension of habius corpus were made in dicta. Everyone seems to realize this except you.
It was in THEIR territory. It wasn’t a embassy. So your definition is flawed.
Since suspension is a legal act, it is necessary to determine whether the legal conditions of a suspension have been met. Simply saying "it's suspended" doesn't suffice in a court of law.
Justice O'Conner apparently had no problems recognizing that.
O'Connor recognized it through a methodical legal case that assessed the conditions of suspension in detail. That same case found one of those conditions to be an act of Congress.
The only one who seems to have a problem realizing that the writ hadn't been suspended seems to be you.
No. That would be your own intentional mischaracterization of my argument. A suspension can only occur if constitutional criteria are met. Otherwise it is not a suspension.
And since the court cannot rule on something had hadn't happened then they can't rule on who may suspend the writ.
You're logic is skewed. By the same principle, a court could not hear the case of a genuinely innocent person accused of a crime since they can't rule on something that didn't happen. But that, of course, would be absurd as is your amateur conceptualization of obiter dictum.
Not at all, I was under the inpression that YOU felt they did.
And yet you cannot produce so much as a single person OTHER than yourself who identifies the Bollman rule as "dicta." Meanwhile I've provided multiple other federal court rulings from judges who have cited the Bollman rule on the suspension clause as a matter of settled precedent. It seems in fact that the only person here who fails to realize the ratio decidendi characteristic of the Bollman rule is you.
By the way: the term "dicta," which you keep using in all circumstances, is plural. The proper term is "dictum," the instance of the Bollman rule being a singular alleged example. Needless to say, your repeatedly demonstrated unfamiliarity with the term's grammatical usage reflects directly upon your shallow comprehension of the term itself.
Typo - you’re should be your.
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